Lambert v. Franchebois

Simon J., delivered the opinion of the court. Plaintiff states, in her petition, that an execution having issued against her husband at the suit of one David Simmons, the sheriff seized seven bales of cotton and a horse, which she claims as her property. She further alleges, that said cotton was made on her land by the labor of her slaves, and was ginned at her own expense; that the land and slaves are her paraphernal property, whereof she has the legal administration. She prays for injunction and for damages, and that said injunction be made perpetual. Defendants plead the general issue, and that the injunction may be dissolved. The district judge rendered judgment perpetuating the injunction, and one of the defendants appealed. The evidence shows that the judgment, by virtue of which the execution issued, was rendered on the first of December, 1838 ; that on the 23d of July preceding, the plaintiff, by a notarial act, resumed the administration of her paraphernal estate, which consisted in a plantation, slaves, horses, cattle &c., and a certain sum of money; all which she had inherited from the estates of her parents. All the acts relative to the estate of her father are produced. The same authentic act contains also a sale or transfer of certain property from the husband to the wife, in payment, and as the replacing of the amount which he had received in her right from the estate of her father. It is further shown, that the cotton seized was made on her land, and raised by her slaves ; and that the horse is her property. It is contended by the appellant: 1. That the debt, being a community one, created before the contract between husband and wife, all the property of both is bound for its payment. 2. That the husband cannot transfer his own property to his wife, or that of the community, for the purpose of replacing her dotal or other effects, before the amount of her [5] claims is established contradictorily with the creditors: And The paraphernal property of married women is not bound for the debts contracted by the husband while at the head of the community ; neither are the fruits liable when the wife administers her own proper- A sale by the husband to the wife,when made for replacing her dotal and paraphernal property or effects, is valid in law^particularly when no fraud and collusion is alleged. A sale from husband to the wife for replacing her dotal and paraphernal effects, should not he attacked unless on the ground of fraud and collusion. 3d. That if the paraphernal property is administered by the wife, the revenues arising therefrom must be applied to the payment of the marriage charges. I. It is perfectly clear, that the paraphernal property of a married woman is not bound for the debts contracted fay the husband ; and, that the fruits, proceeding from such property, do not belong to the community, unless ihe wife permits the husband to administer it. Louisiana Code, articles 2363 and 2371. II. It is necessary to remark, that the defendant’s answer contains no allegation of fraud, or collusion between the parties to the act. The law authorizes the wife to withdraw from her husband the administration of her paraphernal estate, whenever she thinks proper to do so; Louisiana Code, article 2364 : and it cannot be doubted, that a sale or transfer of property, made by a husband to his wife, is valid in law when it has been made for the replacing of her dotal or other effects, particularly when no fraud and collusion is urged against it: Louisiana Code, article 2421. In this case, there is satisfactory proof that the sale in question was made for a legal and valuable consideration, and we cannot see any reason why the husband’s creditors should be permitted to attack it, unless it be on the ground of fraud and collusion. III. The defendant has not shown that the debt, to satisfy which the seizure complained of had been made, was contracted for marriage charges ; and, had such evidence been adduced, we are not ready to say that it could have authorized a seizure of the fruits of the plaintiff’s paraphernal property. This circumstance might entitle the creditors to an action to compel a contribution on the part of the wife, and then only after judgment obtained against her, could her property be seized to satisfy such debt. We are of opinion that the district judge did not err in perpetuating the injunction. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.