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vagance of the husband. If it consist of moveable effects, estimated by the contract, they become the property of the husband, and the estimated value which he owes her, constitutes the dower, and its restitution is secured by a tacit mortgage on all the immoveables of the husband and of the community. But immoveables settled as dowry, even with an estimation, remain the property of the wife, unless expressly declared otherwise. The dowry is inalienable, even with the consent of both husband and wise, unless express authority be given to the purpose by the marriage contract, except for the establishment of the wife's children by a former marriage with the husband's consent; and if he refuse them, with the authorization of the judge, provided in the last case, the husband cannot be deprived of the enjoy. ment of the dowry. They may also give the dotal effects for the establishment of their common children. They may likewise cause the dotal effects to be sold at public auction, with the authority of the judge, after advertisements, either for the purpose of liberating the husband or wife from jail ; of supplying the family with food ; of paying the debts of the wife, or of the person who settled the dowry, of a date certain, anterior to the marriage, or for the purpose of making heavy repairs, indispensably necessary for preserving the immoveables ; or for the purpose of partition of the same with a co-proprietor. The husband in the administration of the dowry, is bound by the obligations of an usufructuary.
That property of the wife which is not settled as dowry, is called paraphernal, or extra-dotal. Her husband has not neces. sarily the administration of it, but she cannot alienate it without his consent. The husband's estate, when he has the administration by her consent, is tacitly mortgaged for the performance of the obligations of an usufructuary.
The code makes ample provision for the surviving husband or wise, in cases of great disparity of fortune, whenever provision has not been made adequately, either by testament or otherwise, by what is termed the marital portion. Where either party dies rich, leaving the survivor in necessitous circumstances, such survivor has a right to take out of the estate in full property one fourth, if there be no children ; the same in usufruct, if there be but three, or a smaller number of children ; and if more than three children, then only a child's portion in usufruct, and is liable to account for any legacy in his or her favour.
The contract of sale is next treated of by the code. We should hardly be pardoned an analysis of the rules of this contract. We cannot avoid noticing, however, a few particulars, in which the civil differs in some respects from the common law. The code distinguishes those circumstances which constitute the essence, from those which are only of the nature of a sale. Only three things VOL. IV.-NO. 7.
constitute its essence, to wit: a thing sold; a price; and the consent of parties legally expressed. It follows that, as between the parties, a sale is complete, and the property is transferred by the mere consent of parties; but in relation to third persons, it is necessasary there should be actual delivery of moveables, and as respects immoveables, that the written contract should be recorded. By the Roman law, the property vested only by delivery. 66 Traditionibus non nudis conventionibus dominia verum transferuntur.” That which is only of the nature of a sale, may be dispensed with by agreement, and yet the contract remain perfect. Warranty is that of nature. He who sells by a necessary implication, warrants the thing sold, if the parties be silent on the subject; but they may stipulate that the vendor does not warrant, or that the warranty shall only be a modified one. The extreme simplicity of conveyances may be inferred from these principles. In case of eviction, the vendor is liable to restore the price paid, to refund the revenues, or fruits, or mean profits, when the purchaser has been ordered to pay them to the party evicting him, together with the costs of suit, and other incidental damages ; and he is bound to pay, or cause to be paid, the useful improvements made by him. And if the thing has risen in value, he is bound to pay the increased value, at the time of the eviction. If the vendor sold in bad faith, he is even liable to pay expenses laid out in mere embellishments.
The principles of the contract of sale apply to the assignment of debts and incorporeal rights, other than papers governed by the lex mercatoria, or choses in action. The transfer is complete by the consent of parties, and surrendering the evidence of the claim. But so far as third persons are concerned, the assignment is incomplete, until notice has been given to the debtor. This notice is equivalent to the delivery of moveables, and until it has been given, the debt assigned, is liable to be attached in the hands of the debtor, by the creditor of the original creditor, or assignor. He who sells a debt, warrants its existence, but not the solvency of the debtor, unless specially stipulated. The assignor parts with his whole interest, and suit cannot be maintained in his name for the use of the assignee, as at common law. He against whom a litigious right has been sold, has a right to exonerate himself, on paying only what the assignee has given for it, together with interest. No claim is considered as litigious, unless a suit has already been brought in relation to it.
It is not our purpose to follow the code through the full and clear development of the principles, whieh govern the contracts of exchange, letting and hiring, partnership, loan for consumption, (mutuum,) loan for use, (commodatum,) deposit and mandate, or commission; and that class called aleatory. We content ourselves with referring to those elementary writers, who were the guides of the legislators, particularly the works of Pothier. We cannot forbear, however, making a single remark on the subject of interest, as regulated by the code. It is considered either as constitutional or legal. It is lawful to stipulate an interest at ten per cent., but the agreement must be in writing; and the proof of it, by witnesses, is not permitted. When no interest is agreed on by the parties, the rate established by law is five per cent.; but it does not begin to run from the day the debt falls due, as at common law, but from the commencement of a suit for its recovery-except when the debt is due for the price of immoveables or slaves, or their property, which yields revenues or fruits.
