dissenting. The case is correctly stated by the District Judge. He says:
“ Plaintiff sues for the annulment and erasure of a mortgage given by her to defendant to secure the payment of certain notes for rent, and for the cancellation *422of, and delivering of three of said notes yet unpaid by her, on the grounds that said act of mortgage was not executed in accordance with the provisions of the Act of 15th March, 1855, and that the notes thus given and secured, included the sum of $338, the amount of a debt due by her husband to defendant, which she was iuduced to assume, and for which she contends she is not liable.”
The act of lease and mortgage shew that the sum of $338 was added to, and included in the notes given for the rent, and the answers of defendant admit that plaintiff’s husband owed him a balance of $338, which, at the request of plaintiff, he agreed to include in the mortgage, and which she agreed to pay at the rate of $50 per month, hut he states that this balance, except $50, has been paid, and the question is whether or not plaintiff is to pay the $300 which defendant alleges is yet due on her contract of lease. She admits owing a balance of $12.”
“ The sum of $338, from which plaintiff seeks to be released as the debt of her husband, was added to the yearly rent and twelve notes given for the total, secured by mortgage on certain slaves of the plaintiff, hut the defendant contends, and so states in his answers to interrogatories on facts and articles, that the said sum of $338 was distributed in among the seven first notes, all of which have been paid except the sixth, and that consequently he is not bound under the pleadings to refund, but is entitled to judgment for the notes yet unpaid.”
“ Plaintiff contends that having assumed an obligation illegal and prohibited, she should be relieved from the amount thereof out of any portion not yet paid and asks that these notes be declared null.”
The District Judge came to the conclusion, that as the $338 was apportioned among the first seven notes, and all of them had been paid except one, that he could only relieve the plaintiff for the fifty dollars of the husband’s debt, supposed to be contained in that note, and he rendered a personal judgment against the plaintiff for the residue of the three notes remaining unpaid upon the plaintiff’s reconventional demand.
The contract entered into between plaintiff and defendant, was a single act containing several stipulations securing certain promissory notes in favor of defendant. Among others, it contains a stipulation reprobated by our law, viz : that the wife should pay a debt of her husband for $338, 0. O. 2412.
The defendant says, true it is, that the wife was not bound for this debt, but as I distributed this amount among' the first notes, and she has paid all but one, she cannot recover the money back, and as to the other notes, I am entitled to your judgment in my favor, as they relate to other portions of the contract. This reasoning appears to me to be falacious. The defendant admits, by this reasoning, that by the contract which he now asks us to enforce, he has committed a wrong to the plaintiff, and equity requires that courts of justice should not permit him to obtain an unjust advantage by a contract which he seeks to enforce. The legal or equitable maxims that “ no man shall be permitted to take advantage of his own wrong,” and “ he that asks equity must do equity,” ought to control this case. See also Theriet & Baron v. Voorhies, 12 A. 852. I do not understand that it was contested that the wife was bound for the rent prior to the act of mortgage.
The prayer for general relief, and the oral general denial to the reconventional demand, enable the court to render justice upon the merits.
I think the judgment ought to be reversed, and that there should be judgment in favor of defendant on the reconventional demand for $12.
See case of Provost v. Provost, 5 An. 572.
Land, J., concurred in this opinion.