Dissenting Opinion.
Bermudez, C. J.*This is a suit against a married woman separated in property by judgment, to hold her liable for a series of notes issued by her with her husband’s authority.
The defendant admits signing the notes, but avers that she is not responsible; that the consideration thereof did not enure to her benefit; that they were issued for the advantage of her husband; that she signed them at his request, to assist him in his planting operations.
The record establishes the following facts :
On February 14, 1879, Mrs. Watts addressed a letter to plaintiffs, stating that her husband would visit them to arrange with them to carry on her planting interest for the current year and that he was her agent.
On the 19th following, a written contract was signed by Mrs. Watts jointly with her husband in favor of plaintiffs, whereby it was agreed that supplies would be furnished by advances made for the working of the Mitchell place, owned by Dr. Mitchell, for that year, not to exceed $3800, guarantees being made for reimbursement.
, In February following, a similar contract was likewise signed for that year, (1880) limiting the advances to $1500, with guarantees also.
It does not appear that these were followed by other contracts.
The plantation had been leased on November 30, 3878, for five years by Dr. Mitchell, to Mr. Watts, defendant’s husband, and the lease recorded on April 9, 1879. The annual rent was to be $500 in money and twelve bales of cotton. The lessee was to put up, each year, a tenant house complete, and keep the fences in good order. The crops were to be consigned to the plaintiffs.
It is not dispnted that the notes sued on, dated one in March, 1881, and the others in January, 1882, were issued for supplies and advances and in settlement of open accounts running for some time preceding and including 3882, for both the Mitchell and another place.
Tire proof offered consists of the testimony of Mr. Chaffe, of Mrs. Watts, of Mr. McKay, and of documentary evidence.
The testimony of Mr. Chaffe and that of Mrs. Watts are in distinct conflict, as to what transpired at his office, Mr. Watts being present.
*330He states that they had a business conversation which ended satisfactorily.
Mrs. Watts affirms that she had no such conversation; that soon after she entered the office, the notes were produced and signed; that she did not know what the agreement was; but that her husband told her it was necessary she,should sign.
It is claimed that Mrs. Watts, on her cross-examination, has so contradicted herself that no weight should be attached to her testimony.
Mrs. Watts merely corrected a statement in her re-examination in chief, touching a few mules adjudicated for her account., at the sale under her fi.ja. against her husband, which took place in 1875.
It does not appear that either of the {daces managed by Mr. Watts was ever leased to Mrs. Watts, or that she administered the same. The written lease in the record was made by Dr. Mitchell to Mr, Watts, more than three years after the judgment of separation, which was signed may 28, 1875.
The sub leases in evidence are signed by Mr. Watts as agent, without naming the principal.
There is nothing to show that Mr. Watts ever accounted to Mrs Watts.
The testimony of Mr. McKay, an employee of plaintiff’s, shows that he paid annual business visits and knew no one but Mrs. Watts in his dealings. Mrs. Watts testifies to the reverse.
The documentary evidence consists mainly of the proceedings in separation of property, of Mrs. Watts’ letter to plaintiffs, of the contracts for supplies and advances, of the accounts, the notes, the lease and sub-leases.
' The whole strength of the plaintiffs is exerted to prove that Mrs. Watts made representations to them that she had leased the property and was working the same for her benefit; that she owned the stock and implements on the places; that on the'faith of these representations, they contracted with her, furnishing supplies and advancing moneys; that she appointed her husband her agent to deal with plaintiffs and manage the places; that he acted as such, transacted business with them, working the plantations aud subletting the same to various parties; that the plantations accounts were kept in Mrs. Watts’ name ; that the traveling clerk, McKay, always dealt with her. It is inferred from this State of facts that Mrs. Watts must be held liable.
The questions arising under the pleading and the evidence are simply as follows:
*3311. Whethertlie alleged statements and representations of Mrs. Watts are evidence against her, which she cannot gainsay.
2. Whether, from the fact that Mrs. Watts is separate in property from lior husband, the plaintiffs are relieved from proving that the consideration of the notes sued on has enured to her benefit.
3. Whether the plaintiffs have administered that proof.
I.
