Fortier v New Orleans Nat. Bank. New Orleans Nat Bank v. Fortier. swer of the New Orleans National Bank. It averred that the bank was the holder of the note and mortgage sued on, and that the bill was intended to be, and was, the bill of complaint of the bank and not of Baldwin. There was no replication to this answer. It is plain therefore that the defendant carried on the litigation on the theory that the bank was the complainant, and the cause was entertained and decided by the Circuit Court on the same assumption. We must adhere to the construction of the bill asserted by the bank and acquiesced in by the defendant. The defendant having herself so construed and treated the bill, will not be allowed on final hearing, in order to defeat the jurisdiction, to assert, for the first time, that Baldwin, and not the bank, was the complainant. It follows that the objection to the jurisdiction is not well taken. We now come to the merits of the case. The contention of the counsel for complainant is that Mrs. Fortier, having by the authorization of her husband and of the judge of the Fourth District Court, evidenced by his certificate, been empow-. ered to borrow the money sued for to be used for her separate benefit and advantage, and to mortgage her separate property therefor, is concluded by the certificate of the judge, and cannot be heard to deny that the money was borrowed for her own use, or to assert that it was borrowed to pay her husband's debts, or for his separate advantage. On the other hand the counsel for the defendant insist that the money was in fact borrowed by Mrs. Fortier for the use of and to pay the debts of her husband, which Godchaux, the payee of the note, well knew, and that the money borrowed was so applied by the husband, and that she is not precluded by the certificate of the judge from showing these facts, and that being shown, they are a defense to the suit. By article 2412, Civil Code La. 1825, it was provided as follows: "The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage." This article is now article 2398 of the Civil Code of 1870. The Supreme Court of Louisiana, construing it, has repeatedly decided that a debt contracted by a married woman, whether separated in property from her husband or VOL. III-19. Fortier v. New Orleans Nat. Bank. New Orleans Nat. Bank v. Fortier. not, could not be enforced against her unless the creditor established affirmatively that the debt inured to her separate benefit. Dranguet v. Prudhomme, 3 La. 74; Pascal v. Sauvinet, 1 La. Ann. 428; Erwin v. McCalop, 5 id. 173; Brandegee v. Kerr, 7 Mart. (N. S.) 64; Beauregard v. Her Husband, 7 La. Ann. 294; Moussier v. Zunts, 14 id. 15. In the case last cited, the court say: "It is a principle that has come down to us from the laws of Spain, that he who contracts with a married woman must show affirmatively that the contract inured to her advantage. The exception was when the wife renounced the sixty-first law of Toro, but this exception no longer exists." This article, thus construed, still continues to be the law of Louisiana, except as modified by the act of 1855, which now constitutes articles 126, 127 and 128 of the Revised Code of 1870. They are as follows: "Art. 126. A married woman over the age of twenty-one years may, by and with the authorization of her husband, and with the sanction of the judge, borrow money or contract debts for her separate benefit and advantage, and to secure the same grant mortgages or other securities affecting her separate estate, paraphernal or dotal. "Art. 127. In carrying out the power to borrow money or contract debts, the wife, in order to bind herself or her paraphernal or dotal property, must, according to the amount involved, be examined at chambers by the judge of the district or parish in which she resides, separate and apart from her husband, touching the objects for which the money is to be borrowed or debt contracted; and if he shall ascertain either the one or the other are for her husband's debts, or for his separate benefit or advantage, or for the benefit of his separate estate or of the community, the said judge shall not give his sanction authorizing the wife to perform the acts or incur the liabilities set forth in article 126. "Art. 128. If the wife shall satisfy the judge that the money about to be borrowed or debt contracted is solely for her separate advantage, or for the benefit of her paraphernal or dotal property, then the judge shall furnish her with a certificate setting forth his having made such examination of the wife as is required by article 127, which certificate, on presentation to a notary, shall be his authority for drawing an act of mortgage or other act which may be required for the security of the debt contracted, and shall be annexed to the act, which act, when executed as herein prescribed, shall furnish full proof against her and her heirs, and be as binding in law and equity in all the courts of this State and have the same effect as if made by a feme sole." The effect of these articles is simply to establish a new rule of evidence in cases of loans of money made to married women. The cases in which they have been construed by the Supreme Court Fortier v. New Orleans Nat. Bank. New Orleans Nat. Bank v. Fortier. of Louisiana show clearly that the contention of the complainant, that the certificate of the judge is conclusive evidence of the fact that the money lent to a married woman was for her sole benefit, and that she will not be allowed to contradict it, cannot be sustained. The construction put upon these articles is that the effect of the authorization and certificate of the judge was to relieve the creditor from the burden of proving that the money lent by him to the wife inured to her benefit, and to cast the burden on the wife to prove that it did not. Bank v. Barrow, 21 La. Ann. 398. In the case of Barth v. Kasa, 30 id. 940, it was held that prior to the act of 1855 the burden of proof to bind the wife, was on the creditor, but that under that act, when the judge's authorization had been obtained, the burden of proof rested on the wife to show that she was not bound. In Claverie v. Gerodias, 30 La. Ann. 291, the plaintiff holding the note of Gerodias, a