
    No. 11,758.
    Mrs. Emma Brownson vs. William F. Weeks et al.
    The wife may, after the death of the husband, ratify the act by which she had bound herself and her property for his debt during his lifetime. The nullity of such act is only absolute in this sense that she can not ratify it as long as she is under marital influence. The ratification may be express or tacit. Lafittevs. Lelogny, 3B An. 658.
    In executed contracts which may be tacitly ratified a presumption of ratification results from silence and inaction during the time fixed for prescription.
    The prescription of five years, under Art. 3542, C. C., applies to an action brought by a wife to set aside a j adicial sale which had been made during her husband’s life, in enforcement of a mortgage granted by her to secure his debt. Vaughn vs. Christine, 8 An. 830. Prescription commences, as fixed by Art. 2221, C. O., from the date of the dissolution of the marriage.
    
      Watldns, J., Concurring. The prohibition contained in R. C. C., Art. 2398, does not apply to and is not founded upon public order. It is only a personal statute; founded exclusively upon the personal relations between husband and wife, and resulting from marriage under our law. It establishes an incapacity to contract, which, though absolute in a certain sense, and so long as the marital influence continues, is, lilre the incapacity of a minor, voidable only, and may be the subject of ratification, whether expressed or implied, after marital influence has ceased
    
      APPEAL from the Seventeenth Judicial District Court for the Parish of St, Mary. Allen, J.
    
    
      J. Sully Martel and Branch K. Miller for Plaintiff, Appellant:
    Where the legality of a transaction depends, not on the nature of the transaction but on the capacity of the party to contract, the rule as to innocent third persons has no application. 5 N. S., 55; 5 An. 495.
    As to the incapacity of the wife to bind herself, that she can not be estopped; when property is sold by her in violation of the prohibitory law, under which she can not become liable for her husband’s debt, the rule governing third persons does not apply. 34 An. 123; 7 N. S. 64; 31 An. Y34; 34 An. 288; 15 An. 569; 1 An. 428; 36 An. 824; 32 An. 1023; 42 An. 951; 29 An. 75, 123; 37 An. 209; 24 An. 251; 41 An. 494, 649; 12 An. 853; 33-An. 1008; 14 An. 169; 9 An. 589; 2 An. 756; 33 An. 1010; 45 An. 373; 21 An. 567, 655; 28 An. 855; 8 Robinson, 435; 14 An. 587; 31 An. 684; 33 An. 170; 45 An. 75; 44 An. 880.
    
      Gilbert L. Hall and Fenner, Henderson & Fenner, for Defendants, Appellees:
    The insufficiency, or even the the total absence, of judicial authorization, does not of itself involve the nullity of a contract of loan and mortgage made by a married woman with the authorization of her husband. The only effect of such absence is to shift the burden of proof on the question as to whether the loan was for the benefit of the wife’s separate estate. Darling vs. Lehman, 35 An. 1188, and authorities cited.
    Nullities in the onerous contracts of married women, resulting from the contravention of laws made solely for their protection, are not absolute in such sense as to authorize the disregard of such contracts, or to permit them to be collaterally invoked.
    They are perfectly susceptible of ratification by the married woman after her disability is removed, and such ratification is a “ presumption juris et de jure from silence and inaction during the time fixed for prescription.” Vaughan vs. Christine, 3 An. 328; see also 13 La. 389; 5 An. 369; 18 An. 152; 33 An. 169.
    
      Such contracts and titles to property based thereon can not be assailed until their nullity has been judicially decreed in a direct action brought for that purpose. Delaspare vs. Warner, 14 An. 413; 10 La. 269; 24 An. 445; 1 An. 38; 6 Rob. 100.
    This is an action for the nullity and rescission (1) of the note and mortgage of the plaintiff, a married woman; (2) of executory proceedings taken in execution thereof; (3) of the judicial sale made thereunder; (4) of the sale made by the purchaser to the defendant, Weeks. The petitory demand for the property is merely conditional and consequential on the decree of the nullities prayed for.
    The action is, therefore, one “ for the nullity or rescission of contracts and other acts,” within the precise letter and meaning of the first clause of Art. 3542, Rev. C. 0., which prescribes such actions by five years.
    This prescription was suspended during the coverture of plaintiff, but began to run from her husband’s death, which occurred on March 17, 1887, while the action was only brought in September, 1893. The plea of prescription was properly sustained.
    It is elementary law that where suit is brought to annul a title to immovable property and there are previous titles intervening, which must also be annulled, the parties to such prior titles must be brought into the suit before the relief'can be granted. Mrs. Caroline Brownson, who sold to Weeks under full warranty, held the property as purchaser at the judicial sale made under the executory proceedings on the note and mortgage of plaintiff, and is an indispensable party to this suit, in whose absence plaintiff could, in no event, recover.
    A sale under executory process is a judical sale. Weeks, whose perfect good faith is fully established and not even questioned, bought on the faith of a recorded title in his vendor derived from a judicial sale, and is entitled to the benefit of the settled rule that the purchaser at a judicial sale is not bound to look beyond the jurisdiction of the court which ordered the sale. If the court had jurisdiction to order the sale, that is sufficient. Webb vs. Keller, 39 An. 67, and authorities there cited.
    Argued and submitted, April 9, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 3, 1895.
    
