
    Mr. and Mrs. Belouguet v. Dominique Lanata.
    The general rule being that dotal property is insusoeptiblo of hypothecation, it should appear manifestly from the terms of the marriage contract, that the right claimed for its exercise in a particular case was expressly reserved.
    TVhen the marriage contract contained the following clause: “ Les immeubles dotaux pourront étre alienes par lefutur époux, avec le consentement de la future épouse, pendant le mariage ala condition expresse, que remploi de leur valeur sera fait en d’autres immeubles.” Held: That under such a reservation the power did not exist to mortgage the dotal property of the wife for money borrowed to pay off a mortgage in favor of the Citizens’ Bank, which was binding on the property of the wife thus mortgaged.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    
      A. Legwrdem', for plaintiff.
    
      O. Roselius and G. Dufour, for defendant and appellant.
   Spoitobd, J.

In January, 1854, Mrs. Belouguet, assisted by her husband, mortgaged some of her dotal property, to secure the sum of $11,533 30 advanccd upon her promissory notes; the act of mortgage stated that this sum was “advanced in order to enable her to pay certain mortgage debts due the Citizens’ Bank of Louisiana, to Ji A. Dwel, as also certain other debts contracted by her for her use and benefit.”

She and her husband afterwards brought this suit against the holder of the notes and mortgage, to have the mortgage declared null and void; first, because the money thus lent, did not enure to her benefit; and, second, because the property mortgaged being dotal property, she had no right, power or capacity to mortgage the same.

She had judgment in her favor and the defendant has appealed.

We think it sufficiently established by affirmative proof, that the portion of the money loaned, which went to pay the debt of $3,611 20, duo to the Citizens’ Bank, enured to her benefit. It becomes necessary, therefore, to inquire whether the mortgage of the dotal property in favor of the dofendantwas valid in law under the circumstances in evidence before us.

The general rule as laid down in Article 2337 of .the Code, is that “immovables, settled as dowry, can be sold or mortgaged (aliénés M Tvqpothéqués) during the marriage, neither by the husband nor the wife, nor by both together, except as is hereinafter expressed.” *

The only exception to this rule applicable to the present case, is that contained in Article 2340; “ immovables• settled as. dowry, may be alienated with the wife’s consent, when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.”

The marriage contract by which the mortgaged property Was constituted as dowry, contained the following Article, from which the appellant infers that his mortgage is a valid one;

“ Art. 3me. Les immeubles dotaux pourront étre aliénés par le futur époux, avec le consentement de la futuro épouse, pendant le marriage á la condition expresse, que remploi de leur valeur sera fait en d’autres immeubles.”

A power to alienate may, under some circumstances, include a power to hypothecate. And the right of the spouses to stipulate in their marriage contract that the dotal property shall be subject to hypothecation, may also be conceded.

But the question here is, not what might the 'parties have done, but what have they done; not what the Code means, but What the marriage contract means.

The general rule being, that dotal property is insusceptible of hypothecation, it should appeai'manifestly, from the terms of the marriage contract, that the right to mortgage it, in sucha case as the present, was reserved.

But that contract only reserved to the husband, acting with his wife’s consent, the power to alienate her dotal immovables upon the express condition of reinvesting their value in other immovables,

Hero the wife, acting with the husband’s consent, has assumed the power of mortgaging her dotal property for the avowed purpose of raising money to pay off her old debts.

We think it impossible, under any just rule of interpretation to say, that by the qualified power of alienation conceded to the husband, this absolute power of hypothecation was reserved to the wife.

By tho Act of mortgage itself, the mortgagee was notified of the destination of the money ho loaned to a married woman. Ho was bound to know the character of tho property mortgaged, and to inquire into the authority of the mortgagor to incumber it for the purposes specified in the act.

In this court, the appellant has made the point that the wife could not in- ■ stitute an action like the present, until after a dissolution of the marriage or a separation of property, and the Article 2342 of tho Civil Code is cited as sustaining the position.

If she were incompetent to sue, upon which we express ho opinion, the husband was competent, and ho appears as a distinct party plaintiff. C. C. 2330 ; see also C. P. 107.

Tho appellant has apparent reason to complain of the hardship of the case, so far at least as relates to that portion of the loan which went to extinguish a valid mortgage upon Mrs. BelougueHs property in favor of the Citizens’ Bank. But he might have taken a subrogation to the mortgage rights of the bank and did not. ¥e cannot cure the effects of this laches; nor can the hardship ofi a case, lior even the imputed bad faith of a person laboring under a legal incapacity ha,vo the effect to give vitality to an act void in iaw. If the mere imputation of bad faith against a woman under marital authority, would deprive her of the laws made for her protection, they should be expunged from the statute book. For good faith requires her to do whatever she voluntarily engages to do.

• It is true, tho case affords a fresh illustration of the necessity for constant Vigilance which our laws impose upon all persons who deal with married women and minors, or in any way touch their property. But the laws and jurisprudence of Louisiana in this regard, a,re fixed and clear.

And it may be proper to remark that, in the interpretation and application of local laws, it is the local jurisprudence alone which carries with it a controlling weight of authority.

If the Supreme Court of the United States, for which, in its Constitutional sphere, we profess the utmost loyalty and respect, has ever overlooked this wholesome rule, whilst Construing the peculiar laws of Louisiana, it must have overlooked, at tho same time, one of its oldest traditions, and set an example which we cannot follow.

Judgment affirmed.

Merrick, C. J.

It must bo conceded that the decree prepared by a majority of the court, works a very great hardship to tho defendant.

The debt due by the plaintiff to the Citizens’ Bank, and paid by the defendant, was equivalent to a debt of a certain date prior to the marriage contract, C. C, 2341, Her property was so bound by her mortgage to the bank, that a sale of tho property by a syndic or administrator to pay debts, would not extinguish it The money borrowed upon the mortgage given to the defendant, paid this mortgage. The plaintiff having released her property from the mortgage to the Citizens’ Bank, by hypothecating- it to the defendant, now comes into a court of justice, and asks it to relieve her of tho last mortgage, and permit her to enjoy iri peace the property which the defendants money has redeemed.

