Dissenting Opinions.
DeBlanc, J.On the 27th of December, 1866, Meredith Calhoun, and his wife — Mary S. Taylor — appointed as their agent in this State, their son William Smith. The authority delegated to that agent was nearly unlimited. He was empowered to lease, mortgage and sell the property of both, and of each of said parties — “ to take charge of and conduct all business affairs of every name and nature, pertaining to them in America, whether the same related to real or personal estate, or of any other kind whatsoever — to make, execute, acknowledge and deliver any contracts, agreements or covenants — to collect and receive any money, debt, rent or account due or to become due.”
In 1869, Meredith Calhoun died: the evidence of the agency created by himself and his wife, unrevoked by her, continued — after his death— to stand on the recorder’s book, a notice to the world. There it remained until the death of Mrs. Calhoun. If — from the demise of the husband— the powers so delegated and the recorded evidence of those powers had lost their effect, the fact that they thus remained, apparently at least, unchanged and unrecalled, was certainly calculated to ensnare the most vigilant, to deceive the most cautious.
In 1870, acting under that unrevoked and published authority, Mrs. Calhoun’s agent borrowed for her, from James N. Nevin, the sum of $15,000. To represent that sum he subscribed and delivered, as agent, three notes of each an equal amount — two of which, the first and last maturing were transferred to the Mechanics & Traders Bank, the middle one to D. W. Moore, of Mississippi.
To secure that loan, William Smith Calhoun, as agent, mortgaged in favor of Nevin, or any future holder of the notes by him subscribed and delivered, four plantations situated in Louisiana and belonging to his mother. She was then a widow and absent from our State.
It is urged — by plaintiff — that the death of Meredith Calhoun operated a change in the condition of said deceased’s wife, and that — at the very moment of his death — the mandate from both of the spouses to the son expired. This is a mistake: Mrs. Calhoun was neither interdicted nor insane, and the change — not in her condition as a principal— but in exclusively her marital state, did not destroy or impair — but. on *787the contrary — enlarged and increased her capacity. As a widow, it was in her power to revoke the agency. This she has not done.
We can well understand that a change in the mental condition of the principal, that insanity and interdiction, that the marriage of a woman, who passes from single life under the authority of a husband, are causes which should and do revoke antecedent mandates — : for,' one can not delegate to others the exercise of a power which is denied to him — but we are at a loss to understand why, at the dissolution of the marriage, when the widow resumes her full capacity and the unrestricted administration of all she owns, the mandate given by her during coverture, should afterwards expire against her wish, and will.
In our legislation, the capacity to contract, the limitations to that capacity, and the absolute and removable incapacities are specially mentioned and clearly defined. The authorization of the husband or of the judge is indispensable to validate the contracts of the wife — but, once perfected, those contracts survive the husband and the marriage. It would have been as useless as irrational to have declared revoked b ' the death of the husband, an act perfect as to the wife and which — if then revoked — the widow could renew, resuscitate and again revoke.
Mrs. Calhoun was informed of the execution by her son of said notes and mortgage; she was thus informed before and after her return from France to Louisiana, and. — far from contesting. — she approved and ratified expressly and tacitly, the acts of her agent — expressly, by her application for a delay fixed by herself and within which she was to sell some property to satisfy the now contested claim — tacitly, by her unbroken silence in and out of court, as to the pretended invalidity of said claim. 10 M. 526. 7 L. 17. 4 R. 134. 29 A. 212. R. C. C. 1786.
In Jiine 1871, Mrs. Calhoun died: by inheritance and by purchase of her brother’s share in the succession of their mother, plaintiff became the sole representative of the latter, and — as such — opposes and resists the demand of the Bank, on the ground already disposed of, and on the additional ground that the contract declared upon was entered into between her brother and Nevin, in pursuance of a conspiracy to defraud her mother.
As against Nevin, if he were attempting to enforce that contract, plaintiff might urge the fraud charged against him and their mother’s agent. As against the Bank, which took the notes in good faith, for a valuable consideration and before maturity, that defence is untenable. Its officers only had to ascertain — from the tenor of the power of attorney and the act of mortgage — whether it appeared that the agent had acted within the scope of his authority. It so appears, and Mrs. Calhoun was legally bound. By the unconditional acceptance of her mother’s succession, plaintiff has assumed her obligations.
