plaintiff, and that the suit involved a question under the
bankrupt law of the United States as to the effect of the husband's
discharge in bankruptcy upon the plaintiff's claim and
mortgage.
In that court, a supplemental bill, answers (setting up, among
other defenses), the husband's discharge in bankruptcy, and
replications were filed, and on May 31, 1889, the case was heard
upon pleadings and proofs, by which the material facts appeared to
be as follows:
The plaintiff was married to Francis B. Fleitas on February 6,
1868. Before the marriage and on the same day, they and her parents
signed a marriage contract before a notary public, and in the
presence of two witnesses, which provided that there should be a
community of acquets and gains between the husband and wife in
accordance with the provisions of the Civil Code of Louisiana, and
by which her parents declared that in consideration of her intended
marriage, they thereby made to her a donation of $20,000 in money,
and Fleitas acknowledged that he had received that sum and declared
that "he has taken charge of said amount for account of his said
future wife, and for which he holds himself and remains liable to
her according to law," and
"by mutual consent it is hereby agreed that all the property of
the future wife, now owned by her or which may be hereafter
acquired by her with funds unto her belonging, shall be and remain
her paraphernal property."
This contract was duly recorded on September 27, 1870, in the
Parish of St. Bernard.
Francis B. Fleitas, on April 25, 1877, obtained a discharge in
bankruptcy in the District Court of the United States for the
Eastern District of Louisiana under proceedings commenced April 26,
1876, and afterwards, and before 1884, purchased the lands in
question, and on January 28, 1884, mortgaged them by notarial act,
duly recorded, to secure debts of his to Richardson, and to
Shattuck & Hoffman.
On September 3, 1887, the plaintiff filed a petition in the
district court of the Parish of St. Bernard against her husband for
separation of property, and for a recognition of her mortgage on
all his lands in that parish, alleging that he was
Page 147 U.S. 552
largely in debt and that there was danger that his estate would
not be sufficient to satisfy her rights and claims. On the same
day, he filed an answer denying all her allegations, except the
marriage and the marriage contract, and on September 10, 1887, she
recovered judgment against him dissolving the community of acquets
and gains, decreeing a separation of property between them, and
ordering that the sum of $20,000, held by him as her paraphernal
property, be returned to her and be recognized as secured by legal
mortgage on all his lands in that parish, to take rank and effect
from September 27, 1870. Execution was issued on this judgment,
under which the sheriff levied on the lands in question, and on
November 19, 1887, sold and conveyed them to the plaintiff.
On June 29, 1888, Richardson instituted executory proceedings
upon the mortgage of January 28, 1884, for the seizure and sale of
the lands, as set forth in the next preceding case, the record of
which was made part of the record in this case.
In the present case, the circuit court dismissed the bill and
the supplemental bill upon the ground that the husband's discharge
in bankruptcy barred the plaintiff's claim, and defeated any
mortgage or lien in her favor. 39 F. 129. The plaintiff appealed to
this Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
The law of Louisiana as to the rights of married women, which
must have a controlling influence on the decision of this case,
differs widely from the common law, and a statement of some of its
principal rules cannot well be avoided.
By the law of Louisiana, persons contracting marriage may, by
antenuptial contract before a notary public, and in the presence of
two witnesses, make such agreements as they
Page 147 U.S. 553
please (not affecting the legal order of descents) concerning
the title and enjoyment of their property, and of donations made to
them by third persons in consideration of the marriage, Civ.Code,
Arts. 2325 (2305), 2328 (2308), 2329 (2309), 2331 (2311), and the
partnership or community of acquets and gains exists between them
by operation of law, unless otherwise stipulated in the contract.
Arts. 2332 (2312), 2399 (2369).
The separate property of the wife is that which she "brings into
the marriage, or acquires during the marriage by inheritance or by
donation made to her particularly," and
"is divided into dotal and extradotal. Dotal property is that
which the wife brings to the husband to assist him in bearing the
expenses of the marriage establishment. Extradotal property,
otherwise called 'paraphernal property,' is that which forms no
part of the dowry."
Articles 2334 (2314), 2335 (2315).
"The wife has a legal mortgage on the property of her husband"
for the restitution or reinvestment of the dotal property or dowry,
and "for the restitution and reinvestment of her paraphernal
property." Art. 3319 (3287). The marriage contract, out of which
this mortgage arises, is required to be recorded in the Parish
where the husband's property is. Art. 3349; Louisiana Rev.Stat. §
2381. Such a mortgage is not required, like ordinary mortgages, to
be reinscribed every ten years. Civ.Code, art. 3369 (3333). It
attaches to any lands acquired by the husband during coverture, and
while his liability to the wife continues to exist.
Johnson v.
Pilster, 4 Rob. (La.) 71, 76.
As a general rule, contracts of sale between husband and wife
are prohibited, but one of the exceptions to this rule is that he
may transfer property to her in settlement of claims arising out of
her separate property. Civ.Code, art. 2446 (2421).
The wife has no estate of dower in the lands of her husband, nor
any right corresponding or equivalent to dower at common law. The
decision in
Porter v. Lazear, 109 U. S.
84, therefore has no application to this case.
The liability of the husband to the wife for her separate
Page 147 U.S. 554
property received by him under the marriage contract is in the
nature of a debt secured by mortgage of his lands, and may be
enforced by her by direct suit against him.
Although the wife cannot maintain an action, in relation either
to her dotal or to her paraphernal property, against a third person
unless authorized by her husband, or, if he fails to do it, by a
judge, yet she may, with the authorization of the court in which
she brings the action, sue her husband "for the separation of
property, or for the restitution and enjoyment of her paraphernal
property." Code of Practice, arts. 105-108. The object of the
provision requiring the wife to obtain the authorization of the
court is to protect the husband against vexatious and unadvised
family suits, and the want of such authorization is waived if the
husband accepts service without taking the objection.