It has been repeatedly held that, whatever the doctrine of estoppel be, it is inapplicable to married women or their property, when sought to be subjected to liability; that they cannot be deprived of their estate by constructive fraud, and can be concluded only by actual and positive frauds practiced by them on innocent persons who had not and could not have the means of verifying the real condition of things.
The courts have gone so far as to say that special denials would throw on the plaintiff the burden of establishing the facts necessary to fasten responsibility, whether the woman was common or separate in property, that where the evidence did not fulfil legal requirements, recovery could not be had.
Jurisprudence has consecrated the doctrine, that even a confession of judgment made by a married woman in the absence of necessary proof, will not conclude her and is assailable by her. McIntosh vs. Smith, 2 Ann. 756; Patterson vs. Fraser, 5 Ann. 586; Beauregard vs. Husband, 7 Ann. 294; Moussier vs. Zunt, 14 Ann. 15; Bisland vs. Provosty, 14 Ann. 169; Barnes vs. Burbridge, 15 Ann. 628; Medart vs. Fasnacht, 15 Ann. 621; Bouligny vs. Fortier; 16 Ann. 209; LeBlanc vs. Bouchereau Ib. 11; Dancy vs . Martin, 23 Ann. 323; Strother vs. Hamlet, 28 Ann. 839 ; Edwards vs. Edwards, 29 Ann. 597; Coleman vs. Rush, 30 Ann. 1157; Chaffe vs. Oliver, 33 Ann. 1008; Harang vs. Le Blanc, 34 Ann. 635.
The ruling in the case of the Bank of Lafayette vs. Bruff, 33 Ann. 624, however antagonizing with that in 26 Ann. 737, cannot be invoked as having derogated to the doctrine of estoppel, as announced.
There, and in Henry vs. Gauthrearix, 32 Ann. 1103, the parties were inhocent third persons, while such is not the fact as to the plaintiffs jn this litigation.
It therefore follows that whatever the representations or admissions which Mrs. Watts made, whatever the contracts be which she entered into, she is not bound or concluded by them, unless the existence of the material facts be proved by the suing creditor, otherwise than by *332her declaration. If it were not so, the law might be evaded by a simple change of the form of the instrument. 14 Ann. 15, 169; 7 Ann. 293; 5 Ann. 586.
II.
It will not avail the plaintiffs to discriminate by saying that such may be,-or is the case, where the married woman sued is common in property; but that the law is different as to a woman separated in property.
The effect of a separation of property by judgment (as is the case in tlie present Instance) is simpiy to piit an end to the pre-existing community of acquets and gains between the wife and the husband, and to entitle theTorpaer to the exclusive administration of her property.
The separation of property strips the dotal property of the wife of that character and makes it paraphernal, the fruits then belonging to the wife and no longer to the husband. 8 It. 457; 2 Ann. 771; 13 Ann. 2-
It is settled by a long line of precedents resting on sound principles and wise law, that the fact that the wife is separated in property, does not throw upon her the burden of proving that the debt for which she is sued did hod enure to her benefit. Neither does the same fact estop her from setting up such a, defense by her admission of the debt, before suit.
The law equally protects married women whether (hey are separate or common in property. The judgment of separation does not dissolve the bonds of matrimony, any .more than could a stipulation to that end, in the marriage contract.
It imposes upon parties suing a married woman—whether she be common in property or not—tlie burden of proving that the amount claimed is due by her, and that her estate is liable for its payment, for the reason that it lias enured to her benefit, or to that of her property, which is the same, ■whenever the wife denies having derived any benefit therefrom, or where a default is to be confirmed against her. 12 Ann. 663..
Pascal vs. Sauvinet, 1 Ann. 428; Erwin vs. McCalop, 5 Ann. 173; Patterson vs. Fraser, 5 Ann. 586; White vs. Baillo, 12 Ann. 663; Heald vs. Owing, 12 Ann. 725; Moussier vs. Zunts, 14 Ann. 15; Lee vs. Cameron, 14 Ann. 700; Bowles vs. Turner, 15 Ann. 352; Draughton vs. Ryan, 16 Ann. 309; Barlington vs. Bradley, 16 Ann. 310; Kennedy vs. Boissiere, 16 Ann. 449; Bank vs. Barrow, 21 Ann. 398 ; Hoy & Co. vs. Manning, 25 Ann. 142; Urquhart vs. Thomas, 24 Ann. 95.
