The Civil Code of Louisiana (article 2412) enacts that
"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
Where a wife mortgaged her property to raise money and the
question did not turn upon her doing so as the surety of her
husband, it was not necessary for the lender to prove that the
proceeds of the loan inured to her separate use.
The fact of the application of the money may be proved to show
the character of the transaction with a view of establishing
collusion or fraud.
The decisions of the state courts of Louisiana upon this subject
Where a wife mortgaged her property and then sought relief in
chancery upon the ground that the contract was void in consequence
of her disability to contract, and it was shown that the lender
acted in good faith, proceeded cautiously under legal advice, under
assurances that the loan was for the exclusive use of the wife, to
whom the money was actually paid, the interest upon the loan paid
for several years, the mortgaged property insured by her, and the
policy assigned to the mortgages, a bill to relieve her from the
contract cannot receive the sanction of a court of equity.
But it is no objection to such a bill as a rule of pleading that
the husband is made a party to it with the wife. He acts only as
her prochein ami.
The facts are sufficiently set forth in the opinion of the
Page 47 U. S. 239
MR. JUSTICE McLEAN delivered the opinion of the Court.
The bill was filed by the appellants, Bein and wife, to enjoin
proceedings under a writ of seizure and sale taken out by the
appellee, Mary Heath, to sell certain property of the appellant,
Mary Bein, under a mortgage from the latter dated 8 May, 1838, to
secure two notes drawn by her in favor of her husband, and by him
endorsed -- the one for $10,711.71, the other for $535.50.
These notes, the complainants allege, were given for a loan
obtained by Richard Bein, the husband, for his own use, and which
was so applied, and that in such a case, by the laws of Louisiana,
the mortgage of the wife, and her promise to pay the debt, or to
make her property responsible, is not binding, but void.
The answer of the appellee denies the averment of the bill, as
to the purpose of the loan or the use of the money.
It is objected that, the suit being brought in the name of the
husband and wife, it must be considered the suit of the husband,
and that a decree would not bind the wife.
On looking into the bill, it appears that the name of the
husband is used only as the prochein ami
of his wife. He
asks no relief. The wife prays an injunction against the sale of
the mortgaged property and a rescission of the mortgage and notes
and a release from all liability thereon. The bill was sworn to by
the wife, and a rule was entered on the attorneys of the defendant,
to show cause why the injunction should not be granted in favor of
Mary Bein, and at a subsequent day the writ was granted. An
injunction bond was given by the wife, with security, the name of
the husband being used only as authorizing the wife to execute the
bond. And so throughout the proceedings the wife is treated as the
party in interest, the name of the husband being formally used.
Page 47 U. S. 240
Where the wife complains of the husband and asks relief against
him, she must use the name of some other person in prosecuting the
suit; but where the acts of the husband are not complained of, he
would seem to be the most suitable person to unite with her in the
suit. This is a matter of practice, within the discretion of the
court. It is sanctioned in the 63d section of Story's Equity
Pleadings, and by Fonblanque. The modern practice in England has
adopted a different course, by writing the name of the wife with a
person other than her husband, in certain cases. From the frame of
the bill, no doubt is entertained that the decree will bind the
Prior to the marriage of Bein and wife, they entered into a
marriage contract, in which it was stipulated that neither should
be liable for the debts of the other, and each reserved the right
of selling and disposing of their property, after marriage, as they
might deem proper, with the consent of the other. The wife brought
into the marriage, and settled upon herself, as stated, property,
real and personal, estimated to be worth eighty-eight thousand six
hundred and thirty-five dollars. This contract was entered into in
accordance with the Louisiana law.
The loan was negotiated on 8 May, 1838, at which time it is
proved that Richard Bein was known to be much embarrassed, and, as
it appears in proof subsequently, was actually insolvent. In the
act of mortgage Mrs. Bein declared that she was justly indebted
unto Sherman Heath in the full sum of ten thousand seven hundred
and eleven dollars and seventy-one cents, being a loan of money
made to her, and for her sole benefit &c. This act had all the
sanctions required by law. On the 10th of the same month, a check,
payable to Mrs. Mary Bein, or order, for the above sum, was drawn
by S. Heath & Co. on "The Citizens' Bank of Louisiana," and
handed to Mrs. Bein.