Le Blanc
v. Dubroca, 6 La.Ann. 360;
Spivey v. Wilson, 31
La.Ann. 653.
The wife may at any time during the marriage sue the husband for
a separation of property "when the disorder of his affairs induces
her to believe that his estate may not be sufficient to meet her
rights and claims." Civil Code, art. 2425 (2399). Consequently a
transfer of property or a confession of judgment by an insolvent
husband to his wife in settlement of her claims is good against his
creditors.
Lehman v. Levy, 30 La.Ann. 745, 750;
Levi
v. Morgan, 33 La.Ann. 532;
Thompson v. Freeman, 34
La.Ann. 992.
Besides the power which the wife has to sue her husband for a
separation of property when the disorder of his affairs endangers
her rights, she has the absolute right at any time, and at her own
discretion, without regard to the condition of the husband's
affairs, to resume the sole possession and administration of her
paraphernal property, and to maintain a suit against him for that
purpose. Civil Code, arts. 2384 (2361), 2385 (2362), 2387 (2364),
2391 (2368);
Brooks v. Wigginton, 14 La.Ann. 676;
Joly
v. Weber, 35 La.Ann. 806, 809, and cases cited;
Burns v.
Thompson, 39 La.Ann. 377.
When there is a community of acquets and gains, the fruits and
income of the wife's paraphernal property administered by the
husband belong to the conjugal partnership or
Page 147 U.S. 555
community. Civil Code, arts. 2386 (2363), 2402 (2371). The
husband may appropriate such fruits and income to his own use.
Wimbish v. Gray, 10 Rob. (La.) 46;
Miltenberger v.
Keys, 25 La.Ann. 287. He is not liable to her for neglecting
to collect them.
Wallace v. McCullough, 20 La.Ann. 301.
Nor is he liable for interest on the debt to his wife except after
she has obtained judgment against him.
Burns v. Thompson,
39 La.Ann. 377.
The debt of the husband to the wife is so like an ordinary debt
that it may be seized and sold on execution against her.
Hawes
v. Bryan, 10 La. 136. And in proceedings in insolvency
in
invitum against the husband under a statute of the state, she
may prove and vote upon her paraphernal claim even if she has not
renounced the community of acquets and gains.
Planters' Bank v.
Lanusse, 10 Martin 690, and 12 Martin 157.
Where, after a wife had recovered a judgment of separation of
property and an execution thereon had been partly satisfied, the
husband went into bankruptcy and obtained a discharge, the Supreme
Court of Louisiana held that her debt was barred, and could not be
enforced against property subsequently acquired by him, and said
that it must
"regard the balance of the debt due by the husband to his wife
as extinguished by the discharge in bankruptcy, and that
consequently she had, no longer a right to issue an execution; that
any property acquired by him afterwards was free from any claim on
her part, and that, in truth, the community had ceased to
exist."
Alling v. Egan, 11 Rob. (La.) 244, 245.
Such being the nature of the liability of the husband to the
wife for her paraphernal property under the law of Louisiana, it
was clearly provable by her against him as a debt under the
Bankrupt Act of the United States. Rev.Stat. § 5067;
In re
Bigelow, 3 Benedict 198;
In re Blandin, 1 Lowell 543;
In re Jones, 6 Bissell 68, 78.
It is equally clear that it has none of the elements of a trust,
certainly not of such a technical trust as to make it a fiduciary
debt, within the meaning of that act, and that consequently it was
barred by his discharge in bankruptcy. Rev.Stat.
Page 147 U.S. 556
§§ 5117, 5119;
Hennequin v. Clews, 111 U.
S. 676;
Upshur v. Briscoe, 138 U.
S. 365.
The remaining question is whether the appellees can avail
themselves of that discharge. The dates bearing upon this question
are as follows: the marriage contract out of which the plaintiff's
mortgage arose was made in 1868 and recorded in 1870. The husband's
discharge in bankruptcy was obtained in 1877 from all debts due at
the commencement of proceedings in 1876, including his liability to
his wife. She had as yet no mortgage on these lands, because they
were not his property. After this, he purchased the lands, and in
1884 mortgaged them to the appellees. In 1887, the wife sued the
husband and obtained a judgment for a separation of property,
declaring a mortgage in her favor as of the date of the recording
of the marriage contract, and upon that judgment took out
execution, under which the sheriff levied upon the lands and sold
them to her.
Under these circumstances, by the law of Louisiana, the debt of
the husband to the wife was extinguished by his discharge in
bankruptcy, and thereupon her mortgage, which was but a security
for that debt, disappeared with it, and could not attach to these
lands upon his subsequently purchasing them, and the appellees,
claiming as his creditors under the mortgage from him to them, were
entitled to set up his discharge in bankruptcy against any lien
claimed by her upon the lands. Civil Code, arts. 3278 (3245), 3285
(3252), 3466 (3429);
Alling v. Egan, 11 Rob. (La.) 244;
Upshur v. Briscoe, 37 La.Ann. 138, 153,
138 U. S. 138 U.S.
365,
138 U. S. 379;
Larthet v. Hogan, 1 La.Ann. 330;
New Orleans Co. v.
Recorder of Mortgages, 27 La.Ann. 291;
Klotz v.
Macready, 44 La.Ann. 166.
Neither the omission of the husband to plead his discharge in
bankruptcy in his wife's suit against him nor the judgment
recovered by her in that suit can affect the title of the appellees
(who were not parties to that suit) under the previous mortgage to
them.
Judgment affirmed.
MR. JUSTICE SHIRAS, not having been a member of the court when
this case was argued, took no part in its decision.
