New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-09
THE COURTS.
Fourth District COurt-Yalidity Of sale
of Property by Married Woman to
her Husband,

/ Fourth District COurt-f alId1ty OF a sale
of Property by n Married Woman to
her Husband,
The following is the decision rendered
| by Judge Theard in the case Of John
] Shaetfer vs.. Joseph Magner:
| On the eighth Of September, 1869, the
| succession Of Mary Ann Bryant, wife of
| Vincent Bass, was duly opened, and her
/ last will, naming Frances Sheridan her uni.
/ versal legatee, was duly recorded and its
! execution ordered.
/ The property of the succession, consisting
! of a certain house and lot situated on st.
John street, between PerdidO and POydras
was ordered to be sold to pay the debts of
the estate.
On the twelfth of March. 1870. John
Schaeffer the plaintiff, became the adiudi-
catee thereof for the sum of $780, and was
duly put in possession by the testamentary
! executTiZ.
Vincent Bass. the husband of the tesla
trix, without judicial fOrmality, pretending
to be the donee of the atoredescribed prop
erty, sold the same to Charles Clerc, bY
act before Nagner notary, for a part cash
and part on credit with notes secured by
mortgage.
Joseph Wagner became the holder of the
notes and brought suit by eXecutOry pre-
cess TO collect the same, Selling the prop
erty Of John Schaeffer, who eDiOins the
seizure and sale on the ground that all the
deeds under which the holder of these
notes pretends to act have been decreed
null and void in suit No. 8407 of the docket
Of the Seventh District Court for this par
ish, and he further claims $1,000 damages.
Joseph Magner files a general denial.
The evidence shows that the act OF dOna-
ton. or of sale or testament whateyerit be,
to Vincent Bass, and the act of sale by
Bass to Clerc, were annulled and ordered to
/. 1y,,I g.
and mortgages, on fairgrounds:
/. That the act was incomplete, not being
signed by all parties.
2. That it was an act passed by a mar
ried woman without authorization from her
husband or of the court.
3. That if it be an act of sale, wife can
not sell to her husband.
4. That if it be a donation, it was not ac-
cepted by the donee.
5. That il was not passed before q notary
public aud two witnesses.
6 That she disposes Of the same ia case Of
death.
it is true that Joseph Magner, the holder
of the notes given by Clerc to Bass, was
not a party to this Judgment, but this was
unnecessary as to the sale; he was in no
way interested therein, and it was declared
null, contradictorily with all parties IN in
terest, and is res jHdciatd
y
that the conditions of the sale should be
executed The principal obligation being
annulled, the accessory fell with it; besides,
Clerc not being the owner Of the property
could not give valid mortgage upon it.
Surprising that the donation to Vincent
Bass was perfectly valid, the donor re-
served to herself therein the right of dis
posing Of her property as she saw fit and
has awaited herself Of the provision by nam
ing Frances Sheridan her universal legatee
IN her will, which was duly probated.
Even if she had not done so it was absO
lutely necessary to sell the property to pay
the debts Of the deceased, and any dOna-
ton she could have made could not affect
the right OF her creditors to have the same
sold.
The sale was carried on with all the form
alities OF law, the proceeds we're used in
paying portion Of the debts, the Succession
being insolvent, and john Schaeffer ac-
quired an indefeasible title in and to the
property.
Il is, therefore, ordered, adiudged and de-
creed that the injunction herein issued be
made perpetual, and that Joseph Wagner
be condemned to pay all costs of suit