I doubt much whether I am obliged by the Code, or any principle of our law, to assent to what appears to me to be.so unjust.

I think the weight of authority is decidedly in favor of the position, that the power to alienate, used in a marriage contract, includes also that of mortgaging. See authorities collected in Throp. Du’'.Marriage, No. 8868. We held last year, in the case of the Citizens' Bank v. Armor, 11 An. 468, that a mortgage was a quasi alienation. Indeed I do not understand the opinion just pronounced to controvert this doctrine, but'it 'rests the decree upon the ground that the mortgagee was bound to see the money lentdnvested in other immovables as specified in the marriage contract,. which the majority of the court conclude he failed to do.

Let us consider what was the object of this stipulation in the marriage contract ; certainly it was nothing more than to prevent the dotal funds of the wife from being invested in anything else than dotal property. If that object is’fully accomplished, neither the wife nor her husband have any reason to complain.

When this property was mortgaged to the Citizens’ Bank, there had been a partial dismemberment of property, and by the quasi alienation created by the mortgage, the Citizens’ Bank had acquired a right in the property, and as a consequence, the wife had lost a portion of her dominium over it, for she had no longer the full right to dispose of the property-'as she pleased. Trop. Hyp. No. 386; C. C. 3245, 2007; C. P. 42 and.61. What of property or ownership she had lost, the Citizens’ Bank had acquired. Now, as a consequence, at the time the defendant lent the money to pay the debt, the plaintiff was not the absolute owner of the property. The defendant saw the money applied to the payment of the debt of the Citizens’ Bank, by. means of which the right of that bank to the property was extinguished, and the right which the bank had held, reinvested in the plaintiff. There had then been a substantial reinvesting of her dotal funds, obtained on the mortgage to defendant, to the extent of the debt of the Citizens’ Bank. It is true it was not invested in another immovable, but it was invested in another real action, constituting a part of the dominium in the immovable. C. P. 01. Why, therefore, is it not as much within the spirit of the marriage contract,, as would be the case if the wife had been the owner of the property constituted in dower to the extent, say, of seven-eighths, and had mortgaged the.seven-eighths in order to invest the proceeds in the purchase of the outstanding one-eighth ? Or, being the owner of the naked property, had mortgaged it to buy in the usufruct f This would not literally be a reinvestment in another immovable, but it seems to me, would be a substantial compliance with the contract, and I am inclined to think that there was the like compliance in the .acquisition to the plaintiff of the mortgage of the Citizens’ Bank.

It may moreover be remarked, that the debt of the Citizens’ Bank authorized that institution to seize and sell tho property mortgaged in the hands of the plaintiff. By Article 2841 of the Civil Code, that debt being equivalent to a debt of a certain date anterior to the marriage, it Was in the power of the Judge to authorize the sale not only of the property mortgaged, but any other dotal property for the payment of the debt. The debt to the Citizens’ Bank being, therefore, so absolute, it is against natural equity that these parties should be permitted to enrich themselves by its' extinguishment at the expense of the defendant, and thus derive their means of living, during the marriage, from a house which the defendant’s money has partially paid for, and which is thus protected from the pursuit of the creditors of these parties.

Holding these views, I am not prepared to assent to the decree in this case, so far as the same declares the mortgage null, for the money which was used in the payment of the debt of the Citizens’ Bank.

Buchanan, J.

dissenting. The object of this action is to annul a mortgage given by a married woman, and a Sheriff’s sale of the mortgaged property.

The mortgage has been foreclosed by legal process, after notice of the debtor and strict compliance with all the forms of law. It is not alleged, that the defendant was guilty of fraud or ill practice in these proceedings, nor that they were in any respect irregular.

But the plaintiff, Mrs Belouguet, rests her action upon the following grounds :

1st. That no part of the monejr for the loan of which the mortgage was given ever enured to the benefit of the mortgagor.
2d. That the property mortgaged, being dotal, was not susceptible of mortgage.

The mortgage recites, that the loan is made to Mrs, Belouguet, “in order to enable her to pay certain mortgage debts, due to the Citizens' Banlc and to J, A. Durel, as also certain other debts contracted by her for her own use and benefit.” A mortgage certificate of even date with, and recited at full length in the mortgage, shows the property to be encumbered with a mortgage in favor of J. A. JDu/rel, to secure the. payment of a note of twenty-five hundred dollars, maturing the very day of the mortgage now under consideration, (January, 4th, 1854,) “which note," says the act, “waspaid this day by said Fcrnrés unto said Durel, as the said Mrs. Belouguet hereby acknowledges J' The contradiction between these solemn declarations of Mrs. Belouguet, when borrowing defendant’s money, and the equally solemn declarations of her petition in this action to defeat her security for the loan, presents one of those immoral spectacles which elicited the animadversion of the Supreme Court of the United States in the case of Bein v. Heath, a Louisiana contract, reported in Gth How. U. S. Reports. After reviewing the Louisiana decisions, in connection with the Gist law of Toro, and with the Articles 2412 of the Louisiana Code, Mr. Justice McLean, as the organ of the court, proceeds to say: “But there is another view arising from the facts of this case, which will be now considered. It is a principle in chancery, that ho who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently, or who, by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abettor of iniquity. And wo suppose, that this principle applies to the case under consideration. A feme covert, acting on her own responsibility, under the liberal provisions of the Louisiana law, may act fraudulently, deceitfully or inequitably, so as to 'deprive her of any claim for relief. This results from the capacity to make contracts, with which the law invests her. Heath, the agent, as has already been said, acted in good faith. He proceeded deliberately, under legal advice, and there is no ground to charge him with unfairness or collusion against Mrs. Bein. Assurances were made to him, in the presence of his counsel, by Bein, acting in behalf of his wife, that the loan was for her ; that it was bona fide and without any concealment. Resting upon these and other assurances, the contract of lo'Sn was made, the mortgage was executed by Mrs. Bein, and the money paid to her, under the direction and sanction of his counsel. Now if these representations were false, and' and Heath was thereby induced to part with the money, can the complainant have a standing in equity ? such a proceeding would be fatal, it is supposed, under the law of Toro. Eor if it were admitted, that to make the law binding on the wife, it must be proved to have inured to her use; yet, if through the fraudulent intervention of the husband, she negotiated the loan, giving to it her special sanction, equity would not relieve her.' A doctrine contrary to this would enable the wife to practice the grossest frauds with impunity. In the repeal of the law of Toro, and in substituting .in-its place Article 2412, tho Legislature gave the most unequivocal evidence against the policy of that part of the repealed law which required proof to charge the wife, that the money borrowed was applied to her use. But* in affirming the decree of the Circuit Court, we place our opinion upon the unconscientious acts of the wife.”

