Concurring Opinion.
Egan, J.I think the power of attorney of Mrs. Calhoun, executed while she was a married woman, is to be measured and interpreted by her then capacity to make it, and all acts done under it are to be considered as being done by the mandatory of a married woman. It acquired no new and elastic properties or scope by reason of the death of Meredith Calhoun, the husband, and by all authority is to be viewed with greater scrutiny because executed conjointly with him. No acts or facts are shown which go to show any re-issuance or affirmance of the power by Mrs. Calhoun after her husband’s death.
If the interpretation of this power argued for by the defense is correct, there would be no safety or protection for married women or their property in Louisiana, notwithstanding the provisions for that purpose of the various statutes enacted for their protection, and the long line' of decisions interpreting and applying them. Far better would it be for their existence to be theoretically merged and their capacity to contract suspended altogether during the marriage, as it is under other systems of law. It has been too long and too well settled by this court, from the earliest day down to the present bench, to be now questioned, that with regard to obligations sought to be enforced against married women, the question is not so much as to the consideration as to the capacity to *783enter into the contract even when entered into personally. Hence, it follows that even the holder of a negotiable note of a married woman, for value before maturity, is yet liable to have pleaded against him every defense arising from her incapacity. See Conrad vs. LeBlanc, Sheriff, 29 A. 123, and eases there cited. In the same case it was further-held that even where the authorization of the judge has been obtained tó enable her to contract and execute a mortgage for a certain sum and purpose, and it is executed for another sum, and either in whole or in part for a different purpose, that whoever seeks to enforce the mortgage can only do so by proving aliunde, as in other cases, that the debt secured by the mortgage inured to her separate benefit. A fortiori, then, is the whole matter open to inquiry for her as for any ordinary litigant, in a proceeding like the present, based purely upon the mortgage, under the general principles recognized by this court, that whatever may be the negotiability of the instrument or evidence of the debt secured by the mortgage, the latter is itself non-negotiable.
All these principles apply with still greater force to the present case, in which there is no pretense even of authorization by the judge, and where the evidence aliunde not only does not support, but directly contradicts the existence of the consideration named in the act of mortgage, and that the consideration of the notes and mortgage inured in the smallest degree to the benefit of Mrs. Calhoun, or her property, or that either notes or mortgage were executed for any of the objects or purposes contemplated in the power; Nevin himself, the mortgagee, who testified freely and fully in the case, 'does not pretend so. Indeed, if one of his statements, made to prove the defendant’s case, is to be believed, an important part of their consideration was a debt incurred for moneys remitted to France during the war, and the existence of the community, and which, therefore, comes directly within the statutory prohibition of the wife binding herself for a debt of the husband, or of the community. But whether this be true, or whether, as elsewhere attempted to be shown by himself and other witnesses, the consideration was money advanced to enable "W. S. Calhoun to embark his mother, without her knowledge or consent, as a partner in the commercial firm of Shackleford & Co., a purpose which, it is admitted, was wholly beyond the scope even of the language of the power of attorney under which he pretended to act, and which was appended to the mortgage as evidence of his authority to execute it, it is quite manifest that neither notes nor mortgage were executed for the purpose named in the act (i. e.), for supplies and moneys for the use of Mrs. Calhoun’s plantation during the current year. Nevin himself swears that he had at the time in his hands $5000 of Mrs. Calhoun’s money, that not over $3000 was needed or used during the year for her places, which were almost *784wholly rented out, and even this sum was largely more than repaid by the crops received and sold during the year; while, if the evidence of his accounts found in the record is to be believed aside from other testimony, ho had in his hands, at the very time of the execution of the notes and mortgage, many thousands of dollars belonging to Mrs. Calhoun, the product of the crops of other years, in addition to the $5000 admitted by him, ns before stated. His own evidence, and that of his accounts alone, is, I think, sufficient to establish the existence of the most flagrant fraud,.and a conspiracy to defraud Mrs. Calhoun, through the act of her son, known at the time to Nevin to be wholly unauthorized, to bind his mother for the purposes for which he himself states the notes and mortgage were executed. This knowledge is shown, not only by the terms of the power itself, but by the repeated attempts and anxiety of Nevin to have a new one executed, and