It appears that Heath had knowledge of the embarrassments of
Bein, and consulted with J. W. Smith, a lawyer, who is a witness,
how the loan could be legally made. He was informed that it must be
made for the sole benefit and use of the wife, and that the husband
should not be interested in or benefited by it. Heath stated that
the money belonged to his mother, and he did not wish to receive
more than the legal interest, for fear of difficulty, and that he
had rather loan the money to Mrs. Bein, believing it to be safe,
than to let other persons have it at higher rates. Afterwards,
Heath and Bein being present, the witness stated to them that the
loan would not be legal unless it was for Mrs. Bein's sole use and
benefit; "that no loan could be made legally to him under cover of
Page 47 U. S. 241
loan to his wife, and that it must be a bona fide
contract with Mrs. Bein." Bein then, in the most positive manner,
informed Heath that the proposed loan was a real bona fide
loan to Mrs. Bein, that there was no cover or concealment about it.
Witness examined the act of mortgage, and filled up the check and
handed it to the notary.
For nearly five years, Mrs. Bein paid the interest on the loan,
kept the property insured, and assigned the policy annually.
On 2 April, 1840, Richard Bein filed his petition for the
benefit of the insolvent act, attached to which was a schedule of
his debts, and among others, a debt due to his wife for the same
amount above loaned to her. It appears that Bein paid several debts
of large amounts shortly after the loan was negotiated, but
independently of his own statements there is no positive evidence
that these payments were made with the money loaned.
The article 2412 of the Civil Code of Louisiana 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."
Under this law, a mortgage given by the wife to secure a loan
made to the husband, or to the wife covertly for his use, is void.
As the loan in question was made to the wife, which appears from
the mortgage and the check for the money, a question in the case is
whether these forms were adopted to charge the wife, in fraud of
the law, for the benefit of the husband.
No fraud or mistake is alleged in the bill. The complainant
states that the loan was made by her husband for his benefit, that
she became his surety in violation of the law of Louisiana, and was
induced, contrary to her wish, to mortgage her property for the
payment of the money. On these grounds, the court are asked to
declare the mortgage void.
If this bill be sustainable, it must be on the peculiar
provisions of the Louisiana law. In ordinary cases, it would be
demurrable. Where a feme covert,
by the forms of law, has
conveyed her property, she can avoid the effect of such conveyance
only by showing mistake or fraud. And this must be alleged in the
bill. On ordinary principles, an individual is estopped from
denying a fact which he has admitted in a sealed instrument.
In making the loan, Heath acted with great caution. He was agent
for his mother. He proceeded under legal advice, and consummated
the agreement in the presence of his counsel. Bein was known to be
irresponsible; consequently Heath
Page 47 U. S. 242
did not rely upon him for payment. The acts of Heath in
negotiating the contract and the account he gave of it all show
that he acted in good faith and in full confidence that the loan
was made to Mrs. Bein. The mortgage was executed by her, under the
most solemn declaration "that the money was borrowed for her
benefit" -- her attention being specially directed to the clause of
the mortgage which so declares, as appears from a marginal note --
sanctioned by the notary, and signed also by other persons. And the
check for the money was paid to the mortgagor.
From these facts it is clear that Heath is not chargeable with
collusion. And there is nothing on the face of the contract to
excite suspicion. On such a transaction, the mortgagee may well
stand and claim the benefit of the security until it shall be
impeached by the mortgagor. This is attempted to be done not by
proof of fraud or mistake, but on the ground that the loan did
inure to the benefit of the husband, and not to the benefit of the
wife. This is a matter subsequent to the contract, and involves the
inquiry, whether the person making a loan, with the utmost fairness
and caution, to the wife, must, to charge her, see that the money
is applied to her use.
