Delamour v. Roger

By the court: Preston, J. The evidence leaves no doubt of the conclusions to which the district court arrived in this case. 1st. That if the parties had been both men or both women, it would have fully established a partnership between them. 2d. That upwards of twenty years ago, in Paris, the plaintiff furnished the little capital with which they began business. 3d. That the plaintiff had contributed equally with the defendant, by her skill and application, to the success of their business. 4th. That the real property in this city standing in the name of the defendant, was purchased with the profits of their business as hair dressers and keepers of a perfumery and fancy store. The defendant relies on the fact that they lived together during the period the property was accumulating in a state of concubinage, and contends that on that account, the laws give to the plaintiff no action to recover half of the property. The evidence perhaps justifies the remark of the judge, that the concubinage which was at two periods interrupted a long time by the business, was rather an incident to the business than the reverse. [155] Bethat as it may, there is a manifest difference between an action for the wages or reward promised in consideration of concubinage, which cannot be maintained ; and a suit for property, the result of capital, industry, labor and economy. The evidence gives this character to the present suit, although the life and conduct of the parties was contaminated by an immoral connexion, the continuance of which was attributable more to the defendant than to the plaintiff. The casein many respects, is remarkably similar to that of Vienne v. Bickle, 8 M. R. 11. We will not say, with the Supreme Court in that case, that the cohabitation increases the obligation of the defendant, in a moral point of view, of doing justice to the plaintiff, but we have no hesitation in saying, it does not lessen his legal obligation to do so. The reasonable effect of article 2804 of the Civil Code, is to render the participator in concubinage incapable of recovering, as a universal partner, one half of the property acquired, although her labor may have contributed nothing towards its accumulation; but, when her capital and labor has contributed a full share towards the result, equity'entitles her to half the property acquired. In addition to this, the defendant, in his numerons letters to the plaintiff, speaks not only of “ our commercial house,” but of “our houses,” “our property” and “our rents,” which he anticipates will be sufficient to support them comfortably in retirement in their old age. Some of these letters are sufficiently particular in description, to establish a legal title to certain properties and slaves asTetween the parties, and even as to third persons, if they had been recorded, and the knowledge that the parties were not man and wife, had been made public. The possession of the defendant cannot prevail against the frequent and long continued acknowledgment of joint ownership, based upon so much equity. It amounts to a legal title to half the property, supported by an equitable ownership, and no principle of law or morality requires us to reverse the judgment of the district court. « There was an error (we supposed clerical) in the judgment, in decreeing the whole property to the plaintiff. We have left the case open for the correction of this matter. But as it has not been done, we are obliged to reverse the judgment, at the costs of the plaintiff. It is decreed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff recover from the defendant one undivided half of the property described in the judgment of the district court, and that the judgment, in all other respects, be affirmed; and that the.plantiff be condemned to pay the costs of this appeal.