by other facts and evidence, in the record. The time at which the bank acquired whatever interest it may have in these notes has been left by it in a very unnecessary state of uncertainty, when it was so easy to have shown their acquisition, and that interest before maturity, had that been the fact. The fact that no reference to its books has been made, and that none of its officers or agents have been offered to testify in regard to those important facts, or any others in the cause, but that the bank has chosen to rest its cuse and the evidence even of the existence of any indebtedness to it by Nevin, mainly to him who is so directly implicated in the fraud and conspiracy charged, is, to say the least, unusual, and displays a remarkable want of interest in the result of the litigation: Besides, one who takes a note executed by delegated authority, even before maturity, is affected with notice,' or at least put upon inquiry as to the extent of the authority; and, again, Nevin himself testifies that the notes were pledged to the bank on the very day of the maturity of one of them; as to which, at least, it can not be pretended that the bank acquired before maturity, and which it must have known was not expected to be paid at maturity, as otherwise the former holder would have held and collected it, and usod the money, instead of pledging it to secure a loan. We have left also out of view altogether the well-known commercial usage, of which the bank could not have been ignorant, on the part of factors, to take country paper of this class as a security, not for moneys or supplies already advanced, but to be advanced, and which, if not advanced, or if repaid through the pledge of the crop, uniformly made at the time of execution of the'instruments, the consideration would either have no existence, or be at an end. How far, if at all, this well-known usage would take this particular class of paper out of the ordinary operation of the laws relating to commercial paper, we do not consider it necessary to determine in this case; *785and it is evident that, whenever acquired, that interest does not cover the whole amount of the notes, but only about $6000, besides interest. The remainder, then, when collected, would belong to Nevin, the original fraudulent mortgagee, under whatever aspect the case is viewed. Again, aside from the considerations already mentioned, were these even the notes and mortgage of a person under no legal incapacity, the bank was sufficiently put upon inquiry by the identification of the notes with the mortgage, and by the terms of that act itself, without the examination of which, as the security for their payment, it is not to be supposed that, contrary to usage and the dictates of ordinary prudence, it wou,ld have taken the notes. At all events, as before' stated, the present proceeding is based purely upon the mortgage via executiva, and that, at least, is open to contest. I think the plaintiff’s case has been fully made out upon the merits. As to whether she could in an ordinary action claim the exemption from the operation of the mortgage of that portion of the land acquired from her co-heir, William S. Calhoun, subsequent to his mother’s death, or whether the estoppel which would operate against him would operate equally against the present plaintiff, we are not now called upon to decide. The case of Zuntz vs. Comen, 10 A. 433, is not in accordance with the current of decisions of' this court, but even in that case the court held, as did the present court in the Conrad ease, that when the act itself bears intrinsic evidence that the maker, a married woman, exceeded her powers, executory process should not issue, and that where it does not, injunction, and not appeal, as argued in the present case, is the appropriate remedy. This must be so, or á denial of justice be operated.
The plaintiff has -brought herself within the provisions enumerated for injunction against executory process in article 739 of the Code of Practice, and even if she were confined to them, must still succeed under the evidence adduced in support of her injunction. The enumeration of causes for injunction in that article refers, however, only to the injunctions without bond, provided for in the preceding article, 438, and by no means restrict or narrow the general provisions of the law authorizing injunctions for any legal cause under that head in the Code of Practice. There are many other facts, not enumerated, supporting the views here taken, but I have been induced to embark in this discussion of the case in its present shape, owing to the differences of opinion among the members of the court, and the consequent wide range which the discussion has assumed, and because my silence might otherwise be interpreted into acquiescence in views of the case I do not entertain in common with some of my brethren. I can not now recall any case which has come under my observation presenting a record of more flagrant fraud and attempted wrong through the forms of law than that now before us. *786I am, however, content under the circumstances to acquiesce in the decree pronounced by the district judge, who has been associated with us for the trial of the case, setting aside and avoiding the executory process, and remitting the bank to a proceeding via ordinaria.
I therefore concur in the decree.