His Honor, Eranois A. Monroe, judge of the Third District Court for the parish of Orleans, called upon to supply the place of Chief Justice Manning, recused, and to aid in determining the cause, pronounced the judgment and decree of the court.
Monroe, J.
On the 27th of December, 1866, Mrs. Mary Smith Calhoun and her husband, Meredith Calhoun, appeared before the U. S. Consul in Paris, Erance, and executed an act of procuration by which they appointed their son, William S. Calhoun, their agent and attorney in fact, and authorized him to take charge of, and conduct, all business affairs pertaining to them in America, whether the same relate to real or personal property, or be of any other nature or kind whatsoever; further authorizing him “to sell, assign, and transfer any and all real estate, lands, tenements, and hereditaments, to them, or either of them belonging,” and to mortgage or lease the sanie; “ to make, execute, acknowledge, and deliver any contracts, agreements or covenants, and to sign, seal and deliver all conveyances, deeds, leases, mortgages or other instruments of writing necessary for the' execution of the power” granted to him.
In 1869 Meredith Calhoun died in Paris, where he and his wife had [773]*773■continued to reside, and, upon the 12th of May, 1870, Wm. S. Oalhoun, the agent above mentioned, claiming to act under and by virtue of the power of attorney.referred to, as the agent of his mother, executed three promissory notes of $5000 each, dated at New Orleans, May 12th, 1870, and made payable to his order as agent, upon November 1 and December. 1, 1870, and January 1,1871, respectively, which notes were indorsed by him, in conformity to their tenor, in blank, and were subsequently indorsed by one James N. Nevin.
In order to secure the payment of these notes, the said Wm. S. Oalhoun, as agent, executed a mortgage upon four plantations in the parish of Grant, being a portion of Mrs. Calhoun’s paraphernal estate; and known as the “ Smithfield,” “ Earine,” “ Mirabeau,” and “ Meredith” plantations, respectively.
This act sets forth that said Wm. S. Calhoun appeared before P. 0; Cuvellier; notary, in New Orleans, May 14,1870, and declared :
“ That he was the agent and attorney in fact of his father, Meredith Oalhoun, who has since died, to wit: on or about the 14th of May, 1869, •and as the attorney in fact of his mother, Mary Smith Oalhoun, now the widow of said Meredith Oalhoun, as will appear by an act of procuration from said Meredith Oalhoun to said appearer, passed before me notary September 23, 1865, and by another act of procuration, executed jointly by said Meredith Oalhoun and wife, at Paris, Prance, under date of the 27th of December, 1866, certified to by the Consul of the United States at Paris, aforesaid, and annexed to an act in this office, dated February, 4th, 1869.
“ That said Mary Smith Taylor, widow of said late Meredith Oalhoun, owns as her separate paraphernal property those certain plantations situated in the parish of Rapides aforesaid, hereinafter more fully described, the administration of which she has resumed and confided to the said appearer as her agent and attorney in fact. That for the purpose of working and successfully cultivating the said plantations during the current year, it has become necessary for said appearer in behalf of his said constituent to procure advances in money and supplies, which ■said advances James N. Nevin, merchant of this city, has consented to make to an amount not exceeding the total sum of $15,000.”
Further proceeding, the act recites the delivery of the notes mentioned to the said Nevin, and purports to mortgage the four plantations belonging- to Mrs. Oalhoun 'in favor of any holder or holders of said notes “in order to secure the payment of said notes and all interest,” ■etc., and also “ any and all further advances which have been or may be made by said J. N. Nevin to said Mrs. Oalhoun,” etc.
In April, 1875, defendants herein obtained from the district court ■sitting for the parish of Grant an order for the seizure and sale of said [774]*774plantations, based upon the two notes, already described as maturing November 1,1870, and January 1,1871; and, in May, 1875, an injunction was issued from the same court, upon the application of the plaintiff' herein, restraining the execution of said order.
It is this injunction which is now before the court.