The case before us is much stronger for defendant, in the equitable view of the above quotation; for in Mrs. Bern's case, the' representations of the loan being for her use, were made by her husband in negotiations preceding the loan; whereas here, those representations are made by both the husband and the wife in the authentic act of mortgage itself,'with specifications of the particular debts of the wife which the loan is to be used to discharge. Since the case of Bein v. Heath, I take it there can bo no ;doubt that any creditor, who in tho quality of alien, or of citizen of another State, would be entitled to remove a suit like the present instituted against him from the State Court into the Eedcral Court, would bo sure of a judgment" The married woman would not be allowed, in that court, to gainsay her declarations in the act of mortgage, that the money loaned was for her own use, and if this be the jurisprudence of the Supreme Court of tho United States, the very serious question arises, whether there shall be one law in Louisiana for alien creditors of married women, and another, less favorable for creditors who are citizens of the State : whether the married woman is bound by her contract with the former, while she is at liberty to repudiate her contract with the latter. Such a state of things would be as unjust towards our own. citizens as it would be anomalous. I am in favor of making our doctrine conform to that of the case of Heath v. Bein. Our predecessors quoted, .with approbation in the case of Helwig v West, in 2 An., the language of Ulfusia: Beeipientibus mulieribus senatus eonsultvm a/milio non est. Infirmitas famiriewum, non oalliditas, aux-ilium mw'uit.

But in the present case, besides the declarations of the act of mortgage, it has been proved by three witnesses that the following debts of Mrs. Belouguet were paid with the money borrowed from defendant:

1st. A note of Mrs. Belouguet in favor of J. :A.' Bur el, secured by a prior mortgage on this property, for................ $2,500
2d. Her bond to the Citizens’ Bank for a.stock loan upon the mortgaged property....................-................. 3,611
3d. Taxes on the property......................... 63 It is also found by one witness, and by checks payable to Mrs. Belouguet and by her endorsed, that there was paid by defendant into her own hands.................. 3,074
Making a total, disbursed by defendant, either to Mrs. Belouguet personally, or for her use, of....................... $0,248

The evidence also shows, that Mrs. Belouguei was engagod in commercial business in her own name at the date of the mortgage, and that she made a cessio bonorum some eleven months after that date, and about four months before the institution of this suit. Her note for $2,500 to Duro!, must, therefore, have been protested, to the ruin of her commercial credit, had she not obtained the loan from defendant; which thus postponed, although it did not finally prevent, her bankruptcy.

The counsel of plaintiff, in view of these facts, abandons in this court the ground of want of consideration for tho notes of Mrs. Belouguei, secured by this mortgage; admits that defendant might have a personal action against her; but insists that the mortgage is void, as having been effected upon dotal property. Upon this ground, the record displays, to my mind, a deception practised by tho plaintiffs, which ought to deprivo tbom of tho remedy invoked.

In the act of mortgage, immediately following the description of the property mortgaged, is this enunciation of tho mortgagor’s title: '■’■which, property belongs to said Mrs. Belouguet, for having been bequeathed to her by Mrs. Murrie Gabriel Eugenie Peyroux, widow by ¿first marriage of Bierre Desislet, and by second marriage of Louis Lenoix, as will appear by an act of delivery of said property, passed before Louis T. Gaire, late Notary Public in this city, on the thirtieth of December, 1836.”

There is not the slightest intimation, either in the act of mortgage or in tho act of delivery, therein referred to, that the property thus acquired by inheritance by Mrs Belouguet dui’ing her marriage was dotal. Without further explanation, the language of the act in this place would strike any lawyer as describing a paraphernal or extra-dotal estate, of which tho wife has the administration, and which she may, consequently, mortgage. C. C., 2300, 2361. Other recitals in the mortgage would confirm this impression, by showing that Mrs. Belouguet had already granted several speoial mortgages upon this very same property. It is only when the first mortgage note held by defendant falls due, and the property is seized, that defendant is informed, by a document annexed to tho petition in this suit, that Mrs. Belouguet had constituted as part of her dowry in a marriage contraot -made three years before her acquisition of this property: “ tous Tes Mens qui pourront lui éehoir par succession oií par donation, d Vexception des esela/vesThe dotal character given to future acquisitions by the marriage contract was evidently material, and should have been communicated to the mortgagee. It was tho duty of the mortgagor to give the morgagee all the information requisite to a proper understanding of the security upon whioh he was lending his money. The concealment of this material fact in the act of mortgage is an example of the suppressio veri, whioh amounts to fraud, entirely within the definition and rules contained in Article 1841 of the Code. But can such suppressio veri be invoked as a means of annulling the contract by the party who has practiced the concealment ? The Article 1875 answers the question. “Engagements made through error, violence, fraud or menace, are not absolutely null, but are violable by the parties who have contracted under the infiuenee of such error, fraud, violence or menace, or by the representations of such parties."

It appears to me evident, that even if we allow Mrs. Belouguet to take advantage of her concealment of the dotal character of the property mortgaged, we cannot, consistently with principle, and with our own decisions, allow her to do so, without reserving in our judgment the obligation to reimburse to defendant the amount expended by him on her account, on the faith of this mortgage, as above stated. Dearmond v. Courtney, 12 An.