*788In his argument, plaintiff’s counsel contends “ that a mortgage can not be transferred to a third party, so as to give him greater rights than the mortgagee possessed.” In regard to the transfer of credits, this is not correct: third parties acquiring before maturity, often acquire more than their vendors are entitled to. The transfer — under those circumstances — vests the right of claiming — not always that which is really due, but that which appears to be due, by the instrument which attests the existence of the transferred credit.
The note is the principal, the mortgage an accessory — and, whether mentioned or not in the transfer of' the principal, the accessory passes with it to the transferree. The Code so provides. The holder of a qlaim represented by a note and secured by a mortgage could not sell separately, to one the note, to the other the mortgage: they are the inseparable parts of but one contract, and — though the mortgage may be abandoned or lost — it can not be enforced separately from the claim, and by any other than the holder of the claim.
The validity and defects of the principal constitute the validity or defects of the accessory. The debt may outlive the mortgage, but the .cause which destroys the debt, invariably destroys the mortgage. The equities which the obligor is precluded from opposing to the claim, can not be opposed to the mortgage.
“ En principe — said Paul PonU-le privilege ne se separe pas de la créance; il n’a pas une existence qui lui soit propre, et il ne peut-étre cédé distinctement et indépendamment de la créance. Mais si par l’effet d’une cession et d’une subrogation reguliére, la créance elle rnéme passe d’une personne a une autre, le privilege passe également et est acquis de plein droit au cessionnaire ou au subrogé.
Revue critique de Legislation et de Jurisprudence, fóvrier 1856 p. 108.
In his discussion on the same subject, Marcade had already expressed the same views:
“ Il est tout simple que la vente d’une créance comprenne — plein droit, et sans qu’il soit besoin que le contrat s’en expliquer, les accessoires dé cette créance. * * * Le cautionnement, l’hypothéque ou le privilége qui garantissent une créance on sont óvidemment des accessoires, presqu’ils ne sont rien autre chose que des moyens d’en mieux assurer l’exécution, et que — le créance tombant — ees divers droits tomberent et n’avaient plus de raison d’etre. Il n’y a pas de cautionnement, d’hypotheque ou de privileges possibles, la ou il n’y a pas une créance dont ces droits seront une dópendance.”
Explication de C. N. par Marcade, article 1692.
Rev. C. C. 2615.
To sue on the notes, to enforce the mortgage given by Mrs. Cal*789houn’s agent, there was 'no necessity of any specific transfer: in their form, the notes are payable to bearer, and the mortgage was granted in favor of any holder of said notes. The Bank has the required title, and no additional transfer could have added to that title. It derives its right of action, not only from the law, but from the very terms of the contract, the convention of the parties.
In the procuration from Mrs. Calhoun to her son, the most important powers were granted tp the agent. He had the right to borrow, mortgage and draw: he borrowed, mortgaged and drew. Under no clause of that indefinite mandate, could Nevin have disputed, or the Bank doubted the agent’s authority to create the debt, to receive the proceeds of the loan, and to dispose — as he thought proper — of every property, every right, every cent belonging to his mother.
As to the Bank, it was useless to prove a ratification by Mrs. Calhoun of the acts of her agent. She had resumed the administration of her paraphernal property, and — by an unlimited power of attorney— had specially authorized him to incur the expenses indispensable to the cultivation of her plantation. The agent declared to the notary and witnesses that the notes were furnished for exclusively that object. As to third parties, that declaration had as much force as if made by Mrs. Calhoun herself, and she was bound by the act of her agent, before and without the ratification.
' Can a married woman — duly authorized by her husband — stand by the side of a commission merchant, ask him to lend her funds and make advances which she represents as necessary to cultivate, improve or save her separate property, direct him to pay those funds to a designated mandatary, and — when the merchant claims the amount thus advanced, tell him: it is true that I did borrow your money, that I borrowed it for a lawful purpose, but that money has been misapplied by my chosen agent, and — as you failed to guess that it would not enure to my benefit — you alone must suffer for the abuse of a trust created by me. I did not deceive you, my agent did; when he received and took your money, he was acting for me; under a power delegated by me, and within the scope of that power — but, in the disposition of the funds, he has exceeded or disregarded his authority ? If so, a contract legal and perfect at its origin, legal and perfect as to both the creditor and the debtor, and with which 'the creditor has strictly complied, may be — by the fraud of the debtor’s agent, converted into, and annulled as a prohibited contract.
