Spoitobd, J.
In January, 1854, Mrs. Belouguet, assisted by her husband, mortgaged some of her dotal property, to secure the sum of $11,533 30 ad[3]*3vanccd upon her promissory notes; the act of mortgage stated that this sum was “advanced in order to enable her to pay certain mortgage debts due the Citizens’ Bank of Louisiana, to Ji A. Dwel, as also certain other debts contracted by her for her use and benefit.”
She and her husband afterwards brought this suit against the holder of the notes and mortgage, to have the mortgage declared null and void; first, because the money thus lent, did not enure to her benefit; and, second, because the property mortgaged being dotal property, she had no right, power or capacity to mortgage the same.
She had judgment in her favor and the defendant has appealed.
We think it sufficiently established by affirmative proof, that the portion of the money loaned, which went to pay the debt of $3,611 20, duo to the Citizens’ Bank, enured to her benefit. It becomes necessary, therefore, to inquire whether the mortgage of the dotal property in favor of the dofendantwas valid in law under the circumstances in evidence before us.
The general rule as laid down in Article 2337 of .the Code, is that “immovables, settled as dowry, can be sold or mortgaged (aliénés M Tvqpothéqués) during the marriage, neither by the husband nor the wife, nor by both together, except as is hereinafter expressed.” *
The only exception to this rule applicable to the present case, is that contained in Article 2340; “ immovables• settled as. dowry, may be alienated with the wife’s consent, when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.”
The marriage contract by which the mortgaged property Was constituted as dowry, contained the following Article, from which the appellant infers that his mortgage is a valid one;
“ Art. 3me. Les immeubles dotaux pourront étre aliénés par le futur époux, avec le consentement de la futuro épouse, pendant le marriage á la condition expresse, que remploi de leur valeur sera fait en d’autres immeubles.”
A power to alienate may, under some circumstances, include a power to hypothecate. And the right of the spouses to stipulate in their marriage contract that the dotal property shall be subject to hypothecation, may also be conceded.
But the question here is, not what might the 'parties have done, but what have they done; not what the Code means, but What the marriage contract means.
The general rule being, that dotal property is insusceptible of hypothecation,
But that contract only reserved to the husband, acting with his wife’s consent, the power to alienate her dotal immovables upon the express condition of reinvesting their value in other immovables,
Hero the wife, acting with the husband’s consent, has assumed the power of mortgaging her dotal property for the avowed purpose of raising money to pay off her old debts.
We think it impossible, under any just rule of interpretation to say, that [4]*4by the qualified power of alienation conceded to the husband, this absolute power of hypothecation was reserved to the wife.
By tho Act of mortgage itself, the mortgagee was notified of the destination of the money ho loaned to a married woman. Ho was bound to know the character of tho property mortgaged, and to inquire into the authority of the mortgagor to incumber it for the purposes specified in the act.
In this court, the appellant has made the point that the wife could not in- ■ stitute an action like the present, until after a dissolution of the marriage or a separation of property, and the Article 2342 of tho Civil Code is cited as sustaining the position.
If she were incompetent to sue, upon which we express ho opinion, the husband was competent, and ho appears as a distinct party plaintiff. C. C. 2330 ; see also C. P. 107.
Tho appellant has apparent reason to complain of the hardship of the case, so far at least as relates to that portion of the loan which went to extinguish a valid mortgage upon Mrs. BelougueHs property in favor of the Citizens’ Bank. But he might have taken a subrogation to the mortgage rights of the bank and did not. ¥e cannot cure the effects of this laches; nor can the hardship ofi a case, lior even the imputed bad faith of a person laboring under a legal incapacity ha,vo the effect to give vitality to an act void in iaw. If the mere imputation of bad faith against a woman under marital authority, would deprive her of the laws made for her protection, they should be expunged from the statute book. For good faith requires her to do whatever she voluntarily engages to do.
• It is true, tho case affords a fresh illustration of the necessity for constant Vigilance which our laws impose upon all persons who deal with married women and minors, or in any way touch their property. But the laws and jurisprudence of Louisiana in this regard, a,re fixed and clear.
And it may be proper to remark that, in the interpretation and application of local laws, it is the local jurisprudence alone which carries with it a controlling weight of authority.
If the Supreme Court of the United States, for which, in its Constitutional sphere, we profess the utmost loyalty and respect, has ever overlooked this wholesome rule, whilst Construing the peculiar laws of Louisiana, it must have overlooked, at tho same time, one of its oldest traditions, and set an example which we cannot follow.
Judgment affirmed.
Merrick, C. J.
It must bo conceded that the decree prepared by a majority of the court, works a very great hardship to tho defendant.