Q. Boselius, for a re-hearing:

The appellant respectfully petitions for -a re-hearing, and begs leave to submit the following observations in support of his application:

In the opinion delivered by the majority, of the-court, it is observed : “We think it sufficiently established by affirmative, proof; that the pbrtion of the money loaned, which went to nay the debt of $3,611 20, due to the Citizens’ Bank, enured to her benefit.” Hence, it is clear that the attitude, in which the plaintiff stands before this honorable court, is this : she alleges that she has executed a special mortgage on her dotal property, on the faith of w the defendant has lent her $11,533 36, and she exhibits at the same time, $3,611 20 of the money thus obtained, as still in her hands, (for that sum haying been paid for her benefit, must be considered, so far as the decision of this question is concerned, in the same light as if she still retained it,) and she asks the court to rescind the contract of mortgage, but to permit her to keep the defendant’s money. Is a demand so shockingly iniquitous and so outrageously unjust, sanctioned by the laws of Louisiana? Surely, before this question is finally answered in the affirmative, this honorable court will pause.

In discharging incumbrances on Mrs. Belouguet's property, the defendant has acted as the special mandatary of that lady; and she is bound in law to reimburse bim what he has thus exp'erided; C. C., 2991. By the act, and with the money of defendant Mrs. Belouguet's property has been disencumbered. She should not be allowed to enrich herself athis.expense. It is even admitted in argument, that the Citizens’ Bank mortgage was valid, although the property was dotal. See the 25th section of the charter of the bank; Acts of 1833,190. But it is said this cannot avail the defendant, because there has been no subrogation of the rights of the bank in favor of the defendant, either conventional or legal.

By Article 2156 of the Code, paragraph 2, ther'e is a conventional subrogation when the debtor borrows a sum of money for the purpose of paying his debts, and intending to subrogate the lender in the rights of the creditor. The subsequent portion of the paragraph, which enacts that there should he a notarial receipt showing that the payment has been made with the funds furnished for that purpose by the new creditor, has, in my opinion, no application to this case; being intended as a rule of evidence in contests among creditors. As against the debtor, the enunciations of the act of loan are equivalent to the notarial receipt. It does not lie in the mouth of these plaintiffs to dispute the application of the money borrowed from defendant to the payment of antecedent mortgages.

; The husband of Mrs. Belouguet is a party plaintiff, not only for the purpose of assisting his wife hut in his own right also, claiming the revenues of-the property mortgaged since its alienation at Sheriff’s sale, on the ground that the husband is by law administrator of the dotal property — and claiming, for such administration, the inalienability as for the dotal property itself. This claim is, perhaps, not more inequitable thán'the claim of the wife; but it seems to me to have less foundation in law. Indeed, neither law nor precedent is referred to which would relieve Mr. Belouguet from his contract: for he was certainly a party to the contract of loan, and mortgage which led to the judicial alienation of his wife’s property. ’ ’

I am of opinion, that the judgment should be reversed as to plaintiff Belouguet ; and amended as to Mrs. Belouguet, by requiring her to reimburse to- defendant the money by him paid to her and for her benefit, on the faith of the mortgage of the 4th January, 1854.

I. Your Honors say, “ that the appell ant has apparent reason to complain o the hardship of the case, so far at least, as relates to that portion of the loan, which went to extinguish a valid mortgage upon Mrs, Behouguet’s property in favor of the Citizens’ Bank.” I am aware that the hardship of a case affords no argument for disregarding the stem rules of law; and I therefore do not urge it upon the consideration of the court; but I humbly submit that the rules of law applicable to the subject do not give the slightest countenance to the unjust pretensions of the plaintiff; * * * * * * * * * * * *

Conceding that dotal property is not susceptible of being mortgaged, or is to be viewed as extra eommereium, during the marriage, it does by no means follow, that the contract of mortgage can be annulled or rescinded,' without compelling the plaintiff to restore the money which she has received in consequence of it, and which she either still retains or which has been employed to pay a debt she owed, and against the payment of which she had no defence. No principle of law is better settled and more universally recognized, than that, when a suit like the present is brought for the rescission of a contract, or to obtain a restitutio in integrum, the parties must be replaced in the same position which they occupied before the contract was made. It is true that when the ground for the rescission arises from want of capacity in one of the parties, or the absence of a thing in eommeroio to form the object of the contract, the obligation of restitution is limited to the actual benefit or advantage derived from the transaction, and has its source or origin not in the contract itself, but in the direct and immediate operation of equity and law, which will not permit one person to enrich himself at the expense of another. This is only the application of the great principle, that it is the primary and paramount province of the law to protect and vindicate legal rights — not to encourage spoliation. It is hardly necessary to refer to authorities in support of principles so elementary and fundamental. Our Code is replete with textual provisions in which the rule is enumerated in express terms. Articles 1784-5-6-7, O. C.

Art. 1784. “ 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 a 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. These take place only in the cases especially provided by law, under different titles of this Code.”

Art. 1785. “ The persons who have treated with a minor, the person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease, or by those who legally administer the rights of such person during the disability. Even a contract made with a slave may be enforced by the master if he chooses to affirm it for his benefit.”

Art. 1786. “ If the contract be reciprocal it must not be enforced on one side only; and if the minor, or other incapacitated person, opposes his incapacity against any part of the agreement, the whole of the contract is void.”

Art. 1787. “If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit Of such incapacitated person, any consideration be paid or given, and the contract be after-wards invalidated on account of such incapacity or want of form, the consideration so paid or given, must be restored, if it was applied to the necessary use or benefit of the incapacitated person.”

Art. 2226. -“ When minors, persons under interdiction or married women are admitted, in these qualities, to the benefit of restitution against their engagements, the reimbursement of what may have been paid in consequence of those engagements during minority, interdiction or marriage, cannot be required of them, unless it be proved that what was paid accrued to their benefit.”

Art. 1312 of the Napoleon Code is literally the same as Art. 2226 of our own Code.

é Mareadé, p. 675, No. 901. — “ L’effet de la nullité ou de la rescisión, prononcée par le juge, est d’anéantir l’acte qui en est l’objet, de le rendre légalement non avenu, et do remettre par conséquent les choses en l’état oh elles étaient avant l’accomplissement de cet acte.

