Josephson v. Powers

48 So. 564, 123 La. 5, 1909 La. LEXIS 666

Opinion

MONROE, J.

Defendant, having enjoined the execution of a writ of seizure and sale, has appealed from a judgment dissolving the injunction and dismissing her suit.

The facts are that, being a married woman, she on June 5, 1906, with the authoriza-’ tion of her husband, presented to the civil district court a sworn petition, alleging that she desired to borrow $3,500 for her separate benefit, and to secure the same by mortgaging her paraphernal property, and that, being thereafter examined by the judge apart from her husband, she was authorized to contract the debt and execute the mortgage, the judge certifying that he had, “by her declaration, made on oath, ascertained to my [his] satisfaction that the sum of $3,500, which the said Mistress Caroline Powers desires to borrow, is not for her husband’s debt, or his separate advantage, or the benefit of his separate estate, or for the community, but that the same is solely for her separate advantage,” etc.

Armed with this certificate and authorization, she executed a note for $3,500, secured by mortgage, payable to her own order, and by her indorsed in blank, which a day or two later was sold to the plaintiff (whom the defendant had never met, and who does not appear to have had any knowledge whatever of the purpose for which it was executed) for $3,250 cash. Thereafter some payments were made on account, leaving due, on February 1, 1907, a balance of $3,150, principal and interest, for which the writ of seizure .and sale has.issued.

In view of these facts, plaintiff, as holder and owner of the note and mortgage, is entitled to full protection, and her rights cannot be prejudiced, even though the money furnished by her was used in payment of a debt due by defendant’s husband. Civ. Code, art. 128; Feltus v. Blanchin & Giraud, 26 La. Ann. 401; Mrs. Mary B. Locke, Wife, etc., v. Lafitte, Dufilho & Co., 28 La. Ann. 232; Mrs. Mason Pilcher v. Pugh & Schwartz, 28 La. Ann. 494; Mrs. Sarah A. Blake v. S. O. & T. A. Nelson, 29 La. Ann. 245; Mrs. F. G. Henry v. J. R. A. Gauthreaux, 32 La. Ann. 1103; McLennan v. Dane, 32 La. Ann. 1197; Mrs. C. Dougherty v. Hibernia Ins. Co., 35 La. Ann. 629; Darling v. Lehman, Abraham & Co., 35 La. Ann. 1186; Gibson v. Hitchcock et al., 37 La. Ann. 209; Johnson v. Pessou, 49 La. Ann. 109, 21 South. 177; Berwick, Wife, v. Sheriff, 49 La. Ann. 201, 21 South. 692; Saufley v. Joubert, 51 La. Ann. 1048, 25 South. 934.

The judgment appealed from is accordingly affirmed.