The debt due by the plaintiff to the Citizens’ Bank, and paid by the defendant, was equivalent to a debt of a certain date prior to the marriage contract, C. C, 2341, Her property was so bound by her mortgage to the bank, that a sale of tho property by a syndic or administrator to pay debts, would not extinguish it The money borrowed upon the mortgage given to the defendant, paid this mortgage. The plaintiff having released her property from the mortgage to the Citizens’ Bank, by hypothecating- it to the defendant, now comes into a court of justice, and asks it to relieve her of tho last mortgage, and permit her to enjoy iri peace the property which the defendants money has redeemed.
[5]*5I doubt much whether I am obliged by the Code, or any principle of our law, to assent to what appears to me to be.so unjust.
I think the weight of authority is decidedly in favor of the position, that the power to alienate, used in a marriage contract, includes also that of mortgaging. See authorities collected in Throp. Du’'.Marriage, No. 8868. We held last year, in the case of the Citizens' Bank v. Armor, 11 An. 468, that a mortgage was a quasi alienation. Indeed I do not understand the opinion just pronounced to controvert this doctrine, but'it 'rests the decree upon the ground that the mortgagee was bound to see the money lentdnvested in other immovables as specified in the marriage contract,.
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Spoitobd, J.
In January, 1854, Mrs. Belouguet, assisted by her husband, mortgaged some of her dotal property, to secure the sum of $11,533 30 ad[3]*3vanccd upon her promissory notes; the act of mortgage stated that this sum was “advanced in order to enable her to pay certain mortgage debts due the Citizens’ Bank of Louisiana, to Ji A. Dwel, as also certain other debts contracted by her for her use and benefit.”
She and her husband afterwards brought this suit against the holder of the notes and mortgage, to have the mortgage declared null and void; first, because the money thus lent, did not enure to her benefit; and, second, because the property mortgaged being dotal property, she had no right, power or capacity to mortgage the same.
She had judgment in her favor and the defendant has appealed.
We think it sufficiently established by affirmative proof, that the portion of the money loaned, which went to pay the debt of $3,611 20, duo to the Citizens’ Bank, enured to her benefit. It becomes necessary, therefore, to inquire whether the mortgage of the dotal property in favor of the dofendantwas valid in law under the circumstances in evidence before us.
The general rule as laid down in Article 2337 of .the Code, is that “immovables, settled as dowry, can be sold or mortgaged (aliénés M Tvqpothéqués) during the marriage, neither by the husband nor the wife, nor by both together, except as is hereinafter expressed.” *
The only exception to this rule applicable to the present case, is that contained in Article 2340; “ immovables• settled as. dowry, may be alienated with the wife’s consent, when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.”
The marriage contract by which the mortgaged property Was constituted as dowry, contained the following Article, from which the appellant infers that his mortgage is a valid one;
“ Art. 3me. Les immeubles dotaux pourront étre aliénés par le futur époux, avec le consentement de la futuro épouse, pendant le marriage á la condition expresse, que remploi de leur valeur sera fait en d’autres immeubles.”
A power to alienate may, under some circumstances, include a power to hypothecate. And the right of the spouses to stipulate in their marriage contract that the dotal property shall be subject to hypothecation, may also be conceded.
But the question here is, not what might the 'parties have done, but what have they done; not what the Code means, but What the marriage contract means.
The general rule being, that dotal property is insusceptible of hypothecation,
But that contract only reserved to the husband, acting with his wife’s consent, the power to alienate her dotal immovables upon the express condition of reinvesting their value in other immovables,
Hero the wife, acting with the husband’s consent, has assumed the power of mortgaging her dotal property for the avowed purpose of raising money to pay off her old debts.
We think it impossible, under any just rule of interpretation to say, that [4]*4by the qualified power of alienation conceded to the husband, this absolute power of hypothecation was reserved to the wife.
By tho Act of mortgage itself, the mortgagee was notified of the destination of the money ho loaned to a married woman. Ho was bound to know the character of tho property mortgaged, and to inquire into the authority of the mortgagor to incumber it for the purposes specified in the act.
In this court, the appellant has made the point that the wife could not in- ■ stitute an action like the present, until after a dissolution of the marriage or a separation of property, and the Article 2342 of tho Civil Code is cited as sustaining the position.
If she were incompetent to sue, upon which we express ho opinion, the husband was competent, and ho appears as a distinct party plaintiff. C. C. 2330 ; see also C. P. 107.
Tho appellant has apparent reason to complain of the hardship of the case, so far at least as relates to that portion of the loan which went to extinguish a valid mortgage upon Mrs. BelougueHs property in favor of the Citizens’ Bank. But he might have taken a subrogation to the mortgage rights of the bank and did not. ¥e cannot cure the effects of this laches; nor can the hardship ofi a case, lior even the imputed bad faith of a person laboring under a legal incapacity ha,vo the effect to give vitality to an act void in iaw. If the mere imputation of bad faith against a woman under marital authority, would deprive her of the laws made for her protection, they should be expunged from the statute book. For good faith requires her to do whatever she voluntarily engages to do.