Plaintiff in injunction alleges that Mrs. Mary Smith Calhoun died upon June 10th, 1871, and that petitioner and William Smith Calhoun are her sole children and heirs; and, that by notarial act of May 27th, 1873, petitioner acquired from said Wm. S. Calhoun all his right, title, and interest in and to the estate which forms the subject of this litigation.
In support of the application for injunction, various grounds are set forth which it is unnecessary to recapitulate at length. Those which are of immediate importance may be stated, in substance, as follows, to wit:
1. That the power of attorney under which Wm. S. Calhoun assumed to act was not executed in conformity to the laws of this State;is informal and insufficient; and did not authorize said Wm. S. Calhoun to execute said notes and mortgage, or, in any manner, to bind said Mrs. Calhoun or her property.
2. That said notes and mortgage were executed pursuant to a fraudulent conspiracy between Wm, S. Calhoun and James N. Nevin, the original holder of said notes, the object of which was to defraud the-said Mrs. Calhoun, who received no consideration therefor.
Eor answer, defendants deny generally the allegations of the petition, and aver that the injunction was obtained for delay, and is but a repetition of previous attempts to obstruct the collection of their claim. They pray for its dissolution with damages.
As a preliminary to the consideration of the case thus presented there-are certain matters, not disputed, which may be stated as facts. These are: -
That the notes and mortgage upon which defendants are proceeding were not executed by Mrs. Calhoun in person.
That said notes and mortgage were executed by Wm. S. Calhoun, claiming to act as the agent of Mrs. Calhoun, under and by virtue of the power of attorney mentioned.
That said power of attorney was executed, as it purports to have been, by Mr. and Mrs. Calhoun, and that Mrs. Calhoun did not obtain the sanction of any Louisiana Judge in signing said act.
The, pleadings, and the facts thus stated, present questions of law which may, and, in fact, must be determined without reference to issues which might arise upon a further investigation of the record. The first of these questions is as to the capacity of Mrs. Calhoun, counsel for-[775]*775plaintiff claiming that the act of procuration under which the notes and mortgage held by defendant were executed, was not made in conformity to law, and did not confer the power claimed to have been exercised under it, for the reason that Mrs. Calhoun was legally incapacitated from either exercising or delegating such power.
. It is manifest that Mrs. Calhoun could have delegated no greater power than she herself possessed. If, therefore, at the date of the procuration, she was without power to execute instruments having the effect claimed for the notes and mortgage executed in her name by William S. Calhoun, she clearly could not have delegated such authority to him.
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His Honor, Eranois A. Monroe, judge of the Third District Court for the parish of Orleans, called upon to supply the place of Chief Justice Manning, recused, and to aid in determining the cause, pronounced the judgment and decree of the court.
Monroe, J.
On the 27th of December, 1866, Mrs. Mary Smith Calhoun and her husband, Meredith Calhoun, appeared before the U. S. Consul in Paris, Erance, and executed an act of procuration by which they appointed their son, William S. Calhoun, their agent and attorney in fact, and authorized him to take charge of, and conduct, all business affairs pertaining to them in America, whether the same relate to real or personal property, or be of any other nature or kind whatsoever; further authorizing him “to sell, assign, and transfer any and all real estate, lands, tenements, and hereditaments, to them, or either of them belonging,” and to mortgage or lease the sanie; “ to make, execute, acknowledge, and deliver any contracts, agreements or covenants, and to sign, seal and deliver all conveyances, deeds, leases, mortgages or other instruments of writing necessary for the' execution of the power” granted to him.
In 1869 Meredith Calhoun died in Paris, where he and his wife had [773]*773■continued to reside, and, upon the 12th of May, 1870, Wm. S. Oalhoun, the agent above mentioned, claiming to act under and by virtue of the power of attorney.referred to, as the agent of his mother, executed three promissory notes of $5000 each, dated at New Orleans, May 12th, 1870, and made payable to his order as agent, upon November 1 and December. 1, 1870, and January 1,1871, respectively, which notes were indorsed by him, in conformity to their tenor, in blank, and were subsequently indorsed by one James N. Nevin.
