BABINEAU, CURATOR, &c. vs. BENDY AND DUGAT, 7 La. 248

Mathews, J., delivered the opinion of the court. In this case, Dugat, one of the defendants is sued as having intermeddled with, and taken on himself, the management of the person and estate of Jean Babineau, for whom the plaintiff acts as curator and alleging that he, the said Jean, is a person interdicted as incompetent to administer his own property, &c. in consequence of being deaf and dumb from his birth.

The proceeding against the defendant, Bendy, has for its object, to subject certain property in his possession, as purchaser from Dugat, to a tacit or legal mortgage, which is claimed in favor of the interdicted person, on all Dugat’s property. The court below, rendered judgment against the latter, for the amount of funds by him received on account of the interdicted, but decided against the claim of mortgage, on the property in the hands of Bendy, which had been purchased from Dugat. From this judgment, the plaintiff appealed.

The law presumes certain formalities which must be pursued in order to obtain a judgment of interdiction against a person above the age of majority. The law presumes every person above the age of majority, capable of managing his own affairs, even deaf and dumb persons not excepted. Where a person has not been interdicted in pursuance of law $ but being deaf and dumb, and a curator appointed to manage his affairs, such curator cannot claim a legal mortgage on the real estate of another, who has intermeddled and collected moneys due said deaf and dumb person.

The correctness of this judgment, in relation to Dugat., is not questioned, and the right of mortgage claimed, depends solely on the fact, whether the deaf and dumb person was legally interdicted. The evidence of the case, shows that he had, during his whole life, been considered as incapable of managing his estate or person, with ordinary judgment and discretion, in consequence of the want of hearing and speech ; but no formal judgment of interdiction, seems ever to have been pronounced by any competent tribunal.

It is true, that a curator was appointed to him, at a time when he was over the age of majority, and after the death of the person so appointed, Dugat, the maternal uncle of the individual presumed to be interdicted, assumed to act for him. The mortgage claimed on the property of the intermeddler, is one created by law, and must be confined to cases expressly provided for. The

article of the old Code, relied on by the plaintiff, is found at page 456, and is expressed in the following words, “ there is a legal mortgage on the property of those, who, without being tutors or curators, have taken on themselves, the administration of the property of minors, persons interdicted or absent, from the day when they did the first act of that administration.” The law prescribes certain formalities, which must be pursued, in order to obtain a judgment of interdiction against any person who, from being of the age of majority, is presumecí to be capable of managing his own affairs; and we know of no exception in relation to the deaf and dumb.

The person in whose favor the mortgage is claimed, in the present instance, not having been interdicted in pursuance of the rules prescribed, is not one of those for whose benefit and protection the

article of the Code cited provides. And according to the article. 16, page, 454, of the same book, “ there are no legal mortgages, but in the cases directed by law.” It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, &c.