• It is true, tho case affords a fresh illustration of the necessity for constant Vigilance which our laws impose upon all persons who deal with married women and minors, or in any way touch their property. But the laws and jurisprudence of Louisiana in this regard, a,re fixed and clear.
And it may be proper to remark that, in the interpretation and application of local laws, it is the local jurisprudence alone which carries with it a controlling weight of authority.
If the Supreme Court of the United States, for which, in its Constitutional sphere, we profess the utmost loyalty and respect, has ever overlooked this wholesome rule, whilst Construing the peculiar laws of Louisiana, it must have overlooked, at tho same time, one of its oldest traditions, and set an example which we cannot follow.
Judgment affirmed.
Merrick, C. J.
It must bo conceded that the decree prepared by a majority of the court, works a very great hardship to tho defendant.
The debt due by the plaintiff to the Citizens’ Bank, and paid by the defendant, was equivalent to a debt of a certain date prior to the marriage contract, C. C, 2341, Her property was so bound by her mortgage to the bank, that a sale of tho property by a syndic or administrator to pay debts, would not extinguish it The money borrowed upon the mortgage given to the defendant, paid this mortgage. The plaintiff having released her property from the mortgage to the Citizens’ Bank, by hypothecating- it to the defendant, now comes into a court of justice, and asks it to relieve her of tho last mortgage, and permit her to enjoy iri peace the property which the defendants money has redeemed.
[5]*5I doubt much whether I am obliged by the Code, or any principle of our law, to assent to what appears to me to be.so unjust.
I think the weight of authority is decidedly in favor of the position, that the power to alienate, used in a marriage contract, includes also that of mortgaging. See authorities collected in Throp. Du’'.Marriage, No. 8868. We held last year, in the case of the Citizens' Bank v. Armor, 11 An. 468, that a mortgage was a quasi alienation. Indeed I do not understand the opinion just pronounced to controvert this doctrine, but'it 'rests the decree upon the ground that the mortgagee was bound to see the money lentdnvested in other immovables as specified in the marriage contract,. which the majority of the court conclude he failed to do.
Let us consider what was the object of this stipulation in the marriage contract ; certainly it was nothing more than to prevent the dotal funds of the wife from being invested in anything else than dotal property. If that object is’fully accomplished, neither the wife nor her husband have any reason to complain.
When this property was mortgaged to the Citizens’ Bank, there had been a partial dismemberment of property, and by the quasi alienation created by the mortgage, the Citizens’ Bank had acquired a right in the property, and as a consequence, the wife had lost a portion of her dominium over it, for she had no longer the full right to dispose of the property-'as she pleased. Trop. Hyp. No. 386; C. C. 3245, 2007; C. P. 42 and.61. What of property or ownership she had lost, the Citizens’ Bank had acquired. Now, as a consequence, at the time the defendant lent the money to pay the debt, the plaintiff was not the absolute owner of the property. The defendant saw the money applied to the payment of the debt of the Citizens’ Bank, by. means of which the right of that bank to the property was extinguished, and the right which the bank had held, reinvested in the plaintiff. There had then been a substantial reinvesting of her dotal funds, obtained on the mortgage to defendant, to the extent of the debt of the Citizens’ Bank. It is true it was not invested in another immovable, but it was invested in another real action, constituting a part of the dominium in the immovable. C. P. 01. Why, therefore, is it not as much within the spirit of the marriage contract,, as would be the case if the wife had been the owner of the property constituted in dower to the extent, say, of seven-eighths, and had mortgaged the.seven-eighths in order to invest the proceeds in the purchase of the outstanding one-eighth ? Or, being the owner of the naked property, had mortgaged it to buy in the usufruct f This would not literally be a reinvestment in another immovable, but it seems to me, would be a substantial compliance with the contract, and I am inclined to think that there was the like compliance in the .acquisition to the plaintiff of the mortgage of the Citizens’ Bank.
It may moreover be remarked, that the debt of the Citizens’ Bank authorized that institution to seize and sell tho property mortgaged in the hands of the plaintiff. By Article 2841 of the Civil Code, that debt being equivalent to a debt of a certain date anterior to the marriage, it Was in the power of the Judge to authorize the sale not only of the property mortgaged, but any other dotal property for the payment of the debt. The debt to the Citizens’ Bank being, therefore, so absolute, it is against natural equity that these parties should be permitted to enrich themselves by its' extinguishment at the expense [6]*6of the defendant, and thus derive their means of living, during the marriage, from a house which the defendant’s money has partially paid for, and which is thus protected from the pursuit of the creditors of these parties.
Holding these views, I am not prepared to assent to the decree in this case, so far as the same declares the mortgage null, for the money which was used in the payment of the debt of the Citizens’ Bank.
Note — i. e. Prior to the dissolution of the marriage, or a judgment involving a separation oí property. See Guerin v. Rivarde, 8 Rob. 457. . II. M. S.