The Assistant Vice-Chancellor.
The real estate in controversy was purchased by John Ordronaux with his own funds. It is not claimed that the property which belonged to the complainant on her marriage with him, or that which she and her husband put into community at that time, can be traced down to the purchase of this estate. But the ground of the bill is, that the property in question actually belongs to the complainant, or at least that she has a paramount lien upon it, because her husband did not leave enough property of all kinds, to discharge her just claims under their marriage settlement. These claims consist of her separate property of 194,000 francs, which it is said he converted to 'his own use, and of her portion of 100,000 francs which she brought into the community, and of her right to 60,000 francs out of the community as a pre • ciput in pursuance of article sixth of the settlement. And she insists, that by the contract of marriage and the laws of France which it adopts, she is a preferred creditor of her husband for all these claims.
[40]*40It cannot be contended that there is a specific lien on this property, or any thing in the nature of a direct equitable lien. The clause in article Sth of the contract “ legally mortgaging” the future husband’s individual property, it appears to me cannot reach across the Atlantic and effect a lien upon land bought by him more than twenty years afterwards. Its effect is hereafter explained.
The case rests solely upon the claim of a lien by force of the contract; the covenants therein, and the laws of France which it adopts.
The provisions of the French Civil Code on this subject, are so wholly different from the rules of law to which I am accustomed, that I feel no certainty that I have been able to understand them, or to trace their connection with the law of debtor and creditor in France, which bears upon this question.
Proceeding therefore with some distrust as to their accuracy, I will state my conclusions.
The property in question was the fruits either of the community established by the marriage contract, or was John Ordronaux’s sole property. Article 1402 of the Code Civil, declares that every immovable is reputed to have been acquired in community, unless it be proved that one of the married parties had it before the marriage, or that it has fallen to such party since by title of succession or donation.
Whether this property were of the community or of the husband, it would, if in France, be liable for the debts which he had contracted. An action results against the community for all debts contracted by the husband during its continuance. (Code Civil, article 1409, subd. 2.) The compact of these parties in article 2d of their contract of marriage does not affect third persons. It merely relieves the community as between themselves.
As to the rights of the wife against her husband. He has the management of all the personal property of the wife, but cannot alienate her immovables without her consent. He is responsible for all waste in her personal goods occasioned by the neglect of conservatory acts. For the price of her immovables she is entitled to recompense out of his goods, in case of insuffb [41]*41ciency in the goods of the community. And she may in like manner exercise her claims in general.- (Code, Articles 1428, 1436,1472.)
It is claimed here that the complainant has renounced the community in due form; This is disputed, but I will assume for the present, that it is proved. In such case she forfeits every description of claim upon the property of the community; but she has a right to resume, 1st, her immovables; 2d, the price of her immovables alienated; and 3d, all indemnities which may be due to her from the community, and she may exercise all actions for these and previous demands, against the property of the community, as also against the property of her husband; (Articles 1492, 3,1495, and see 1514.) By these and other provisions of the Code, I understand that the wife has a right to indemnity, for her separate property converted by her husband during the marriage j and where it is so stipulated, for her contribution to the community < and that she can exercise an action therefor agaifast the property of the community, and the separate property of her husband. But I do not understand that she can exercise an action against his separate property for any part of the preciput, or conventional reversion, stipulated in the marriage contract; For this she can only look to the distributable mass of the community. (Article 1515.)
Nor dd I learn from these provisions that the wife has either by the law of France tir by the compact, any lien, or priority over other creditors, for her claims against the community, or against his separate estate. And it would certainly be carrying our regard for these foreign contracts to an extraordinary and alarming extent, if the wife of a Frenchman, married in France, but domiciled and doing business here for twenty years, should be permitted upon his death, to retain all his estate real and personal to the entire excltision of bona fide creditors, upon the stipulations of a marriage contract, registered in some city in France but wholly unknown to those dealing with him here on the faith of his apparent property; And on the claim set up in this suit, I dd not perceive why the goods obtained by a French merchant trading here, from an importer on credit, might not, as well as other property of the former, be taken by the
[42]*42wife at his death by virtue of these secret claims, and the creditor be turned off without a penny.
