Page:An introduction to Roman-Dutch law.djvu/132

 Rh 92 THE LAW OF PERSONS the wife has suffered her husband to alienate her property, she may sue him in respect of it, and prove against his estate in concurrence with, but not in preference to, other unsecured creditors.-^ The wife, From what has been said it is evident that, ante-nuptial fa^notTpre- Contracts notwithstanding, a wife, generally, stands in no ferredto position of advantage with regard to her husband's band's^ creditors, but rather the reverse. In this respect she is creditors ; j^q^ gQ ^g^ situated as she was under the late Roman Law, which gave her a tacit hypothec over all the property of her husband in security of her dos, and a preference over all creditors, ante- and post-nuptial, secured and unsecured, aUke.^ In the Roman-Dutch Law the right of hypothec and preference is disused.® It is competent, however, by express stipulation to provide that the wife but in ' shall reserve to herself her right of dos, legal hypothec,* certain and preference ', but only provided that she shares haa right neither in community of goods nor of profit and loss.® The °*P^^" same result foUows, without express agreement in that lerence ' ^ ° and legal behalf, when, in addition to the exclusion of community, ypot ec. |.jjgj,g j^g ei^}jer : (a) exclusion of profit and loss together with a clause that the wife shall keep her own goods {dat de vrouw haare goederen zal behouden ; ut mulier dotem salvam habeat) ; * or (6) an option left to the wife whether she wiU share in profit and loss, or have her own goods parties. Ontwerp, art. 349, is to the same effect. But in the modern law it is otherwise. Mostetfs Trustees v. Mostert (1885) 4 S. C. 35. ^ 1 Maasdorp, p. 64. Cod. 8. 17 (18) 12 ; Girard, p. 966. ' Voet, 20. 2. 20. ' V. d. L. 1. 3. 4. It seems that in R.-D. L., contrary to the Roman Law, the wife's legal hypothec was in every case postponed to prior tacit or special conventional mortgages. GaiU, Pract. Observ. 2. 25. 10 ; Van Leeuwen, 4. 13. 14 ; Cens. For. 1. 1. 12. 3 ; Voet, 20. 2. 20 and 23. 4. 52. According to Van Leeuwen (ubi sup.), she comes in con- currently with other special and legal hypothecs ; by which he means, as the context shows, that she ranks with them in order of time. Qui prior est tempore potior est jure. But V. d. K. {Th. 263) insists that she is preferred to all creditors ante- and post-nuptial alike. Groen. de leg. abr. ad Cod. 5. 12. 30 ; Cens. For. 1. 1. 12. 2 ; V. d. L. 4. 13. 14. « Voet, 23. 4. 52 ; V. d. K. Th. 247 ; Hoola van Nooten, vol. i, p. 452.