      Plaintiff brings this action for three several tracts of land, which are in possession of the defendant. She sets up title in her from one Ipigenié Frere, wife of Gabriel Leclerc Fuselier, by a donation inter vivos, made November 13, 1869.
    That under improper marital influence, and without any consideration enuring to her or to the benefit of her separate property, but to secure a debt due by her husband she executed a mortgage to a Mrs. Catharine Stouff.
    That to pay this mortgage the property now in controversy was sold, and purchased by the mother-in-law of plaintiff, who subsequently sold it to the defendant.
    The District Court rendered judgment in favor of plaintiff against the defendant for the ownership and possession of the third tract referred to in plaintiff’s petition, reserving to her a right of action for fruits and revenues, but sustained defendant’s plea of prescription and rejected plaintiff’s demand in respect to the two tracts mortgaged by her to Mrs. Stouff. It condemned defendant to pay the costs. Plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant moves for a dismissal of the appeal, alleging that after the rendition of the judgment appealed from, which condemned the defendant to pay costs, plaintiff and appellant voluntarily executed the judgment by causing a fi. fa. to issue for the payment of the costs. The fi. fa., which issued, was not at the instance of the plaintiff, but of the sheriff.

The appeal is maintained.

The attack made by plaintiff upon defendant’s title is based upon the claim that the note and mortgage which she executed in favor of Mrs. Stouff, were null and void, for the reason that the debt which she then recognized as being a debt due by herself to the mortgagee (that for which the note was given), was due, not by her, but by her husband — that her husband was at that time already indebted to Mrs. Stouff on past transactions, and that, in and by the act of January 20, 1874, she bound herself and her property for her husband’s debt, in violation of Art. 2398 of the Oivil Oode. That Mrs. Stouff was necessarily aware of that fact, and that third parties were placed upon their guard, as to the character of the transaction, by the certificate of the' judge, which was annexed to the act as furnishing evidence of the fact that she was then dealing in respect to her separate affairs. That this certificate was not only stale, it having been executed as far back as March 1, 1872, while the act of mortgage was passed in January, 1874, but there was a variance, both as to the amount to be borrowed and the property to be mortgaged. Plaintiff declares that she was made to execute the note through marital influence and coercion, and that by the same influence and coercion, and the representations made to her by her mother-in-law at the time, she was prevented from interposing legal obstacles to the enforcement of the mortgage upon her property. That her mother-in-law induced her to believe that the enforcement of the mortgage, and the purchase herself of the property, was necessary for the protection of the plaintiff from the vexatious pursuit of her husband’s creditors, and her inaction was based upon a reliance of the truth of that statement. The plaintiff declares the value of the property in defendant’s possession to be fifteen thousand dollars, and she avers that she is entitled to fruits and revenues at the rate of two thousand dollars per year. The prayer of her petition was that “Mrs. Catherine Stouff and William F. Weeks be cited, and that after proceedings there be judgment in favor of petitioner, decreeing that the note and mortgage * * * be decreed null and void, and that the sale of her property mortgaged, made in execution of said mortgage, be annulled and set aside; that the title of William F. Weeks be therefore annulled, and that she be decreed the lawful owner of all the property herein described, and be ordered placed in possession of the same,” etc.

Mrs. Catharine Stouff answered, admitting that she knew the nature of the debt secured by the mortgage sought to be annulled, but denying all the other allegations of the petition.