“ II suit de la, que l’annulation ou la .rescisión met les parties dans la nécessité de restituer tout ce qu’elles ont pu recevoir-¡eh vortu de l’acte annulé ou rescindé. Mais ce principe, qui s’appliquo rigoiwhtisement aux majeurs capables, reijoit exception, d’aprés notre article, pour ¿es mineu'rs, les interdits ot les femmes mariées. Ceux-ci ne sont teiius derestituer ce qu’ils ont regu que dans los limites dans lesquelles ils se sont enrichis ; et c’est a celui qui leur demando la restitution á prouver qu’ils ont profité de la chose.” 2 Mourlon, p. 675. . 12 Duranton, Nos. 561-2. ■ - ■'

In the case of Tippet and Husband v. Jett, 3 R. R., p. 316, the Supreme Court said:

“ It is a general rule in all actions of rescission, that the party seeking relief must offer to restore his adversary to the situation he was in before the contract. He who seeks equity must do equity.”

So in the case-of Walden v. the OiUj Bamk, of New Orleans, 2 R. R., p. 179, the Supremo Court uses the following emphatic language:

“It is.quite manifest that there can be no rescission of a contract, without placing the parties in the situation they were in before the contract was entered into. It would be absurd to rescind a,, sale, for example, without restoring the price. This principle has been often recognized by this court, in relation to one class of actions of rescission, perhaps the most frequent in our courts, to wit: those of redhibition. The word itself implies, the replacing of the parties in the position they were in before the contract. It is now settled in this court, that such an action cannot be maintained without an offer to make restitution.”

Indeed, as before stated, the rule is. elementary, and is laid down in every book treating on the subject. I deem it, therefore, needless, to multiply authorities, especially as our own Code provides for the very case now before the court in Articles 1784 and 1787; for the judgment pronounced by the majority of the court is in direct violation of the express and-imperative rules laid down in these articles. For this reason alone, I am sure, the court will not hesitate to grant a re-hearing.

II. There is another reason why the present application should be granted. In alluding to the hardship of the case, the court observes: “ But he might have taken a subrogation to the mortgage rights of the bank, and did not. We cannot cure the effects of his laahes ; nor can the hardship of a case, nor even the bad faith of a person laboring under a legal incapacity, have the effect to give validity to an act void in law.” With all due deference and respect, I am bound to say, that this sentence contains two palpable errors. First, it is obvious that there was no necessity of taking a conventional subrogation, because, by paying the Citizens’ Bank its superior mortgage claim, the defendant, who had an inferior mortgage, was legally subrogated-to that of the bank. On this subject the Code is clear and explicit, Art. 2157, § 1; and, in the second place, the proposition has never before been laid down so broadly and unqualifiedly as your Honors have done, that an incapablepersón cannot bind himself by his bad faith. An examination of the subject, I am certain, will satisfy the court that the doctrine here enunciated is stated much too broadly. The true principle is developed by Mareadé, with his characteristic strength and clearness; he says in his commentary on the 1307th Article of the Napoleon Code, corresponding with Article 2221 of our Code:

“Nos anciens auteurs avaient déjá fait observer que la circonstance qu’un mineur s’est tout simplement declaré majeur,. sans donner aucune preuve á l’appui de son affirmation, ne pouvait pas faire obstacle á sa restitution, attendu qu’il est bien facile á celui qui traite avec un mineur, de ne pas se contenter de cette déclaration, et qu’une telle clause, si on lui donnait l’effet d’empécher la rescisión, deviendrait de style dans toutes les conventions. Mais on a toujours été d’accord pour reconnaítre que le droit de faire rosoindor s’évanouirait si lo mineur, au lieu de faire sculement á cet ógard une déclaration pufo et simple, arrivait a tromper l’autro partió sur son age par dos manoeuvres frauduleuses, par exemple, en présentant un faux acte denaissance. (Pothier, loa ait.; Domat, part. 1, liv. 4, tit. 6, see. 2, No. 7.)

“La raison dit assez, et il a d’ailleurs été formellement declaré au Corps Législatif et au Tribunat, qu’il en serait de méme sous le Code.” (Eonet, T. XIII, p. 289 et 373.)”

Pothier, the real author of the Napoleon as well as the Louisiana Code, holds the same doctrine:

“Par le droit remain, les mineurs qui, en cantractant, avaient par mensonge persuadé á. colui avec qui ils cantractaient, qu’ils étaient majeurs, n’étaient pas rostituables contre cet acte. L. 2, God. si minor se magorem dimerit.

“ Nous ne suivons pas cette disposition de droit, parco qu’ello ouvro une voie d’éluder la restitution on entier. Oeux qui contracteraient avec des mineurs feraient insérer dans l’aote qu’ils se sont dits majeurs, et diraiont toujours que le mineur les a trompés, quoique souvent ce serait plutót un artifice pratiqué da leur part, que do celle du mineur; o’est pourquoi, dans notro jurisprudence, on n’a point égard á la fausse énonciation de majorité pour excluro les mineurs de la restitution; c’est á colui qui contráete avee le mineur a s’informer de son áge : qui own alio eontrahit vel est, val débet esse non ignarus eonditionis ejus. L. 19, ff. de reg. gm\

“II en serait autremont si un mineur, pour se faire croire majeur, avait rapportó un faux acte de baptéme; il est evident que, alors, il serait indigne do la restitution, confoi’mément á la loi 3, aod, si minor, etc. Procédure Civile, Part B, Chap. 3, Art, 2.

Lega/rdem, in answer to the petition for a re-hearing :

I. The loarned counsel for the defendant says: “ Conceding- that dotal property is not susceptible of being mortgaged, it does by no means follow that the contract of mortgage can be annulled or rescinded, without compelling- the wife to restore the money which she has received in consequence of it, and which she either still retains or which has been employed to pay a debt she owed and against the payment of which she had no defence.”

If the learned counsel means simply that the holder of the annulled mortgage has a right of action and may obtain a judgment in personam against the wife, for the portion of the money lent, which is affirmatively shown to have enured to her benefit, I accede to his proposition. But I dissent from it, nay, proclaim it to be wholly untenable, if he means that,. unless or until the wife restores that portion of the loan which has enured to her benefit, the mortgage must be held valid.

