ROBECHOT vs. FOLSE ET AL., 11 La. 133

Martin, J., delivered the opinion of the court. This is an action on a promissory note, executed by the defendant, Folse, and her husband, on the back of which is an endorsement binding her, after the death of her husband, to, pay the note out of the proceeds of the sale of his succession; and the defendant, Knoblock, is sued as surety for the payment of said note. The defendant, Knoblock, pleaded the general issue, discussion, novation; that the defendant is discharged, by time being given to the principal.

There was judgment against the defendant, Knoblock, and his plea of discussion was overruled, and he appealed. Our attention is first drawn to a bill of exceptions, taken by the appellant to the opinion of the court, refusing him leave to introduce testimony to prove the intention of the plamtm to novate the note. This novation was contended to result from the endorsement of the appellant’s co-defendant on the back of the note, The intention of the plaintiff was to be sought in the words in which the endorsement is couched, and the court correctly refused parole evidence to explain it.

Evidence of this ,. . . . • , . co-defendant being tutrix of her children by her deceased husband, could not be of any use in establishing the intention of the plaintiff. The plea °,f , .d“cusslou ruled, _ 'when tuai6 tendor any specific sum penses of the ment ón a note ted, andthehus-who both signed shaUbepaldout °f the proceeds sion, isneithera debtfo” an extension of time ■which will discharge the surety. The answer admits expressly the execution of the note by the husband and wife, and the suretyship of the appellant.

The plea of discussion was, in our opinion, correctly overruled, as there was no actual tender of any specific sum to . 1 meet the expenses of the discussion.

B.y the endorsement made after the death of the husband of the appellant’s co-defendant, she acknowledged the legitimacy of the plaintiff’s claim, and promised to pay it with interest, out of any funds which she might receive on the sale of the property of his succession, in March following, or receive it in payment of any debts due the succession, jt j ciear that this endorsement created no novation, for neither of the original parties was thereby discharged, The district judge was of opinion that this endorsement is not evidence of any extension of time of payment.

The widow did not bind herself personally and absolutely to pay the debt, she only undertook to discharge it out of the funds °f the estate. She could not, under the Civil Code,

article 2412, bind herself conjointly with her husband, for any debt ’ , “ ,J., , -1 of his. As tutrix of her children, and managing the estate 0f theiv deceased father, she could not have been compelled to pay any of its debts, except in a due course of administration ; that is, by the sale of the estate, and the collection of debts, and not until payment was authorized or ordered by the court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.