*333The philosophy of the legal requirement so frequently recognized and consacrated, that the party suing a married woman, whether common or separate in property, shall prove that the consideration of the claim has enured to her exclusive advantage no doubt is :
1. That a married woman belongs to the class of persons of limited capacity, assimilated to a minor having no right to contract unless in exceptional cases, specially provided for and forbidden from doing so in other specified instances, R. C. C. 1782, 1790, 2446 ; H. I). 864, No. 7; Demolombe, vol. 4, p. 239, $ 210 ; and
2. That the wife is presumed to yield to marital influence and pressure, and to have done so injuriously to her interest, for the benefit of her Intsband in violation of a prohibitory law. R. C..C. 2398, 2446, 1790.
The law does not discriminate, whether the husband be necessitous or wealthy. A wife can no more bind herself for or with an opulent than she can for or with an impecunious husband.
A fair test in sircli cases is, whether the husband could bo held liable for what is claimed of the wife, had she not bound herself for it. Of course, this test could not apply to exceptional cases, formally and expressly taken out of the rule, where by distinct stipulation the husband is under no contingency to bo held responsible, if the wife were not.
The law relieves a plaintiff from such proof, only where the married woman sued, has been authorized by the judge to borrow, or is a public merchant; but even then, it does not debar her, under proper charges of collusion and fraud, implicating thejlaintiff, from proving circumstances exonerating her from liability. Rice vs. Alexander, 15 Ann. 54; Bank vs. Barrow, 21 Ann. 398; Miller vs. Wisner; 22 Ann. 457; Falcour vs. Stapleton, 24 Ann. 89; Feltus vs. Blanchin, 26. Ann. 401; Reitch vs. Rosselin, 26 Ann. 418; O’Keefe vs. Handy, 31 Ann. 832 ; Hall vs. Wyche, 31 Ann. 734 ; Stapleton vs. Butterfield, 34 Ann. 822, Darling vs. Lehman, 35 Ann. 1186.
Whoever deals with a married woman is, by the very nature of .the transaction, put on his guard. It is incumbent upon him to ascertain that her estate can be charged with the claim. Pilcher vs. Kerr, 7 Ann. 144; Carroll vs. Manning, 24 Ann. 142; Stapleton vs. Butterfield, 34 Ann. 822.
The plaintiffs cannot be heard to question those various propositions of law, which are deeply embedded in our jurisprudence, as not only have they alleged in their petition that the consideration of the notes was for the wife’s benefit and advantage, but also have they undertaken to prove the fact.
*334ITT.
Tlie third question now presents itself. Have they done so ?
Admit that the evidence shows that the supplies were furnished and the advances made for the working of the two places, where is the proof in the record that the places belonged to the defendant or were leased by her and were administered by her.
The proof shows that the property was leased to her husband in his own name ever since 1878, previous to the furnishing of supplies and making of advances.
Even if the lease had been taken in defendants’ name, by her husband, the question would arise as to his authority for doing so. A lease is a transfer and a purchase of property. It is a dismemberment of property by one in favor of another, for a stipulated time. To acquire property, a special power is necessary. The power which Mrs. Watts gave was that contained in her letter. It was limited to one year and was one of administration only. 13 Ann. 566; 5 Ann. .173, 572; 1 Ann. 428; 18 L. 467.
Had she taken the lease herself, the question would arise whether with the means she then had and which are not proved, and which possibly consisted of what remained of her purchase under her fi. fa. against her husband—whether she could legally bind herself by venturing in a planting operation and leasing property the rent of part of which for five years exceeded six thousand dollars, exclusive of the cost of working the places, the expense of the construction of the building annually to be erected and the keeping in order of the fences on the place.
The law protects all married women equally, whether they be separated or common in property, from the consequences of all wild and ruinous ventures.
In the case of Draughon vs. Ryan, 16 Ann. 309, the Court held that a wife separate or not in property, could not be held liable on a note issued by her for supplies and advances, furnished for the working of a plantation leased by the husband.