In order to secure the payment of these notes, the said Wm. S. Oalhoun, as agent, executed a mortgage upon four plantations in the parish of Grant, being a portion of Mrs. Calhoun’s paraphernal estate; and known as the “ Smithfield,” “ Earine,” “ Mirabeau,” and “ Meredith” plantations, respectively.
This act sets forth that said Wm. S. Calhoun appeared before P. 0; Cuvellier; notary, in New Orleans, May 14,1870, and declared :
“ That he was the agent and attorney in fact of his father, Meredith Oalhoun, who has since died, to wit: on or about the 14th of May, 1869, •and as the attorney in fact of his mother, Mary Smith Oalhoun, now the widow of said Meredith Oalhoun, as will appear by an act of procuration from said Meredith Oalhoun to said appearer, passed before me notary September 23, 1865, and by another act of procuration, executed jointly by said Meredith Oalhoun and wife, at Paris, Prance, under date of the 27th of December, 1866, certified to by the Consul of the United States at Paris, aforesaid, and annexed to an act in this office, dated February, 4th, 1869.
“ That said Mary Smith Taylor, widow of said late Meredith Oalhoun, owns as her separate paraphernal property those certain plantations situated in the parish of Rapides aforesaid, hereinafter more fully described, the administration of which she has resumed and confided to the said appearer as her agent and attorney in fact. That for the purpose of working and successfully cultivating the said plantations during the current year, it has become necessary for said appearer in behalf of his said constituent to procure advances in money and supplies, which ■said advances James N. Nevin, merchant of this city, has consented to make to an amount not exceeding the total sum of $15,000.”
Further proceeding, the act recites the delivery of the notes mentioned to the said Nevin, and purports to mortgage the four plantations belonging- to Mrs. Oalhoun 'in favor of any holder or holders of said notes “in order to secure the payment of said notes and all interest,” ■etc., and also “ any and all further advances which have been or may be made by said J. N. Nevin to said Mrs. Oalhoun,” etc.
In April, 1875, defendants herein obtained from the district court ■sitting for the parish of Grant an order for the seizure and sale of said [774]*774plantations, based upon the two notes, already described as maturing November 1,1870, and January 1,1871; and, in May, 1875, an injunction was issued from the same court, upon the application of the plaintiff' herein, restraining the execution of said order.
It is this injunction which is now before the court.
Plaintiff in injunction alleges that Mrs. Mary Smith Calhoun died upon June 10th, 1871, and that petitioner and William Smith Calhoun are her sole children and heirs; and, that by notarial act of May 27th, 1873, petitioner acquired from said Wm. S. Calhoun all his right, title, and interest in and to the estate which forms the subject of this litigation.
In support of the application for injunction, various grounds are set forth which it is unnecessary to recapitulate at length. Those which are of immediate importance may be stated, in substance, as follows, to wit:
1. That the power of attorney under which Wm. S. Calhoun assumed to act was not executed in conformity to the laws of this State;is informal and insufficient; and did not authorize said Wm. S. Calhoun to execute said notes and mortgage, or, in any manner, to bind said Mrs. Calhoun or her property.
2. That said notes and mortgage were executed pursuant to a fraudulent conspiracy between Wm, S. Calhoun and James N. Nevin, the original holder of said notes, the object of which was to defraud the-said Mrs. Calhoun, who received no consideration therefor.
Eor answer, defendants deny generally the allegations of the petition, and aver that the injunction was obtained for delay, and is but a repetition of previous attempts to obstruct the collection of their claim. They pray for its dissolution with damages.
As a preliminary to the consideration of the case thus presented there-are certain matters, not disputed, which may be stated as facts. These are: -
That the notes and mortgage upon which defendants are proceeding were not executed by Mrs. Calhoun in person.
That said notes and mortgage were executed by Wm. S. Calhoun, claiming to act as the agent of Mrs. Calhoun, under and by virtue of the power of attorney mentioned.
That said power of attorney was executed, as it purports to have been, by Mr. and Mrs. Calhoun, and that Mrs. Calhoun did not obtain the sanction of any Louisiana Judge in signing said act.