The incapacity, or rather the capacity of the wife to contract, is limited and conditioned: she cannot bind herself for the benefit of her husband, his estate or the community — that is the limitation. She can not bind herself without the authorization of her husband or of the *790judge — these are the conditions. ■ When authorized by either, she can alienate, grant, mortgage, acquire, by gratuitous or encumbered title, and bind herself for or towards any one, except it be for the benefit of her husband, his estate or the community. R. C. C. 122, 126, 127, 1790, 2397, 2398.
The 1775th and 1779th articles of the Code of 1825, re-enacted and retained in the revised Code, leave — it seems — no doubt on that subject. The first provides that all persons may contract, except those whose incapacity is specially declared by law, and these are persons of insane mind, those who are interdicted, minors and married women: the other article provides that — as to the wife, her incapacity is removed by the authorization of her husband or of the judge.
R. C. C. 1782, 1786.
In and before 1855, the credit of the married women of the State had been so affected by their invariable disregard of their civil obligations, by their successful resistance to the enforcement of those obligations. that, in that year, to resurrect their destroyed credit, the legislature had to pass a special act, intended to remove the uncertainty, the risks of a contract with them, intended also to dispel the legitimate suspicion which then existed against such contracts. That act was adopted —not to restrict the already restricted capacity of married women, not to add to the limitations imposed on their capacity, but to provide a definite, an effectual mode of binding them, to increase their facilities, or — to speak more properly — to decrease the then almost insurmountable difficulties under which they were to manage their separate interest, and — more particularly — to calm the just apprehensions of those who were disposed to become their creditors.
The law, as it was before the adoption of the act of 1855, stands unrepealed, unimpaired, with this difference: when married women bind themselves according to the provisions of said act, they are placed on the same footing as a femme seule, and their contracts — unless attacked for fraud on the creditor’s part, and in a contest with the creditor by whom the fraud has been committed — furnish full proof against them and their heirs. These are the very words of the Code, and when — in such a case — fraud is alleged by a married woman, it is incumbent upon her to prove that it was perpetrated by, or to the knowledge of the party claiming the enforcement of a prohibited contract. As to con-_ tracts entered into by married women, without the formalities prescribed by the act of 1855, they are governed by the legislation which preceded the adoption of said act, and those who deal with them with but the authorization of their husbands, must do so under circumstances excluding even the presumption that the wife is about to bind herself for what — in law — is considered as her husband’s advantage or that of the *791community, and, circumstances which — on the contrary — are such as to induce a rational and honest belief that she is acting exclusively in her own interest, for her own and separate benefit. When the creditor has, in good faith and in strict accordance with law, parted with his money, it would — -it seems — be a strange injustice to hold that he is liable for a deceit practiced upon him by both the husband and the wife, and for the future and unlawful disposition of money, over which — as soon as it is paid or handed to the wife or her agent — he can neither retain, nor exercise any control. It is otherwise — however—when instead of borrowing money for merely alleged necessities, for future use and future purposes, such as the raising of an unsown crop for the wife and on her own separate property, the wife — without the sanction of the judge, seeks to borrow money to pay a debt already contracted, a liability already incurred, for — as it is the character of the debt which — then— can alone give validity to a married woman’s obligation, the party from whom sho so seeks to borrow must — at his peril — ascertain that the debt was contracted, the liability incurred for her own, her exclusive benefit.
Be all this as it may: such an error — as rendering a judgment on insufficient evidence — does not authorize a resort to the process of injunction, but can and should be corrected by appeal, by a new trial, by an action of nullity or rescission. The judge who issued the writ of seizure and sale on the ground that the evidence to do so was sufficient, cannot enjoin and restrain the execution of that writ on the ground that' the very evidence which he so found and pronounced sufficient, was insufficient to authorize the issuance of the writ. 25th A. 539.
In this case, plaintiff has reversed the rule, and — in direct opposition to a positive law — has not only not resorted to any remedy pointed out by that law, but has resorted to a remedy repugnant to it, reprobated by our jurisprudence.
For these reasons, I respectfully dissent from the decree rendered by the majority of the court.
Spencer, J.I can not concur in the opinion or decree of the court in this ease.