Wm. F. Weeks pleaded the general issue, and set up in defence that he was a purchaser in good faith from Mrs. Caroline Brownson; that he had been in continual possession of the property ever since his purchase: that he had made valuable improvements upon the same. He pleaded the prescription of one, two, three, five and ten years against plaintiff’s demand, and prayed in the event of plaintiff’s recovering the land that judgment be rendered in his own favor for the improvements.

The first question which plaintiff discusses is the prescription of five years under Art. 3542 of the Oivil Oode, which was invoked by the defendant. She contends that if any prescription be applicable, it is that provided for, not in Art. 3542, but in Art. 2221 of the Civil Code.

Art. 2221 of the Civil Code declares that: “In all eases in which the action of nullity or of rescission of an agreement is not limited to a shorter period by a particular law — that action may be brought within ten years. That time commences, in cases of violence only, from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered, and for acts executed by married women not authorized, from the day of the dissolution of the marriage or of the separation. With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and, with regard to acts executed by minors, only from the day on which they became of age.”

This article is found in the Oode, under the title of “ Conventional Obligations;” sub-title: “Of the Action of Nullity or Rescission of Agreements,” and corresponds with Art. 1304 of the Oode Napoleon.

Art. 3542 is found under the special title of “ Prescription,” and is as follows:

“The following actions are prescribed by five years:

“ That for nullity or rescission of contracts, testaments or other acts.

“ That for reduction of excessive donations.

“ That for the rescission of partitions and the guarantee of portions.

“ This prescription only commences against minors after their majority.”

It will be seen that the latter article provides a much shorter pre - scription for action of nullity and rescission than that fixed by the first.

It is obvious that there is some sweeping class of actions of nullity and rescission which it was contemplated should not be governed by the provisions of Art. 2221, but should be barred by the prescription of five years. The difficulty is in ascertaining to what actions Art. 3542 applies.

Appellant calls our attention to the case of Mulford vs. Wimbush, 2 An. 443, in which this court held that an action to annul or rescind a contract on account of error, fraud or violence, was prescribed only by ten years from the day on which either was discovered, and in case of violence only from the day on which the violence ceased, and that the provisions of Art. 3507 (now Art. 3542) of the Oode, applies only to cases not included in Art. 2218 (now Art. 2221). She also refers us to State vs. Railroad Co., 34 An. 951.

She next claims that the present suit is purely a petitory action; that the note and mortgage, under which the property was sent to sale by Mrs. Caroline Brownson, were absolute nullities, as was the sale made in enforcement thereof; that there was no necessity to attack the sale or to make Mrs. Caroline Brownson, the purchaser at the sale, a party to these proceedings.

We are of the opinion that the note, mortgage and sale were not absolute nullities. In Lafitte vs. Delogny, 33 An. 665, where the precise question of the character of the nullity resulting from the mortgage by a wife of her property to secure the debt of her husband was submitted to us, we declared that it might be classed as one of those which resulted from the incapacity of the wife growing out of the relation she bears to her husband. After an examination of the whole subject, we held that the mortgage which in that case had been granted by the wife was one susceptible of being ratified after the death of her husband, and that it had, in fact, been so ratified.

The court assimilated the particular contract to which the wife was forbidden to enter into without the consent of her husband, and referring to Art. 1786, Civil Code, which declares that the unauthorized contracts made by married women, like the acts of minors, may be made valid after the marriage is dissolved either by express or implied ratification, said “that in the power of ratification thus conferred it saw no distinction made in the contracts which might be ratified, and no limitation of the power to ratify to any particular class of contracts.”

It is said that when the law declared that the wife could not bind herself for' her husband or become surety for his debts, this was to protect her against acts resulting from her dependence on her husband, and that it would not spring into life or obtain vitality unless the wife, emancipated from marital authority, and restored to her full and complete capacity to contract, chooses in the exercise of her freedom to ratify it, and by such ratification endow with being a contract which, up to that time, had remained dormant, or never existed. Citing the maxim, “ ratione cess ante cessat lex,” the court treated the nullity in the contract as one arising from a relative nullity of “ capacity ” in the wife, and in so doing it was in accord with Fuzier-Herman under Art. 1108, O. N., citing Laurent, who says: “ L’incapacité purement civile d’une des parties, au contraire, peut rendre la convention annulable, mais non inexistante; ce dernier effet ne serait produit que s’il s’agissait d’une incapacité naturelle de consentir, se confondont avec l’absence deeonsentment.” Laurent, Vol. 15, n. 454. The same author, referring to the prescription of nullities which could be invoked under Art. 1304 of the Code Napoleon, which corresponds with our Art. 2221, says that prescription, when applicable, is based upon the theory and presumption of ratification or confirmation. Laurent, Vol. 19, b. 14.

