The judgment of the court was pronounced by
Eustjs, C. J.
This suit was instituted on two promissory notes, executed by the defendant and his wife jointly, and secured by mortgage on immovable property situated in Louisiana. The defendants were domiciliated in Mary[426]*426land, where they continued to-reside. The suit against them was commenced ^ attachment, under which the mortgaged property was attached. There was judgment against the defendants with privilege of mortgage on the property attached, and they have appealed.
The appellants have contended before ns in argument: 1st. That no property of the husband having been attached, no judgment could be lawfully rendered against him. 2d. That Mrs. Morion, having bound her property and not herself personally, judgment could not be rendered against her, but only against her property. 3d. That a married woman cannot bind her immovable property in this State as surety for her husband’s debts; and that the mortgage being invalid, no judgment should have been rendered against her property.
The first proposition is certainly tenable. No property of the husband having been attached, no judgment can be rendered against him. His appearance in court by a-curator must be only considered as assisting his wife in the proceedings.
It is established that a married woman in Maryland, where these contracts were made, may become responsible for the debts of her husband, so as to bind property settled on her for her separate use, but not so as to bind herself personally; and hence- it is inferred that no judgment could be rendered against her personally.
The question as to the validity of the mortgage granted by Mrs. Morton to secure the debt-of her husband controls the case, and reduces the point raised as to the personal effect of the judgment to a mere matter of form.
/ The district judge thought that the ground on which the mortgage was at-tempted to be invalidated was a matter of personal disability, and depended exclusively on the law of the domicil of the party granting it. T. e argument before us lias been principally directed t'o-this question, whether the validity of the mortgage is to be tested by the laws of this State, or those of Maryland.
Thearticle of the Code which provides that the wife cannot bind herself for the debts of her husband, according to the doctrine of the civilians, is a.personal statute. It is founded exclusively on the personal relation between husband and wife, resulting from marriage under our laws, and of course is confined in-its operation to married persons within our jurisdiction. True, it establishes an incapacity to-contract, b'ut this incapacity is merely relative, and it is settled-by our jurisprudence that a wife cannot be relieved from the effect of a contract by which she became the surety for her husband, if the debt itself inured to her benefit. The disability to contract exists only in a certain contingency, and that contingency is strictly personal. The incapacity of a married woman-to contract is of the same character as that of a minor, and the laws creating those incapacities have always been classed among those which are called personal. This article does not even purport to affect the immovable property of married women. Its operation upon such property is only indirect, as all property is affected by laws relating to contracts. It renders- voidable contracts made by married women in certain cases, by reason of the consideration which it holds to be in conflict with the relations of husband and wife. It has no one characteristic of what is considered in jurisprudence as a real statute. Those laws are real, in contradistinction to personal statutes, which regulate directly pro* perty, without reference to the condition or the capacity of its possessor. The distinction between these classes of laws, though their application is in máhy cases difficult, appears to us to be obvious. 1 Duranton, § 79, 80,
[427]*427The contract entered into in the-present instance bound the property of the wife under the law of Maryland, wheve the contract was made, and where the husband and wife are domiciliated. The act of mortgage is valid in point of form. The property mortgaged was not dotal, and she would have had a right to sell or mortgage it, with the consentof her husband, in all but cer'nin excepted cases, if her domicil had been in Louisiana. It there be no objection to the validity of this mortgage except that resulting from her incapacity as a married woman, we find no just ground for declaring it to be invalid. It conflicts with no law of the State, and there is no reason of comity which would authorize a court in Louisiana to relieve the wife from its effect. It interferes with no real statute ; and the personal statute does not rendí it, by reason of the person not being subject to our jurisdiction and unaffected by our laws.
Suppose that by the laws of Maryland the age of twenty years was fixed as that of majority, and a person domiciliated in that State, above that age and not twenty-one years old, should sell real estate in Louisiana,-he could not be aided by our courts in setting aside the sale afterwards on the ground of his minority. The answer to such a pretension would be, as in this-case. The disability resulting from the condition of persons is personal, and contracts valid at the place of domicil, are valid without reference to the situation of the property, so far as the capacity of the party to contract is concerned. Merlin Rep. verbis Statut, Majorité, Automation maritale. Sirey, Rep. 19, 2,140, case of Morris. Traité des Personnes, -par Proudhon, ch. 5, § 1. Merchants' Bank of Baltimore v. Bank of United States, 2 Annual Rep. 659.
We have examined with care the authorities cited in the learned argument, submitted by the counsel for the defendants. A review of them in detail would extend our observations beyond the length to be observed in judicial opinions. The counsel contends that the law of Maryland, by which a married woman, though generally incapacitated to make contracts, is enabled to bind her property for her husband’s debts, is a real -statute, and applies to property exclusively within.the jurisdiction of that State. But we understand the right of the wife to bind her separate .property for her husband to be founded on a rule of equity, which regards her as a feme sole -in-all cases in which she, -without any fraud or unfair advantage, and with a clear intention of affecting her separate property, enters into an,agreement respecting it: and this view, which a court of equity enforces in relation to her separate property, is independent of its character and situs, and removes every disability in respect to it, so far as a court of equity is called to act upon it.
