dissenting’.
j cannot consider the lien which a wife has on the husband’s estate, as an advantage which she is not at liberty t0 flounce, because it was introduced for the support of public order. As early as in the fourteenth century, as appears by a law of the Partidas, the obstacle which was opposed by this lien to the alienation of real property, was considered so intolerable that wives renounced it. This the legislator mentions not in terms of disapprobation, but as a measure which it, was proper to encourage and facilitate. Accordingly, the form of a wife’s renunciation was established by law. See Partida, 3, title 18, law 58.
This was several centuries before the laws of Spain were introduced into Louisiana. From that early period, till the year 1828, the constant jurisprudence of Spain and Louisiana recognised and supported the right of the wife to renounce her lien.
One solitary commentator appears to have called this in question in Spain. In Louisiana, 1 am not aware that it ever was doubted. I, therefore, find it impossible to assent to the proposition, that a right which for centuries has received the countenance and support of the legislature and courts of justice, can at this late period be declared by the judiciary power to be derogating from good morals and sound policy, unless the late change in our laws by the repeal of the Spanish law, imperiously demands a decision adverse to the right.
It is said it does, because, as the right of renouncing was given by the law of the Partidas, cited, the repeal of that law must abrogate the right.
I conceive that law of the Partidas, not as introducing a new principle, but as declaratory, or recognitive of an ancient one. The preamble recites that wives at times consented to the alienation of the real estate of their husbands, and the legislator publishes a form thereafter to be used in such cases. This is a legislative recognition, that the renunciation of the wife was a legitimate act, not at all derogatory of good morals or sound policy.
*605The repeal of the law of the Partidas, cited, leaves, in my opinion, the matter as it stood before the law was enacted ; and as the right has been recognised for centuries, as compa-tibie with good morals and sound policy. I have no data from which I may infer that it was otherwise before. I am aware of the Roman maxim : Interest rei publica ut mulier in dotata non remaniat. But nothing authorises me to conclude that it ever was introduced as a part of the Spanish law, or that if it ever was, it has been abrogated by -the general repeal of those laws in Spain.
On the repeal of the Spanish law in this state in 1828, some members of the bar expressed a doubt in regard to the renunciation of wives after that period. About this time, an immense increase of banks and banking capital took place, and the gentlemen employed to prepare drafts of bills of incorporation, thought it prudent to provide for the removal of every scintilla of doubt as to the renunciation of wives ; and in every charter for a bank granted thereafter, this prudent clause has been inserted. It is likely that I labor under an error in this respect, since I differ from the opinion of the court; but the conduct of the legislature has appeared to me an evidence of their considering the renunciation of wives as perfectly consonant with good morals and sound policy. For if it were otherwise, why should they open so many doors, or multiply the facilities to the. commission of acts destructive of morality and the good of society I What is the difference between a wife beggaring herself by aiding her husband in borrowing from a bank or from a capitalist 1 I admit that the sole circumstance of the legislature autho-rising renunciations, might be considered as a mere relaxation of an admitted general principle ; but the genius of the American people, the vast extension of commerce and universal practice, repel the idea that these renunciations are viewed by the people as immoral or impolitic.
If a farther illustration of this be necessary, we have a forcible one in the conduct of the legislature, when this tribunal announced its opinion on the first hearing in the *606present case. An electric panic suddenly pervaded the community, and created a general sentiment of alarm and insecurity. As 'in desperate cases, 'desperate remedies are resorted to, a bill/was introduced before the judgment of this court could have become final, if it had not been prevented by an application for a re-hearing.
This bill is evidence of the excitement under which it was received and enacted.' The general assembly rebuilt what they thought this court had pulled down. On this part of the case, I conclude the District Court did not err in considering the right of wives to renounce, as one established for their benefit alone, and which, consequently, they.are at liberty to waive.
It remains to examine, whether this renunciation be forbidden by the article of the Louisiana Code, which' forbids a wife to bind herself with or for her husband.
It is said it doesbecause, by renouncing, she binds herself not to claim what she has renounced. I believe this a very forced construction. Our code enumerates the modes of creating, and of extinguishing obligations. Payment and release are not found among the former, but among the latter. A release and renunciation are not similar, but identical. Yet if the proposition contended for be correct, payment and release, or renunciation, are the means of creating obligations.
If A and B be the debtors of C, and he receives the debt from A, and releases that of B, he binds himself to A not to demand the money he has received, and to B, not to claim the debt he released or renounced.
He who receives or releases what is due him, is npt bound to forbear asking for what he has .released or received, more than he is bound to forbear asking what never was due him.
It is true, the deed by which payment is acknowledged, or the release or renunciation made, may, and,does very often contain a clause by which the former creditor promises never to claim again; but such a clause is merely one of style : I say, the release or renunciation* may be ‘ effected by an *607engagement never to claim. In such a case, it is a mere release. I admit that one may beggar himself as easily by renouncing a right as by creating an obligation. But these means are not identical, but similar; similis non idem. ,
The first is necessarily limited, the other is not so. The release cannot exceed the right: the obligation may be beyond the means.
The Louisiana Code went into effect in 1825; between' that year and 1828, it never was imagined that the article prohibiting a wife to bind herself with or for her husband, prevented her renunciation. It cannot be denied that the opinion that the repeal of the laws of Spain did not abrogate the wife’s right of renouncing her tacit mortgage, was almost universal; that there is neither a notary in the city, nor a parish judge in the country, who was not in the habit before the decision of this tribunal, in the present case, of receiving acts of renunciation. ‘
The extraordinary means resorted to by the legislature to release the people from the danger attending the principles which the reversal of the judgment of the District Court will create, is to me a convincing proof that they thought their intention had been mistaken by this tribunal.*
I am of opinion the judgment ought to be affirmed, with costs.
An Act to limit the time in which married women, aged above twenty-one years, may retract renunciations made by them in favor of third persons, of their matrimonial, dotal, paraphernal and other rights; and to authorise them in future to make valid renunciations.
SeotioN 1. Be it enacted, by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, That all married women, aged above twenty-one years, who, with the consent of their husbands, have, by act passed before a notary public, voluntarily renounced, in favor of third persons, the mortgage which they had for the restitution of their matrimonial, dotal, paraphernal and other rights, shall have the right of retracting the said renunciations during only the forty days which will follow the promulgation of the present act, all laws or parts of laws, to the contrary notwithstanding.
Section 2. Be it further enacted, etc., That from and after the promulgation of this act, married women aged above twenty-one years, shall have the right, *608renounce, In favor of third persons, their matrimonial, dotal, paraphernal and other rights; provided, that the notary public, before receiving the signature of with the consent of their husbands, by act passed before a notary public, to any married woman, shall detail in the act, and explain verbally to said married woman, out of the presence of her husband, the nature of her rights, and of the contract she agrees to.
Section '3. And be it further enacted, etc,, That all laws and parts of laws, contrary to the provisions of this act, be and are hereby repealed.
Approved March 27, 1835.