The opinion of the Court was delivered by
Bermudez, C. J.
The third opponent claims to he paid, by preference to all others, out of the proceeds of the sale of half and more of the property herein sold to effect a partition between the widow and heirs of Michael Dickson.
She alleges that after the death of said Michael Dickson she loaned to his widow the amount claimed, which was secured by the latter by mortgage on her interest in certain described real estate which was [454]*454herein sold; that her claim is liquidated by judgment and that she is entitled to payment of it in preference to the heirs of Michael Dickson.
Her pretensions are resisted by all the parties to the partition suit, who contend that Mrs. H. P. Dickson could not, and did not, give the opponent a mortgage susceptible of out-ranking the claims which they have against her, and that this Court has so held; that the interest of Mrs. Ii. P. Dickson in the property is completely absorbed by such claims; and that nothing remains for the opponent to take.
The lower court sustained the defense and rejected the third opposition. From the judgment thus rendered the opponent appeals.
The facts are simply the following:
Michael Dickson was married. During his marriage, community property for a large amount was acquired. He died leaving no debts, and seven children the issue of his marriage. At his death, his widow took possession of all the property which was acquired during the community, and his heirs of age accepted his succession unconditionally. Five years after his death his widow borrowed from the third opponent the sum of ten thousand dollars and secured its reimbursement on her interest or share in the real estate thus acquired. This creditor, at maturity remaining unpaid, brought suit against the widow. One of the heirs intervened to resist the claim. Judgment was rendered in favor of the plaintiff, on appeal to this Court, recognizing her mortgage and directing that the property mortgaged be sold to pay the debt, interest and costs recognized by the judgment appealed from. 33 A. 1244.
It is that debt and that mortgage thus judicially recognized which this opponent now seeks to enforce by payment out of the proceeds of the property mortgaged.
There is no dispute about the existence of the judgment, or about the want of proper inscriptions and reinscriptions required to keep the debt and the security alive.
The suit in which the third opponent intervenes asking payment, was brought by and between the widow and heirs as co-proprietors of the real estate, for a partition; the usufruct of the widow over the half of her children having been judicially declared forfeited and, therefore, having ceased.
Differences betioeen the co-partitioners having arisen in that suit, the matter came up before this Court and was finally adjusted by a decree liquidating and settling their respective rights, the one against the other. The third opponent was not then a party, in her individual capacity, to that litigation. 33 A. 1370.
[455]*455The defendants in the, opposition conte,nd that the opponent is es-topped and concluded by what was said by this Court in its opinion in that case. This cannot be, for the reason that she never appeared in those proceedings otherwise than as tutriz, and never asserted her claim therein as a creditor, and the decree of the Court does not adjudicate on that claim.
But it is insisted, as a new proposition eventually, if the opinion in that case does not operate as an estoppel or res acljudieata, that the opponent never acquired a mortgage on the interest of the widow in the common property which authorizes her to recover her claim out of the x>roceeds of the property mortgaged and sold, by preference over the heirs as creditors of the mortgagor.
Indeed, it is claimed that the interest of the widow in community is residuary and that in a partition of the succession property her obligations to the heirs, her co-partners, must be first satisfied out of the mass of the common property; that, as after such satisfaction there remains no residuum in her favor, there is nothing to which the special mortgage granted by her on her interest in a particular tract of land once belonging to the community can attach.
Such is not the law of Louisiana. The jurisprudence expounding it has, by a long line of precedents,, well sustained on principle and reason, uniformly established the reverse. A survey of that jurisprudence justifies the unequivocal annomicement that the following propositions have been recognized as law and constitute rules of property from which no departure can bo sanctioned:
Property acquired by the industry of either or both of the spouses, during the existence of the community, becomes common property and is liable for community debts.
At the dissolution of that community by the death of either of the spouses, the property they acquired vests, in the absence of adverse ante-nuptial stipulations, in the surviving spouse and in the heirs of the deceased, in the proportion of one-half in the former and of a like share in the latter, collectively or jointly.
If the community has creditors, they can have the community liquidated, or pursue the widow and heirs if they have accepted it, and subject the property to the satisfaction of their debts by divesting the title thus acquired.
If the community has no creditors, the title which the widow and heirs have acquired, the former as surviving partner in community the latter as heirs, becomes absolute and indefeasible. The widow and the heirs continue in the quiet ownership of the property.
