Ragant v. Gremillon

1 Mart. (N.S.) 67

• Court: Supreme Court of Louisiana
• Decided: March 15, 1823
• Status: Published

Opinion

Mathews, J.

delivered the opinion of the court. This is a suit commenced directly against a third possessor, wherein the plaintiff founds her action on a tacit mortgage, or privilege accorded by law, on all the property of her late husband, to secure to her the reimbursement of her paraphernal effects, which she alleges to have been wasted by him; and that a certain tract of land, described in her petition, is subject to said mortgage, as having been the property of her said husband. She obtained judgment in the court below, from which the defendant appealed.

East'n District. March, 1823.

The evidence, as found in the record, does not show the succession of the appellant's vendor, to be insolvent; nor does it appear, that the wife has regularly renounced the community of acquits and gains. She has failed to produce a judgment against the estate of her husband, by which the amount really due on her pretended legal mortgage has been ascertained and liquidated. This we believe to be a step indispensably necessary, in order to support any proceedings against the mortgaged property now in the hands of a third possesor.—Civil Code, 460, art. 43.

It is therefore, ordered adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that judgment be entered as of non-suit, and that the plaintiff and appellee pay the costs in both courts.