We adhere to the principle announced in Lafitte vs. Delogny that a contract of this character is subject after the death of the husband to ratification or confirmation by the wife, and we think that this confirmation or ratification, may, under Art. 1786, C. 0., be either expressed or implied. If the contract has been executed, silence by the wife after the husband’s death during the prescriptive period, would be an implied ratification.

We do not think that the nullity of the contract was such as to' make it absolutely non-existent; it simply, during marriage, remained without effect. It was not of that character which “the law would always and constantly resist.” Art. 1L of the Oivil Oode says, that “ individuals can not, by their conventions, derogate from the face of laws made for the preservation of public order or good morals. But in all cases in which it is not expressly or impliedly forbidden, they can renounce what the law has established in their favor when the renunciation does not affect the rights of others, and is not contrary to the public good.”

We think the law relative to a wife’s not binding herself or her husband’s property was enacted specially in her interest and only remotely in that of the public. Primario spectat utilitatem privatem secondario publicam.

Art. 2305, O. O,, referring to payments made by parties says: “That which has been paid under a void title is also considered as. not due.” If the widow of John Brownson had, after his death, finding this note of hers executed during marriage still outstanding, gone forward and paid it, we do not think it would be contended that she would be entitled to the action in repetition which she would have had for a payment made by her in virtue or a title absolutely void.

The only attack made upon the sale in this case is the claim of the absolute failure of the basis upon which it rested the note and the mortgage. The proceedings themselves are not attacked. We think it was essentially necessary that the present action should have been brought in order to replace matters as they stood prior to the sale. The vice which attached to the original contract of mortgage was not absolute nor patent on the face of the record, but required, in order to bring it to light, proof of extrinsic facts. Mrs. Emma Brownson, the plaintiff, was a party to the act, and she could not ignore that fact — the fact that the contract had been executed years before through a judicial sale in enforcement of the mortgage, and the property was in the hands of a third possessor, claiming ownership. She could not bring a direct petitory action for the property, as she could have done, had her husband sold her property himself in order to pay his debt, or it had been sold in execution of a mortgage which he had placed upon it for that purpose. It was necessary that the sale at which Mrs. Caroline Brownson became the purchaser, should be set aside before Weeks, the subsequent purchaser of the same, could be reached, and to that end it was essential that Mrs. Caroline Brownson should have been made a party. Defendant is correct in saying that the present action is primarily an action of nullity or rescission, and that in so far as it is petitory, it is only consequentially so. Plaintiff went into the suit upon a contrary hypothesis, without proper parties and pleadings, at her own risk.

If the plea of prescription invoked by the defendant be sustained it will 'dispose finally of the case.

We endeavored to examine the record in the case of Mulford vs. Wimbush, 2 An. 443, to which counsel for plaintiff has referred us, with a view of ascertaining the character of the contracts involved therein, the precise circumstances under which it was brought, and the nature of the pleadings, but found that unfortunately it had been placed as among the “ missing records of the court.” It seems to be the only decision really bearing upon the question before us. Several others have incidentally referred to the prescriptions under Arts. 2221 and 3542, but the remarks made do not seem to have been necessary for the purposes of the eases before the court, either because other and shorter prescriptions were pleaded which were determinative of the issues, or because the facts of the cases making the longer prescription (of ten years) applicable, it was important to refer specially to the shorter one of five. We have, in view of the importance of the question, examined it with care.