[456]*456In either ease the widow and heirs can mortgage their interest in such property, if it he real estate, a.nd the creditor acquiring such mortgage is entitled in case of non-payment to have it seized and sold to satisfy liis claim, subject to he expropriated or out-ranked only by creditors of the community and of the succession of the deceased spouse, and whose mortgage was recorded anterior to his own, the succession creditors, however, to he paid out of succession property.
The authorities invoked by the appellees go only to the extent of declaring that the widow, or surviving spouse in community, while the succession of the deceased is under administration and before its creditors are paid, cannot mortgage her share in any specific piece of real property acquired during the community, to the prejudice' of creditors of that community and of the succession. Those authorities are not destructive, but merely restrictive, of the right of the widow and of the heirs to sell or to mortgage.
In the very early case of Gale vs. Davis, 4 M. 653, the Court said:
“ The moment that the husband or wife dies, the title to one-half of the common property vests immediately in his or her heirs. They become joint owners of the whole, together with the survivor.”
In the subsequent case of German vs. Gay, 9 La., 382, the Court said:
“According to our understanding of the Code, the distinct interest of the parties attaches at the dissolution of the marriage, subject, however, to the right of the wife or her heirs to renounce and thereby exonerate herself from the payment of the debts of the community.
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The opinion of the Court was delivered by
Bermudez, C. J.
The third opponent claims to he paid, by preference to all others, out of the proceeds of the sale of half and more of the property herein sold to effect a partition between the widow and heirs of Michael Dickson.
She alleges that after the death of said Michael Dickson she loaned to his widow the amount claimed, which was secured by the latter by mortgage on her interest in certain described real estate which was [454]*454herein sold; that her claim is liquidated by judgment and that she is entitled to payment of it in preference to the heirs of Michael Dickson.
Her pretensions are resisted by all the parties to the partition suit, who contend that Mrs. H. P. Dickson could not, and did not, give the opponent a mortgage susceptible of out-ranking the claims which they have against her, and that this Court has so held; that the interest of Mrs. Ii. P. Dickson in the property is completely absorbed by such claims; and that nothing remains for the opponent to take.
The lower court sustained the defense and rejected the third opposition. From the judgment thus rendered the opponent appeals.
The facts are simply the following:
Michael Dickson was married. During his marriage, community property for a large amount was acquired. He died leaving no debts, and seven children the issue of his marriage. At his death, his widow took possession of all the property which was acquired during the community, and his heirs of age accepted his succession unconditionally. Five years after his death his widow borrowed from the third opponent the sum of ten thousand dollars and secured its reimbursement on her interest or share in the real estate thus acquired. This creditor, at maturity remaining unpaid, brought suit against the widow. One of the heirs intervened to resist the claim. Judgment was rendered in favor of the plaintiff, on appeal to this Court, recognizing her mortgage and directing that the property mortgaged be sold to pay the debt, interest and costs recognized by the judgment appealed from. 33 A. 1244.
It is that debt and that mortgage thus judicially recognized which this opponent now seeks to enforce by payment out of the proceeds of the property mortgaged.
There is no dispute about the existence of the judgment, or about the want of proper inscriptions and reinscriptions required to keep the debt and the security alive.
The suit in which the third opponent intervenes asking payment, was brought by and between the widow and heirs as co-proprietors of the real estate, for a partition; the usufruct of the widow over the half of her children having been judicially declared forfeited and, therefore, having ceased.
Differences betioeen the co-partitioners having arisen in that suit, the matter came up before this Court and was finally adjusted by a decree liquidating and settling their respective rights, the one against the other. The third opponent was not then a party, in her individual capacity, to that litigation. 33 A. 1370.
[455]*455The defendants in the, opposition conte,nd that the opponent is es-topped and concluded by what was said by this Court in its opinion in that case. This cannot be, for the reason that she never appeared in those proceedings otherwise than as tutriz, and never asserted her claim therein as a creditor, and the decree of the Court does not adjudicate on that claim.
But it is insisted, as a new proposition eventually, if the opinion in that case does not operate as an estoppel or res acljudieata, that the opponent never acquired a mortgage on the interest of the widow in the common property which authorizes her to recover her claim out of the x>roceeds of the property mortgaged and sold, by preference over the heirs as creditors of the mortgagor.
Indeed, it is claimed that the interest of the widow in community is residuary and that in a partition of the succession property her obligations to the heirs, her co-partners, must be first satisfied out of the mass of the common property; that, as after such satisfaction there remains no residuum in her favor, there is nothing to which the special mortgage granted by her on her interest in a particular tract of land once belonging to the community can attach.