The Court said: “It is clear that the note was not given for the improvement or benefit of the paraphernal property of the wife, but simply to enable the husband to work a plantation which did not belong to the defendant. The circumstance that the husband had no separate property of .his own, does not create an obligation on the part of the defendant to satisfy the claim set up by the plaintiff.”
*335In the ease of Carroll, Hoy & Co. vs. Manning, 24 Ann. 142, the wife was likewise relieved from the payment of a note subscribed by her, the consideration of which was supplies furnished to cultivate a plantation cultivated by her husband.
In the more recent case of Hall & Lisle vs. Wyche, 31 Ann. 734, the wife was discharged from liability, for the price of mules said to have been sold to her and to her husband, to work a plantation alleged to belong to her, as it was not shown that the same was administered by her.
In a case of the present plaintiffs) decided in June last in Monroe, it was held that where a community exists and the husband cultivates a plantation belonging to the wife—the debts incurred therefor, are his and cannot he enforced against her property.
We said that even though the wife has signed lien contracts in favor of the factor for supplies and advances, if the fact he that she had not the administration of her separate property, but her husband, he alone is responsible. 36 Ann. 824-5; Chaffe vs. McIntosh.
The court thus ruled in the several cases on the principle that a wife whether separate or common in property, cannot be lield where the proof does not show that the wife was the owner and administered and that the consideration has enured to iior benefit.
This Court has uniformly taught that whenever any married woman is sought to be held liable, where she denies responsibility, it will disregard the form in which the obligations have been garbed and look into the very nature of the transaction ; that it will require proof that the consideration enured to the benefit of tho wife and in default of satisfactory evidence, would exonerate her from liability.
As to the question of the right and power of a married woman, to acquire property for her separate benefit, whether common or not, this Court has gone very far in the cases of Miller, wife of Jackson, vs. Handy, Sheriff, 33 Ann. 160 and of Chaffe & Sons vs. DeMoss and wife, recently decided. (No. 9357.)
In the last case, the title of the wife, who was separate in property, was maintained, because the evidence showed that the price had been paid by her.
Laurent in his elaborate commentaries on the Napoleon Code, teaches on the best authority, that a wife separated in property has not and cannot he recognized, the right to speculate, to purchase where she *336lias not the means to acquire. “ Oe sennit, says he, 1/ui ¿farmer le <trail de se miner.” V. vol. 22 p. 310, No. 297; also Nos. 292-300; No. 312 et seq., No. 321 et seq.
In the present instance, let it be supposed that the crops raised on the two places had been seized by the creditors of Mr. Watts, could Mrs. Watts claiming ownership,-bo recognized to be entitled to the same, under the evidence in this case?
Slie could not prove ownership of the land or a lease of it to her.
She could not qirovo that she had the reasonable moans required to venture in the planting undertaking.
She could not prove she administered the property.
She could not prove that the supplies and money were delivered t,o her.
She could not prove a continued sufficient procuration to her husband.
She could not prove accounting to her by her husband.
She could not prove dealings by her with her factors.
In her inability to establish tlie essential facts on which to base a claim of ownership, slie necessarily would fail and the creditors would take.
How then can the plaintiffs in this case claim that she is responsible for supplies furnished and money advanced for tlio cultivation of plantations leased to licr husband and not administered upon by her?
Tlie plaintiffs knew 'they were about dealing with a married woman and were thus put on their guard.
As was said in Pilcher vs. Kerr, 7 Ann. 144: “It was incumbent on them to ascertain that her estate could be charged.”
It would have been easy for them to have ascertained whether she had reasonable means, whether the places were leased to her, before entering into any agreement with her.
The testimony in this case consists merely of that of one of the plaintiffs and of that of their travelling clerk, even if little or no weight is attached to that of Mrs. Watts. The documentary evidence of itself is no proof against the defendant. All her admissions therein should have been verified by proof dehors the instruments.
Tlie plaintiffs should not be permitted to recover tlieir large, claim from the defendant on this insufficient showing.
The judgment appealed from should be reversed and the plaintiffs non suited,