Mary S. Calhoun owned as her paraphernal property four plantations in Grant parish. She and her husband, Meredith Calhoun, being then in France, executed before the American Consul at Paris, on 27th December, 1866, a power of attorney to their son, William S. Calhoun, in terms as follows:
“ They clo jointly and severally nominate, constitute, and appoint their son, Mr. William Smith Calhoun, of Louisiana, United States of America, to be their true and lawful attorney in fact, giving and by these *792presents granting unto said attorney full power and authority for them and in their names, place, and stead to take charge of and conduct all business affairs of every name and nature pertaining to them in America, whether the same relate to property, real estate or personal, or be of any other nature or kind whatsoever. To sell, assign, and transfer any or all real estate, lands, tenements, and hereditaments to them or either of them belonging, or any interest therein or right thereto ; also' giving to said attorney full power and authority to mortgage or lease any such property as to him may seem best. To make, execute, acknowledge, and deliver any contracts, agreements, or covenants, and to sign, seal, and deliver any and all conveyances, deeds, leases, mortgages, or other instruments of writing necessary for the execution of the power herein granted. To collect and receive any sums of money, debts, rents, dues, or accounts now due or to become due, to appear for them before any courts, tribunals, or places necessary for the collection of .any such sums of money, to receive the same and full and sufficient acquittance therefor to give; and generally to do and perform all things requisite in as full and complete a manner as if herein specially provided for.”
In 1869 Meredith Calhoun died in France.
On 12th May, 1870, (the mother being then a femme sole) William S., the son, executed three notes as her agent under said power, each for $5000, payable to his own order as agent, and indorsed in blank, maturing on November 1, December 1, 1870, and January 1,1871. On the fourteenth May, 1870, he, as agent of his mother, executed an authentic act of mortgage, to secure these notes, in favor of one Niven, a merchant of New Orleans, in favor of any other holder of said notes. In the act of mortgage it is recited that the consideration of the notes was money and supplies, furnished and to be furnished by Nevin, for the cultivation of his mother’s plantations, of which she had the administration. Nevin pledged the first and last of the above described notes to the defendant bank. There is some dispute as to whether the bank obtained the two notes before the maturity (November 1) of the first one. I think the evidence is conclusive that the bank held both the notes on or before the fourth November (the maturity of the first one), and, therefore, did not acquire it after its maturity, and, therefore, it is not subject to equities in the bank’s hands.
In January, 1871, the bank sued out executory process on these two notes; but the entire record was burned with the courthouse in April, 1873, except the two notes.
In June, 1871, after returning from France, Mary S. Calhoun died, leaving the plaintiff, Ada, and her son, William S., as her sole heirs, who accepted her estate unconditionally. In 1873, Ada Calhoun purchased the interest of William S. in the mother’s succession. In April, 1875, the *793bank commenced de novo its executory proceeding, and Ada Oalhoun brought this injunction suit. The grounds of injunction are numerous. The main points are:
1. That the evidence on .which the judgment of seizure and sale was rendered is not authentic.
2. That Mrs. Oalhoun was without capacity to give the power of attorney to her son.
3. That she was without capacity to alienate or mortgage her real estate without the authorization of the judge.
4 That the power of attorney did not confer on William S. any other authority than that of administration, and was revoked by the death of the husband.
5. That the notes were without consideration, and that William S. Calhoun and Nevin colluded together to defraud Mrs. Oalhoun. That ■the money procured by said notes was not used .for her benefit, but put by William S. into the firm of Shackleford & Co., at Colfax, and that the bank-acquired them after maturity, and that the notes and mortgage were void.
There are a few vital points which I propose to consider, and which, in my opinion, are decisive of all these questions.
1. The insufficiency, or non-authenticity of the evidence upon which the decree in this case was rendered can not be set up as ground of injunction. The only remedy was by appeal. I take it to -be well settled that a party can not resort to injunction where he has relief by appeal. See 13 A. 111; C. P. 605—607; 14 A. 656; 6 R. 58; C. P. 556; 12 M. 691.
