Jackson v. Shaw , 151 La. 795 ( 1922 )

ST. PAUL, J.

Thirteen years before the filing of this suit the mother of plaintiffs sold the property in controversy for a recited cash consideration of $217.88 to defendant who has been in possession ever since. Plaintiffs now seek to have the deed annulled upon three grounds: (1) That their mother was coerced' into signing the deed by her husband; (2) that the deed was given only as security, and a counter letter given which has since been lost; and (3) that the recital of the deed is not true, the sole consideration for said transfer being a debt due to defendant by the husband.

There is no evidence whatever of coercion, and we seriously doubt the existence of any counter letter,*or that the transfer was intended as anything less than 'an absolute deed. But we do believe the truth to be as admitted by the defendant, to wit, that the consideration given was partly cash, and partly a debt .due by the husband.

I.

[1] Article 2398, C. C., declares:

“The wife, whether separated in property by contract or by judgment, or not separated, cannot bind .herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.”

Beginning with Durnford v. Gross, 7 Mart. 465, this court has, in a long line of decisions (with a single exception), construed this article to mean that whoever deals with a married woman does so at his peril and must see that the contract inures to the advantage of her separate estate. In Gasquet v. Dimitry, 9 La. 592, Judge Bullard pointed out (page 603) that our article has its origin in the Senatus Gonsultum Velleianum of the Roman Law (Dig. Book 16, title 1) by which a woman was forbidden to bind herself for or with any other person, and especially her husband; and that this applied to a case where the wife had transferred property to her husband’s creditors in payment of his debt. See, also, McIntosh v. Smith, 2 La. Ann. 756; Provost v. Provost, 5 La. Ann. 572; Brower v. His Creditors, 11 La. Ann. 117; Bisland v. Provosty, 14 La. Ann. 169; Harang v. Blanc, 34 La. Ann. 632.

Besides these six cases in which it was expressly decided that the wife cannot directly or indirectly give her property or waive her rights in discharge of her husband’s debts, there are others in which this was simply taken for granted as being well-settled law. See Krouse v. Neal, 42 La. Ann. 950, 8 South. 471; Succession of Toledano, 42 La. Ann. 914, 8 South. 604; Broussard v. Le Blanc, 44 La. Ann. 880, 11 South. 460; Munholland v. Fakes, 111 La. 932, 35 South. 983; Keating v. Wilbert, 119 La. 461, 44 South. 265; Hamilton v. Moore, 136 La. 631, 67 South. 523.

The dictum in 136 La. 634, 67 South. 523, that a wife who sells her property, receives the price, and pays her husband’s debts with the proceeds, cannot afterwards revendicate the property, is doubtless sound law; but it has no application here, where the wife did not receive the proceeds, same being' retained by the creditor of her husband in satisfaction of his debt.

The case of Morrow v. Goudchaux, 41 La. Ann. 711, 6 South. 563, seems therefore to stand alone, and we will not follow it against the uniform trend of our jurisprudence; nor will we go to the jurisprudence of other states founded upon a system of laws differing in origin and in substance from our own. If our laws need revision to meet modern conditions, it is for the Legislature, not for us, to do the revising.

II.

[2] As there is nothing immoral or repugnant to reason, in a wife paying her husband’s debts with her money or property (if so disposed), it follows that the contract by which she does so is not essentially void, but mereLy voidable. C. C. art. 1758, No. 1. Hence such contracts stand as real contracts until rescinded.

The wife’s assignee, under such circumstances, is therefore something more than a mere possessor in good faith. He is, in fact and in law, owner of the property until his title be set aside, and can even convey a good title to third persons. Colgin v. Courrege, 106 La. 684, 31 South. 144.

We are therefore of opinion that in the meanwhile he may deal with the property as his own, and owes no accounting whatever to the wife when she chooses to rescind the contract. It is her privilege to reclaim the property; but she must take it back in the condition in which she finds it. See C. C. arts. 2575, 2579.

Hence defendant in this case owes no accounting to plaintiffs for the oil taken from the land before judicial demand.

Decree.

The judgment appealed from is therefore reversed, and it is now ordered the plaintiffs herein Alice Jackson, Cora Jackson, Bosie Jackson, and Arsey Jackson be anc. they are hereby recognized as joint owners of one twenty-second interest in and to the lands described in the petition, and in the deed heretofore executed by Lucy Jackson to G. W. Shaw, Jr., on January 14, 1907, recorded in the Conveyance Records of Claiborne parish, Book W, p. 572; together with all the rents, royalties, and revenues therefrom, from and after the judicial demand herein made (August 14,1920); and to be entitled to an accounting from said G. W. Shaw, Jr., for all the rents, royalties, and revenues received by him since said date. And in all other respects the demand of the plaintiffs is rejected ; defendant to pay all costs of both courts.