The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-03-23

The court delivered the following decisions yes
terday, the Chief Justice absent. Present: Asso
ciste Justices Howe, Talisferro, Howell and
Wyley:
BY ASSOCIATE JUSTICE WILEY.
No. 19s7.-Maris Josephine Lspice, wife OF
Jules de Longpre Fitzgerald, vs: p: NJ b. Lapice
ct al-Appeal from the Fourth Judicial District
Court. parish of st. James.
L. Castera and Carleton Hunt for plaintiff and
appellee Fellows & Mills, ]. R. Beckwith, for de-
PENDANTS and appellants.
On the LIST May, 1856, the defendants executed
and delivered to the plaintiff their promissory note
for $50O0e, due lst January, 1858, for borrowed
money. In order TO secure the payment thereof,
they executed mortgage on their plantation In
the parish Of st. James. y
The plaintiff, the psyee OF the note, subsequent
" married Jules de Longpre Fitzgerald, and by q
marriage contract she constituted TO herself IN
dowry this note. together with other property.
She finally instituted this suit with the authorize
ton of her husband, for the recovery of the
amount due on the note and to foreclose the mort
gsre. trc r-aE
The answer is q general denial and the pre-
scription of five and ten years. The defendants
subsequently filed peremptory exception to
plaintiffs right of action. on the ground that by
the marriage contract between plaintiff and her
husband "the note sued on and therein recog-
nized as dotal property was to be placed, after
the marriage, in the contract and under the al
minisiratlon Of the husband, and plaintiff there
tain this action. -
There was Judgment In the lower court in favor
OF plaintiff, and the defendants have appealed.
The defendants contend that on the celebration
Of the marriage the note sued on fell into the
community by virtue Of an estimation thereof IN
The marriage contract, under article 1884 OF the
Civil Code which declares that "if the dowry,
or part of IL, should consist in movable effects.
valued by the marriage contract without declar-
ing that the estimated value of the same does not
tituta oala fha md ha
prieier of such movable effects and owes nothing
but the estimated value of the same"
We have carefully examined the marriage con-
tract, ard cannot perceive any extenuatlon or
valuation therein OF the note sued on. The third
article Of the marriage contract declares that the
future wife constitutes 10 herself In dowry:
/. The sum OF Fifty thousand dollars, the amount
of a note subscribed Nay l, 1856, by Messrs. P.
N. B. Lspice. J. Prank Lspice, Ambrose G. La.
pice and Emile ID. Lapice, her brothers, payable
TO her own order January l, 1853, aud secured by
mortgage on the plantation of said Messrs. Lapice,
situated in this parish. The second, third and
fourth clauses in said article refer TO other prop
erty, constituted as dowry, without any valuation
mentioned.
The fourth article of the marriage contract de-
cleres that Immediately after the expected mar
rage, the note of fifty thousand dollars and the
sum of six Thousand ive hundred dollars, which
the future wife has just constituted to herself in
dowry, win be delivered to the future husband.
who will give acquittance therefor, and will take
charge of the same, in order to account therefor
according 10 law.
The expression, the sum of fifty thousand dol.
lars. mentioned in the third article OF the marriage
contract. is Immediately qualified by adding the
amount of q certain note which Is fully described
a. the note sued ON.
This remark cannot be construed to imply a val
uation or estimation Of the note, especially if
taken In connection With the fourth article, which
says imne diately after the marriage the note of
fifty thousand dollars, and the sum of six thousand
five hundred dollars, which the future wife has
lust constituted 70 herself in dowry, etc.
W. esn perc Give no valuation Of the noto, and
do not think that the husband became chargable
with any specific sum on receiving it. We regaId
the note ss the dotal property OF tue wife, and
DER article 2349 OF the Civil Code, the husband
will not be snswerable for failure to collect IL
when the same is not owing TO his fault or me-
glect
The next question to consider is, can the wife
sue for the recovery of the note, her dotal pro-
perty, with the authorization of her husband?
Article 1880 of the Civil Code provides that
''ihe husband alone has the administration of the
dowry and his wife cannot deprive him Of it, he
may act alone in coert of justice for the preser
walton or recovery of the dowry against such as
either are or detsin the same; but this does not
prevent the wife from remaining the proprietor of
the effects which she brought as her dowry."
Article l07 of the Code Of Practice declares that
husbands have under their control the personal
possessory actions to which their wives are emit
tied, though they be themselves minors; there
fore they can proceed judicially, and In their own
name in whatever relates TO the preservation of
the dotsl property, which their wives have
brought to them by marriage, as well as to the
recovery of debts due them, these being under
their administration. But actions relating TO the
ownership of the dotal or psraphernal property
OF the wife. or of some real right belonging to
her. must be brought by the wife, duly authorized
BY her husband, or by the judge, if he fails to do
it. In contest between the husband aud wife
for the administration of the dotal property the
rights of the husband would prevail. He had the
right 10 sue in his own name on the note herein
declared upon, under the articles of the Civil
Code and Code of Practice Just quoted.
He may act alone in court of justice for the
recovery OF the dowry against such as detain the
same. G. c. 1880.
The law does not declare he must act alone; It
says he may act alone. This right is personal to
the husband, end is based upon the SUPPOSE
ton that the dotal property is under his admins
tration. 8 A. II.
Because the law has provided that the husband
may proceed in bis own name to recover debts
due his wife, does that prohibit him from permit
ting or authorizing his wife to therefor, as in
this case, in her own name! We think not. The
law has not rendered the wife absolutely ncapa-
bic Of sueiDg, with her husbands authorization for
her dotsl property. On the contrary, itexpressly
declares that actions relative TO the ownership of
dotal or parapbernal property. or of some real
right, must be brought in the wife's name. G. @.
l07.
The defendants. however. contend that under
the general rule q married woman cannot sue or
be sued, and that where she brings an action she
must show by proper avermeDts that she is within
the c1ocptfon rule. Tncy rely upon ne
case of Mrs. Josephine Pulley, widow Of Coward,
ga. IL.
The case is not analogous to the one we are now
considering. In that case the wife sued, without
the authorization of her husband, on a note which
accrued during the existence of the community
made in her favor by her husband and his partner
the husband of the defendant. The defendant in
that case excepted, on the ground that plaintiff
was q married woman, and had averred no facts
In her petition which, in law, authorize her to
stand in judgment without the aid-of her hus-
band.
The note was prims facie community asset,
and the husband. as head and master thereof re.
fused to authorize his wife TO sue. The exception
was properly sustained. Without the AUTHORIZE
tcn of her husband the plainti in this case couId
not properly appear as plaintiff.
The defendants have no interest in contestinp
the right OF plaintiff 10 sue on the note unless
they have some defense against the husband
which they wish TO set up, or unless the satisfac-
ton Of the suit instituted by plaintiff would not re-
lease them from any demands of the husband on
account of the note. They have not alleged thev
have a defense against the husband and wa co,