
    No. 9654.
    Mary L. Saunders et al. vs. Sallie E. Burns.
    A suit against a married woman should be brought against her and her husband.
    It is only in case tho husband is absent or refuses his authorization that the judge can validly authorize the wife to stand in judgment alone.
    In this case, the husband was not sued and has not appeared. There being no allegation or pretense that ho was absent or had refused, the judge’s authorization was invalid.
    Tho vice was not cured by going to trial without excepting on this ground. The objections to evidence on tho ground that the wife was not legally authorized to stand in judgment should have been sustained.
    Under Article G06. C. P , the judgment, however rendered, was subject to nullity.
    PPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.
    
      Watkins, Scarborough cG Carver for Piaintiffs and Appellees:
    1. The incapacity of the wife is icmov(d by the antboiization of the husband or the judge. E. O. C. 1786.
    The objection is waived by previous pica and answer, in which the husband joined, and could not thereafter be urged by way of objection to the introduction of evidence. C. P. 107, 118; 14 Ann. 805; 10 Ann. 504 ; 9 Ann. 216; 5 Ann. 369.
    2. The individual creditor may exercise the revocatory action after he has obtained a final judgment against bis debtor*, without making bis debtor a party. E. C. C. 1972,1975.
    Tho defendant’s objections were dilatory in their character, and should have been specially plead and previous to answering to the merits.
    3. The defendant nrnstbe restricted to proving the price or consideration mentioned in the mortgage and dation. Chafle vs. Sheen, 34 Ann. 669; E C. C. 1900.
    4. As there was, and is, in existence a matrimonial community, property purchased in the name of either* of tho spouses falls into it and forms part of it, unless tho married woman asserting title makes iull and conclusive proof as against husband’s creditors. E. C. C. 2402; 29 Ann. 583; 15 Arm. 119; 26 Ann. 552; 20 Ann. 531, 206; 24 Ann. 295, 521; 32 Ann 454, 611; 33 Ann. 806.
    5. Eecitals in the acts of salo are of themselves no proof of the amount of the consideration paid, nor by whom samewas paid. 12La. 302; Demsloy vs. Pollock, 7 ÍT. S.460; Buisson vs- Thompson ; 33 Ann. 609, A ngcle vs. Sonlie.
    6. A wife’s dation from her husband, in satisfaction of his indebtedness to her, without an adequate and legitimate consideraticn, is in violation of a prohibitory law and void E. C. G. 2446; 4 Ann. 65; 1 Ann. 301; 2 Ann. 483; 7 Ann. 52; 11 Ann. 265; 21 Ann. 4GG; 4 La. 421; 30 Aim. 750; 5 Ann. 594; 23 Ann. 439.
    7• Tho defendant had no r ight to demand or receive interest on the debt her husband owed her dining the existence of the community. E, G. C. 2386, 2402; 19 La. 581; 3 Ann. 611.
    
      Jaclc cG Dismulces for Defendant and Appellant:
    Ko valid judgment, annulling as simulated a dation enpaiement made by the husband to the wifo, can be pronounced against the wife sui juris and alone, in the absence of aver ments of bis inability or refusal to act; and where the petition itself charges that the wifo is not separate in estate from him, and that ho is present in the parish and fails tcpray that he bo cited with her or be made a party in any way.
    In such a case there is neither light nor cause of action disclosed, and tho vice is so glaring and fundamental that it may be brought to tho attention of the court by exception before or after issue joined, by objections to evidence, by plea or suggestion on appeal, and even after (be right of appeal has lapsed by direct action of nullity brought by the wife, tlio husband or tho heirs; moreover, tho court may and should ex-officio notice and declare tho nullity. C. P. art. 606; 3bT.S.493; 2 Ann. 3, 806; 12 Ann. 350; 14 Ann.165 15 Aim. G28; 23 Ann. 323; 28 Ann. 840; 12 Ann. 239; 18 Ann. 735; 29 Ann. GOO; O. P. arts 604 and 609.
    •*' When one intends to sue a married woman for a cause or action relativo to her own separato'interest, tho suit must bo brought both against her and her husband. Should the husband bo absent, tho plaintiff must demand that she be authorized by the judge before whom tho suit is brought to defend it alono.” C. P. art. 118.
    The judge cannot authorize tho wife to defend a suit if the husband be not absent or interdicted or does not refuse to authorize her. 11 Ann. 69 j 24 Ann. 141; Manning’s tJnre ported Oases, p. 65,
    Where tho husband is made a party and joins in the answer or suffers dofault to be confirmed against him, after being duly cited, his authorization of the wife is legally in ferred, alitor, is not made a party and not cited. 28 Ann. 403; 29 Ann. 749 ; 34 Ann. 1048.
    In a suit to annul or to i evoke a sale of an immovable for simulation or fraud, the vendor is a necessary party. 31 Ann. 259, 196; 32 Ann. 9L; 15 L. 503; 10 P. 387; 8 Ann. 386.
    Actions to annul a dation en paiement, made by the husband to the wife for fraud and simulation, combine the elements both of the revocatory action and of the action en declaration do simulation, and where more than one year lias elapsed between the execution and registry of the transfer and tho date of service of citation in the suit, the features of the revocatory action, such as inadequacy of piice, undue preference, and otheis peculiar to that proceeding, may ho eliminated by tho plea of prescription of one year, leaving tho issuo as one of simulation volnon. 2 Ann. 659; 3 Ann. 248; 4 Ann. 36; 6 Ann. 87, 439 : 7 Ann. 298; 12 Ann. 889; 14 Ann. 106; 24 Ann. 124, 246; 30 Ann. 749, 9GG; 3L Ann. 594; 34 Ann. 347, 883.
    Tho object and effect of tho proceeding thus eliminated of tho elements of the revocatory action, is to unmask tho title in favor of alL tho creditors, indiscriminately, and this presupposes that the act never had anything more than a more semblance of existence, and that it was wholly without just cause or consideration. 37 Ann. 308; 11 Ann. 168, 265.
    When an actual consideration, no matter how inadequate, has been paid by the purchaser in an alloged sale, it is not a simulation, and should tbo consideration be different from that stated, it suffices, if it ho a valid one. 32 Ann. 94 ; 1 Ann. 132; 2 Ann. 323, 913, 959;
    4 Ann. 36; 8 Ann. 431; 12 Ann. 173; C. O. art. 1900.
    Tho husband may make a dation en paiement to his wife for a legitimate cause, such as tho replacing of lior paraphernal effects, whether her claims are liquidated by judgment or secured bymortgage or not. O. C. art. 2440; 33 Ann. 818, 532 ; 30 Ann.745; 8Ann.485.
    “A succession is acquired by tho legal heir immediately on the death of the person to whom ho succeeds.” C. 0. 940.
    j'Propcrt.v adjudicated to a married licit* at a succession sale and paid for out of her heritable share, becomes her separate property, and does not fall into the community betu eon her and her husband.” 33 Ann. 425; 34 Ann. 1047; 2 Ann. 930; 14 Ann. 722; 5 Ann. 742; G Anil. 803; 20 Ann. 40.
    Where it is shown that tho husband actually received and appropriated the paraphernal funds of the wife, the creditors are not concerned as to how or why she received the property. 36 Ann. 217.
    A judgment not attacked for fraud is prima facie good as to third parties. 20 Ann. 266; 5 Ann. 401; 4 Ann. 135; 17 L. 205; 15 L. 59.
    “The wife has, during marriage, a right of action against her husband for the restitution of her paraphernal effects and the fruits of them.” G. C. 2390, 2301, 2387; 35 Ann. 806.
    Tho seLtled jurisprudence in regard to the -wife’s paraphernal property is, that the husband is presumed to exercise administration until the contrary he shown, and that in all cases the burden of proof is on those who have an interest to contest it. 16 Ann. 145; 33 Ann, 164.
    