It is hardly to be imagined that such provisions would be endured in so commercial a country as France is at this day; even with the publicity which by the Code is supposed to be given to these acts of marriage.
On looking farther into the provisions of the Code Civil, this impression is confirmed. In the distribution of the community on its dissolution, where the wife does not renounce ; to the mass of existing property, is to be added from the respective parties, all that each has withdrawn or is indebted to the community. The passive is then to be borne, and the debts of the community are to be at the charge of each of the married parties, in moieties. The wife’s liability for these debts, is limited to the amount of her emolument; but the husband’s goes to the whole extent of his separate property. If however the husband has no such property, not only the proper debts of the community, but also the debts of the husband contracted while it continued, fall upon the property of the community. These debts are equally entitled with the debts of the wife for indemnity and recompense, to exercise an action against the communityj and thus there can be no legal priority in favor of the one or the other. The renunciation of the community relieves the wife from personal contribution to its debts. (Code, B. 3, title 5, sect. 5, 6. Articles 1467, &c.) And where the Act of marriage gives to the survivor the portion of the decedent in the community, the wife surviving has her election, either to take such portion, becoming bound for the debts of the community, or to renounce the community and abandon its property and charges to the heirs of the husband. (Article 1524.) Here again the creditors appear to stand Upon as good a footing as the wife.
The title relative to Privileges and Mortgages,
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The Assistant Vice-Chancellor.
The real estate in controversy was purchased by John Ordronaux with his own funds. It is not claimed that the property which belonged to the complainant on her marriage with him, or that which she and her husband put into community at that time, can be traced down to the purchase of this estate. But the ground of the bill is, that the property in question actually belongs to the complainant, or at least that she has a paramount lien upon it, because her husband did not leave enough property of all kinds, to discharge her just claims under their marriage settlement. These claims consist of her separate property of 194,000 francs, which it is said he converted to 'his own use, and of her portion of 100,000 francs which she brought into the community, and of her right to 60,000 francs out of the community as a pre • ciput in pursuance of article sixth of the settlement. And she insists, that by the contract of marriage and the laws of France which it adopts, she is a preferred creditor of her husband for all these claims.
[40]*40It cannot be contended that there is a specific lien on this property, or any thing in the nature of a direct equitable lien. The clause in article Sth of the contract “ legally mortgaging” the future husband’s individual property, it appears to me cannot reach across the Atlantic and effect a lien upon land bought by him more than twenty years afterwards. Its effect is hereafter explained.
The case rests solely upon the claim of a lien by force of the contract; the covenants therein, and the laws of France which it adopts.
The provisions of the French Civil Code on this subject, are so wholly different from the rules of law to which I am accustomed, that I feel no certainty that I have been able to understand them, or to trace their connection with the law of debtor and creditor in France, which bears upon this question.
Proceeding therefore with some distrust as to their accuracy, I will state my conclusions.
The property in question was the fruits either of the community established by the marriage contract, or was John Ordronaux’s sole property. Article 1402 of the Code Civil, declares that every immovable is reputed to have been acquired in community, unless it be proved that one of the married parties had it before the marriage, or that it has fallen to such party since by title of succession or donation.
Whether this property were of the community or of the husband, it would, if in France, be liable for the debts which he had contracted. An action results against the community for all debts contracted by the husband during its continuance. (Code Civil, article 1409, subd. 2.) The compact of these parties in article 2d of their contract of marriage does not affect third persons. It merely relieves the community as between themselves.
As to the rights of the wife against her husband. He has the management of all the personal property of the wife, but cannot alienate her immovables without her consent. He is responsible for all waste in her personal goods occasioned by the neglect of conservatory acts. For the price of her immovables she is entitled to recompense out of his goods, in case of insuffb [41]*41ciency in the goods of the community. And she may in like manner exercise her claims in general.- (Code, Articles 1428, 1436,1472.)