Such is not the law of Louisiana. The jurisprudence expounding it has, by a long line of precedents,, well sustained on principle and reason, uniformly established the reverse. A survey of that jurisprudence justifies the unequivocal annomicement that the following propositions have been recognized as law and constitute rules of property from which no departure can bo sanctioned:
Property acquired by the industry of either or both of the spouses, during the existence of the community, becomes common property and is liable for community debts.
At the dissolution of that community by the death of either of the spouses, the property they acquired vests, in the absence of adverse ante-nuptial stipulations, in the surviving spouse and in the heirs of the deceased, in the proportion of one-half in the former and of a like share in the latter, collectively or jointly.
If the community has creditors, they can have the community liquidated, or pursue the widow and heirs if they have accepted it, and subject the property to the satisfaction of their debts by divesting the title thus acquired.
If the community has no creditors, the title which the widow and heirs have acquired, the former as surviving partner in community the latter as heirs, becomes absolute and indefeasible. The widow and the heirs continue in the quiet ownership of the property.
[456]*456In either ease the widow and heirs can mortgage their interest in such property, if it he real estate, a.nd the creditor acquiring such mortgage is entitled in case of non-payment to have it seized and sold to satisfy liis claim, subject to he expropriated or out-ranked only by creditors of the community and of the succession of the deceased spouse, and whose mortgage was recorded anterior to his own, the succession creditors, however, to he paid out of succession property.
The authorities invoked by the appellees go only to the extent of declaring that the widow, or surviving spouse in community, while the succession of the deceased is under administration and before its creditors are paid, cannot mortgage her share in any specific piece of real property acquired during the community, to the prejudice' of creditors of that community and of the succession. Those authorities are not destructive, but merely restrictive, of the right of the widow and of the heirs to sell or to mortgage.
In the very early case of Gale vs. Davis, 4 M. 653, the Court said:
“ The moment that the husband or wife dies, the title to one-half of the common property vests immediately in his or her heirs. They become joint owners of the whole, together with the survivor.”
In the subsequent case of German vs. Gay, 9 La., 382, the Court said:
“According to our understanding of the Code, the distinct interest of the parties attaches at the dissolution of the marriage, subject, however, to the right of the wife or her heirs to renounce and thereby exonerate herself from the payment of the debts of the community. * * * His (the husband’s) authority as master of the community ceases on the dissolution of the marriage. The right of the heirs of the deceased party then attaches to have a partition of the effects, subject to the payment of the debts.
Again, in Hart vs. Foley, 1 Rob. 381, the Court said:
“After the death of one of the spouses the community, in a legal sense of the word, is terminated. Each party is seized of one undivided half of the property, subject to the payment of debts.”
In the case of Ware vs. Jones, 19 A. 428, the Court distinctly announced that the hoirs of the deceased become seized of the property of their ancestor at the moment of his death.
The surviving widow is seized of one-half of the community property and the heirs of the other. The title vested continues in them, subject to be divested at any time by the creditors or the administrator for them.
[457]*457The widow and the heirs take the estate absolutely, subject to the debts and charges against it, and all that is meant by residuary rights is, that tile property is thus encumbered.
They are not the less the owners of the property because it is followed by and subject to the charges against it.
This doctrine was uniformly recognized and applied by this Court in a number of cases, in which the right of the widow and of the heirs was admitted to mortgage, and the right of the creditor to enforce his claim against them with the security. 4 M. 653; 7 L. 157, 222; 17 L. 238; 1 R. 380; 5 R. 299; 7 R. 404; 2 A. 30; 3 A. 562; 19 A. 167; 21 A. 253; 22 A. 185, 264, 24 A. 264; 26 A. 260; 27 A. 503; 30 A. 93; 31 A. 493; 32 A. 162, 848, 972; 33 A. 151, 584, 1244.
In the same sense are the Spanish and French authorities, to which much weight is due. 4 Febrero Adicionado, p. 228, No. 29; 2 Troplong Mar. Contr. No. 854, pp. 133-5; 13 Toulliér, No. 211, 245; 3 Troplong, No. 1081, p. 218; 3 Troplong Priv. and Mort. p. 392, No. 818; 3 Mar-eadé, p. 180, No. 258; see Articles 986-996, French Code of Practice; C. N. 803; 2 Zacharioe, pp. 136-7; 2 Troplong Priv. and Hyp. p. 175, No. 468 (ter. et al.)-, 2 Paul Pont. Priv. and Hyp. p. 634, No. 633; Id. p. 638, No. 636, et al.-, same author, Vol. I, p. 291, No. 301.