But I do not admit that, in point of fact, the evidence was insufficient to warrant the fiat of the judge. The only suggestion of insufficiency is that the mortgage by way of recital states that the indebtedness is for money and supplies “furnished and to he furnished,” and that, therefore, there must be authentic proof showing that the supplies “ to be furnished,” had been actually furnished. The answer to this objection is that the mortgage was given to secure the notes, and was in favor not of Nevin only, but “ of any other or future holder ” of these notes. If the consideration of the notes, in the hands of a third holder, could not be inquired into — if the state of accounts between Nevin and Calhoun could not affect the right of-such holder, why should it affect his rights as holder of the mortgage, which, upon its face, is given as security to him as a future holder of the notes? The mortgage in this case is one direct to the bank as “ a holder of the notes,” and, in that respect, does not differ in its legal aspects from one granted to it specially, after it- became the hona fide holder of the notes. If the maker of a note is precluded from showing its invalidity — if the law presumes a consid*794eration and will not admit proof to the contrary, for the purpose of defeating the note, will it admit such proof for the purpose of defeating a mortgage given in favor of the holder of that note? If there be in law or fact a good consideration, actual or presumed, for the note, then I contend there is, ex necessitate rei, a good consideration for the mortgage. That if the consideration can not be inquired into to defeat the note, it can not be to defeat the mortgage. If the mortgage, in this case, had been simply in favor of Nevin, personally, and not in favor of future holders of the notes, the case would have presented a different aspect, and have fallen within the scope of some of our decisions to the effect that a mortgage securing a negotiable note is not itself a negotiable instrument. In my opinion, these decisions are in direct conflict with the spirit and letter of the Civil Code. A mortgage is not an independent contract. It is a mere accessory of a principal. It is not separable from it, and goes with it as an incident. 3251 — 3252. “ The sale or transfer of a debt includes every thing which is an accessory to the same; as suretyship, privileges, and mortgages.” C. C. 2615. A person can not transfer a mortgage note and retain the ownership of the mortgage, no more than he can remove the substance without moving the shadow. In my opinion, a mortgage being a mere incident, a simple accessory of a debt, partakes necessarily of its nature, and is negotiable or not, just as the debt to which it adheres is so or not. See 27 A. 561; Story on Bills, sec. 191. I, therefore, think that where the consideration of the note can not be inquired into to defeat the note itself, it can not be to defeat the mortgage securing that note. In other words, if there is, by conclusive presumption of laxo, a good consideration for the note, a mortgage given to secure it can not be defeated by proof that there was, in fact, not a good consideration for it. The bank being a third holder, in good faith, of these notes, the question as to whether the money “to be furnished,” was or not actually furnished, is an immaterial one, since it could not be raised, as against the bank, to defeat either the notes or mortgage. If immaterial, it was not necessary that it be proved before taking the order of seizure. I think, therefore, that there was authentic and sufficient evidence to support the judgment of seizure, even if this question could be raised by injunction.
2. The next question is as to the capacity of Mrs. Calhoun to grant to her son the power of attorney in question. To me it is manifest that there is prevailing a great misapprehension as to the nature and extent of the incapacities of married women under the laws of Louisiana.
There is but one general incapacitxj under which she labors, and that is her inability to contract without the authorization of her husband, or, in his default, of the judge.
*795When she is joined and authorized by her husband she has precisely the same legal capacity as any other woman, with one single exception, to wit: that she can not bind herself or her property for the debts of the community, or of the husband. When so authorized, therefore, her incapacity is purely relative, and limited to this one class of contracts. When so authorized, she can donate, sell, encumber, or mortgage her real estate. C. C. 122. She can contract debts for her own benefit, or become security for the debts of her children, her father, mother, brother, sister, or even of strangers. In fine, she can make any contract she pleases, except for the benefit, or as security of, her husband and the community. See Hellwig vs. West, 2 A. 1; 10 A. 433; Farrell vs. Yoe, 2. A. 903; 5 A. 569. It is now settled that she does not need the authorization of the judge to grant mortgages. The only effect of such authorization is to estop her from asserting that the debt was for the benefit of the husband.
She can at any time resume the administration of her paraphernal property, not only without consent, but in defiance of the wishes of her husband. See C. C.
It is, therefore, perfectly manifest that at the time this power of attorney was executed Mrs. Calhoun had capacity, with the authorization of her husband, to sell, lease, and mortgage her real estate in Louisiana, and to contract debts for her own benefit, or for the benefit of anybody else than her husband. If she had this power herself, where is the law which forbids her conferring it, with the authorization of the husband, upon her agent and son ? Nc such law exists in the statutes of Louisiana. Her husband joined and authorized her in the execution of this power of attorney.
She owned the property, and having the right to administer it herself, and to sell it, or mortgage it (provided it was not for her husband’s debts), she could do these same things by an agent. See 2 A. 890. Of course, her agent had no greater power than she had, but we have seen she had those powers, subject to said restriction. She even had the power to become a “public merchant,” and, therefore, with her husband’s authority, could have become a partner of Shackleford & Co.
3. Does the power of attorney, as quoted above, confer on William S. Calhoun authority to sell and mortgage her real estate, to contract debts, and secure the same? Its language means as much, or else it means nothing. It distinctly recites that they “jointly and severally” appoint him agent, with power “ to sell, assign, and transfer any or all real estate, etc., to them or either of them belonging,” and “to mortgage” the same, etc. It is idle to argue in the face of these terms, as do the counsel, that “ this procuration is, therefore, simply one by the husband and *796gave the agent, so far as the wife’s -property is concerned, no other power than that the husband himself had, that of administration.”