The law which prohibits the alienation of dotal property is a law of public order. Dotium eausa semper et ubique praieipua est; nasi bt pubbice interest dotes mulieribtjs CONSERVAR!. Any alienation made in violation of it is an absolute nullity which can, by no means or possibility, be cured, so long as the property remains dotal. Whence it follows, as an inevitable consequence, that the court had no right, power or authority to recognize and give effect to a contract of mortgage made in violation of that law. And yet, in this case, the court is called upon to do indirectly what it has no power to do directly, that is, to declare valid, a mortgage made in violation of that law. Eor no sensible man will deny that the refusal to annul a mortgage, or the affirmance of it until a certain contingency has happened, which may never happen, is virtually to recognize, make valid and give effect to, that mortgage.

This view of the case, if it he correct, and I humbly trust it is, shows at once the inapplicability of the principles invoked by the learned counsel for the defendant.

Thoy are inapplicable : 1st, because this suit is brought, not for the rescission of the meuin or principal conPraat, which is a contract of loan, hut simply for the annulment of the auxilia/ry contract, to wit, the mortgage granted to secure the performance of the principal obligation; 2dly, and because, even admitting- the mortgage was the principal contract, and it clearly is not, siill tho rescission. of it could neither be refused, suspended or delayed in consequence of the plaintiff’s neglect, refusal or impossibility to restore the money which has enured to her benefit, since that contract was made in violation of a law of public order, and is, therefore, absolutely null and void.

In support of this position, I respectfully beg leave to refer the court to the very able argument of Troplong (in the 4th volume of his Oontrat du Mariage), on the action of the husband and that of the wife for the revocation of the sale of dotal property not declared alienable by the marriage contract, and their respective duties, so far as the restoration of the price is concerned. He says :

No. 3532. “Le mari est responsable du prix: cette régle d’équité est absolue. Soit que 1’acheteur ait connu la dotalité, soit qu’il ne l’ait pas connue, le mari, vendeur, doit restituer le prix; car, perdr© la chose et le prix serait une condition trop inique pour l’acheteur. La bonne foi veut que le mari qui a fait la vento, soit tenu du prix qu’il a reiju par suite de cette vente.

“Et ici, nous ferons une remarque importante.:, c’est que le mari est tenu du prix lors mame qu’il n’a fait qu’intervenir áu contrat pour autoriser sa femme.”

No. 3533. “ Co riest pas á cfire pourtant, que 1’acheteur ne devra relacher la chose qu’autant que le mari luí aura pséalablement rendu le prix. La restitution de la chose dótale ne subdt pas de condition. Il faut, avant tout, que le bien dotal revienno é la famille: l’acheteur fera ensuite valoir, comme il l’entendra, sur les biens personnels du mari, 1’obligation de ce dernier de rendre le prix; mais la bien dotal ne doit pas étre frappé d’un droit de retention pour parvenir a cetto restitution; il est libre, inalienable, non sujet a hypothéque ni á aucuno charge réclle. Il ne répond pas des obligations pevsonnelles du mari.

“S’il on était autrement, la revocation de 1’alienation serait illusoire. Cette revocation intéresse la famille; elle se lie á I’ordre public, elle est placee sous la sauvegarde de la loi: dos exceptions de garantie n’en doivent pas entraver la marche.

“ Sans aucun doute, le mari est débiteur du prix; sans aucun doute, il doit rendre ce qu’il a repu : mais c’est la une obligation personnello qui peut fairo l’objet d’une condamnation particuliére, mais qui n’apporte pas d’cbstaclo an délaissement des biens.”

No. 3547. “ Il suit de ce que nous avons dit aux Nos. 3542 et 3544, que la femme qui agit en revendication de son bien dotal n’est pas nécessairemonfc tenue, coime lo mari, do la restitution du prix. de vente. Qu’elle en est 1» raison? O’est quo lo mari est censé avoir prix l’argent tanqu&m patentior,: telle ost la presomption constante et invariablement admise par Ies auteurs dotaux: Pretium rei dotalis alienates, dit Deluca, pressumitm' ad virum pervenisse. Quand mémo il serait dit que le prix a.été payé á ello et au mar?, la présomption subsiste toujours contre le mari. N’oublions pas enfin ce que dift Justinien dans la Novello 02, § 2, que malgré son’eonsentement, la femme doit* étre indemne: “ Et si eonsentíat mulier, stt ómninó indemnis: Assurément elle no serait pas indemne, si elle était obligee de .payer le prix de la chose vendue.”1

No. 3447. “Toutefois, s’il était prouvé que.la femme a profits du prix, on exigerait d’elle la restitution de ce prix: nul ne 'doit s’enrichir aux dépeas, d’autrui.

“Non pas que l’obligation de rendre Te prix -arréte Taction en revendication (Supra No. S533); mide en rendant--la chose, • l’acheteur conserve contre la femme une action pour se faire payer par elle de ce qui a tourné a son profit.”

No. 3549. “ Rcmarquons que c’est á l’acheteur á prouvor que la femme a profité du prix ; ce qui ne se presume pas. Dour faire cette preuve, il ne suffirait pas de dire que l’argent a été versé-dans Te ménage, qu’il a serví ái entretente la femme, qu’il a été employé á payer ses dettes: tous ces emplois sont irréguliers ; la dot n’est pas faite pour que le capital périsse dans de telles destinations.”

It is therefore plain, that the obligation under which the plaintiff in this case may be, to. restore any portion, of the money which, in the opinion of the court, may have enured to her benefit, does .not authorize the court to refuse or delay the annulment of the mortgage. The creditor may have the right to sue her for the restoration of the money which, has enured to her benefit. It may bo the duty of your Honors to reserve his right of action against her. But tho mortgage must be annulled. Por, in the language of Troplong, “ Le bien dotal ne doit pas étre frappé d’un droit do retention pour parvenir á cette restitution : il est libre, inalienable, non snjet é hypothéque, ni á aucune charge réelle. S’il en était autrement, la revocation do l’aliénation serait illusoire; ot cette revocation intéresse la famille; elle se lie á l’ordre public; elle est placée sous la sauve-garde do la loi.”

II. The learned counsel next contends that there was no necessity of taking a conventional subrogation, because, by paying the Citizens’ Bank its superior mortgage claim, the defendant, who had an inferior mortgage, was legally subrogated to that of the bank.