We next pass to the important title of mortgages and privi. leges, which presents peculiarities worthy of a more ample notice than we have room to give it. Mortgage, the hypotheca of the Roman law, is a real right in an immoveable belonging to a debtor, tending to secure the performance of an obligation, by means of the preference which it gives to the creditor or mortgagee over other creditors. It gives only a lien, without transferring either the title or possession of the thing subject to it. The failure to pay the debt or perform the obligation, which it is intended to secure, does not vest the title in the mortgagee. It gives him only the right to have the property sold, and to be paid out of its price, in preference to other creditors of the mortgagor; and his right adheres to the property itself, into whosesoever hands it may pass. Mortgages are of three classes : 1st. That which results from an express agreement in writing between the debtor and creditor, and is called the conventional mortgage: 2d. Judicial, which results from a judgment rendered against a debtor, from the day of its rendition : and, 3d. Tacit or legal mortgages, which exist by virtue of the law alone. Conventional and judicial mortgages have no effect against third persons, until recorded or registered in the office of the register of mortgages. Tacit or legal mortgages exist without any agreement, on all the property of the debtor. The minor has such a mortgage on all the property of his tutor, which dates and takes effect, from the day of his appointment-the wife on her husband's estate, for the restitution of her dowry and dotal effects, alienated by her husband, which she brought into marriage-for the restitution of similar effects accrued to her during marriage to indemnify her against debts contracted by her jointly with him, and to replace her hereditary property alienated for his benefit. Numerous other tacit mortgages, in similar cases, are enu. merated by the code, which create such a confusion of incumbrances, that it is dangerous to deal with a man whose situation in the general relations of society is not well understood. No public notice by registry, is required to give legal mortgages effect against third persons, and those secret liens attach to all the immoveables, present and future, of the debtor. This evil was partially remedied by an Act of the legislature, in 1813. Mortgages are either general or special-general when they affect all the immoveables of the debtor, present and future ; and special when only specific property is affected. Moveables are not subject to mortgage.
On the failure of payment of the sum secured by mortgage, the remedy of the mortgage creditor varies according to the evidence of his right, and according to the situation of the property. If the contract be evidenced by an authentic act, that is an act passed before a notary public and two witnesses, it is considered as importing a confession of judgment; and, if the property be still in possession of the debtor, the creditor may, on making oath that the debt is due, obtain from a judge in chambers, a summary order of seizure and sale; and the property is sold as under an ordinary fieri facias. But if the title be not authentic, judgment must be obtained in the ordinary way. And if the property has been alienated, even when the title is authentic, a judgment must be first obtained, and its seizure may then be ordered, on producing a copy of the mortgage, and a copy of the judgment, supported by the oath of the creditor, that the amount is due and unpaid, and that the property is in possession of a third person; but it cannot be seized, until after ten days' notice to the third possessor, who has a right within that delay, either to pay the debt, or abandon the property to be sold, or make any legal opposition to the sale-grounded on a want of registry, payment, or that there is other property yet in possession of the debtor, subject to the same mortgage, and which ought to be first sold.
Privileges are a species of mortgage of a higher order, which derive their force and preference, not from their priority of date or registry, but from the nature and consideration of the debt, whose payment they are intended to secure; and which alone, without any record, gives them a preference over other creditors, even hypothecary. The whole doctrine of mortgages and privileges, rests on the fundamental principle, that all the property of a debtor forms the common pledge of his creditors, and that each would be entitled to be paid in equal proportion out of its proceeds, were it not for the preference allowed by the law in favour of particular creditors, a preference created either by previous contract, or by mere operation of law, as in mortgages of different kinds, or resulting from the nature of the debt itself, as in cases of privileges. Moveables as well as immoveables, are subject to privileges. There are three classes of privileges : 1st. Those which exist at the same time on all the immoveables and moveables of the debtor: 2d. Those which exist only on parti
cular moveables : and, 3d. Those which exist only on particular immoveables.
The first class embraces funeral charges, law charges, medical attendance during the last sickness, wages of domestics for the last or current year, the price of provisions furnished the family during the last six months by butchers, bakers, and the like; and during the last year, by boarding houses and taverns-creditors of this class are entitled to be paid out of the whole mass, in the order mentioned, in preference to all others, even those having special or legal mortgages of an anterior date.
The second class embraces wages of overseers for the last or current year, on the crop of the year-landlords for the rent of lands or houses, or the hire of slaves engaged in farming on the crop, and furniture in the house or farm, and on every thing which serves for working the farm-the debt secured by special pledge, on the thing pledged-for money expended in preserving the thing the price due for moveables, when they remain in the purchaser's possession-tavern bills on the effects of the traveller left with the innkeeper-charges of carriers on the thing carried, and debts arising from abuses and peculation of public officers, on the amount of their official bonds.
The third class includes the privilege of the vendor of an immoveable on the immoveable itself, for the payment of the price, whether sold on a credit or not, and whether any special mortgage be reserved or not, provided there has been no novation of the debt; the privilege of architects and other undertakers, bricklayers and other workmen employed in constructing or repairing houses or other edifices, on the buildings constructed or repaired by them.
Prescription, which the code, it will be recollected, ranks among the modes of acquiring property, is, in effect, nothing but a limitation of actions. The law, by fixing the period within which a suit must be brought, virtually exonerates a debtor from the payment of his debt, on the presumption arising from the mere lapse of time, that it has been paid, or confirms a defective title to land possessed by him, by barring the action of the legitimate proprietor.
The longest prescription is that of thirty years; after that period, all personal and real actions are for ever barred. The naked possessor of an immoveable, after thirty years uninterrupted and public possession, without any title, cannot be disturbed.
He who possesses an immoveable by virtue of a just title, that is, a title capable from its nature of transferring the property, such as sale, legacy, donation, or the like, which causes him to be considered as holding, animo domini, during ten consecutive years, when the adverse claimant lives in the state, or twenty when he lives abroad, acquires a perfect right by prescription.