Pointe Coupee Democrat. [volume] (False River [i.e. New Roads], Parish of Pointe Coupee [La.]) 1858-1862, 1860-04-21

evident hat no acts of the wife, previ-
GUS to that event, can have that effect;
indeed these are obnoxious to the same
objections which invalidate the original
ALTERATION. Besides, the power OF the
snonses to contract with each other, is
limited to certain matters having no
affinity with the present case. C. g.,
242l.)
Apart from these considerations, the
pleadings and Judgment in the divorce
suit of 0. L. VS. NJ. c. D., and the nota-
rial acts in execution of this Judgment,
do not in law amount to an express or
tacit ratification of the formers title to
the ~latter's dotal property. Under the
provisions of article 1852 of c.. Z. there
are several requisites to a binding con-
frmation or ratification:
LIST. There must be an obligation sus-
ceptible of ratification.
I'd, In the act of confirmation the sub
stance of the invalid obligation must
be given.
Sd. Mention must be made of the mo-
tive of the action of RECESSION or nullity,
and of the intention of supplying the
defect on which that action may be
founded.
4th, There must be a confirmation,
ratification or voluntary execution in
due form.
On the subject of obligations suscep-
tible of ratification, Marcade says:
RATHER on confrmer wide vol. s., p.
344.) god muhum est confrmar' meq"'t:
For instance, a simulated sale cannot
be the object of ratification; there Is
nothing to ratify. The act of ratihca-
ton or confirmation is obnoxious to the
same objection as the apparent obllga-
ton, and if there be subsequently the
exchange of a price for the property, 1t
is not an act of confirmation or ratiica-
ton, but properly speaking the substl'
tuition of an original obligation. "Mais
on ne peut confirmer les engagements
don't la loi ne reconnait pas Persistence
ceux qui mont point de cause on qul men
ont ou'une fausse on illicite:" (Boileu
ct Poncelet, Com. Art. 1888 G. NJ
Where the obligations may be con
firmed or ratified, it is requisite that the
acts which are pointed out as being in
confirmation or execution Of the defect
i've obligation, have in view, and be in
tended to supply the very defect, which
strikes it with nullity. Upon this point
our law is in unison with the French
jurisprudence, as interpreted in the
Courts and by learned commentators.
With regard to the conirmatory acts
containing an express ratification, the
rules are the same so far as the sub
stance is concerned; but there is a ma
terial difference respecting the burthen
of proof. In the latter the debtor or
obligor is bound to administer proof
that he was not aware of the defect in
question, whilst in the former, the con-
tirmatory act must show this of itself.
&C. C. 1852. Marcade 5, 344.
Now to the facts upon which bears
the law as above e%lucidated. The title
of Divide Lejeune to plaintiffs dotaI
property is, to say the least, all adjudi
cation void for stimulation, and therefore
unsusceptible of ratification Or confirma
ton. Admitting, however, that it might
have been ratified, the acts pointed out
do not amount to a valid ratification Of
the illegal alienation Of the plaintiffs
dotal property, Far from being in
tended to cover the vice or defect of the
legal translation Of dotal property tc
the husband, the pleadings and the
Judgment in the divorce suit as we'll al
the notarial acts in execution, positively
prove the existence of this vice or defect
The answer in r%econvention speaks
of p%araphernal rights; the notarial acts
follow the judgment in this respect. II
!, the whole of the proceedings not a wore
is said with regard to Q Lejeune's wan
Of valid title, and still less Of the defec
: inyalidating his pretended title; ant
finally, the evidence shows that it wa
but shortly before the institution OF tn
, present action the plaintiff becam
| aware of the simulated title of her hus
: band to her dotal property.
J The proceedings, judgment and at
t thentic acts, upon which the defendan
| relies, far from establishing the facts 9
r ratification, prove that the parties di
not contemplate to repair the defects il
validating the defendants apparent It'll
Of ownership; indeed, up to the presen
: time, the defendant strenuously cor
|. tends hat his title is valid ab initio.
: The objection, that the plaintiff ha
! not offered to reinstate the defendant i
: the position which he occupied befor
5 the settlement made by the notaris
: acts, is not a serious one under the view
0 above expressed. She has tendere
| back all the notes in her possession, an
has failed to tender back but a compa
atively small amount; but he is in pc
t session Of her plantation, and when til
revenues of her property will be a
}, counted for, he will have an opportunit
to obtain redress if he las been iniure