The, pleadings, and the facts thus stated, present questions of law which may, and, in fact, must be determined without reference to issues which might arise upon a further investigation of the record. The first of these questions is as to the capacity of Mrs. Calhoun, counsel for-[775]*775plaintiff claiming that the act of procuration under which the notes and mortgage held by defendant were executed, was not made in conformity to law, and did not confer the power claimed to have been exercised under it, for the reason that Mrs. Calhoun was legally incapacitated from either exercising or delegating such power.
. It is manifest that Mrs. Calhoun could have delegated no greater power than she herself possessed. If, therefore, at the date of the procuration, she was without power to execute instruments having the effect claimed for the notes and mortgage executed in her name by William S. Calhoun, she clearly could not have delegated such authority to him.
The question then is, had she the power to execute such instruments.
To say that the provisions of law governing the rights and obligations of married women were enacted with reference to the husband is to' utter a truism. The intention of such laws is doubtless, in part, to recognize the marital authority of the husband, and, in part, to protect the wife against the abuse of that authority. It can not be supposed that they were intended to deprive her of the use and enjoyment of her own property, and it may be said that they were not intended to prevent her using such property for the benefit of third persons, other than the husband.
Certain it is, however, that with reference to the power to contract, according to the textual provisions of our Code, the incapacity of married women is the rule, their capacity the exception.
C. C. 1782 provides that “ All persons have the power to contract except those whose incapacity is specially declared by law. These are persons of insane mind, those who are interdicted, minors, and married women.”
The general disqualification of married women could hardly be made more distinct or emphatic than by this language and classification, and it .follows, as a necessai’y consequence, that whatever powers they may possess in this State, in regard to the formation of contracts, must proceed from special enacting statutes, susceptible of being construed with that just quoted. That there are such statutes can not be doubted; in fact, by the provisions of the Code itself, married women are specially authorized to do many things; but, in almost every instance the power thus conferred on them is guarded by provisions prescribing specifically the form and manner in which those things are to be done, and as if to close every possible avenue for misconstruction upon this point, C. C. 133 provides that “ Every general authority, even though stipulated for in the marriage contract, is void, except so far as it respects the administration of the property of the wife.” •
Eor the purposes of the present case it suffices to say that prior to [776]*7761855 there was no special provision of the Code (of 1825) authorizing, married women to borrow money or contract debts, and they were only held liable upon such contracts upon its being shown affirmatively that the consideration inured to theirseparate benefit. In the ease of “ Hell-wig -vs. West,” 2 A. p. 1, it was said that they might be made liable for frauds committed by them, although, as the case was ultimately decided upon rehearing (2 A. p. 3) the opinion upon that point was unnecessary.
In fact, up to the time of the decision of the case of “ Zuntz vs. Coraren,” 10 A. 433, there is probably not one instance in which a married woman had been held liable for a debt upon her contract alone; the basis of the judgments in such cases being affirmative evidence that the consideration of the contract inured to the benefit of the married women who were sought to be made liable.
In the case referred to (Zuntz vs. Cornen) it was held that an authentic act of mortgage executed by a married woman, with the authorization of her husband, was sufficient to justify the issuance of an order of seizure and sale, and that such an order could not be arrested by an unsworn statement in a rule, that the notes to secure which the mortgage had been given were without consideration, the court considering that she should have proceeded by injunction.
Even in that case, however, it was distinctly stated that (to quote the language of Judge Spofford, concurring with Judge Ogden):
, “ Where an issue is properly made up between the parties, the burden of proving the affirmative, that the debt of the wife (particularly where it has been contracted conjointly with the husband) inured to her separate benefit, has been thrown upon the creditor.”
This decision was rendered in 1855, and since the act passed during that year authorizing married women to contract debts, etc., is not referred to, it is more than probable that it had not been called to the attention of the court whilst the matter was under consideration. However that may be, the decision only goes to the extent, of requiring an issue to be made properly (and the proceeding by injunction is indicated as the proper method of raising the issue), to throw the burden of proof upon the party seeking to hold a married woman liable upon an authentic act of mortgage.
