Although the re-hearing was granted generally in this case the reexamination of it has been confined chiefly to two or three branches of the controversy.
Ye have considered the opinion of Mr. Justice Buchanau as conclusive upon the question, whether the mortgage was absolutely void, as having been extorted-by fear and threats, and also on the question of damages for the alleged wrongful acts of the Sheriff in executing the writ, and on the right of the plaintiff in the *16executory process to seize the property attached to the plantation, and thus made part thereof for the working of the same.
The questions which have occasioned us the most trouble in the decision of the cause are the following-: On whom is the burden of proof? Ought the plaintiff to be charged with the sum of $10,000 paid Mrs. White ? Could she bind herself in solido for all the debts of the Bellevue plantation, her sister’s debt as well as her own, and was that her intention ?
Prom the synopsis of the plaintiff’s petition made by Mr. Justice Buchanan in liis opinion, it appears that one of the grounds of injunction is, that there is a failure of consideration in this, that the mortgage notes were given for the balance of an account, but that the same did not enure to the benefit of the plaintiff, she being a married woman.
The defendant, in making up the issue upon this branch of the case, avers “that the said act of mortgage and the notes sued on were given voluntarily for valuable consideration for moneys advanced and paid by the said Maunsel White for the 2>ayment and liquidation of debts due by the said petitioner in injunction and her sister, Miss Marie Emma Comm, and for supplies for the plantation belonging to said Mrs. Moussier, plaintiff in injunction, and said Miss Comen,” and after setting-out plaintiff's title, the defendant further alleges “that, in the aforesaid divers acts of transfer and sale, mortgage notes had been given^for the same, and said Mrs. Moussier and Miss Emma Cornen were bound to pay, and did assume the payment thereof; that the consideration for which the mortgage and mortgage notes sued on were given, was the advances made by said Maunsel White and Maunsel White & Co., for the payments for the aforesaid mortgaged notes given for the said property, and assumed as aforesaid, and for the sum and price of $10,000, paid said Mrs. Maunsel White, and the amount advanced and paid to the Union Bank, and for supplies and expenses to the said plantation, all of which facts will more fully appear by accounts-current and copies of the notarial acts hereunto annexed, and made part of this petition, and referred to for a full and complete detail, and for greater certainty.”
This being the issue on this branch of the case, the question then arises on whom is the burden of proof? The plaintiff, to show failure of consideration, or the defendant, to show that the consideration which has set forth enured to the benefit of the plaintiff, a married woman. The question is by no means a new one.
The case of Eliza J. Erwin v. James McCalop et al, 5 An. 173, is somewhat similar. In that case, “ the plaintiff enjoined an order of seizure and sale sued out by the defendant, McCalop, upon a mortgage given by her to secure the payment of her promissory note in his favor, on the ground that the debt was originally her husband’s, and that she is not responsible for it.
“ The answer” was, “ that the debt enured to the benefit of the plaintiff and that, if it was a debt of her husband, it was contracted under circumstances which render her liable for it.”
The court says “ it is not necessary to notice the bill of exceptions taken by defendant’s counsel, for if all the facts which he offered to prove were admitted, they would not show that this particular debt enured to the benefit of the plaintiff. This fad must be shown affirmatively by the defendant, in order to make the debt binding upon her ; her being- separated of property does not throw the burden of proof on her, nor is she estopped from setting up this defence by her acknowledgment of indebtedness in the act of mortgage. Dranguet v. Proudhomme, 3 L. R. 74 ; Pascal v. Sauvinet, 1 An. 428, and cases there cited.”
*17Tlie subject was again considered in the case of Patterson v. Fraser and the doctrine in the case of Brandigee v. Kerr, 7 N. S. 64, that it is of the essence of the obligation that the wife should have a separate advantage in the contract, was reviewed and affirmed. It is there said, that “ to permit the naked acknowledgment of the wife to bind her without other proof, is inconsistent with the spirit and policy of our laws and jurisprudence. The influence of the husband will readily obtain from the wife such declaration.”
These cases were again reviewed in the case of Beaurgard v. Her Husband, 7 An. 294.
The court again says, it is a principle which has come down to us from the laws of Spain, that he who .contracts with a married woman must show affirmatively that the contract turned to her advantage.” The exception was when the wife renounced the 61st law of Toro, but this exception no longer exists. The Act of 1855, p. 254, authorizes the wife to bind herself as a femme sole for her separate debts, but this Act has no application to the present case. Revised Statutes, p. 560, see. 1, 2 and 3.
The case at bar, however, differs from the cases cited in this, that the wife alone signs the promissory note authorized by the husband. But this can make no difference, as has been' repeatedly remarked by this court, for the husband would only have to change the form of the contract and authorize the wife to sign, to evade the provisions of Article 2412 Civil Code altogether. 7 N. S. 66.
The burden of proof was, therefore, upon the defendant, and he has alleged that $10,000, the amount of the purchase of the plantation from Mrs. White, was advanced by him. He must prove it; and how does he make this proof? He says that the deed from Mrs. White to Mrs. Moussier establishes the fact when taken in connection with the mortgage.
