Reardon vs. Moriarty et al. notary's office to fix up the title to the house she had so bought. She says Moriarty knew she was married. Moriarty denies it. It matters not. The act of sale in pursuance of the adjudication was drawn up by the notary and signed by the administratrix and plaintiff. Plaintiff executed notes for the deferred payments at one and two years-two at one and two at two years. Moriarty gave his own check for the cash part of the price, $2583, which was applied to paying the community debts. Plaintiff swears she furnished $1000 of this money paid by Moriarty so that he in reality only furnished her $1583. There is no doubt, that as partner in community she herself owned two of the four notes so executed by her. Moriarty, however, took them, he says, as security for the money advanced by him. She says she does not know how he came by them, but that she supposed they were in the hands of the administratrix. For the sake of the argument, I concede that he took unlawful possession of the two notes belonging to her. He afterward bought the two belonging to Mrs. Twohy, so that he held all four of plaintiff's notes. On the twentieth of April, 1875, Moriarty brought suit against plaintiff and her husband, Eugene Sullivan, on these four notes and the mortgage and vendor's lien securing them, as evidenced by the notarial act, and prayed for citation of both husband and wife. On the eighth of May, 1875, final judgment was rendered (confirming a default of the fourth of May) in favor of Moriarty vs. Mrs. Sullivan, the plaintiff in this suit, for the full amount of the four notes, with recognition of mortgage, etc. The notice of this judgment was irregularly served; at least the return shows it to have been served upon one Michael Sullivan (the name of her first husband) instead of Eugene Sullivan, her second husband. Let us admit, too, that this was not a mere clerical error of the sheriff. On the thirty-first of May, 1875, a writ of fieri facias issued on this judgment of Moriarty vs. Mrs. Sullivan, and the sheriff seized the mortgaged property, in her possession, and held and owned by her under the title stated above. Mrs. Sullivan (Bridget Reardon) and her husband, Eugene Sullivan, thereupon sued out this injunction against Moriarty and the sheriff—in which she alleges, in substance, as follows : That Moriarty had brought the suit above referred to "against your petitioner, Bridget Reardon, and made your petitioner, Eugene Sullivan a party thereto, simply to assist his said wife therein." "That after citation of your two petitioners the said Moriarty obtained judgment by default against your petitioner, Bridget, and had the same confirmed on the eighth of May," etc. She alleges that said four notes and act of sale and mortgage were executed on the eighteenth of July, 1873, Reardon vs. Moriarty et al. at which time she was a married woman, the wife of Eugene Sullivan, and that she executed said notes and acts without his assistance or authority, and "was persuaded thereto by said Daniel Moriarty, who well knew at the time that she was a married woman;" "that in some manner unknown to her said Moriarty came into possession of said notes, although by said notarial act it appears the possession thereof was given to Mrs. Twohy, administratrix of the estate of Michael Sullivan." That the said four notes and act of sale and mortgage are mere nullities, and not binding on her "for the reason that they were executed by her while she was a married woman and without the consent or assistance of her husband." That said transactions "were nothing but a mere fraud practiced upon your petitioner and known to have been so by said Moriarty at the time, and were null and void. That said Moriarty has "obtained said judgment on obligations null and void, and that said judgment is equally null and void and should be quashed, set aside, and rescinded, especially for want of capacity of your petitioner to obligate herself in this manner. That said Moriarty has issued fi. fa. on such judgment, "and seized the property of your petitioner.” She prays for an injunction to restrain the sheriff and Moriarty, and for judgment rescinding and annulling the said judgment in Moriarty vs. Bridget Reardon. The injunction was granted as prayed for. Nothing is said about her having received no notice of judgment. By a supplemental petition she alleges that two of the notes for which Moriarty had so obtained judgment against her were, in fact, her own property and did not belong to Moriarty. These are the whole of her allegations, and upon these this injunction was granted. The sole grounds, therefore, that she sets up for the injunction, and for the nullity of the judgment obtained against her by Moriarty are, first, that she was a married woman and without capacity when she signed the deed, mortgage, and notes, and did so without the authority of her husband. She does not pretend, however, that the adjudication upon which this deed, etc., was based was not made to her during her widowhood. She does not pretend or allege that the property bought was not in her possession on the contrary-that it was. She does not pretend or allege that the debt for which judgment had been obtained against her was the debt of her husband, Eugene Sullivan, or otherwise contracted in violation of prohibitory laws. Her second and only other ground of injunction and nullity is that two of the notes embraced in said judgment did not belong to Moriarty but to herself. Moriarty, in answer to the injunction, plead, first, by way of exception, that her petition disclosed no cause of action. In my opinion this Reardon vs. Moriarty et al. exception should have prevailed, if it had been tried preliminarily. But it was tried, with the merits and evidence offered without objection, which, I think, destroyed it. His answer sets up various defenses, but I shall notice but one, that of res adjudicata. He says that the judg ment obtained by Moriarty against Mrs. Sullivan on these notes, being unappealed from, is res adjudicata as to the matters and things now urged by her. She seeks to enjoin and annul his judgment on the ground that she was a married woman, unauthorized, when she signed the notes and mortgage, and that two of the notes sued upon were, in fact, her own property. Now, to my mind, it is too plain for argument that these are matters which could only be set up and urged as defenses to the suit of Moriarty vs. Sullivan. It is elementary that whatever can or ought to be urged by way of defense can not be used to annul or enjoin. If the judgment was rendered