When the framers of our Oode reached the subject of the ex-tinguishment of obligations, they assigned “nullity and rescission” as one of the manners in which this was brought about. Among the articles making up that sub-title, they placed the present Art. 2221 (formerly Art. 2218), corresponding with Art. 1304 of the Code Napoleon. They were not dealing with the subject of “prescription” at that time; that was a subject thereafter to be taken up. They were uncertain what the final condition of the law on that subject would be, and in our opinion Art. 2221 was simply intended to reach cases which might escape from other provisions of the Oode. They however announced as a general rule that whatever might be the prescription fixed for cases wherein error, violence, or deception might be assigned as the causes for actions of rescission, and whatever might be that >or setting aside acts executed by persons interdicted, acts executed by married women not authorized, or minors, the starting point for prescription should be as announced in Art. 2221. If the court, in 2 An. 443, reached the conclusion that the prescription of Art. 2221 had to be adopted in that case in order to give the plaintiff the benefit of the period fixed therein for the commencement of prescription, for the reason that Art. 3542 was silent on that subject, we think the court erred. The second and third paragraphs of Art. 2221, though not repeated in Art. 3542, were none the less carried over into the latter article. We do not think that, in order to reach those particular provisions of the law, it was necessary that actions of nullity or rescission, based on fraud, error, violence, minority, interdiction of incapacity of women from want of authorization, should have been held to have been brought under the prescription of ten years. To do this would practically be to wipe out Art. 3542, which is as sweeping in its terms as it is possible to be in making five years the period for prescription for actions for the nullity or rescission of contracts. These particular causes are precisely those on which such actions are generally based. They furnish the foundation usually for setting aside what are known as voidable contracts.

In our opinion the prescription of ten years applies to a different class of cases. It reaches those where contracts, perfect and complete on the face of the act evidencing them, are attacked as absolutely null and void in order to have them so decreed through proof of extrinsic facts establishing the absence of one of the elements essential to the very existence of the contract, for instance, a contract ot sale or exchange where one of the things exchanged or the thing sold was found to have had no existence at the date of the contract. The State vs. Railroad, 34 An. 951, referred to by plaintiff, is an illustration of such a suit. In succession of Wilder, 22 An. 219, the prescription of five years was successfully pleaded against an attempt made to avoid after maturity a marriage contract made during minorty, the court holding that the contract was not void, but voidable.

In the case at bar, we think the evidence shows unquestionably that the plaintiff was in a position at one time to have repudiated the contract she made or to have undone the sale made under it. She permitted the mortgage to be foreclosed and the property to be judicially sold in its enforcement. She is not before us seeking to ward off an impending injury upon an unexecuted contract, but as a plaintiff seeking to undo, long after the rights of third parties have become involved, the harm which timely action on her part could have either avoided or minimized.

In Vaughan vs. Christine, 3 An. 330, this court, after citing Toullier as saying: “ En un mot nous ne connaissons point de nullite fondée sur l’interet privé qui ne puisse étre réparée par la ratification expresse ou tacite. Le vice le plus absolu des convention, le defaut ou la non-existence du consentement, put neanmoins etre réparépar la ratification, soit expresse, soit tacite,” declared that “in all executed contracts which, under this view of the law may be tacitly ratified, a presumption, juris et de jure of ratification, results from silence and inaction during the time fixed for prescription, and held that plaintiffs action was barred by the prescription of five years pleaded. No legal impediment has for six years stood in the way of Mrs. Emma Brownson bringing an action in nullity. She permitted the defendant to continue for years in the possession of the property, making valuable improvements and making outlays, many of which he could not now recover. The nullity which she invokes was a relative one in her own interest and subject to ratification. We think that law and equity unite in authorizing us to say that her long silence has resulted in barring an attack upon defendant’s title. Matters have gone too far to be now remedied. “ Multa fieri prohibentur quae si facta fuerent firmitatem.” We think the judgment appealed from is correct, and it is hereby affirmed.

Concurring Opinion.

Watkins, J.

From the record'it appeai’3 that the plaintiff executed an act of mortgage upon her separate property to secure the payment of her note for one thousand five hundred dollars in favor of Mrs. Catherine Stouff, on the 20th of January, 1874, and that the said indebtedness -was that of her husband — the judge’s certificate of authorization being appended to the act.

Shortly afterward Mrs. Stouff assigned the note to Mrs. Caroline Brownson, mother of the plaintiff’s husband, and she foreclosed the mortgage and purchased the property on the 5th of September, 1875, and conveyed it to the defendant on the 24th of September, 1880.

The grounds of nullity assigned by the plaintiff are, (1) that the mortgage was granted to secure the indebtedness of the husband; (2) that it was secured and maintained through the marital influence of her husband.

The judge held that the defendant was a purchaser in good faith; but that inasmuch as no prescription runs between husband and wife, it did not begin to run until after the death of plaintiff’s husband in the year 1887; and, consequently, the period of time necessary to found defendant’s title by prescription acquirendi causa (R. C. C., 3478) had not elapsed at date suit was filed. R. C. C., 503.

But he gave effect to the defendant’s plea of five years’ prescription liberandi causa (R. C. C., 3542), which declares that an action for “ the nullity or rescission of contracts, testaments, or other acts,” “ are prescribed by five years.” (Our italics.)