By act number 200 of 1855, however, a method was provided by which married women were authorized to borrow money, contract debts, and mortgage their property, by contracts made under certain conditions, which contracts so made were constituted full proof as against such married women, and were made as binding in every respect as though made by femmes soles. In other words, the effect of that act, as since interpreted, was to relieve parties contracting with married women in accordance with its provisions from the necessity of offering any fur[777]*777ther proof than the contract itself. See “ Rice vs. Alexander,” 15 A. p. 54; “ Hardin vs. Wolf & Cerf,” 29 A. 334.
The particular conditions prescribed for the contracts contemplated by the act referred to (and which is substantially embodied in arts. 126, 127,128, of the Civil Code) are, that the wife shall obtain the authorization of the husband, and the sanction of the judge of the district or parish in which she may reside; such judge being required to examine her separate and apart from her husband, and in case he is satisfied thai. the money about to be borrowed, or the debt contracted, “ is solely for her separate advantage, or for the advantage of her separate or dotal property,” then he shall furnish her with a certificate to the effect that he has made such examination; which certificate, on presentation to a notary, shall be his authority for drawing an act of mortgage or oilier act which may be required for the security of the debt contracted, and shall be annexed to such act, and said act, executed in the manner thus prescribed, shall furnish full proof, etc.
Since the passage of this statute it may well be questioned whether the doctrine laid down in the case of “Zuntz vs. Cornen” can be sustained. Ono particular method is provided by law by which married ■women may create authentic proof against themselves, and, as to all other methods, they labor under the general disabilities already referred to. An act executed in any other way than that specified will not furnish full proof against them, and will not be as binding as though executed by a femme sole; it must, therefore, be supplemented by testimony aliunde.
This view of the matter seems to have been taken by the present court in the case of “Conrad vs. LeBlanc,” 29 A. 125, when it was held:
“ The courts have been uniform in not holding the wife liable without proof that the consideraron inured to her separate benefit, no matter what the form of the contract, or who the holder, in the absence of the statutory authorization of the judge, originating with the act of 1855.”
This language is directly applicable to the case at bar, since it is not claimed that Mrs. Calhoun obtained this “statutory authorization;” and the legal inference is that she had, therefore, no authority to execute instruments which would have the same effect as though they had been executed with this “statutory authorization;” and, being without this power hprself, she could not have delegated it to Wm. S. Galhoun.
It is claimed, however, that the power of attorney under which Wm. S. Calhoun acted, although impotent for the purposes stated at the date of its execution, acquired the necessary vitality by reason of the death of Meredith Calhoun, which event, as we have seen, took place before [778]*778the execution of the notes and mortgage upon which defendant’s proceeding is based.
The argument upon this point is that the death of . -the husband produced a change in the condition of the wife, who thereby became a femme sole, and that this circumstance ipso facto vested Win. S. Calhoun with the power which the act of procuration held by him originally purported to convey.
This position is untenable.
It is true that the death of the husband did not divest the wife of any power which she possessed before his death, and that she thereby., acquired the power of & femme'sole. It does not appear from anything in the record, however, that she exercised the powers thus acquired. The only powers which she appears to have exercised before the execution of the notes and mortgage upon which the defendants are proceeding, were those of a married woman subject to the limitations which have been considered. In the exercise of those powers she might safely have delegated authority to contract in her name, since the law protected her by limiting her liability upon contracts made by virtue of such authority to such as could be shown aliuncle to have inured to her benefit. It by no means follows that she would have delegated such authority without this protection, or that such delegation is to be implied without action upon her part by the fortuitous removal of the cause which incapacitated her at the time the act of procuration was signed.
The object and intent of the law .requiring an examination by and sanction of the judge was to counteract the influence of the husband. In the execution of the act of procuration in question, however, tho wife had no such protection; she must, therefore, be supposed to have signed said act under her husband’s influence, and acted, therefore, only to the extent of her capacity under such circumstances. She took no subsequent action prior to the execution of the notes and mortgage by fm. S. Calhoun, and it is difficult to perceive how or where he acquired any more authority than was originally vested in him.
