
    No. 3754
    Amanda R. Richardson v. Mrs. E. E. Barrow et al., and Lehman, Newgass & Co. v. Mrs. E. E. Barrow et al.
    Iii this caso tbs judgment creditor.© of tho wife sought to enforce payment by a seizure and’ sale of her property. The husband brought suit by intervention, and alleged that tho property under seizure was encumbered by a tacit mortgage in favor of liis former wile and her heirs, to whom lie was tutor; that during the former marriage he was the owner of the property seized; that ho had received forty thousand dollars from his former wife of her individual funds, and had applied them to his own use for which ho had never accounted, and tho tacit mortgage attached to his property now under seizure. Ho further alleged his utter insolvency and asked that the proceeds of the sale of tho property be paid to him as tlie tutor of liis minor children by a former marriage, as their tacit mortgage on the property seized was superior to that of the suing creditors.
    Held — That tho tutor in order to pay a debt duo by himself to his minor children (ho being insolvent) could not bo allowed to reoeive the proceeds of tho sale of property subject to-a tacit mortgage, to secure said debt.
    from the Seventh Judicial District Court, parish of WestPeliciana, Miller, J.
    
      Samuel J. Potoell and Collins cO 'Lealce,. for tutor, opposing appellant. Winter & Butler, for .the creditors.
   Ludeling, C. J.

Amanda E. Richardson and Lehman, Newgas. & Co., having obtained judgments against Mrs. E. E. Barrow,, were proceeding to execute their judgments when John J. Barrow, the husband of Mrs. E. E. Barrow, instituted tho present suit. He avers that lie is the tutor of his minor children by a former marriage; that lie owed tlicm forty thousand dollars as the heirs of his former wife, in consequence of having received forty thousand dollars belonging to her and used it for his own benefit; and that the property now iu the name of his second wife, and against which her •creditors are proceeding, was burdened with tlie tacit mortgage in favor of his first wife for the forty thousand dollars, as the same property had belonged to him. lie avers that he is totally insolvent, and prays that tlie proceeds of the sale of the property be paid to him, as the tutor of his children, as tho tacit mortgage before mentioned is superior in rank to that of the creditors of his second wife. This might be a convenient arrangement for him, but what would become of the security, studiously provided by tlie lawmaker, 1 or the rights of the minors ? To jiay a debt due by himself to his children, he desires that the proceeds of property subject to a tacit mortgage to secure said debt he paid to him, the debtor, who is insolvent. It is the duty of courts to see that the rights of minors are not sacrificed, especially with their aid.

The judgment of the lower court rejecting tho plaintiff’s demand is •correct.

It is therefore ordered that the judgment of the lower court he affirmed with costs of appeal.  