This proposition rests upon two assumptions: 1st., that the defendant paid the mortgage claim of tho Citizens’ Bank; 2d, that he had an inferior mortgage when he paid the Bank. The first of these assumptions is not supported by the evidence before the court; for Mr. Faurbs states, in his testimony, that he received Mr. Lanata’s money when he took the plaintiff's notes to him. Now, that the notary handed over the notes to Mr. Faurbs after the act of mortgage had been duly executed, can hardly be contested, and, by referring' to that act, your Honors will perceive that, at the time of its execution, the bank’s mortgage had already been raised. The second assumption is still less tenable; for it presupposes that the two mortgages, that of the bank and that of the defendant, existed at the same time and do still exist, whilst, in point of fact, the mortgage of the Citizens’ Bank no longer exists and had ceased to exist when the pretended mortgage of the defendant was executed.

But bo this as it may, and assuming, for argument’s sake, that the defendant paid the Citizens’ Bank’s claim, and that the two mortgages existed simultaneously and do still exist, this would by no means enable the defendant to enforce his mortgage, since that mortgage has been declared, and, for the purposes of the re-hearing, is conceded to be, null and void. It would at most authorize the defendant to enforce and act upon the mortgage to which he says he was legally subrogated, that is, the Citizens’ Bank’s mortgage. This he has neither done nor attempted to do. The questions, therefore, whether the bank’s mortgage is still in force, and whether the defendant is legally or conventionally subrogated to it, are not before the court.

Upon tho whole, we humbly believe that the judgment of this court is correct, and pray that it be maintained.

Cole, J.

The plaintiffs brought this suit for the rescission of a mortgage granted by the wife upon her dotal property, to secure the payment of eleven thousand five hundred and thirty-three dollars and thirty-six cents, and there was judgment in their favor in the court below.

Appellant in his application for a re-hearing says: “ Conceding that dotal property is not susceptible of being mortgaged, or is to be viewed as exPra eommereium, during the marriage, it does by no means follow that the contract of mortgage can be annulled, or rescinded, without compelling the plaintiff to restore tho money which she has received in consequence of it, and which she either still retains or which has been employed to pay a debt she owed, and against the payment of which she had no defence.”

“No principle of law is better settled, and more universally recognized, than that, when a suit like the present is brought for the rescission of a contract, or to obtain a restitutio in integram, the parties must be replaced in the same position which they occupied before the contract was made.”

The appellant cites in support of this principle, the following Articles of the Civil Code, 1784-5-6-7, 2226.

In our opinion, appellant has a right of action and may obtain a judgment in personmn against the wife for the portion of the money lent which’enured to her benefit, but he has not the right to prevent the mortgage on the dotal property being annulled, until she has paid the portion of the loan which accrued to her profit.

If such a principle was adopted, the prohibition of the alienation of dotal property, would be virtually abolished.

The law prohibits the alienation of the dotal immovables, and any alienation in violation of it is a nullity, and no effect whatever can be given to the alienation thereof, except for the causes provided for by law. 1 Solon, Nullité des Actes, No. 185.

This position is taken by Troplong:

“Cen’est pas á dire pourtant quo l’acheteur nedevra relacher la chose qu’autant que le mari lui aura préalablement rendu le prix. La restitution de la chose dótale ne subit pas de condition.-' -'ll faut, avant tout, que le bien dotal revienne á la famille: l’acheteur fera ensuite valoir, comme il l’entendra, sur les biens personnels du mari, 1’obligation de ce dernier de rendre le prix; mais le bien dotal ne doit pas étre frappé d’un- droit-dfe rétention pour parvenir á cette restitution: il est libre, inaliénable, non sujet á hypothéque ni á aucune charge réelle. II ne répond pas des obligations personnelles du mari.
“ S’il en était autrement, la invocation de l’aliéríation serait illusoire. Cette revocation intéresso la famille; elle se lie á l’ordre public; elle est placée sous la sauvogardo de la loi; des exceptions.de garantie n’en doivent pas entraver la marche.
“ Sans aucun doute, le mari est débiteur du prix; sans aucun doute, il doit rendre ce qu’il a repu: mais c’ost la une obligation- personnelle, qui peut faire l’objet d’une condamnation particuliére, mais qui n’apporte pas d’obstacle au dólaissement des biens.
“Toutefois, s’il était prouvé que la'femme a.profité du prix, on exigerait d’elle la restitution de ce prix: nul ne doit s’enrichir aux dépens d’autrui.
“ Non pas que l’obligation de rendre le prix arréte Faction en revendieation ; mais en rendant la chose, l’acheteur conserve contre la femme une action pour se faire payer par elle de ce qui a tourné á son profit.
“Rcmarquons, que c’est á l’acheteur á prouver que la femme a profité du prix; ce qui ne se présume pas. Pour faire cette- preuve, il no suffirait pas de dire que 1’argent a été versé dans le ménage, qu’il a serví á entretenir la fcmme, qu’il a été employé á payer ses dettes ; tous ces em'plois sont irréguliers ; la dot n’est point faite pour que le capital périsse dans de telles destinations.”

Troplong, Contrat de Mariage, Nos. 3533, 3447. See also, 10 Dalloz. Recueil Alphabétique, p. 342, No. 2; 3 Delvincourt, p. 58, No. 9 ; Cour de Cassation, 31 janvier, 1837; Dal., 1837, Part. 1. p. 106; Toullier, par Duvergier, Tom. 14, No. 234, in notis; Cour de Cas., 4 juillet, 1849; Sirey, 1850, T. 1, p. 283; Cour de Caen, 29 mars, 1841; Dal., 1841, 2, 243.

This is the doctrine of Troplong and of the most celebrated authors of Prance. We consider the law which prohibits the alienation of dotal property, a law of public order, and that the dotal property cannot be alienated for debts of the wife or husband, except in the cases provided by law; further, that it cannot be retained until the price given for it is returned, but it must at once be delivered up, and the creditor must.resort to his personal action for the price given for the dotal property. And if dotal property is mortgaged, and the money obtained from the mortgage enures to the benefit of the wife, her dotal property cannot remain subject to the mortgage until the money is returned, for then there would bo no inalienability in dotal property, but it could be alienated, whenever it could be shown that the money had been used for her benefit. Such is not the object and design of the law; it is true that the party who gets money on a mortgage given on dotal property, is under a moral and a personal legal obligation to return it.