There is no question about the regularity of the executory proceedings and judicial sale to Mrs. Brownson, the only claim that the plaintiff makes in reference thereto being that she made it under the false representation that it was to protect the property from other creditors of the husband of plaintiff.

On this state of the case there is but a single question presented for solution, and that is whether plaintiff’s action to annul the act of mortgage is barred by the five years’ prescription librandi causa.

Her suit is intended to procure her release from the effect of her promise to pay her husband’s debt, and to procure the revocation of the act of mortgage she consented as a security therefor.

Her theory is that the nullity of those acts being absolute, it draws to them the nullity of the subsequent acts of sale, judicial and conventional.

The Code declares that “ the wife * * * can not bind herself for her hu3band * * * for debts contracted by him before, or during the marriage.” R. C. C. 2398.

It is on the prohibition which that article contains that plaintiff mainly relies, and the success of her pretensions necessarily turns upon the character of the nullity therein denounced — whether absolute or relative.

For, if absolute, the argument is that the nullity is incurable; not subject of ratification or prescription. While, qn the other hand, it is that, if relative only, the converse of that proposition is true, in every particular. That, if absolutely null, it was so ab initio, and never produced any legal results. That prescription can not create a right nor make an obligation.

Plaintiff’s contention is that the mortgage was an absolute nullity, and that its nullity permeates and renders void the subsequent transactions.”

But her further contention is, that if the act be only relatively null, the prescription of ten years, prescribed in R. C. C. 2221, controls, instead of that of five years, as prescribed in R. C. C. 3542 (3547).

The case of Lafitte vs. Delogny, 33 An. 659, presents conditions quite similar to those presented in this case, and involved the nullity of an act of mortgage by a wife given to secure a debt of her husband, and subsequent foreclosure and sale of the property mortgaged, the same having been ratified by the surviving widow after the demise of her husband, in a written act of ratification, “ and by her silent acquiescence in the proceedings and sale she again ratified the contract on which they were based.”

On this hypothesis the court propounds this question, viz.:

Admitting that the debt originally was the debt of her husband, which she thus ratified and promised to pay, did such ratification create any legal obligation on her part, and make the debt a valid debt against her from the time it was made?

“In other words, was the mortgage given by her for the debt of the husband — conceding it to be such — a nullity so absolute and radical as could not be ratified by her after the death of her husband, and she was thus freed from marital influence?”

The same question confronts us here, although the ratification of the wife’s prohibited contract rests alone upon “her silent acquiescence in the proceedings and sale.”

In making reply to that query, the court held and maintained the principle that under our law, as under the French law and jurisprudence, there are two distinct and different kinds of absolute nullities in matters of contract; (1) those resting upon motives which are violative of good morals or public policy; (2) those resulting from the incapacity of persons to enter into contracts of any kind.

Of the former they say it is a nulliiy, “so absolute and radical that the law always and constantly resists it, and makes and declares it non-existent, and not susceptible of ratification; ” and of the latter they say that, though dormant and non-enforeible during the continuance of the incapacity, yet same may become the subject of ratification, after the incapacitated person has been relieved of her disability. Vide Dunod Traite de Prescrip., Ch. 8, p. 47; Toulier, Vol. 4, p. 533; Vaughan vs. Christine, 3 An. 328, quoted in Lafitte vs. Delogny.

The court, in applying those principles to the facts of that case, say:

“The nullity charged respecting the act of mortgage executed by Mrs. Delogny in favor of her son in this case, may be classed among the nullities which result from the incapacity of the wife growing out of the relation she bears to her husband;” and “icis evident that when the law declares that the wife can not bind herself for her husband, or become security for his debts, this was to protect her against acts resulting from her dependence on her husband.”

The reason assigned for this rule of law is, that it operates a protection to the wife’s separate property.

This dual principle is fully recognized and sanctioned by our Code. For while, in Art. 11, it is declared that “individuals can not, by their com entions, derogate from the force of laws made for the. preservation of public order and good morals;” and in Art. 12 it is declared that “ whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed;” yet, it is further declared in Art. 1790, that besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases by the administrator of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband to alienate her dotal property, ,or to become security for his debts.”