Beyond this, it may well be doubted whether the mere recital in the act of mortgage of the death of Meredith Calhoun afforded such proof of that fact as to justify any judicial action with reference to it. The power of attorney spoke for itself, and showed that it was executed by a married woman conjointly with hér husband. The power^claimed by the agent was, therefore, to be construed with reference to that fact, and not with reference to his own statement unauthorized by the power of attorney, that tho husband had since died, and that he, the agent, had thereby acquired additional authority.
The most, then, that can be claimed for the notes and mortgage [779]*779held by defendants is that they have the effect accorded to such instruments by the decision in the case of “Zuntz vs. Cornen,” already quoted, and, under that decision, when the issue is made, as it has been made in this case, the burden is upon the joarty claiming, to show by evidence dehors the contract, that the consideration inured to the benefit of the wife.
It will be remembered, however, that this is a proceeding, on the part of the defendants, via executiva. That they might have changed the form of their proceeding by their answer to the petition for injunction can not be doubted, but they have not done so. This court has, therefore, either to maintain the proceeding via executiva, or to perpetuate the injunction.
If the proceeding via executiva is maintained, in view of the issue made bythe petition and affidavit for injunction, it must be maintained upon evidence dehors the note and mortgage upon which the order of seizure originally issued. It is not pretended that this evidence is in the form of an act importing confession of judgment, or of a judgment rendered by some tribunal other than that from which the order issued. It could not, therefore, be made the basis of a judgment in conformity to the prayer of defendant’s petition, or of the answer to the injunction suit. 1 R. 407; 10 A. 275, 433.
The law authorizing executory proceedings, like other statutes providing extraordinary legal remedies, must be strictly construed, and can not be extended to cover this case. See C. P. 732, et seq.
1 I-Ien. Dig., Executory Process, I, number 1, and cases there cited.
Nor is this Court authorized, of its own motion, to change the form of the proceeding and render judgment via ordinaria, since no such judgment is prayed for.
In the case of “ Chambliss vs. Atchison,” 2 A. 488, it was held that:
“ Proceedings via executiva can not be changed into an action via ordinaria without the assent of the seizing creditor.” And in the case of “ Tildon vs. Dees,” 1 R. 407, the court said:
“We might, perhaps, have proceeded to consider the case on its merits under the prayer of the defendant for a judgment via ordinaria so far as the minor Ann Martha Dees is concerned, for Charlotte Dees claims nothing in her own right, but the record, from the contradictory statements we find in it relative to the number of heirs left by the deceased, does not enable us to determine the portion of the claim to which the minor would be entitled as one of the heirs.”
The claim set up by defendant’s counsel, that Mrs. Calhoun ratified the act of Wm. S. Calhoun in issuing the note and mortgage in question, upon her return from Europe in 1870, must be governed by the same principle. It is not pretended that this ratification -was in authentic [780]*780form, and it is useless to consider whether the parol evidence, introduced subject to the bill of exception taken by counsel for plaintiff in injunction, would authorize a judgment via ordinaria. No such judgment is asked for, and no such evidence can sustain a proceeding via executiva. 1 R. 407.
There is one other point to be considered. Counsel for defendants urge that plaintiff should have appealed from the order of seizure and sale, and, in support of this position, argue that said order was a definitive judgment which could only be altered or changed in one of four methods named in the Codo, to wit:
New trial — appeal—action of nullity — and rescission.
An examination of the articles of the Code of Practice, under and by virtue of which alone the order of seizure and sale can issue, will readily disclose that this position is not well founded. Those articles provide other methods for changing and altering this order than those referred to, which relate to definitive judgments proper.
Article 738 provides that the order of seizure and sale may be enjoined. Articles 740, 741 provide for a summary trial of the injunction, and article 742 provides that:
“ If on being required the defendant proves that the action in which the seizure has been obtained is extinct or prescribed, or that the causó of it is void, or that the debt on which it is founded is paid, remitted, or compensated, the judge shall revoke the order of seizure and condemn the plaintiff to pay costs.”
