Garnier v. Poydras , 13 La. 177 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The plaintiff being one of the legatees of Julien Poydras, sues to annul a transaction entered into by her agent, in her behalf, with one of her co-legatees, in relation to her rights in the succession, on the ground that at the time it was made, she was a married woman, separated of property from her husband, and without authority, under the laws of France, where she has always resided, to compromise upon her real rights.

The defendant denies her legal capacity to institute and maintain the present action, and further alleges—

1st. That the transaction complained of embraced only moveables, which a woman separated of property has power to dispose of, without authorization.

2nd. That the plaintiff was fully authorized to make the ■ said transaction, whether it embraced moveable or immoveable property.

3rd. That if she had not been, she voluntarily executed it, after her incapacity had ceased.

Judgment was given in favor of the plaintiff, in the court below, and the defendant appealed.

We take it for granted, that the power of the husband and the capacity of the wife are fixed by the law of their domicil, and that the present controversy is to be determined by the laws of France.

A transaction a woman, sepa-band, in order to valid and binding on her, ¡^necess°arjvun-la'ffS of in France, the bed^and” board produce? the as to the wife, thesame con-dl[!on ?3 a sePa~ ty; and in both 'p'adty to Con-^aot> authorization, or execute an un-^“"continues until the dissolution of the marriage. tIlff'eeo11a<Jv‘"s' France, a separation from bed and board does w^maie, ra- or m?!?e a contract, without the special au-her husband, or J? hls aba™ce of this may be giv-ter thefts,1 but ^oonsen^muS be special, or clearly result fr0m some actin writing, &c.

The defendant’s counsel have not established the fact that the transaction embraced only moveable property. If it were admitted that the title to the house in New-York, which formed a part of the mass, never vested in the plaintiff, and that all the real property belonging to the succession of J. Poydras, situated in Louisiana, had been legally sold before its date, the jus in re which the executors retained, in the nature of mortgages, in conformity with the directions of the i i ,7ii will, preserved to the proceeds of the sale the character of realty; the account of the executors, showing the mass upon which the transaction took place, contained mortgage claims to the amount of several hundred thousand dollars, and the very debt given up to the plaintiff in consideration of that contract, was a real, not a personal right. We are, therefore, of opinion, that an authorization was necessary, and that without it, a voluntary execution on the part of the plaintiff, after she was separated from bed and board, but before the dissolution of the marriage, could not be opposed to her. “ In France,” says Merlin, Repertoire Jurisprudence, ver-tis Autorisation, maritale et separation de corps, (separation from bed and board,) considered with respect to its civil effects, procures to the wife the same advantages and places her in the same condition (dans le méme état,) as the separation of property.” Her incapacity continues until the disso- , rn r J _ t • i • i , , lution of the marriage, ana while it lasts, the voluntary execution of a contract made without authority, cannot be opposed to her. Code Napoleon, articles 217, 219, 1338.

, . ... . , i , , The only question in this case is, whether the plaintiff was at any time authorized to make the transaction, or to execute it after it was made ; and if not expressly authorized, . ’ -7 r 7 7 whether that authorization necessarily results from other powers given to her by her husband or by the court. We understand the law of France to be, that the consent of the husband, or in his absence, of the court, may be given before or after the execution of the unauthorized contract, and that any act in writing from which that consent to acts done clearly results, satisfies the requisition of the statute. The , , ; -,, , , i. authorization must be special for all acts tq be donebut it may embrace all acts already done, because these are always certain and specific.

The record contains a judicial authorization given to the plaintiff, in 1831, on her application to sell the undivided f , rr half of a plantation which she had acquired in Louisiana, being thereunto, as she alleges, duly authorized, with funds arising to her profit out of the succession of J. Poydras. She is further authorized to do, and undertake all necessary proceedings as plaintiff or defendant amicably or judicially, to arrive at the final partition of her rights in the succession of J. Poydras. The proceedings had upon this application are annexed to the decree, with the exception of the report of the juge eommis, which we presume, contained the facts made known to the court, and show the actual situation of the plaintiff at the time. The plaintifij in her petition to the French tribunal, and her counsel in the brief submitted to us, admit, that another judicial authorization was given to her in 1825, to sanction the purchase made of the plantation by her sister. The plaintiff was separated of property in 1821, and her husband had then been absent for many years, and has never returned. Julien Poydras died in 1824. Under these circumstances, we are inclined to believe that another judicial authorization to accept the succession must have existed, as is stated in the power of attorney of the plaintiff to Madame Mourain, in 1824. Under the law of France, the court could not, and dare not have authorized her to sue for a partition, as legatee pure and simple, without first having ascertained the value and charges of the succession. The powers given, as far as they are known to us, are special in nothing, except in the purchase and sale of the plantation. The knowledge of the facts which were made known to the French court by the plaintiff, when they were obtained, can alone enable us to ascertain their extent. Without it we are unable to do justice between the parties. It may be true, that the onus pro bandilscj on the defendant, and that what he has failed to prove, is, as if it did not exist; but if we held him bound by the strict rules of the law of evidence, those rules would compel us on the other hand, to dismiss the plaintiff’s action, on account of her want of authorization. Under the laws of France, as we have already stated, separation from bed and board does not enable the wife to sue without a special authorization ; and the plaintiff does not allege that she sues under any ; it is true, however, that the general authorization given to her in 1831, was introduced in evidence for some other object, and is found in the record. It is unnecessary to determine whether this would be sufficient in any case, unless she had alleged that she was proceeding under it, for we are of opinion that the authorization itself, did not contemplate the present suit, and is insufficient to maintain it.

Under the transaction which the plaintiff seeks to avoid, she took her share of the risk of two suits then pending against the succession, to wit., that of the Heirs of Bird and that of Leocadie Poydras, and these had to be terminated before she could ascertain her rights in the succession. If the authorization was given in reference to those suits, and the stipulations of the compromise, it was sufficient; but if it referred to all the affairs of the succession, and the court went upon the supposition that no act had yet been done therein by the plaintiff, the general authorization to proceed at law as plaintiff or defendant, in order to arrive at a final partition of her rights, does not empower the plaintiff to sue one of her co-legatees, to avoid a private contract made with, him. If the law requires a special authorization to enable the wife to make a contract, it also requires a special authorization to attack it after it is made; and in both cases alike, the court will only grant it en connaissance de cause. In a case cited by the plaintiff’s counsel, as having occurred to the plaintiff herself, after she had been authorized to accept purely and simply the succession of one of her sisters^ although the solvency of the succession was notorious, and she could run no risk, the court refused to authorize her to sue and be sued on all principal or incidental demands, and to make all sales and settlements, on the ground that the right of authorization can only apply to facts known and specified, to demands actual and certain, and not to eventualities more or less probable; we concur in that interpretation of the law, and we are satisfied that the authorization of 1831 is insufficient. It is the allegation of similar defects which has given rise to this controversy, and the defendant is entitled to have it conducted in such a manner as will insure a final decision.

sentSg- wafot opinion! judgment of non-suit ought to be en-plaint!ffaSwouid not be bound by íi nutement gainst her, and allowhOTtotití-gate her rights bound by a deci-might be render-themdversely t0

Upon the whole, we are of opinion, that this case ought to be remanded to the District Court, in order to enable both parties to make proof of the various authorizations under which they claim.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that this cause be remanded for a new tria] ; and that the plaintiff and appellee pay the costs of this appeal.