on insufficient evidence her only relief was by appeal. She did not do so. But, as matter of fact, the evidence upon its face was not insufficient. It proved that the debt was contracted by her before marriage and for her own benefit, and that she was then in the enjoyment of the property for which the notes were given. So that, had she appeared and defended the suit, no court could have refused to give judgment against her on the ground of want of authority or want of consideration. If she had appeared, and plead and proved that two of the notes were her own property (as I think they were), then, to that extent, she could have defeated the suit. But is not the want of ownership, in plaintiff, of the notes sued upon, a matter that must be pleaded in defense? Can a defendant, after judgment against him, enjoin and annul it on the ground that plaintiff did not own the notes sued upon? Yet, that is what is sought here. I can not assent to such a proposition. I conclude, therefore, that upon the matters and things alleged by the plaintiff against the judgment enjoined, that there is the thing adjudged. I am aware that our courts have gone to great lengths to protect married women. But I have examined with care all the reported cases, and I do not find a single case where our courts have held the effect of the thing adjudged to be different, as regards married women, from what it is as regards others. The only exception ever admitted in favor of married women has been in cases where they attacked by injunction judgments against them, on their allegation and oath that the debt sued upon was that of the husband or community, and, therefore, contracted in violation of a prohibitory law, and against public policy, and under marital influence. But in the case before us there is not even an insinuation that the debt sued apon was that of the husband. On the contrary, it was beyond dispute contracted during her widowhood and for her own benefit. Here the controversy should stop, as here is the end and extent of the grounds Reardon vs. Moriarty et al. alleged by plaintiff for her injunction and action of nullity. But plaintiff's counsel urges and argues, in his brief, that in the suit of Moriarty vs. Mrs. Sullivan and husband, the husband was not cited, and did not authorize his wife; and asks us to annul the judgment on that ground. He insists that this is proved by the fact that in the record of that case, as copied into this transcript, no citation appears addressed to the husband, but only one addressed to and served upon the wife. I repeat that there is no allusion in the pleadings of plaintiff to such a defect On the contrary, in their petition for injunction, now before us, the plaintiffs distinctly allege the very contrary. Their allegations are in these words, that "Moriarty had brought said suit against your petitioner, Bridget Reardon, and made your petitioner, Eugene Sullivan, a party thereto simply to assist his said wlfe therein." "That after citation of your two petitioners the said Moriarty obtained judgment, etc. against your petitioner," etc. Upon the mere suggestion of absence of a citation to the husband in the copy of a record which was itself a mere instrument of evidence in this case, and without any allegation that such defect would be urged; on the contrary, with an express allegation that no such defect existed, can we proceed to annul the judgment in Moriarty vs. Sullivan? I say to annul it--for if we declare that that judgment is invalid for two of the notes upon which it is predicated, to that extent we annul it. Surely we can not. Had the plaintiff put Moriarty on his guard by alleging that the husband was not cited, or had she even not misled him by alleging that he was cited, there might have been plausibility in saying it was incumbent on Moriarty to prove as against this married woman the facts essential to the validity of the judgment. But in view of her own allegations, and by every rule and principle of law and practice, it seems to me that she is estopped and precluded. Her demand for nullity should, therefore, be rejected. There was proof offered, without objection, that Mrs. Sullivan had paid or furnished $1000 of the payment of $2583 made by Moriarty for her account. I think this credit should be allowed, and to that extent the injunction should be perpetuated, and for the balance dissolved. Defendant should pay costs of both courts. DEBLANC, J. I concur in the foregoing opinion. ON REHEARING. MANNING, C. J. The Justices severally adhere to the opinions Reardon vs. Moriarty et al. read on the former hearing, both concurring and dissenting, and therefore, It is ordered and adjudged that our former decree remain undisturbed. EGAN, J. I consented to the partial dissolution of the injunction because I considered the plaintiff bound to carry out the terms of the original adjudication, and the decree of the court, with all the facts before us, avoids circuity of action. No. 6750. SUCCESSION OF CHARLES P. BOUTTE, The legal heirs of a succession, on giving the security prescribed by law, (if so required,) are entitled to be put into possession of the property of the succession when the legatees consent, and the creditors of the succession do not oppose. PPEAL from the Second District Court, parish of Orleans. Tissot, APP T. A. Bartlett, S. R. Snaer, and E. K. Washington for heirs and appellants. W. O. Denegre for executor. The opinion of the court was delivered by MANNING, C. J. The heirs of Charles P. Boutté, who are his children and grand children, pray to be put in possession of his estate, and the Public Administrator, who has been appointed dative testamentary executor of the last will of the deceased, opposes their demand. Boutte's will was probated in 1871, and his testamentary executor qualified under it. Although the debts are small, and the property inconsiderable, the administration of the succession has been prolonged until now, when the heirs apply for permission to terminate it, and the legatees file their consent thereto: The creditors, if there are any now, do not oppose it. The Public Administrator alleges that there are suits pending against the succession, and that the funds in his hands can not be taken away until the legacies are paid. It is a sufficient answer to this to say, that the legatees join the heirs in their prayer to be put in possession of the estate, and the creditors do not object. The surviving widow also joins in the prayer for the termination of the administration. The petitioners must comply with the requirements of the law before being put |