Howard v. York

Roberts, J. It is agreed by the parties, that the only question in the case is, whether the increase of a stock of cattle is separate or community property, the wife having the separate property in the original stock. The Court below decided that the increase of the cattle, during the marriage, was also separate property. Upon the adoption of the Common Law, the marital rights known to that system were not entirely introduced. The community and separate interests of the parties were retained, in our jurisprudence, by statute. The Act of 1848, in 2d Section, first defines the separate property of the wife as follows: All property, both real and personal, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife. Then in the 3d Section, it defines the community property to be all property acquired during the marriage, except that which is acquired in the manner specified in the second Section of that Act, (as above stated in relation to the wife.) (Hart. Dig. Art. 2421-2.) The increase of cattle is an acquisition of property in a manner not specified in the said second Section, and is therefore made by the statute community property. This was held to be the rule by this Court under the Spanish civil law, as it existed here previous to the adoption of the Common Law. (See case decided at last Galveston Term.) The same rule obtains in Louisiana; where the separate and community interests of the wife are recognized as a part of their marital rights. (Ducrest v. Bijeau, 8 Martin, N. S. 192; Frederic v. Frederic, 10 Id. 188; Gonor v. Her Husband, 11 Rob. R. 527; Bonner v. Gill, 5 La. An. R. 630.) The language of the statute in preserving to the separate property “ the increase of all lands and slaves,” impliedly negatives the idea that the increase of any other property becomes separate property. This preference is given to an investment in lands or slaves, on account of their permanent and valuable character, which does not apply with the same force to any other species of property. We are of opinion that the Court below erred in the instruc [673] tion given to the jury, and therefore the judgment is reversed and cause remanded. Reversed and remanded.