Special significance attaches to this article in view of the fact that it is found in the chapter of the title “ of Conventional Obligations ” which treats of the parties to a contract and their incapacity to contract. ,

Reading those two articles together, the conclusion is clear that the court correctly held the nullity in the contract of Mrs. Delogny to be one which resulted from her incapacity as a wife; and it is equally evident that the prohibition of Art. 2398 is not one which comes within the purview of Art. 11, and hence an engagement in violation of it does not result in an absolute nullity which derogates from the force of laws made for the preservation of public order or good morals.

The court in that case say that the contract of the wife in such case may be assimilated to other contracts which the wife is forbidden to enter into.” Citing Art. 2397, and making the following comment, viz.: They ” — Arts. 2397 and 2398 — “ seem to stand on the same footing; and, it is worthy of note that Art. 2397 forbidding the wife to sell her'immovables, and Art. 2398, containing the prohibition against her binding herself for her husband’s debts, constitute of themselves one section, and Is entitled ‘ of the wife’s incapacity to alienate her- immovables, or to bind herself for her husband,’ and therefrom draw the inference that the two are of the same general character * * * Now, it will hardly be questioned that a married woman who sells her immovables without the authority of her husband can ratify such sale after the dissolution of the marriage, yet the same terms of prohibition are used in both articles.”

In confirmation of this theory, Art. 1786 — which is found in the same section of the Code as 1790 supra — declares that “ the unauthorized contracts made by a married woman, like the acts of minors, may be made valid after the marriage is dissolved, either by express or implied ratification.”

The principles on which the opinion in the Delogny case is predicated are sanctioned and supported by numerous prior adjudications of this court. In fact, I have not been able to find any well considered case holding that such prohibited contract of a wife was not susceptible of tacit ratification after she is released from the restraints of marital authority.

As the decisions on this and kindred questions cover a wide range, and embrace a variety of judicial opinions, I will only make a few quotations from those best expressing the jurisprudence of this court in the premises.

In The Augusta Insurance and Banking Company vs. Morton, 3 An. 417, the court, speaking through Bustis, C. J., said:

“ The article of the Code which provides “ that the wife can not bind herself for the debts of her husband, according to the doctrine of the civilians, is a personal statute. It is founded exclusively on the personal relation between the husband and wife, resulting from marriage under our laws, and, of course, is confined in its opetation to married persons within our jurisdiction.

“ True, it establishes an incapacity to contract, but this incapacity is merely relative, and it is settled by our jurisprudence that a wife can not be relieved from the effect of a contract by which she became the surety for her husband, if the debt itself inured to her benefit. The disability to contract exists only in a certain contingency, and that contingency is strictly personal. The incapacity of a married woman to contract is of the same character as that of a minor, and the laws creating those incapacities have always been classed among those which are called personal.

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“This article, R. C. C. 2398 (2412) * * * renders voidable contracts made by married women in certain cases, by reason of the consideration which it holds to be in conflict with the relations of husband and wife.” Citing: 1 Duranton, Secs. 79, 80; Sirey’s Rep. 19, 2, 140; Traité des Personnes par Prudhon, Ch. 5, Sec. 1.

The same principle is affirmed in Bisland vs. Provosty, 14 An. 169, in the following statement, viz.:

“Under our Art. 2412, which is confined exclusively to the contracts of married women, it is supposed that the wife may be induced to sign a contract injurious to her rights under the marital influence.”

It has been frequently held that a promise to pay a debt of the husband for which the wife had become security, made by the surviving widow subsequently to his death, was binding on the latter. Succession of Guidry, 4 An. 488; Gunst vs. Brull, 7 An. 649.

In Medart vs. Fasnatch, 15 An. 621, it was said of a married woman’s contract of suretyship for her husband, on which a judgment had been rendered, that “as long as the disability lasts a judgment obtained against the man and wife * * * is liable to the same objection as the obnoxious obligation.”

In Barron vs. Sollibellas, 26 An. 289, it was held to be competent for a married woman to make a transaction and compromise of a lawsuit, and that she cannot afterward “ be listened to when saying that the debt on which she was sued was a debt of her husband.” Thornhill vs. Bank, 34 An. 1171; Sentell vs. Stark, 37 An. 679; Calhoun vs. Lane, 39 An. 594.

In the Bank of Lafayette vs. Bruff, 33 An. 624, it was held that a married woman, who has bound herself towards an innocent third person as surety of a party between whom and her husband there existed a secret partnership, can not afterward plead, as against such third person, that by her contract she had promised to pay her husband’s debt.

That principle was subsequently affirmed in Chaffe & Sons vs. Watts, 37 An. 324.