married woman, secured by mortgage on her paraphernal property, executed by the authorization of the judge, took out executory process thereon. Mrs. Gerodias filed an opposition thereto, on the ground among others, that her note and mortgage were given for the purpose of securing the debt of the husband to Claverie. The latter admitted that the note was executed by Mrs. Gerodias to enable her husband to obtain the means of carrying on his trade, "and was given by him to the respondent (Claverie) for that purpose, to the knowledge of his wife." Upon these facts the court said: "The law forbids the wife to become security of her husband, or to bind herself or property for his debts. Her note for such a purpose, in the hands of the husband's creditor, who takes it knowingly, is utterly void. The act of 1855 (now articles 126, 127, 128, Civil Code) has no application to such a case as is here presented." And the court affirmed the judgment of the lower court, which decreed the nullity of the mortgage, the erasure of its inscription, and directed the surrender of her note to Mrs. Gerodias, notwithstanding the fact that the note and mortgage had been executed by virtue of the authorization and certificate of the judge, as provided in the act of 1855. In Barth v. Kasa, ubi supra, it was held that when a married woman has, even under the authorization of the judge, executed her note and mortgage on her separate property to secure it, she may show Fortier v. New Orleans Nat. Bank. New Orleans Nat. Bank v. Fortier. by way of defense thereto, that she gave the note and mortgage for the debt of her husband, being induced thereto by her husband and the creditor. So in Hall v. Wyche, 31 La. Ann. 734, it was held that the authorization of a judge to a married woman to borrow money, and execute a mortgage to secure its repayment, does not preclude her from proving that with the knowledge of the creditor, the mortgage was given to secure an antecedent debt of the husband due to him. These cases show conclusively that the contention of counsel for the complainant cannot be maintained. On the other hand, it does not follow that because the money borrowed by the wife with the authorization of the judge was used to pay her husband's debts, the note and mortgage given therefor are void and cannot be enforced. To make such a defense good, it must be shown that the creditor knew when he made the loan that the money was not to be used for the separate benefit or advantage of the wife; for the lender, having in good faith paid the money to the wife or to another by her direction, is not bound, since the passage of the act of 1855, to see that it is used for her benefit. It has been so held by the Supreme Court of Louisiana. In McClellan v. Dane, 32 La. Ann. 1197, the defendant was a married woman, who had executed by the authorization of the judge the note and mortgage sued on. She alleged by way of defense that the note and mortgage were obtained from her through the influence of her husband, who received the money for which the note and mortgage were given, and that therefore as to her they were without consideration. In support of her defense Mrs. Dane offered evidence tending to show that the money borrowed was subsequently received by her husband, and by him used for his own purposes. This evidence was admitted by the court below, and its admission was declared by the Supreme Court to be error. In giving judgment the court said: "The check representing the borrowed money was delivered to the wife, who indorsed the same and received the money which it called for, and to require more from the lender in such cases would be to defeat the very object of the law. Our jurisprudence is firmly settled on this question, and it is unnecessary to quote authorities in support of the proposition that ** * Fortier v. New Orleans Nat. Bank, New Orleans Nat. Bank v. Fortier. in the absence of any allegation of fraud against the creditor himself, married women are bound, as all other persons, by their contracts and mortgages, executed under proper authorization, as required by the law of 1855 (Civil Code, 127, 128), and cannot be allowed by parol testimony to attempt to disprove the certificate of the judge and their own authentic declarations in acts of mortgage. Nor will the law authorize the inquiry into the subsequent disposition made of the funds borrowed by married women when properly authorized thereto. The law does not and. cannot confer upon the lender in such circumstances the power and authority to watch over and control the acts of the married woman who has borrowed money from him, so as to prevent the improper use of the same." In the still later case of Dougherty v. Insurance Co., 35 La. Ann. 629, the Supreme Court of Louisiana said: "Objections founded on the irregularity of the proceedings before the judge, and on the use made of the money and the like, in the absence of fraud or complicity on the part of the lender, have no force. The jurisprudence is now well settled that in such case the lender is not bound to look behind the judge's certificate, and is not concerned as to the actual use of the money after it is paid to the wife or according to her direction." See also Pilcher v. Pugh, 28 La. Ann. 494, and Henry v. Gauthreaux, 32 id. 1103. The result of these authorities, succinctly stated, is that since the act of 1855, when a married woman, with the authorization of her husband, and the sanction and certificate of the judge, borrows money, the creditor is not bound to show that the money was used for her separate benefit and advantage, but the debt may be enforced against her, and her separate property mortgaged to secure it, unless she shows that with the knowledge or connivance of the lender the money was borrowed and used, not for her separate benefit, but for that of her husband. This conclusion supports the decree of the Circuit Court. When Godchaux deducted and retained out of the money loaned on the note and mortgage of Mrs. Fortier, the sum of $1,800 to pay a debt due to herself from her husband, and paid over to her, or by her direction only, the residue, he was acting, so far as the sum just mentioned is concerned, in complicity with the husband and in |