The article, which declares that the wife cannot become the
surety of her husband, does not superadd the above important
condition as to the application of the money. It is not in the law,
unless it shall have been put there by judicial legislation. The
fact, that the money borrowed was paid to the husband or was used
for his benefit, as a matter of evidence, may be proved to show the
character of the transaction. And, connected with other facts, it
may conduce to establish collusion or fraud. But to treat this
supposed requisite as a matter of law, under the above article,
would violate every known rule of construction. With this general
remark we will examine the Louisiana decisions on this point.
The case of Brandegee v. Kerr and Wife,
7 Martin N.S.
64, in facts and principle is said to be similar to the one under
consideration. That was an "action on the note of the wife endorsed
by the husband, alleged to have been received from the wife on a
loan made to her by a check delivered to her." And the court
"that the circumstance of the wife having a separate advantage
in the contract, being of the essence of her obligation, must be
proven by some other evidence than proof of her having touched the
And in conclusion they say
"Being of opinion that there is no fact in evidence from which
it is possible to infer that the plaintiff's money was employed for
the separate use of the wife,"
&c., "we conclude that the wife is not bound." The court
"We cannot distinguish
Page 47 U. S. 243
this paper from a note joint and several of husband and wife,
for they are bound jointly and severally, and the plaintiff has
prayed for a judgment joint and several."
It must be admitted that the court, in the above case, consider
proof of the application of the money to the use of the wife as
essential to bind her. And unless that case, in its facts or the
law under which it was decided, shall be shown to differ from the
facts and law of the case under consideration, it will constitute a
rule of decision in this case.
If this action were on the notes given by Mrs. Bein and endorsed
by her husband, in that respect, and also in the payment of the
money to the wife, the cases would be similar. But in the case
before us, the action is on the mortgage, in which there is no
liability of the husband, and no decree is asked against him. It is
true, notes were given similar to that given in the case cited, but
the notes of Mrs. Bein, though endorsed by her husband, must be
considered as connected with the mortgage, which explains the
nature of the transaction. And in addition to this, there is
evidence that the contract was made with Mrs. Bein, under the
strongest assurance that the loan was made for her sole benefit,
and under a full conviction by Heath that it was so made. In these
important particulars, there is a difference between the cases. The
case cited seems to have rested on the face of the note and the
But still the ground, as to the application of the money,
In the above decision, the case of Darnford v. Gros and
7 Martin 465, is cited, and it is the only authority
referred to in the opinion of the court. The decision in that case
was founded on the 61st law of Toro. It is cited by the court as
"From henceforward it shall not be lawful for the wife to bind
herself as security for her husband, although it should be alleged
that the debt was converted to her benefit, and we do also order
that when the husband and wife shall obligate themselves jointly in
one contract, or severally, the wife shall not be bound in
anything, unless it shall be proved that the debt was converted to
her benefit, and she shall then be bound in proportion to what
shall have been so applied. . . . But if the debt so applied to her
use served only to procure that which her husband was obliged to
supply her with, such as food, clothing, and other necessaries,
then we say that she shall not be bound in anything."
The above action was founded on a promissory note subscribed by
the wife conjointly with her husband. And the court said
"that the restriction imposed by the Spanish laws on the
obligations contracted by the wife jointly with her husband
Page 47 U. S. 244
has not ceased to be in force, and that, according to it, when
the creditor wishes to compel her to the performance of such an
obligation, he must prove that the debt was converted to her
The law of Toro was repealed, with all other Roman, Spanish, and
French laws in Louisiana, in every case provided for in the Civil
Code by article 3521. The Civil Code was adopted in 1825. But as
the case first cited, of Brandegee v. Kerr and Wife,
decided in 1828, after the repeal of the law of Toro, it is
contended that the decision could not have been governed by that
law. But it seems, from the statement of one of the counsel, that
the contract was made under that law. The reference to the case of
Darnford v. Gros and Wife
shows, as above stated, that the
decision against Kerr and wife was made under the law of Toro. This
appears clearly from the language of the court.
Great reliance is placed on the case of Fireman's Company v.
Julia Louisa Cross,
4 Robinson 509. That action was instituted
on a promissory note for $7,000, drawn by the defendant, and
secured by mortgage on her paraphernal property. It was proved
"that no portion of the money loaned was ever paid to the
defendant, but that it was paid by the plaintiffs to different
persons on orders given by the husband."
