
    Frosten et al. v. Legendre.
    Where, after the dissolution of the community by the death of one of the spouses, the survivor, as tutrix of a daughter, becomes a party to a marriage contract of the latter, in which itis declared that the daughter is entitled to a certain portion of land belonging to the community, and the daughter subsequently mortgages that portion of the land to a third person, referring in the act to the land as that described in the marriage contract, the surviving wife will be estopped from questioning the title of the daughter to that portion of the land. Per Curiam-. Even if she made an unintentional mistake as to the quantity, her innocence will not protect her, for the rule is that, where one of two innocent persons must suffer, he shall suffer who by his act occasioned the confidence and loss.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      Michel and Burns, for the appellants.
    
      Breaux and Collens, for the defendant.
   The judgment of the court was pronounced by

Slidell, 3.

The plaintiffs arrested by injunction, the sale of the undivided third of certain real estate, mortgaged by Charlotte L. Fulmer to Legendre, upon the allegation that she was only the owner of one-sixth of the property ; that it was community property, acquired by George Fulmer, who left at his death the plaintiflj now Mrs. Kammer, his widow in community, and three children, Charlotte, Frederic, and George; so that at his death the property belonged, one-half to his widow, and one-sixth each to his children; and consequently, that Charlotte could only mortgage to Legeudre an interest of one-sixth.

Charlotte married Chase, and in the marriage contract it was declared that, as heir of George Fulmer, she was the owner of one undivided third of the land in question. The mother, the present plaintiff, was a party to this deed, acting as her natural tutrix. When the mortgage to Legendre was afterwards executed by Charlotte, she mortgaged one undivided third of the land, and described it as “ the same which is set forth in her marriage contract, as her separate property.”

The participation of the mother in the marriage contract was, as regard» third persons, a solemn recognition, on her part, that her daughter was the owner of one-third of the laud; and upon the faith of this representation, we must consider Legendre as having acted, in as much as the marriage contract i» expressly referred to in the mortgage. She is therefore in equity estopped from now questioning his right of mortgage upon one-third. Even if she made an unintentional mistake, her innocence cannot protect her, for the rule is that, where one of two innocent persons must suffer, he shall suffer who by his own act occasioned the confidence and loss. See Richardson v. Hyams, 1 An. 288. 1 Story’s Equity, 377.

It is to be observed that, Mrs. Chase may be recognized as the owner of an undivided third without affecting the share of the two minors, Frederic and George. The loss must fall on the widow’s share.

Judgment affirmed-  