And in treating of the wife’s prohibited contract of security for her husband this court expressly declared in Chaffe vs. Oliver, 34 An. 1008, that:

“ Of course, these doctrines have their limitations when they involve the rights of innocent third persons, who have acted in good faith upon the apparent validity of such transactions.”

And one of those limitations is specified in Henry vs. Gauthreaux, 32 An. 1103, in these words:

“While the law and the jurisprudence have, at all times, favored married women in the assertion and vindication of their rights, they have never intended, and do not contemplate, the perpetration of fraudulent practices for the accomplishment of villainous objects, by which to enrich themselves gratuitously at the expense of their unguarded and trusting neighbor, on whom equity keeps a watchful eye.” R. O. O. 1965.

These various illustrations will serve to show most conclusively, I think, that the prohibition contained in R. O. O. 2398 (2412) against which the present suit is leveled, does not apply to, and is not founded upon public order or good morals; but that article is only a personal statute, founded exclusively upon the personal relations between husband and wife, and resulting from marriage under our law. That it establishes an incapacity to contract, which, though absolute in a certain sense, and so long as the marital influence continues, is, like the incapacity of a minor, voidable only, and may be the subject of ratification, whether express or implied, after marital influence has ceased.

This being the character of the nullity which this article denounces, the reprobated contract is prescriptible, especiJ^ in respect to third persons who have transacted and dealt with the property affected by it on the faith of the public records on which the contract has remained unimpeached during a prescriptible period of time.

In Vaughan vs. Christine, 3 An. 328, the court held the prescription of five years under R. C. C. 3042 (3507) applicable to such a nullity, as the one in this case is defined to be. The substance of that decision is: That absolute nullities are of two kinds: (1) Those resulting from stipulations derogorating from the force of laws made for the preservation of public order or good morals, (2) and those established for the interest of individuals. The former are not susceptible of ratification, and the prescriprion of five years, under Art. 3507 of the Code, is inapplicable to them; but if, by subsequent dispositions of law or by the succession of time, such stipulations cease to be illegal, they may from that time be ratified and become subject to the prescription of Art. 3507 * * * But in relation to absolute nullities established in the interest of individuals, the rule is, as to onerous contracts, without exception, that the party in whose favor they are established, may ratify the contracts, either expressly or impliedly.

“ In all cases of executed contracts susceptible of tacit ratification, a presumption of ratification juris et de jure results from silence and inaction during the time fixed for prescription.'" (My italics.)

In Succession of Wilder, 22 An. 219, it was held that a voidable antenuptial contract of a minor was binding on her, if not disaffirmed by her within five years after she was relieved of her disability; and the court applied the prescription of five years under R. C. C. 3542 (3507).

But we find the strength of the rule stated contra in Provost vs. Provost, 13 An. 574, wherein the prescription of five years, under that article, was held not to apply to a will that was absolutely void, because it contained a prohibited substitution. Lagrange vs. Barre, 11 R. 313, to same effect.

In so far as the contention that the prescription of ten years, under R. C. C. 2221 is alone applicable, is concerned, it was ruled differently in Mulford vs. Wimbish, 2 An. 443. In that case the court had under consideration and construed the apparently conflicting provisions of R. C. C. 2221 (2218) and 3542 (3507) and said:

The former “ re^es to cases of error, fraud or violence in agreements which are expressly included in it. If Art. 3507 intended the same class of cases, there would be two terms of prescription applicable to them by the same legislation in the same code, etc. * * * But we do not give such an interpretation to Art. 3507. We consider it applicable only to cases other than those provided by Art. 2218, and thus give effect to both articles. It will be observed that such appears to be the evident sense of Art. 2218, which presupposes other provisions concerning the prescription against the action of nullity and rescission of agreements than that which it establishes.”

In George vs. Lewis, 11 An. 654, the court said:

“ The action of rescission or nullity of contracts lies only for an alleged vice inherent to the contract itself, tainting it ab initio, ” in order to bring it within the operation of C. C. 3507. Barnebe vs. Snaer, 18 An. 148.

While, on the contrary, the nullity resulting from a want of due form is barred by the prescription of ten years. State vs. Martin, 2 An. 715; Calais vs. Sembre, 10 An. 684; Ross vs. Ross, 3 An. 536.

From all of which I think it clearly results that the plaintiff’s suit is prescribed by five years, and that the judgment appealed from should be affirmed.  