The opinion of the court was delivered by
Spencer, J.Plaintiff, as administratrix of her deceased husband,. Ant. Rodi, and tutrix of his children, sues to annul,
First — An act of sale of certain real estate on Ursulines street, made-by R. Pavageau to her said husband, on 12th August, 1873, and, second, an act of mortgage executed by her said husband, on 7th day of September, 1874, in favor of the defendant, Guinault, on certain real estate-on Greatmen street.
Pavageau sold to Rodi the Ursulines-street property for $2600, of which price $2000 were represented by two notes of $1000 each. Gui-0, *93nault, being the holder of a mortgage on this property, the two notes were transferred to him by Pavageau.
When the notes became due, Guinault demanded as a condition of extending payment, that a mortgage be given by Rodi, for one of the notes on his Greatmen-street property, in order the better to secure the ■debt. An act of mortgage was accordingly drawn and executed in ¡favor of Guinault.
On expiration of the agreed delay, Guinault commenced executory proceedings for the sale of both properties. The present suit is an opposition to said sales, and also a demand to annul as stated. The ■ground of nullity urged is, that at the time of and long before the execution of said acts, said Rodi was notoriously insane, and to the knowledge ■of all the parties was in a state of hopeless imbecility. Rodi died in 1876, and had been previously interdicted, but was hot interdicted at the time of the acts complained of.
We may as well eliminate here one branch of this case, to wit: that Telative to the nullity of the sale from Pavageau to Rodi, of date August 12th, 1873. Pavageau, the vendor, has not been made a party to this suit, and we cannot, in his absence, pass upon its validity.
As to the mortgage granted in 1874, to Guinault, all necessary parties are before us, and we shall proceed to examine that branch of the case.
There is no dispute about the legal principles involved. If Rodi was at the time of granting this mortgage notoriously insane, and to the knowledge of Guinault in a state of imbecility, the act is null, although Rodi was not then under interdiction, he having been subsequently interdicted. We have, therefore, only a question of fact before us.
The evidence is voluminous, and embraces the testimony of two physicians who had treated Rodi for a series of years, as also that of many of his neighbors and friends.
It is overwhelming to the effect that at the time these acts were passed he was afflicted with a spinal affection and with softening of the brain; that he was incapable of expressing himself, or of understanding what was said to him, having occasional paroxysms of violence. The evidence satisfies us that Guinault, who was a frequent visitor at his house, necessarily knew his condition. In fact, Guinault, in Ms negotiations about these mortgages, never attempted to treat with Rodi. He dealt entirely with Rodi’s wife, who on account of her ¡husband’s condition, undertook to manage his affairs. But she had by taw no such authority, if he was insane, admitting even that she held his power of attorney. If he could not act himself, he could not authorize her to act. The testimony relied upon by defendant is his own *94and that of the two notaries who passed the acts. This evidence is not satisfactory, and is wholly insufficient to meet the mass of counter-proof produced by plaintiff. The judge below, who heard and saw the witnesses, was convinced of the notorious insanity and imbecility of Eodi, and so are we.
The act of mortgage granted by Bodi to Guinault, of date September 7th, 1874, is therefore invalid. The judgment appealed from in that, regard should be affirmed; but in so far as relates to the sale from Pavageau to Bodi, of date 12th August, 1873, it must be reversed as m ease of nonsuit.
It is therefore ordered, adjudged, and decreed that the judgment, annulling the act of mortgage from Ant. Bodi to Jas. P. Guinault, passed before O. V. Foulon, notary, on September 7th, 1874, be and the-same is hereby affirmed, and that in so far as said judgment annuls-the act of sale from B. Pavageau to Ant. Bodi, passed before W. H. Seymour, on 12th August, 1878, the same is reversed and plaintiff’s demand in that regard dismissed as of nonsuit.
It is further decreed that plaintiff pay costs of this appeal, and defendant those of the court below.