The facts in that case show that the wife was the surety of the
husband. And the court very properly held, that such proof was
admissible, although in the mortgage the wife stated the loan was
made to her. Article 2256 declares, "that parol evidence shall not
be admitted against or beyond what is contained in the acts,"
&c. But this was held not to apply to contracts made in
In their opinion the court said -- "We are satisfied that the
money borrowed was intended for, and was applied to the use of, the
defendant's husband." "This case," they observe,
"is much stronger than that of Brandegee v. Kerr and
in which it appeared that the wife had actually received
the money, but there was no proof of its having turned to her
The citation of the case against Kerr and wife is a seeming
sanction of the ground on which that case was decided. But the case
before the court did not turn upon the application of the loan, as
it was clear that the husband received the money, and applied it,
by orders on the plaintiffs, to the payment of his own debts. This
shows the intent with which the loan was made, and also that the
facts were known to the plaintiffs. The reference seems to have
been made to the case of Kerr and wife generally, without adverting
to the law under which it was decided.
Page 47 U. S. 245
Of the same character was the case of Pascal v.
decided in 1846, and reported in manuscript.
The husband and wife, by a decree, were separated in property,
after which she delegated to him extensive and general powers for
the management and administration of her affairs. Two years after
this, the husband, under this power, executed the notes and
mortgage in question,
"stating in the act that the sum was due by his wife, in
consequence of a loan made to her by the defendant, and which he,
as her agent, acknowledged to have received."
And the court said --
"There is no proof that any part of this loan passed into the
hands of the plaintiff, or that it was applied or turned to her
benefit. She was not personally present at the execution of the
act, and is not shown to have been aware that the loan had been
made or the mortgage granted."
From these facts, there would seem to have been no mode by which
the wife could be bound, except by showing that the money was
applied to her use. This, on being shown, would, it is supposed,
have confirmed the agency. It would have established the bona
character of the act done by the husband. As a matter of
evidence, then, to explain the nature of the transaction, proof
that the loan accrued to the benefit of the wife was necessary to
It must be admitted, that the general language of the court
covers the ground assumed by the counsel for the appellant. They
"It has been settled, by repeated decisions of the late supreme
court, that it is incumbent on the party claiming to enforce the
contract of a married woman to show that the contract inured to her
And they cite the case of Brandegee v. Kerr and Wife,
and repeat, "that the circumstance of the wife having a separate
advantage in the contract, being of the essence of her obligation,
must be proved."
In answer to these remarks, it may be said, that the case turned
upon the suretyship of the wife, and not upon the application of
the money. The act was done by the husband without the knowledge of
the wife, which shows that it was done for his benefit.
It was held, 2 Martin N.S. 39, that the wife may bind herself
jointly and severally with her husband, provided she renounces the
law of Toro in due form. And that, when this is done, the creditor
need not prove that the engagement turned to her advantage. But she
cannot bind herself as surety for her husband, not even by binding
herself in solido
with him. That decision was made in
In Gasquet v. Dimitry,
9 La. 585, it was held,
"where the wife signs an act of mortgage with her husband,
Page 47 U. S. 246
given to secure a debt for his benefit, in which she renounces
formally all her rights, privileges, and mortgages on the property,
ceding and transferring them to her husband's creditor, was a
contract entered into by the wife conjointly with her husband,
binding herself for his debt, which, being prohibited by article
2412, was void."
The court in their opinion said
"The counsel for the appellant, in support of the position, that
the agreement on the part of the wife to renounce her claims on the
mortgaged property is null and void, relies upon article 2412."
After citing the article, they observe
"The question thus presented is to be decided by us without
reference to the laws of Toro, which have no longer here the force
of laws, and independently of former decisions of this Court while
guided by the Spanish jurisprudence; but we are called on to say
what, in our opinion, is the law of the land on this subject, as
established by the code standing by itself."
