Cable v. Coe

Martin, J., delivered the opinion of the court. The plaintiff is appellant of a judgement by which she was denied the right of having a judgement against her husband for the restitution of her dot and paraphernal estate satisfied by the sale of a house and lot sold by him to the defendant. We thought that she had a tacit mortgage for what she calls her dot, but which is nothing but a donation propter nuptias, but that she was bound to discuss property disposed of by her husband before the sale to Coe. Upon a rehearing, and after an examination of this point in New-Orleans, where we had access to numerous authorities, it has not appeared to us perfectly clear. But there cannot be any doubt that according to the decision in the case of Mercier vs. Andrews, 2 Lou. Rep. 538, such a donation cannot have effect against third persons unless the state of the husband’s affairs, at the time of the donation, authorized it; and that the burthen of proof is on the wife. No evidence on this head appears in the record in this case, and the pretensions of the plaintiff on this score cannot be sustained. [557] The sale of the house and lot took place in 1818, and it does not appear that any part of the paraphernal estate had come to the husband’s hands at that time. ' It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.