It is claimed here that the complainant has renounced the community in due form; This is disputed, but I will assume for the present, that it is proved. In such case she forfeits every description of claim upon the property of the community; but she has a right to resume, 1st, her immovables; 2d, the price of her immovables alienated; and 3d, all indemnities which may be due to her from the community, and she may exercise all actions for these and previous demands, against the property of the community, as also against the property of her husband; (Articles 1492, 3,1495, and see 1514.) By these and other provisions of the Code, I understand that the wife has a right to indemnity, for her separate property converted by her husband during the marriage j and where it is so stipulated, for her contribution to the community < and that she can exercise an action therefor agaifast the property of the community, and the separate property of her husband. But I do not understand that she can exercise an action against his separate property for any part of the preciput, or conventional reversion, stipulated in the marriage contract; For this she can only look to the distributable mass of the community. (Article 1515.)
Nor dd I learn from these provisions that the wife has either by the law of France tir by the compact, any lien, or priority over other creditors, for her claims against the community, or against his separate estate. And it would certainly be carrying our regard for these foreign contracts to an extraordinary and alarming extent, if the wife of a Frenchman, married in France, but domiciled and doing business here for twenty years, should be permitted upon his death, to retain all his estate real and personal to the entire excltision of bona fide creditors, upon the stipulations of a marriage contract, registered in some city in France but wholly unknown to those dealing with him here on the faith of his apparent property; And on the claim set up in this suit, I dd not perceive why the goods obtained by a French merchant trading here, from an importer on credit, might not, as well as other property of the former, be taken by the
[42]*42wife at his death by virtue of these secret claims, and the creditor be turned off without a penny.
It is hardly to be imagined that such provisions would be endured in so commercial a country as France is at this day; even with the publicity which by the Code is supposed to be given to these acts of marriage.
On looking farther into the provisions of the Code Civil, this impression is confirmed. In the distribution of the community on its dissolution, where the wife does not renounce ; to the mass of existing property, is to be added from the respective parties, all that each has withdrawn or is indebted to the community. The passive is then to be borne, and the debts of the community are to be at the charge of each of the married parties, in moieties. The wife’s liability for these debts, is limited to the amount of her emolument; but the husband’s goes to the whole extent of his separate property. If however the husband has no such property, not only the proper debts of the community, but also the debts of the husband contracted while it continued, fall upon the property of the community. These debts are equally entitled with the debts of the wife for indemnity and recompense, to exercise an action against the communityj and thus there can be no legal priority in favor of the one or the other. The renunciation of the community relieves the wife from personal contribution to its debts. (Code, B. 3, title 5, sect. 5, 6. Articles 1467, &c.) And where the Act of marriage gives to the survivor the portion of the decedent in the community, the wife surviving has her election, either to take such portion, becoming bound for the debts of the community, or to renounce the community and abandon its property and charges to the heirs of the husband. (Article 1524.) Here again the creditors appear to stand Upon as good a footing as the wife.
The title relative to Privileges and Mortgages, (article 2093,) provides that the property and effects of the debtor are the common pledge of his creditors; and the value thereof is distributable equally among them, unless there exist among the creditors, lawful causes of preference. The lawful causes of preference are privileges and mortgages / and privilege is defined to be a right which the quality of his credit confers upon a creditor, of being
[43]*43preferred to others, even to mortgage creditors. (Articles 2094, 2095.)
The ranks between privileged creditors are then declared. Those in the same rank are to be paid rateably.
The privileges are then enumerated. Those over movables, are, in general, 1, law expenses; 2, funeral expenses; 3, expenses of last sickness; 4, salaries of servants; 5, supplies for family subsistence. (All these are also privileges over immovables.) The Code then prescribes privileged credits over certain enumerated movables. Amongst the privileges over immovables, are, 1, for the purchase money; 2, loan for the purchase; 3, for labor and materials laid out on buildings, &c. (Articles 2096 to 2105.)
Without proceeding farther with these interesting and well-considered provisions, it suffices to say, that no privilege is accorded to a wife by the Code, for her claims under a contract of marriage.