On a rehearing of the above case, the court held that the wife
was the surety of the husband, within "the sense of article 2412,
and that the act was consequently void." And it appears that the
legislature, being dissatisfied with the decision, passed an act
declaring "that married women aged twenty-one years shall have the
right to renounce, in favor of third persons, dotal, paraphernal,
and other rights," in a certain form &c.
In the case of E. Monfort v. Her Husband,
453, it was held
"that the purchaser of dotal property, legally alienated, has
nothing to do with the investment of the proceeds, and that the
husband alone has the administration of the dowry. If he misapplies
it, there is a lien of the wife on his property."
The law of Toro declared -- "The wife shall not be bound in
anything, unless it shall be proved that the debt was converted to
her benefit." In reference to this provision, the court said in the
case of Darnford v. Gros and Wife,
above cited -- "Whether
that restriction was attended with inconvenience is not for us to
consider. Our duty is to declare the law, not to modify it." But,
that law being repealed and another substituted in its place
declaring only "that the wife should not be bound as the surety of
the husband," it is not to be supposed that a citation of decisions
made under the law of Toro by the court, in cases where the wife
was clearly the surety of the husband, was designed essentially to
modify the substituted act. That in many cases, as a matter of
evidence, to charge the wife it may be necessary to prove that the
loan was applied to her use may be admitted. But under the above
Page 47 U. S. 247
we think that such evidence cannot be required as a matter of
law. The cases cited did not turn upon that ground.
But there is another view arising from the facts of this case,
which will now be considered.
This is a suit in chancery, and it is governed by the general
principles of such a proceeding. No new principle is introduced to
affect the relation of the parties or to modify rights growing out
of their contract.
It is a principle in chancery that he who asks relief must have
acted in good faith. The equitable powers of this Court can never
be exerted in behalf of one who has acted fraudulently or who by
deceit or any unfair means has gained an advantage. To aid a party
in such a case would make this Court the abetter of iniquity. And
we suppose that this principle applies to the case under
consideration. A feme covert,
acting on her own
responsibility, under the liberal provisions of the Louisiana law,
may act fraudulently, deceitfully, or inequitably so as to deprive
her of any claim for relief. This results from the capacity to make
contracts with which the law invests her.
Heath, the agent, as has already been said, acted in good faith.
He proceeded deliberately, under legal advice, and there is no
ground to charge him with unfairness or collusion against Mrs.
Bein. Assurances were made to him in the presence of his counsel by
Bein, acting in behalf of his wife, that the loan was for her; that
it was bona fide
and without any concealment. Resting upon
these and other assurances, the contract of loan was made, the
mortgage was executed by Mrs. Bein, and the money paid by Heath to
her under the direction and sanction of his counsel. Now if these
representations were false and Heath was thereby induced to part
with the money, can the complainant have a standing in equity?
Such a proceeding would be fatal, it is supposed, under the law
of Toro. For if it were admitted that to make the loan binding on
the wife, it must be proved to have inured to her use, yet if,
through the fraudulent intervention of the husband, she negotiated
the loan, giving to it her special sanction, equity would not
relieve her. A doctrine contrary to this would enable the wife to
practice the grossest frauds with impunity.
For nearly five years after the loan, the interest was
punctually paid by Mrs. Bein, the house and lot were insured, and
the policy annually assigned for the benefit of the mortgagee.
These facts, connected with the representations which induced Heath
to loan the money, show, if the loan was in fact for the husband, a
deliberate fraud on her part. Under such circumstances, we think
the complainant cannot invoke the aid of a court of chancery. She
has acted against conscience, in procuring
Page 47 U. S. 248
the funds of the mortgagee. The law protects her, but it gives
her no license to commit a fraud against the rights of an innocent
In the repeal of the law of Toro, and in substituting in its
place article 2412, the legislature gave the most unequivocal
evidence against the policy of that part of the repealed law which
required proof to charge the wife that the money borrowed was
applied to her use.
But in affirming the decree of the circuit court, we place our
opinion upon the unconscientious acts of the wife. The decree of
the circuit court is
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court, that the decree of the said circuit court in this cause be
and the same is hereby affirmed, with costs.