4. Did the death of her husband, in 1869, revoke this procuration so far as she was concerned ? The Code, article 2996 (old number), tells us. that a procuration expires “by the change of condition of the principal,” but nowhere tells us what constitutes -such change of condition.
We must, therefore, have recourse to reason and authority to ascertain. The change of condition intended evidently refers to cases where the capacity of the party undergoes a diminution. If a person ceases to possess capacity to do a particular thing himself, of course he can not do it by another, as his agent; and any previously conferred‘power to such agent, would, of necessity, be revoked, for the creature can not be greater than the creator. But why an increase or addition to the capacity of the principal should so operate, we are at a loss to see. In Reynolds vs. Rowley, 2 A. 893, this court held that a power of attorney, executed by a single woman, who on marrying retained the administration and control of her property, was not revoked by the marriage. The court say: ■
“According to Judge Story, the reason that, as a general rule, marriage revokes powers of attorney previously given by the wife, is that the power of constituting an agent is founded on the right of the principal to do the business himself; and, when the right ceases, the right of constituting an agent must cease, also. Story on Agency, 501. In this case the km gave Mrs. Rowley the right to administer after marriage, icithout the assistance of her husband, and, therefore, the rule does not apply.” Certainly, if becoming a married woman does not revoke,necessarily, previously given procurations, becoming a femme sole never can.
5. Having thus concluded that Mrs. Calhoun had the capacity to give the procuration to her son to contract debts (other than for the husband’s benefit) and to grant mortgages to secure them ; and that she did in fact grant him those powers; and, finally, that the powers so granted were not revoked by the death of the husband or otherwise, we find that in May, 1870, after she had become a femme sole, her said agent procured from Nevin large sums of money, and executed the notes sued upon, securing them by mortgage. It is shown that she was advised of the execution of this mortgage after returning from France and made no objection thereto.
The plaintiff lays much stress upon the fact that the mortgage recites this money was to be used for planting purposes, when in point of fact the agent diverted the greater part to the mercantile ventures of Shackleford & Co. What difference does that make to the holder of *797these notes? The power of attorney gave the agent almost plenary powers, and it was no part of the duty of persons lending the money or taking said notes to follow up Wm. S.'Calhoun to know what he did with the money. It was enough for them to know he had the power to borrow it. It was none of their business if he abused his trust. Mrs. Calhoun is the proper person to bear the loss if her agent was unfaithful.
6. There is no disputing the fact that under cover of this power of attorney, giving absolute and almost unlimited disposal of her estate to her son, she put it in his power and enabled him to procure every dollar of the money represented by these notes. Good conscience and equity as well as law forbid that she or her heirs should now be heard to say they were given without consideration. It is a proper place and occasion for applying the familiar legal maxim that he who by his conduct and representations has put it in the power of another to do a wrong, must bear the loss consequent thereon.
We therefore refrain from entering into the lengthy discussions of counsel on this question of consideration, and content ourselves by saying that there is no allegation or proof that any part of the notes sued upon was a debt of the husband; that Mrs. Calhoun was a femme sole acting by a duly authorized agent in giving them, and when advised made no objection thereto ; that she and her heirs, and above all others, the said Wm. S. Calhoun and those claiming under him, are estopped and precluded from pleading said Wm. S. Calhoun’s misconduct as a defense to said notes. I confess my utter'inability to understand or appreciate the process of reasoning which can exempt Wm. S. Calhoun’s half of these four plantations from responding to this debt. If his mother’s estate is not bound, because he was not authorized to bind it, he is personally bound. If he granted a mortgage on property not his own to secure his individual debt, then, by art. C. C. 3304, “ this mortgage shall be valid if the debtor should ever after acquire the ownership of the property, by whatever right.” By the death of his mother in 1871 he did afterward acquire one half of this property, and the mortgage attached to it and could not be defeated by a subsequent sale in 1873 to his sister, the plaintiff. I have carefully examined the record in this ease, and must say I do not find that evidence of flagrant fraud my brothers speak of. I think the fraud, if any, is rather on the side of plaintiff and those under whom she claims.
I think the case is clearly with the defendants, and that the injunction should be dissolved, with damages.
Manning, C. J., recused.