GASQUET ET AL. vs. DIMITRY, 9 La. 592

One of the judges dissenting, the opinions were delivered seriatim. Mathews, presiding Judge. This case has its origin in a rale taken on the defendant, to show cause why a legal mortgage which she holds on the property of her husband, should not be erased from the records of the recorder of mortgages, on the ground that she had relinquished and abandoned in favor of the plaintiffs her right and claim as general mortgagee, on a specific portion of the property of her husband. The case is now before the court on a re-hearing.

In our former decision, two of the judges only took part; the third being at that time interested in the question. That interest having since ceased, he now takes cognizance of the cause, and dissents. When the case was before us on the first hearing, we examined the questions involved in it with great care and deliberation, as being new, and having an important bearing on the transactions of the citizens of the state generally.

The cause has been argued much at length on the last hearing, but I am constrained to say, that after giving due and unbiased weight to the arguments, they have not had' the effect to change my former opinion, deliberately formed after laborious investigation as may be seen by the judgment already pronounced, by the junior judge of the court.

The question to be solved, arises out of a contract of mortgage made between the husband and the plaintiffs, in which the wife, by his consent, interposed and bound herself to postpone her legal mortgage to that stipulated by her husband, as a security for the payment of a debt by him solely contracted. A correct decision of the case, depends mainly, if not exclusively, on a just

interpretation of the 2412th

article of the Louisiana Code. It is expressed in the following terms. “The wife, whether separated in property, by contract or judgment, or not separated, cannot bind herself for her husband, nor even jointly with him, for debts contracted by him, before or during' the marriage.” It is true, in the present case, that the wife did not bind herself personally to pay a debt contracted by her husband, but she bound herself to relinquish and transfer to his creditors, and for their benefit, rights vested in her by law, to secure the payment and discharge of a debt contracted by him for his individual benefit.

If her contract had extended to all the property of her husband, it would have amounted to a total abandonment of the privileges secured to her by law, relative to her paraphernal property, and in my opinion, contrary to the spirit of the

article of the code now under consideration. She could , , , . _ i _ _ *tt . not nave become surety for her husband, and the attempt in thepresent instance, to do indirectly, that which the laws prohibit to be done directly, cannot be tolerated.

For, what essential difference is there between a contract which abandons all her rights, and gives them up as security for the payment of the debts contracted by her husband, and becom- . . ^ 7 mg surety for him, directly to the amount of these claims and rights 1 Why should a wife be allowed to yield her inchoate right to property, as security for the debts of her husband, when she is prohibited by law to bind herself in any manner to pay such debts 1 So long as the legislature think proper to continue in force those prohibitory laws made for the security of married women, to protect them against their weakness in regard to their husbands, and to shield them against the improvident solicitations of the latter, in relation to pecuniary interests, who are too often ill managing, and frequently profligate and unskilful, it is the duty of courts to see that those protecting laws shall not be violated, either directly or indirectly.

Where the wife renounces her right of 'hus-a debt of his therebybecomds his security, and does indirectly that which she is biddel^hy law t0 do direotlr- The wife may sell, or enter into the contract of mortgage in relation to her dotal or para-phernal effects and rights, with her husband’s consent $ but such contracts must be for her benefit, or that of her and her husband.

It has been argued, that as a wife can sell her property with the consent of her husband, she might well, with his consent, make the' less onerous or serious contract of mortgage, and one still less onerous, by which she relinquishes her right of mortgage. Perhaps she may sell her mortgage validly. But such contracts must be presumed to be made for her own benefit, or for the mutual benefit of herself and husband, by which she calculates on gain.

Yet, admitting these contracts to be completely binding on her, it does not follow as a corollary that she could give her property in payment of the debts of the husband, without being able to rescind the contract, which is.a case much more analogous to the present, than either of the'two first supposed. Jtis not oftlie essence of sure-tyship, that the obligations of the principal and surety should be co-extensive.

If the ' wife renounce her right of mortgage, and cede it in favor of her husband’s creditor, she becomes surety for a debt of her husband’s contracting, so far as her interest in the mortgaged property is concerned. I am, therefore, of opinion, that the former judgment should remain undisturbed.