It is not pretended that our conclusions on this question harmonize with ¡all that has been written or decided on this difficult subject; but our aim has been to adopt none which -from their generality would conflict with any recognized principle of jurisprudence, and we think we can safely rest the decision of the case on the authority of Merlin and Pothier. Merlin, verbo Senatus-consult. Veil. Pothier, Ob. 389.
It is, therefore, ordered that, the judgment of the 'District Court be reversed, and that the plaintiffs recover judgment against the defendant Mary Ann Morton, wife of George C. Morton,
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The judgment of the court was pronounced by
Eustjs, C. J.
This suit was instituted on two promissory notes, executed by the defendant and his wife jointly, and secured by mortgage on immovable property situated in Louisiana. The defendants were domiciliated in Mary[426]*426land, where they continued to-reside. The suit against them was commenced ^ attachment, under which the mortgaged property was attached. There was judgment against the defendants with privilege of mortgage on the property attached, and they have appealed.
The appellants have contended before ns in argument: 1st. That no property of the husband having been attached, no judgment could be lawfully rendered against him. 2d. That Mrs. Morion, having bound her property and not herself personally, judgment could not be rendered against her, but only against her property. 3d. That a married woman cannot bind her immovable property in this State as surety for her husband’s debts; and that the mortgage being invalid, no judgment should have been rendered against her property.
The first proposition is certainly tenable. No property of the husband having been attached, no judgment can be rendered against him. His appearance in court by a-curator must be only considered as assisting his wife in the proceedings.
It is established that a married woman in Maryland, where these contracts were made, may become responsible for the debts of her husband, so as to bind property settled on her for her separate use, but not so as to bind herself personally; and hence- it is inferred that no judgment could be rendered against her personally.
The question as to the validity of the mortgage granted by Mrs. Morton to secure the debt-of her husband controls the case, and reduces the point raised as to the personal effect of the judgment to a mere matter of form.
/ The district judge thought that the ground on which the mortgage was at-tempted to be invalidated was a matter of personal disability, and depended exclusively on the law of the domicil of the party granting it. T. e argument before us lias been principally directed t'o-this question, whether the validity of the mortgage is to be tested by the laws of this State, or those of Maryland.
Thearticle of the Code which provides that the wife cannot bind herself for the debts of her husband, according to the doctrine of the civilians, is a.personal statute. It is founded exclusively on the personal relation between husband and wife, resulting from marriage under our laws, and of course is confined in-its operation to married persons within our jurisdiction. True, it establishes an incapacity to-contract, b'ut this incapacity is merely relative, and it is settled-by our jurisprudence that a wife cannot be relieved from the effect of a contract by which she became the surety for her husband, if the debt itself inured to her benefit. The disability to contract exists only in a certain contingency, and that contingency is strictly personal. The incapacity of a married woman-to contract is of the same character as that of a minor, and the laws creating those incapacities have always been classed among those which are called personal. This article does not even purport to affect the immovable property of married women. Its operation upon such property is only indirect, as all property is affected by laws relating to contracts. It renders- voidable contracts made by married women in certain cases, by reason of the consideration which it holds to be in conflict with the relations of husband and wife. It has no one characteristic of what is considered in jurisprudence as a real statute. Those laws are real, in contradistinction to personal statutes, which regulate directly pro* perty, without reference to the condition or the capacity of its possessor. The distinction between these classes of laws, though their application is in máhy cases difficult, appears to us to be obvious. 1 Duranton, § 79, 80,
[427]*427The contract entered into in the-present instance bound the property of the wife under the law of Maryland, wheve the contract was made, and where the husband and wife are domiciliated. The act of mortgage is valid in point of form. The property mortgaged was not dotal, and she would have had a right to sell or mortgage it, with the consentof her husband, in all but cer'nin excepted cases, if her domicil had been in Louisiana. It there be no objection to the validity of this mortgage except that resulting from her incapacity as a married woman, we find no just ground for declaring it to be invalid. It conflicts with no law of the State, and there is no reason of comity which would authorize a court in Louisiana to relieve the wife from its effect. It interferes with no real statute ; and the personal statute does not rendí it, by reason of the person not being subject to our jurisdiction and unaffected by our laws.
Suppose that by the laws of Maryland the age of twenty years was fixed as that of majority, and a person domiciliated in that State, above that age and not twenty-one years old, should sell real estate in Louisiana,-he could not be aided by our courts in setting aside the sale afterwards on the ground of his minority. The answer to such a pretension would be, as in this-case. The disability resulting from the condition of persons is personal, and contracts valid at the place of domicil, are valid without reference to the situation of the property, so far as the capacity of the party to contract is concerned. Merlin Rep. verbis Statut, Majorité, Automation maritale. Sirey, Rep. 19, 2,140, case of Morris. Traité des Personnes, -par Proudhon, ch. 5, § 1. Merchants' Bank of Baltimore v. Bank of United States, 2 Annual Rep. 659.
