This suit is instituted by an under tutor against the mother of certain minors, to have the maternal grandfather and nearest relation in the direct ascending line of the minors, appointed their tutor in the place of said mother, whom he declares to have forfeited the tutorship in two several ways. First — By neglecting to take the oath required by law. Second — By marrying a second time, without being continued in the tutorship by the advice of a family meeting.
The defendant, aided by her second husband, comes into court, and defends her case upon the special ground, that she was not legally married to the father of her minor children, he being a man of color, and she being a white woman, which marriage was prohibited by the law of Louisiana, and produced no civil effect.
The District Judge decided that the minors were not parties to this proceeding, and that he would not consent to decide so grave and delicate a question as their status in this collateral way. The facts of the petition he considered proved, and the law clear, which upon the state of facts deprives the mother of the guardianship of her children.
We coincide entirely in these conclusions of the Judge of the District Court.
An oath is required to be taken by every tutor of minors. Civil Code, 328.
Again, the law requires, for the protection of minors against the undue influence of a stepfather, that previous to the celebration of another marriage by their mother, she shall cause a family meeting to be convoked, to deliberate upon continuing her in the tutorship, on pain of being deprived of the tutorship.
There is no proof that either of these important formalities were complied with in the present case. Nay, more, the answer admits by implication that they have not been.
The special defence set up, of the invalidity of defendant’s first marriage, presents the revolting spectacle of a mother attempting to deprive her children of their status or position in society.
We agree with the Judge of the District Court, that this is a question which cannot be enquired into in the absence of the parties principally interested.
But there is still another reason why this defence cannot be entertained. The Article '115 of the Civil Code, requires a direct action of impeachment on the part of a married person who desires to be released from a marriage affected with a nullity or illegality such as that charged by this defendant.
The"defendant contracted that marriage in 1840. She cohabited for many *493years with her husband — had three children by him, who are now living. She never availed herself of the faculty given her by the Article 115, of impeaching her marriage, as long as her husband was living, supposing that her marriage was, as she alleges, illegal. It is now too late for her to institute such action, and she cannot he allowed to put it in the form of a defence to this proceeding.
Upon a matter of such great importance in a general point of view, we are diffident of saying anything not absolutely required for the decision of the case. We think it proper to observe, however, that the law of Mississippi, where defendant’s first marriage was celebrated, does not seem to agree with that of Louisiana, on the subject of mixed marriages, as would appear from the testimony of lawyers in that State, taken under a commission. A bill of exceptions was taken to the depositions of the witnesses by whom this proof was made, on the technical ground of the want of an affidavit for a commission as required by Article 436 of the Code of Practice. The want of such an affidavit is cured by the propounding of cross interrogatories on the part of defendant. This point has been repeatedly decided. Lee v. Lee, 1st Ann. Bradford v. Cooper, 1st Ann. Rife v. Hensan, 2d La.
Judgment affirmed, with costs.