McCoy v. Rhodes et al. and void; that the entry of the lands on the 10th of December, in the name of Montgomery, was fictitious and fraudulent, and that the whole transaction was intended to benefit Rhodes and defraud his creditors; that Luminda, the wife of Rhodes, was the niece of Montgomery; that the recording of the judg ment on the 7th of March, 1840, operated as a judicial mortgage upon all the lands; and prayed for a sale of the lands in order to discharge the judgment. On the 3d of December, 1845, Rhodes and wife answered the bill. They admitted the entry of the lands, but averred that they were paid for with money actually furnished by Montgomery, and were intended to be his property; that Montgomery afterwards sold the lands to Ford, and that the respondents had no interest or participation therein; that after said sale was made, the notes of the caid Ford were paid to this respondent, Luminda Montgomery, by the said Eli Montgomery, for moneys due to her from the estate of her deceased father, Joseph Montgomery, of whom the said Eli Montgomery was executor, or administrator of his estate, and that the said notes being secured by mortgage on all the said lands, and the said Ford having become embarrassed, and unable to pay the same, the lands were taken by this respondent, Luminda, in satisfaction of said notes, by agreement between these respondents and said Ford, and the conveyance made accordingly, for the sole use of this respondent, Luminda. They then denied all fraud, combinations, deceptions, or cheating, &c., &c. A general replication was put in and depositions were taken. On the 24th of January, 1848, the cause came on to be heard on the bill, answers, exhibits, and proofs, when the Circuit Court decreed that the complainant's bill should' be dismissed, with costs. A petition for a rehearing was afterwards filed, alleging that the decree was erroneous, in this amongst other things, that the recording of McCoy's judgment was prior in date to the recording of the deed from Rhodes to Montgomery, by which deed the land entered on the 6th of December was conveyed to Montgomery; the judgment being recorded on the 7th of March, 1840, and the deed on the 10th of December, 1841. But the court overruled the application for a rehearing, upon which the complainant appealed to this court. It was argued by Mr. Butterworth, for the appellant, no counsel appearing for the appellees. The points taken by the counsel for the appellant were the following: McCoy v. Rhodes et al. The claim of the plaintiff for a mortgage on the northwest quarter of section 29, which was entered in the name of Rhodes, has three distinct and separate foundations, any one of which is sufficient to support it. Even if the statement in the answer, that Rhodes entered it as the agent of Eli Montgomery, &c., were true; or if he had transferred it, for a good and valuable consideration, to Montgomery, and in good faith; still, as the legal title did vest in Rhodes, and it was not again divested, as to complainant, by transfer and record thereof, while the mortgage of complainant had, in the mean time, become fixed upon it; under the laws of Louisiana, there is no question that the mortgagecreditor's claim prevails over that of the vendee. (See Act of 1810, in Bullard and Curry's Digest, p. 596, § 7, No. 37. See Adelaide Mary v. François Lampré, 6 Rob. 315; 2 La. R. 124; Gradenigo v. Wallett, 9 Rob. 16; Carraby v. Desmarre et al., 7 Martin, N. S. 661; Duplessis v. Boutté, 11 La. R. 346; Lee v. Daramon and another, 3 Rob. 162.) But the case of Gravier et al. v. Baron et al., 4 La. R. 239, is among the earliest, and is one of the most important, cases on the subject. In that case, the land had been alienated in 1815; in 1824 a judgment was obtained against the vendor, which was recorded in the parish of St. Mary's, where the land lies. The public act of sale made in 1815 had not been recorded in St. Mary's parish before the judgment was there recorded. The claim of the creditor was, in that case, preferred to that of the vendee. The English law, we know, is otherwise; but the decisions of our Supreme Court, on the construction of our statute law, which is a local law of property, must govern the case. The inconvenience of two different constructions, diametrically opposite, of the same local law of property, has ever been appreciated by this court; and doubtless it will be regarded in this case. But the fact is, the assertion in the answer, that Rhodes was the agent of Eli Montgomery in making the entry of said quarter-section, is absolutely false, as appears from the record. He made that entry in virtue of the act of Congress of the 22d of June, 1838, granting preemption rights to actual settlers, &c. He was required, by the terms of the act of 1838, to swear that he actually settled on the land, occupied, and entered it for himself alone, and for no one else. (See 5 Statutes at Large, 251.) The register and receiver swear that he did enter the said quarter-section in virtue of his preëmption right, under said act of 1838. McCoy v. Rhodes et al. The depositions of the register and receiver, &c., taken in connection with the requirements of said act, are conclusive against yielding any credit whatever to the answer of defendants. We must beg leave to remark, however, that, if false statements are made in the answer, no perjury is thereby committed by Mrs. Luminda Montgomery, as she has not sworn to her answer at all. It was sworn to only by Rhodes, the other defendant. It being established, then, that this land was entered by Rhodes for himself, in virtue of his preëmption right, under the act of 1838, of course there can be no pretence for insisting on the validity of the transfer of said quarter-section by Rhodes to Eli Montgomery. The answer says it was made in pursuance of a previous agreement to that effect. If any such previous agreement existed, and yet the land was entered according to law, the agreement was corrupt, and in violation of law, and the conveyance made in pursuance thereof is void to all intents and purposes. Any thing done in violation of a prohibitory law (says our Louisiana Code, Art. 10) is null. The same thing has ever been maintained in the courts of England and in this court. See Bank of United States v. Owens, 2 Peters, 538. That no value passed from Montgomery to Rhodes for this transfer is too apparent, from all the circumstances of the case, to admit of a doubt. The deed says, it is