But before we can consider these two instruments the deposition oí Miss Emma Cornen must be disposed of, for she is a witness introduced by the defendant himself, and she has sworn that Mrs. White was actually paid the $10,000 specified in the act of sale in money from her savings, and some money which her sister, the plaintiff, had. To this it is replied that the witness is mistaken, as it is evident from her letters that she and her sister were both without means in money at that time. But these letters were objected to, and a bill of exception taken to their ' introduction. They were inadmissible to impeach the testimony of the witness, for she was defendant’s witness. They were inadmissible to charge plaintiff with any indebtedness, for they were merely the acknowledgments of a third person in a correspondence. 1 Greenleaf, secs. 442, 443. The only purpose for which they were admissible, was to show the indebtedness of Miss Emma Cornen herself, for whom, it is asserted in argument, Mrs. Moussier became security,
They can have no effect upon the indebtedness of Mrs. Moussier, but when offered for the purpose for which they were admissible, they create a doubt whether the witness may not be mistaken as to the payment by Mrs. Moussier, and we prefer considering the question without reference to this testimony.
Then, when we place the act of sale from Mrs. White to Mrs. Moussier and Miss Cornen, by the side of the act of mortgage from the latter to Mrs. White, we find in one instrument the receipt of $10,000 acknowledged as paid at the execution of the act, and, as a consequence, in the presence of the notary, to Mrs. White, and in the other an acknowledgment of indebtedness of $43,362 53 to *18Maunsel White. How can this court presume from these two acts that the $10,000 acknowledged to have been paid in lawful current money was not paid, but formed a part of the $43,362 53. There is nothing from which it can be inferred. The burden of proof is upon the defendant, and the comparison of these instruments does not furnish the proof which he was bound to administer. But it is said the proof results from a ratification of the account which contained this as one of the items as testified to by Kohn. The testimony of Kohn is rebutted by that of Reese, and we have not discovered any proof in the record which shows that Mrs. Mous-sier ratified the account containing this item ; if, indeed, she could be concluded by such ratification.
We think, therefore, the defendant has failed in his proof to the extent of one-lialf of the debt for one-third of the plantation bought of Mrs. White, viz : $5000.
By the same reasoning it is shown he has failed in his proof for one-half of the debts due by Mrs. White, and the plaintiff is not bound for Moussier’s drafts and the other items of the account not proven. The one-half of the latter amounts to $2362 56, and the whole being deducted from $24,863 14 leaves $20,136 01; the one-third of which would be Mrs. White’s share, and one-half of one-third, $3356 33, improperly charged to Mrs. Moussier, without proof, as part of the price of Mrs. White’s interest.
The following items, therefore, are unsustained by proof, viz : one-half of the price of Mrs. White’s interest. $5,000 00
One-half of Moussier’s drafts and other items not proved.. 2,362 56
One-half of balance of Mrs. White’s indebtedness. 3,356 33
$10,718 89
The next question to be considered is, whether Mrs. Moussier could bind herself in solido with her sister as her surety ?
At the execution of the act of mortgage, Mrs. Moussier (with the exception of 7-240 parts, as shown by Mr. Justice Buchanan), was the owner of five-sixths of the plantation, and Miss Emma Comen one-sixth. But in buying the one-third from Miss Comen on the 3d of March, 1849, Mrs. Moussier assumed one-third of the mortgages remaining upon the plantation unpaid.
Miss Comen at the time she executed the notes and mortgage was sui juris. She could bind herself as a femme sole for her own debts, and as surety for her sister. But as surety for the latter she would not be bound for anything more than the amount for which her principal was bound. O. O. 3006. The obligations of Miss Cornen subscribed by her, stand upon a different ground from those of Jlirs. Moussier. The burden of proof is upon her to show the failure or want of consideration. And as against her the mortgage and notes corroborated by the letters must stand, unless they are shown to be erroneous.
The mere failure of proof on the part of the defendant will not release her from her portion of the promissory notes.
On a review of the authorities, we find that it has been decided that a married woman may become a security for a third person. See Ferrell v. Toe, 2 An. 903 ; Roberts v. Wilkinson, 5 An. 369. It is with some hesitation, however, that we admit the doctrine in the present case, where the wife binds herself in solido Nvith a third person, and the contract is not one of suretyship purely, although by her act of purchase from that person she had bound herself for certain mortgages upon the property. But giving the benefit of this construction of the law to the *19defendant, it will leave the one undivided half of said notes subject to the payments, in Ml force and vigor; for, the surety cannot question an obligation which her principal has not the means of showing to be erroneous.
As it respects the claim for dividends upon bank stock, the plaintiff fails in her proof, and has not the proper parties before us.for relief.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by this court be set aside, and that, as heretofore decreed, the judgment of the lower court be avoided and reversed, and now proceeding to pronounce such decree as ought to have been pronounced, it is ordered, adjudged and decreed by the court, that the said mortgage notes upon which said order of seizure and sale issued be credited, upon the principal thereof, one-fourth upon each note, as of the day of their date, with the sum of $10,118 89 in favor of the plaintiff, as improperly charged to her in the consideration of said notes, and that said mortgage note which fell due in April, 1851, be further credited with the payment of $5057 08, as of the 4th day of April, 1851, and that the further sum of $3600 be credited as of February 15th, 1853, pro rata, upon the mortgage notes then due, and that the injunction issued in this case be perpetuated for the said three several sums herein allowed as credits, and that the same be dissolved as to the residue of said writ of seizure and sale, the plaintiff herein paying the costs of appeal, and the defendant the costs of the lower court, it being understood that this decree does not prejudice any claim the.plaintiff may have against the proper parties on account of said Union Bank stock.1