John McLean

“ They are not to protect the wife against strangers, with whom she might contract, but against the arts of the husband, against his fraud or force. He might induce her to contract in her own name, and this is what the law intended to prevent. A similar principle prevails in other States, where a private examination of the wife is required. But the laws of Louisiana intended to strike deeper and to prevent the evil by avoiding the contract altogether. The substance of the law of Toro is preserved. It is made the duty of the lender to see where the money goes. ”

“ The husband and wife, by a decree, were separated in property, after which she delegated to him extensive and general powers for the management and administration of her affairs. Two years after this, the husband, under this power, executed the notes and mortgage in question, 'stating in the act that the sum was due by his wife, in consequence of a loan made to her by the defendant, and which he, as her agent, acknowledged to have received.' And the court say,-'There is no proof that any part of this loan passed into the hands of the plaintiff, or that it was applied or turned to her benefit. ”

“ The article, which declares that the wife cannot become the surety of her husband, does not superadd the above important condition as to the application of the money. It is not in the law, unless it shall have been put there by judicial legislation. The fact, that the money borrowed was paid to the husband or was used for his benefit, as a matter of evidence, may be proved to show the character of the transaction. And, connected with other facts, it may conduce to establish collusion or fraud. ”

“ There was collusion and fraud between the husband and wife to cheat Heath. Civil Code, art. 1841, defines fraud. 1 Story's Eq. 384, 385.
If the other side are right in saying that the lender must look to the manner in which the money is spent, then all married women, under such circumstances, would be placed under the supervision of trustees who might be strangers. She was not a surety for her husband, because he owed us nothing. After borrowing the money, if she chose to lend it to him, she brought herself within the provision of the civil law. ”

“ The matrimonial conventions of the parties must be made before marriage; but the husband, during marriage, may convey to the wife property to replace that which may have been alienated by him, as was done in this case. ”

“ He was informed that it must be made for the sole benefit and use of the wife, and that the husband should not be interested in or benefited by it. Heath stated that the money belonged to his mother, and he did not wish to receive more than the legal interest, for fear of difficulty; and that he had rather loan the money to Mrs. Bein, believing it to be safe, than to let other persons have it at higher rates. ”

“ The court in their opinion say,-'The counsel for the appellant, in support of the position, that the agreement on the part of the wife to renounce her claims on the mortgaged property is null and void, relies upon article 2412.' After citing the article, they observe,-'The question thus presented is to be decided by us without reference to the laws of Toro, which have no longer here the force of laws, and independently of former decisions of this court while guided by the Spanish jurisprudence ”

“ It was argued by Mr. Crittenden and Mr. Johnson, for the appellants, and Mr. Bradley and Mr. Jones, for the appellee. There were also printed briefs for the appellee filed by Mr. Eustis and by Messrs. Elmore and King.
Mr. Crittenden, for the appellants, stated the substance of the case as follows. ”