When the surviving widow and the heirs of the deceased husband continue in possession, their co-ownership and enjoyment is not a prolongation of the community which liad existed between the spouses. That community, dissolved by the death of the first dying spouse, is not revived and continued between the survivor and the heirs of the departed one, who own by a different title and are governed by different laws.
The condition of the surviving spouse and of the heirs, in such a case, can well be likened to that of husband and wife, once common in property, subsequently judicially separated in property, and who nevertheless continue to own and hold in common.
Claims may subsequently arise in favor of the heirs, co-proprietors, against the mother; but they do not acquire, and do not enjoy, the. rights and privileges attaching to claims by creditors of the community, so as to out-rank creditors of the widow, becoming such after the death of the husband and acquiring a mortgage on her half of the real estate once belonging to the' partnership of acquets and gains. The claims of the creditors of the community are one thing, and those of the heirs inter se, or against the widow after the dissolution of the com[458]*458munity, are another. Such claims, on the part of the heirs, could outrank such mortgage, creditors in the event only of their previous registry, a feature totally lacking in the present controversy.
The character of the community or partnership which it is claimed was formed and continued between the heirs and the widow, has no significance in this litigation, so as to affect the rights of the third opponent as a mortgage creditor of the widow.
Whatever the laws be which regulate among themselves, or even as to third persons, the rights of heirs owning and holding in common inherited property, they cannot be legitimately extended to property thus owned and held by heirs and the surviving partners in community. No interpretation of the word rulo, found in Article 1290, R. C. C., can justify such construction of the laws on the subject. That word exclusively refers to matters of form for the purpose of effecting a partition between or among the owners mentioned in the law.
A first recorded mortgage on real estate produces the important effect of out-ranking all such as are subsequently inscribed, and a fortiori claims which are not registered and which, even if registered, would not on that account create a mortgage. Of this character are those of the heirs in this case.
Laws creating privileges and legal mortgages are to be strictly construed. Accordingly, no privilege or legal mortgage, or right equivalent thereto, can be urged and recognized by the courts unless the law creating it bo pointed out and such law bo found, when examined, as really creating it and operating as claimed.
The heirs who, after the dissolution of the community, continue to own in common with the surviving spouse, where the latter lias a right of usufruct over their share, are not allowed by law a legal mortgage on the property of their parent as a substitute for the security to which usufructuaries are subjected.
Even if the law did grant them such mortgage, it was not recorded, and could not, therefore, be made to operate to the opponent’s injury.
Permitting their claims to out-rank the opponent would be virtually to recognize in their favor a legal mortgage and giving to it the force and effect attaching formerly to a tacit mortgage, when such mortgage has had no existence as such since January 1, 1870, in this State. It would be judicial legislation, in the teeth of express constitutional prohibition which forbids, in negative terms, the existence as to third persons of unrecorded mortgages. Constitution, 176.
[459]*459In tlie caso at bar, the title acquired by the widow and heirs was absolute as there existed no community debts. The mortgage, consented by the widow on her interest, which is one-half and one-fourteenth, is a valid mortgage and ranks all the claims which her children may have against her for any cause, and which were not secured by mortgages and recorded previous to the registry of the mortgage consented by her in favor of the third opponent.
The district judge is not at fault for ruling as he has done, for he was guided by the dictum in the partition suit, 33 A. 1370, under part III of the opinion, from which this Court recedes as a proposition of law. The Court there distinctly .said that the questions raised touching the validity and effect of certain conventional and judicial mortgages which were created by or against Mrs. H. P. Dickson on her interest in the community property, were of no importance, and it therefore abstained from passing formally upon them, dismissing them from its attention by simply uttering the remarks or considerations which constitute the dictum in question, which is of no effect as regards the third opponent in this case. Whether justified or not in that case, the announcement is not binding on the opponent, who was not a party to the proceeding, in any manner so as to be personally affected thereby.
It is, therefore, ordered and decreed that the judgment appealed from be reversed; and,
It is now ordered, adjudged and decreed that there be judgment in favor of the third opponent, Mattie L. Dickson, recognizing her as a creditor for eight thousand one hundred and seventy dollars and sixty-five cents ($8170 65) and interest, as claimed of Widow II. P. Dickson, and as such entitled to be paid the same by preference over all others, out of the proceeds of the sale of the interest or share of the said Widow Dickson, namely, one-half and one-fourteentli of the property mortgaged and sold herein to effect a partition, with costs in both courts.