The loss of the mortgagee is not the fault of the law, but of his own laches; he could, by inquiry, have discovered his liability to loss, and have saved himself therefrom.

The laws of Louisiana have given to dotal property a particular object and character; it is settled upon the wife by marriage contract at or before the time of marriage, but it may include future effects by a special provision. Its character is fixed by the marriage contract and it cannot be settled nor even increased by a new contract during marriage. C. C. 2318-19-20.

“ The dowry is given to the husband for him to enjoy the same, so long as the marriage shall last.” C. C. 2327.

“ The income or proceeds of the dowry belong to the husband and are intended to help him to support the charges of the matrimony, such as the maintenance of the husband and wife, that of their children, and other expenses which the husband deems proper.” C. C. 2329.

The purpose of the law is to permit the creation of a fund which is to remain as long as the marriage lasts, and to serve as a resource and protection against the vicissitudes of life.

How can courts destroy the barriers that legislators in their wisdom have erected for the protection of families against the misfortunes of the world; are they to divert to foreign purposes property which was designed by the law to furnish means to nourish and educate a family, when the head of the family shall have been prostrated by misfortune ?

Appellant argues that the mortgage ought to remain in its vigor, until the money given therefor, which has been used for the benefit of the wife, is returned,''but this is not one of the exceptional cases mentioned in the law for which dotal property can be alienated.

“ Immovables, settled as dowry, can be sold or mortgaged during the marriage neither by the husband nor the wife, nor by both together, except as is hereinafter expressed.” C. C. 2337.

“ The wife may, with the authorization of her husband, or, on his refusal, with the authorization of the Judge, give her dotal effects for the establishment of the children she may have by the former marriage ; but if she be authorized only by the Judge, she is bound to reserve the enjoyment to her husband.” C. C. 2338.

She may likewise, with the authorization of her husband, give her dotal effects for the establishment of their common children.” C. C. 2339.

“ Immovables settled as dowry, may be alienated with the wife’s consent, when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.” C. C. 2340.

“ Such immovables may be likewise sold, with the authorization of the Judge, at public auction, after three advertisements, for the purpose of liberating from jail either husband or wife; of supplying the family with food in the cases provided for under the title of father and child; of paying the debts of the wife or of those who settled the dowry, when such debts are of a certain date prior to the marriage conVraet; or for the purpose of making repairs indispensably necessary for the preservation of the immovables settled as dowry; and, in fine, when the immovable is held undivided with a third person, and the same is ascertained not to be susceptible of being divided. C. C. 2341.

There is also the Act of 1855, to enable married women to contract debts and bind their paraphernal or dotal property, but it has no bearing on the case at bar. Session Acts, 1855, p. 254.

There is, therefore, in none of the cases provided by law, where the dotal property can be alienated, any authorization to alienate it to satisfy a just debt of the wife created subsequent to the marriage contract.

The pretended mortgage of Lanata, being upon dotal property, and not for a cause included in the exceptions of the law, was then a nullity, and could derive no vitality from the alleged payment of the" money derived from it to the Citizens’ Bank to satisfy a previous mortgage of that institution upon this property, for as the mortgage to Lanata w.as a nullity, the raising of the antecedent mortgage to the Citizens’ Bank on account of said payment, could not impart existence to a mortgage having no legal being. Nor could Lanata be subrogated to the mortgage of that bank, for it .is. not shown that hisunortgago was given before that to the bank was raised; on the contrary, it appears that the mortgage to the bank was raised before Lanata's mortgage was given.

Neither is it shown that he paid the Citizens’ Bank debt after he took his pretended mortgage.

Even if the pretended mortgage to Lanata had been created during the existence of the Citizens’ Bank mortgage, and Lanata had paid the bank mortgage after the pretended mortgage had been given, still he was not legally subrogated to that of the bank, for as his pretended inferior mortgage had no existence in law, and was null, there could be no legal subrogation.

We cannot hold that the mortgage is valid, because the wife did not inform the mortgagee that it was dotal property, because such a principle would destroy the inalienability of dotal property, for in most cases where mortgages are taken on dotal property, the mortgagees are ignorant of the character of the property, for if they knew it was dotal, they would not take such mortgages. If the omission of the wife to express in the act that the property }s dotal, is a sufficient ground to hold valid a mortgage on dotal property, then all the provisions of lawjon the inalienability of dotal property would he without ef feet, for bad faith would always be imputed, when a woman mortgages dotal property, for she isfmortgaging that which the law prohibits being legally mortgaged.

If a mortgage on dotal property was not to be 'rescinded, until the parties ■were placed in the situation they were in before the contract was entered into, then also would all the provisions of law on the inalienability of dotal property be null and void, for the raising of the mortgage would depend on the ability of the wife to restore the money which had been paid for the mortgage.

Our laws must be interpreted as far as possible, to harmonize; the Articles of the Civil Code, therefore, which are cited by appellant, so far as they refer to the case at bar, must be considered as referring to the personal obligation of the wife to restore money which has been derived from a mortgage on dotal property, and accrued to her benefit, but .they cannot be interpreted as giving any vitality to a mortgage on dotal property, without destroying the effect of the articles of the law on the subject of dotal property.

The interpretation of the marriage contract and the other points in the case, have been sufficiently explained by Mr. Justice Spofford, in delivering] the former opinion of this court in this case; it is not, therefore, necessary to en-largo upon them at present.

It is, therefore, ordered, adjudged and decreed, that our former judgment remain undisturbed.

Merrick, O. J.

As the ground upon which I formerly dissented, appears to be waived in the application for a re-hearing, I see no other sufficient reason to withhold my assent from the decree.

Buchanan, J.

I adhere to the dissenting opinion heretofore read by me in this case, 
      
      
        Note — i. e. Prior to the dissolution of the marriage, or a judgment involving a separation oí property. See Guerin v. Rivarde, 8 Rob. 457. . II. M. S.
     