true, that the consideration of the transfer was $1,500 cash, in hand paid; but the answer negatives the existence of any such thing; it says, the entry was made by Rhodes, as the agent of Montgomery, and the transfer was made in pursuance of a previous agreement, without stating what was the consideration of the previous agreement; while the depositions of the register and receiver, and the documents attached to them, prove conclusively that Rhodes was entitled to enter said quarter-section in virtue of the preemption granted him by the act of 1838, and that he did so enter it. All this certainly proves, that no consideration ever passed from Montgomery to Rhodes, for said sale and transfer of said northwest quarter of section No. 29, T. 10, R. 10. It must be apparent, then, that the said quarter-section, by the entry thereof in the name of Rhodes, on the 6th of December, 1839, in virtue of his preëmption right under the act of 1838, vested in him all the title, both legal and equitable, to said tract of land. It is also equally apparent, that no consideration was given by Eli Montgomery for the transfer thereof to him, in December, 1839; and also, that, even if said transfer McCoy v. Rhodes et al. had been made for a good, adequate, and valuable consideration, and in good faith, yet, under the laws of Louisiana, in consequence of the failure to record the deed in Concordia until long after the judgment of complainant had been there recorded, it was of no validity whatever as to the rights of complainant, as to whom the said sale is the same as if it had never been made. See 6 Robinson, 315. What has been said above is peculiar to the lot or quartersection of land entered in the name of Rhodes. We have some things still to say, which are alike applicable to all the lands on which complainant claims a mortgage. In the answer, it is stated that the notes of Ford were paid by Eli Montgomery to Luminda Montgomery, in satisfaction of moneys due her from her father's estate, &c.; and that these notes were given by her to Ford, as the price of the transfer from him to her of the lands mentioned in the bill. No proof whatever has been offered in support of the allegation of the answer, that the notes were paid by Eli Montgomery to Luminda, in satisfaction of moneys due her from her father's estate. The truth of the answer was put in issue by the replication; and therefore this allegation of the answer requires proof. See opinion of Chancellor Kent, in Hart v. Ten Eyck, 2 Johns. Ch. 89, 90, and authorities there referred to: "When the answer is put in issue, the defendant must support by proof all the facts upon which he means to insist, while the plaintiff may rely upon every fact admitted, which he conceives material, without being bound to the admission of any others. But when the answer is offered in evidence at law, no part of it is immediately in issue. It is only parcel of the evidence, and if one side introduce it, the other may insist upon the whole being read; and if read, it does not necessarily follow that it must be wholly admitted as true, or wholly rejected as false. The credit of any and every part is left to the jury, who are not bound to believe equally the whole answer, but may believe what makes against, without believing what makes for, the party who swears in the answer. This rule is applicable to every kind of evidence, and has been often acknowledged by the judges at law." "The distinction, therefore," as Evans says, "is not between courts of law and equity, but between pleadings and evidence. If an answer is introduced collaterally, it ought to be treated precisely as in a court of law," &c. Here it is admitted by the answer, that the notes were given to Luminda Montgomery; and though stated to be in payment, &c., yet no proof is administered of the indebtedness of Eli Montgomery, and therefore, under all the circumstances of the case, the allegations of fraud seem to be fully proven. McCoy v. Rhodes et al As the matter stands, it is clear that Luminda Montgomery gave no consideration for the notes; and by consequence it is also true that Eli Montgomery gave no consideration for the land. The conclusion deduced from this rule of evidence, as applicable to this case, is much strengthened by the fact, that an important part of the answer has been disproved by two credible witnesses, and by documents; and therefore the rule applies to the whole answer, that, if a witness is proven to have wilfully sworn falsely in one particular, his whole testimony is discredited. The truth is, the lands were always, in fact, the property of Zachariah Rhodes, except while the title was in Ford, during which time he held the notes of Ford for the unpaid price. These notes were finally given up to Ford in consideration of a transfer of the land, &c. But even if it were true, as is stated in the answer, that the notes of Ford were given by Eli Montgomery to Luminda in satisfaction of a just debt due her for moneys coming from her father's estate, still it would form no ground for dismissing the complainant's bill; because the lands were acquired on the 7th of November, 1842, during the existence of the community between the defendants; and although the deed is taken in the name of the wife, and even if the price was paid with the proper funds or effects of the wife, they are still the property of the community. (See Civil Code of Louisiana, Art. 2371: see also 10 La. Rep. 148; Ib. 181.) If the defendant Luminda Montgomery has applied her proper effects in the purchase of the lands, (which is denied by complainant,) she has a tacit mortgage on all the immovable property of her husband, and on the immovables of the community (which includes these lands), for the satisfaction thereof. This claim she must set up against the complainant (after suit instituted against her husband for separation of property) by original or cross bill, &c. She has not set it up, nor could she be heard to set it up in an answer. We think it fully established, then, that, even if the acquisition of the lands was made with the funds of Luminda Montgomery, and the deed taken in her own name, as it was, still she cannot lawfully oppose the foreclosure of complainant's mortgage. But it is not true that the lands were acquired with her funds or effects. In any form of action against her husband, his heirs, or his creditors, it is indispensably necessary for her to establish, by proof, that the property was acquired with her |