Benit v. Her Husband

18 La. Ann. 675

• Court: Supreme Court of Louisiana
• Decided: December 15, 1866
• Status: Published

Opinion

Howeed, J.

The plaintiff having obtained a judgment against her husband for a large sum of money, and having taken from her said husband a transfer of certain real property, by notarial act, in part satisfaction of said judgment, took a rule on several judgment creditors of the husband to cancel their judicial mortgages.

On hearing the parties, the District Judge discharged the rule, and the plaintiff appealed.

The question presented is, what is the effect of the sale from the husband to the wife, as to the mortgages resting on the property sold ? It is shown that, at the date of the sale, the husband was insolvent, and proceedings were pending to compel a surrender of his property to his creditors. He certainly could do nothing to impair the rights of his ceditors, and although the law authorizes such a contract for such purpose, under certain circumstances, it does not give it the effect of a forced sale as to third'persons. .

We know of no provision of law which authorizes the cancelling of the mortgages resting upon the property thus acquired, by plaintiff, as sought to be done in this proceeding.

Judgment affirmed.