We have examined with care the authorities cited in the learned argument, submitted by the counsel for the defendants. A review of them in detail would extend our observations beyond the length to be observed in judicial opinions. The counsel contends that the law of Maryland, by which a married woman, though generally incapacitated to make contracts, is enabled to bind her property for her husband’s debts, is a real -statute, and applies to property exclusively within.the jurisdiction of that State. But we understand the right of the wife to bind her separate .property for her husband to be founded on a rule of equity, which regards her as a feme sole -in-all cases in which she, -without any fraud or unfair advantage, and with a clear intention of affecting her separate property, enters into an,agreement respecting it: and this view, which a court of equity enforces in relation to her separate property, is independent of its character and situs, and removes every disability in respect to it, so far as a court of equity is called to act upon it.
It is not pretended that our conclusions on this question harmonize with ¡all that has been written or decided on this difficult subject; but our aim has been to adopt none which -from their generality would conflict with any recognized principle of jurisprudence, and we think we can safely rest the decision of the case on the authority of Merlin and Pothier. Merlin, verbo Senatus-consult. Veil. Pothier, Ob. 389.
It is, therefore, ordered that, the judgment of the 'District Court be reversed, and that the plaintiffs recover judgment against the defendant Mary Ann Morton, wife of George C. Morton, to be paid exclusively out of the property mortgaged, for the sum of $24,824 82, with interest at six per cent per annum on $12,234 22 from 6th March, 1843, and on the balance, $12,590 59, from 6th September, 1843, and that the property and rights attached in this suit, and described in the act of mortgage on file-therein, be sold by .the sheriff in satisfaction [428]*428of this judgment, with costs of the court below; the plaintiffs to pay the costs c í.1 ' i a °f *¡s appeal.
W, D. Hennen, for a rehearing. The authority of Merlin and Pothier are cited by the court, as supporting the judgmont. Merlin, verbo Sen. cons, yelleianum. Pothier, •Obi. 389. The appellants, on the contrary, urge that the authorities cited arc conclusive in their fayor. Potbier, loc. cit. says that, if a woman living ill Paris, by whose customs she can becomo surety, contracts an obligation of that kind, her property, although situated in Normandy, by whose customs she cannot become surety, •will be bound. He then supposes that it may be urged as an objection that the Sen. con. Velleiarmm is indeed a personal statute, so far as it forbids a woman to bind herself personally for another ; but, that it is a real statute so far as it forbids a woman to bind her property for another; and that this latter part of the law, being real in its nature, should govern all things within its jurisdiction, and therefore invalidate an obligation by which a woman, though not personally subject to its operation, has bound her property in Normandy for another’s debt. What does he say to this objection? “Mo réponse est que cel .argument prouve settlement que si une parisienne, sans se rendre caution et sans s’obliger personnellement, obligealt ses tyens sitúes en Normandie, pour la dette d’ autrui, cette obligation eeroit nulle; paree que lo velléien, observé en Normandie, qui a empiro sur Ies choses qui y sont situées, en empáche l’obligatíon pour la dette d’autrui.” But what Pothier here declares, to be proved by the objection he himself raises and to be a correct principle, is the very case before the .court; for Mrs. Morton sans se rendre caution et sans s’obliger personnellement,” has bound only her property situated in this State, where the same law prevails as did once in Normandy; and .therefore “cette obligation seraii nulle,’’ if we rest upon the authority of Pothier.
Merlin, in bis Questions Mixtessur le Sénatus-consulte Villéirn, No. 2, after showing that the sei.atus-consulium is a personal and not areal statute, examines a decision of the I Parliament of Grenoble, in the case of Guérimand v. Mazné. In that ease Mrs. Guérimand, living in Dauphiné, had removed with her husband to Paris, and becomo his suroty there. After giving the reasons for which the suretyship was annulled, Merlin says: “Mais supposons la dame Guérimand véritablemontdomieiliée á Paris dans le temps oü elle y avait contracts, et venant ensuite invoquor en Dauphiné l’exception du Sénatus-consulte Velléien, non pour conserver un dotpurement mobiliére, mais pour soustraire aux poursuites des créanciers euyers lesquols elle se sorail obligée, des ¡mmeubles dotaux régispar la loi Julia et frappés d’inaliénabilité. Dans cette hypothése, quel eút .été son sort? ' Elle aurait dü triompher, nonobstant la personnalité du statut que forme le Sénatus-consulte Velléien. * * * * * * Ce que nous disons de la loi Julia il faut le diré égalomont des coutumes qui, ,á son exemple, frappent d’inaliónabilité les fonds dotaux. Ainsi, quoique la femme normanda so it, par le Sénatusr consulto Velléien et á raison de Ja personnalité de ce statut, incapable d’obliger pour autrui les biens qu’ elle posséde ,dans les coutumes oü ce Sénatus-consulte n’est pas requ, la femme parisienne, tout affranchie qu’elle est du Sénatus-consulte Velléien, ne pent ce- H autrui les immeubles dotaux en Normandie.” n
According to Merlin then, Mrs. Morton “ tout affranchie qu’elíe est du Sénatus-consulte 1 Volléien,” or from the art. 2413 of our Civil Code, still could not bind her immovable pro- H perty situated in a Slate whose laws forbid a married woman to bind her property for hoy 9 husband. Rehearing refused, fl