Mortgage is by the Code restricted to immovables, and it is either legal, judicial, or conventional; and takes place only in the cases, and according to the forms authorized by law. (Articles 2114 to 2119.)
Legal mortgage results from the law, and among the rights and credits to which it is applicable are those of married women upon the property of their husbands; (articles 2121, 2122;) and the right is to be exercised under certain modifications. It is this legal mortgage which is mentioned in the eighth article of Mrs. Ordronau'x’s marriage contract. The contract could not, however, enlarge the provisions of the Code as to mortgage.
Judicial mortgage, is analogous to our liens by judgment and decree.
Conventional mortgage, depends on covenants and acts of the parties, and can only be made by an Act passed in authentic form before a notary.
Therefore neither judicial or conventional mortgage have any application to this case.
Mortgage by the Code, takes precedence from the day of enrolment, with but two exceptions. One of these is for the bene-
[44]*44fit of women by reason of their matrimonial covenants, for whom it exists independent of enrolment. Husbands are nevertheless enjoined to cause enrolments to be made of the incumbrance of wives on their immovables, and on default, enrolment must be demanded by the commissioner in the civil court at the domicil of the husband, or at the place where the property is situated.
Besides these provisions for publicity of the wife’s mortgage, • it will be borne in mind that the marriage covenants which result in this species of lien, can only be made by an Act before a notary, which remains a record in the public archives of the place where it is made, and they cannot be altered after the marriage is celebrated.
To the end that mortgage in favor of the wife may not render immovables virtually inalienable during coverture, the Code contains provisions for discharging the enrolment where it exists, and for exonerating the property from the mortgage, where there is no enrolment, in favor of purchasers. (Articles 2181, 2193, &c.) The result is that in France, the wife has no preference over other creditors in respect of the movables of her husband. She has no lien by way of privilege over his immovables.
She has a mortgage upon his immovables, which is notified to the public by her marriage articles, recorded at the domicil of the parties when they were married; and if the husband or commissioner of the civil court has discharged the duty imposed upon them, registered in the office of mortgages within the jurisdiction in which the property is situated.
It is abundantly manifest from these provisions of the Code Civil, that whether the premises in question be deemed the property of John Ordronaux, or of the community, the complainant has no lien or priority over other creditors. The Code refuses to contracts made in a foreign country the force of a mortgage in France; (article 2128;) and it would be a great stretch of international comity, to extend the local provisions of the Code which give a lien upon lands in France for the covenants of marriage, to real estate in this country, Independent of the entire inapplicability of the French mode of notifying purchasers and in-
[45]*45cumbrancers; in this state, and I believe in every country, immovables are controlled by the lex loci rei sites. We have our own modes of authenticating incumbrances, and our own laws regulating equitable liens. Creditors of persons domiciled and having property here, have a right to look to those laws and those only for the administration of their debtors estates. Justice to our own citizens forbids that we should yield a priority, such as is here claimed, upon the faith of a secret agreement made and registered in a foreign country twenty years before the parties had an interest in the property in question. It will be sufficiently oppressive on creditors dealing upon the faith of visible property, if we accord to the complainant the participation as a creditor, which the French laws appear to concede to her.
The cases to which I was referred, Decouche v. iSavetier, 3 J. C. R. 190; and Le Breton v. Miles, 8 Paige, 261, arose between the parties to marriage settlements, or their representatives. There was no conflict in either case with the rights of creditors.
Mr. Justice Story says that as to immovable property, a contract of marriage made between parties in a foreign country, will at most, confer only a right of action, to be enforced according to the jurisprudence rei sites• Story’s Conflict of Laws, 160, § 184. He cites to the same point, Henry on Foreign Law, 48, 49, 95.
With this authority and the plain good sense of the matter concurring, I must hold that the complainant has neither a lien upon, or a priority over, the real estate in dispute.
As the bill proceeds solely upon the ground of preference and equitable lien in favor of the complainant personally, it cannot be sustained.
This conclusion leaves untouched the rights of the complainant as a creditor, and also the defendants claim to set off their debt against the rents.
The bill must be dismissed with costs,