It need hardly be remarked that the judge possesses no such power over ordinary definitive judgments; and it is evident that the rules provided for the revision of such judgments do not apply to orders of seizure and sale. In fact, the proceeding by injunction seems to be the particular and special remedy provided in this class of cases. It is true that an order of seizure and sale has been held to be a judgment in so far that an appeal may be taken from it, as from any order which may work an injury-; and, doubtless, if the sole, question raised is the insufficiency of the evidence, an appeal would answer the purpose, since the record would, in that case, contain every thing required for a decision by the appellate court; but, iC the opposition is founded upon matters requiring the introduction of testimony beyond the acts upon which the order issued, a mere appeal from the original order would bo an utterly vain thing as to these matters, since such an appeal could not briDg them up for revision; and a party desiring zo bring before this court the question of the sufficiency .of the evidence on which the order issued, and other questions besides, would be obliged to resort to an appeal for the one and an injunction for the other, thus involving that multiplicity which the law abhors.
[781]*781The question, however, of the effect of the order of seizure and sale as contradistinguished from a judgment was fully considered in the case of Harrod vs. Voohees, Administrator, 16 La., p. 254, in which Judge Morphy, as the organ of the court, used the following language:
“ This court has frequently, heíd, it is true, that when a judge issues an order of seizure and sale he renders such a decree as can be appealed from.. If executory process is prayed for on an act importing confession of judgment, the judge must examine and decide whether the instrument unites all the requisites of the law necessary to authorize this summary proceeding. So far it is a judgment, and an appeal must lie from it, as from all other orders of court that might work an irreparable injury. A judge might erroneously make such an order on evidence not-warranting the issuing of it. Such, for instance, has been the case in the very decree relied on. It was granted on a deed of mortgage executed before a justice of the peace; an officer wholly unauthorized to pass such acts, except in certaiu cases, none of which are proved to have existed in the promises: But such a decree is not a judgment in the true and legal sense of the term, and possesses none of its features. It issues without citation to the adverse party; it decides on no issue made up between the parties, nor does it adjudicate to the party obtaining it any right in addition to those secured by his notarial contract. If such an order was a real judgment, it would be out of the power of the judge granting it to set it aside; after rendering this decree he would be divested of all jurisdiction, and it could be reversed only by means of an appeal or a separate action of nullity; whereas, it is every day’s practice for the judge issuing such orders to set them aside, on a rule to show cause or an opposition; and in most cases the proceedings are turned into an ordinary suit in which a final judgment is afterward rendered. Such a decree then can be viewed only as giving the aid of the officers of justice to execute an obligation which, by law, produces the effect of a judgment in relation to the particular property mortgaged,” etc.
The case of “ Zuntz vs. Cornen,” (10 A. 433) was not dissimilar to the ease at bar. In that case the defendant filed an unsworn opposition to the executory proceeding, setting forth that she was a married woman and that it did not appear that the notes and mortgage inured to her benefit. It was held that she should have proceeded by injunction.
In the case at bar the plaintiff has not only raised the question of the want of authority in Wm. S. Calhoun but has also raised the question of want of consideration as to Mrs. Calhoun. The first of these questions might have been inquired into on appeal, the second could not, whilst in the proceeding by injunction, both questions could be examined, but that defendants have not thought proper to turn the pro-' [782]*782ceeding into an ordinary suit. As to those matters which have been examined, however, the case is properly before the court.
In concluding, it is proper that some notice should be taken of the condition of things resulting from the fact that in June, 1871, Wm. S. Calhoun became owner of an undivided half interest in the property upon which he had attempted to impose the mortgage in the name of his mother, and that it is claimed that in 1873 he conveyed that interest to.his sister, the plaintiff in this suit.
The questions of the effect, as to said Wm. S. Calhoun, of his unauthorized execution of the notes and mortgage involved in this case, and of the effect, as to said mortgage, of his subsequent acquisition of the property in question, and of the alleged transfer of said property to his sister, are not now properly before the court. Whatever rights the defendants may have in the premises, whether against Wm. S. Calhoun or the said property, or both, are however expressly reserved to them and are not to be considered as affected by this judgment.
With this reservation, and for the reasons stated, the judgment of the lower court must be affirmed at the costs of the appellants.
Maer, J. I concur in the foregoing decree.