
    James C. Dawson v. His Creditors.
    Where a party opposes a tableau for the distribution of an insolvent’s estate, upon the ground that a sum has been allowed to the wife of the insolvent upon a judgment in her favor recognizing a tacit mortgage, he must allege the judgment to be fraudulent in order to set it aside.
    
      Where the wife has obtained a judgment against her husband, which became null under C. C., 2402, she may institute a second suit and obtain another judgment, the effect of ... , . , , , „ , . which will not be unpaired by the first judgment.
    APPEAL from the District Court of East Baton Rouge, Burle, J.
    
      J. M. Brunot, for appellant.
    
      A. M. Dunn, for appellee.
   The judgment of the court was pronounced by

Sliueli., J.

The syndic of Dawson filed a tableau of distribution, in which, after proposing to apply the proceeds of certain lands and slaves to the payment of certain privileged creditors, .he awarded the balance of the fund to Mrs. Dawson, as the holder of a tacit mortgage recognized by a judgment against her husband. Menard filed an opposition, in which he claims to have held a mortgage upon two slaves, and demands the application of the proceeds of their sale to his debt in virtue of his mortgage. He did not allege that the wife’s judgment was fraudulently obtained, nor tender an issue as to the existence of her tacit mortgage.

We think the district judge did not err in refusing to recognize the alleged mortgage right of Menard In 1839, W. C. Gayle endorsed several notes for Dawson's accommodation, and Dawson executed a mortgage in his favor in the following terms: “Which three notes were drawn by him, the said James C. Dawson: now he, the said appearer in consequence of said endorsement given to him through friendship, and in order to secure the said William C. Gayle against any trouble, losses or disbursements of- money that could arise, should the appearer fail to meet the payment of the said notes, or either of them, at the several times as they will respectively become due, or at any other, should either of the notes be renewed by him, the said James C. Dawson, does hereby mortgage and hypothecate to the said William C. Gayle, his heirs and assigns, the following property, to wit, two slaves,” &c..

The note offered in evidence by Menard, is not one of the notes described in the mortgage, nor is it proved to have been given in renewal of one of those notes.

It is said that the judgment obtained by Mrs. Dawson is null on its face, because it appears from its recital that there had been a previous judgment of separation obtained by her against her husband. It does so recite ; but it also recites that the previous judgment had become null under the article 2402 of the code, for want of execution. So that the wife had a right to institute a second suit. See Muse v. Yarborough, 13 L. R. 532.

The judgment of the district court is therefore affirmed, with costs.  