      When there is no evidence showing that the wife administered her paraphernal property separate and alone, it is the presumption that the husband used tho funds as his own. 18 Ann. 538; Ibid, 105 : O. C. 2362. 2368.
    'The rule announced in 33 Ann. 609, that declarations of tho husband and wife, contained in notarial acts, are no legal evidence of the facts they state, applies te their declarations made inter sese, and does not mean that recitals contained in judgments and sheriffs’ deeds must be proven ediwnda.
    
   The opinion of the Court was delivered by

Fenner, J.

This action is brought by plaintiffs, wlio are judgment creditors of Geo. W. Thompson, against Ms wife,.Sallie E. Burns, to annul, as fraudulent sinralations, a special mortgage and subsequent ■elation en paiement made by Thompson to bis said wife, in fraud of Ms creditors.

The action is brought against the wife alone. The husband is not ■cited or made a party and no relief is asked against him.

Serious objections are urged against the sufficiency of the authorization of the wife to enable her to stand in judgment.

Article 118, C. P., says : “ When one sues a married woman for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by tlie judge to defend it alone.”

The suit was not brought against her and lier husband. There was no demand for the judge’s authorization. There was no allegation ■showing or pretense that the husband was absent or that he refused to authorize his wife.

The law is clear and this Court has distinctly hold that tlie judge cannot authorize the wife, when the husband is not absent and has not refused to give Ms authorization. Delacroix vs. Hart, 24 Ann. 141. Hence the judge’s authorization in this case was illegal and insufficient to enable tlie wife to stand in judgment.

It is claimed, however, that this defect.was cured by the appearance of the husband conjointly with the wife in the filing of an exception of Ms pendens. But we find no such appearance. It is inferred solely from the fact that the exception begins. “ Now come the defendants, etc.” No mention is made of the husband or of his authorizing the wife, and as he was not a defendant or a party in any mode, we see not how tlie mere use of a plural can be construed as including Mm.

The answer of the defendant wife, under which issue was joined and .all further proceedings had, was. filed exclusively in her own name, without reference, direct or indirect, to her husband. We tliink this •defect invalidates the whole proceeding.

Her failure .to except on this ground cannot cure the vice. Even her unauthorized confession of judgment would be invalid. Art. 606, C. P., (see Delacroix vs. Hart, 24 Ann. 141), declares the nullity of a judgment, “if rendered, even contradictorily against a person disqualified by law from appearing in a suit, as a married woman without the authorization of her husband or of the court.”

The defendant called attention to the fatal defect of the proceedings by objecting to all evidence, on the grounds that she was a married woman, that her husband had not been joined or cited, that he was not absent and that the judge’s authorization was insufficient.

The objections were valid and should have been sustained.

Further objection was made on the ground that the husband was a-necessary party in his own right. As we shall remand the case, we mention it for the purpose of saying that we consider it a serious one, and that the dictum of certain decisions that in an action to annul a contract for fraud or simulation, it is not necessary to make the original debtor a party when the debt is reduced to judgment, is not free from doubt as to its correctness and rests on authority slighter than is generally supposed.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to the lower court, in order that the husband of defendant may be cited and for further proceedings according to law, plaintiff and appellee to pay costs in both courts thus far incurred.  