I conenr in the opinion prepared by Mr. Justice Ogden, and add the following reasons :
A single, and a married woman authorized by her husband, executed their joint and several notes, and secured them by an authentic act of mortgage importing a confession of judgment upon a plantation and certain slaves.
.It is contended that an order of seizure and sale could not be lawfully issued upon these authentic documents, although no informality is suggested, simply because one of the parties is a married woman.
It is also contended that the order of seizure and sale could be arrested by the married woman without affidavit or bond, upon her mere suggestion of a want of lawful consideration for the notes.
These propositions are novel and startling, and no precedent is cited to sustain them, if they are well founded in law, then no order of seizure and sale can ever be properly issued upon an authentic act of mortgage, when a married woman is one of the mortgagors, for the proof of consideration, and that such consideration enured to the separate benefit of the married woman, is, under the decisions, necessarily a matter in pais; her own acknowledgment in either act not constituting proof thereof.
The check that such a doctrine would impose upon the operations of commerce in a community where so large an amount of property is held by married women, should make us pause, before we add this to the other embarrassments of business in this State.
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.” C. C. 2412.
But, in the ease before us, the wife does not pretend to bind herself for her husband, nor conjointly with him. Duly authorized by her husband, she confesses judgment for a debt apparently her own.
Must the judge, in such a case, without any evidence before him but the authentic act, on which, there appears no single circumstance of suspicion, presume that it contains a latent fraud upon the law ? Has such fraud become so common *436as to be the rule instead of the exception, and to impose upon our District Judges the necessity, in all cases, of exempting the property of married women from the executory process ? I think not. At any rate, no adjudicated case has said so; but we must say so, to reverse the judgment of the District Court.
The true doctrine, is, that where the authentic acts bear intrinsic evidence that the wife has exceeded her powers, the judge should not issue an order of seizure and sale; but where they do not bear such evidence, the order should be issued and the wife left to her remedy, like other defendants in executory process, by injunction upon affidavit. C. P. 738, 739 ; Exchange and Banking Co. v. Walden, 15 L. R. 433 ; Clement v. Oakey, 3 Rob. 90; Minot v. United Stales, 4 Rob. 493.
For, the wife may, in certain cases, validly mortgage her property with the authorization of her husband, in writing. C. C. 124,1779, 2367, 2411.
It is true, that, when an issue is properly made up between the parties, the burden of proving the affirmative that the debt of the wife (particularly where it has been contracted conjointly with her husband) enured to her separate benefit, has been thrown upon the creditor. But, in no case does it appear that such an issue was made by rule upon simple suggestion without affidavit, when an order of seizure had been issued upon authentic documents unsuspicious upon their face.
The case of Durnford v. Gross and Wife, 7 M. 465, was an ordinary action against the wife upon a promissory note signed conjointly with her husband. So was the case of Davidson v. Stewart, 10 L. R. 146.
Brandegee v. Kerr and Wife, 7 N. S. 64, was an ordinary suit upon a promissory note made by the wife and endorsed by the husband, which, the court remarked, could not be distinguished from a joint and several note of husband and wife.
Prudhomme v. Edens, Administrator, 6 Rob. 65, was an action vid ordinaria upon a note drawn in solido by husband and wife.
The Firemen's Insurance Company v. Cross, 4 Rob. 510, was an ordinary suit upon a note made by the defendant, authorized by her husband, who also, in the accompanying acts of mortgage, bound himself for the debt; but the point decided was, that the District Judge ruled correctly in allowing the defendant to show by testimony that the loan was actually made to Osborn Cross her husband, and not to her herself, as stated in the acts.
Patterson & Co. v. Fraser and Wife, 5 An. 586, was an ordinary action, in which the wife denied her acknowledgment in an authentic act made when she was a minor under marital authority. The evidence cast various circumstances of suspicion upon the good faith of the act, and the court refused to hold the wife bound.
De Gaalon v. Matherue, 5 An. 495, was a simple suit upon a promissory note, and the wife proved that her husband had received the consideration, and was released.
Provost v. Provost, 5 An. 574, was an action by a married woman to annul an assignment made by her, and the court said that, under the evidence, there was no douht that the assignment was an attempt to apply the separate property of the wife to the payment of the debts of the husband, which the law forbids.
In Pascal v. Sauvinet, 1 An. 428, the wife sued out an injunction against an order of seizure and sale upon a mortgage, which, her husband, as her attorney in fact, had given ; the court sustained the injunction, stating that the evidence *437rendered it probable that the loan and mortgage were made without her knowledge or consent, and that the money whiph was received by the husband, was applied exclusively to his own use.
In Taylor v. Carlyle, 2 An. 579, the plaintiff, a married woman, also enjoined an order of seizure and sale against her property, upon the ground that the debt for which the mortgage was given, was her husband’s debt; the court said the evidence satisfactorily established the averment, and perpetuated the injunction.
Ervin v. McCalop, 5 An. 173, was an injunction sued out by the wife, against an order of seizure and sale under similar circumstances. The defendant in injunction met the issue, and attempted to prove that the debt inured to the benefit of the plaintiff, in which he failed.
In Beauregard v. Her Husband, 7 An. 293,it appears that the note upon which the order of seizure and sale issued was the joint and several obligation of the husband and wife, and, therefore, came within the prohibition of C. C. 2412.— Still, the wife went through all the formalities of an injunction to stay the sale, and succeeded.
Not one of these cases sustains the position of the appellant, that the petition and documents annexed do not make out a proper case for an order of seizure and sale, or that, it is competent for her to arrest the order by her unsworn statement, in a rule, that ihe notes were without consideration.
She should have proceeded by injunction, if she wished to arrest so solemn a proceeding as this order, based upon her own formal act importing a confession of judgment. *.