Wilson v. Hendry

Vooruies, J. On the 1st of January, 1855, WilKmn G. Wilson, the husband of the plaintiff, executed a mortgage in favor of the defendant, Moses Hench'y, on a slave named Jane, and other property, to secure the payment of a promissory note for the sum of $1150; in which act the plaintiff made a formal renunciation of her right of mortgage. The execution of a writ of seizure and sale, obtained by the defendant on this mortgage, was enjoined by the plaintiff in so far as the same related to the slave Jane, whom she claimed as her paraphernal property, alleging that she had acquired said slave by inheritance from her deceased father’s succession, on the 6th of February, 1850, as evidenced by a transfer to her of that date. The injunction was dissolved without damages, and she appealed. Our examination of the evidence has brought us to the conclusion that there is no error in the judgment of the court below. An act under private signature, dated the 6th Df February, 1850, purporting to be a conveyance of the slave Jane from Sarah Moore and her husband, Da/oid Gay, to the plaintiff for the price of $050, in part payment of the amount due to the latter from her father’s succession, and which does not appear to have ever been recorded, appears to be the only evidence of title in the plaintiff. Nothing shows when or where her father’s succession was opened, nor the amount which she was entitled to inherit. This conveyance to her, standing alone, is clearly insufficient, under the well settled jurisprudence on the subject, to rebut the legal presumption of title in the community to said property. O. O. 2335; 5 An. 368. In Wiley v. Hunter and wife, 2 An. 806, where the property mortgaged by the husband to the plaintiff, was conveyed to the wife by her brothers and sisters, and urged as a ckotion enpaiement for her share of her mother’s succession, her failure to make proof of what that share was, the court held to be fatal to her pretensions. We do not apprehend this to bo in opposition to the doctrine of the cases quoted by the appellant’s counsel in 1 La. 522; 11 La. 296; 1 Rob. 367; 4 Rob. 115; 2 An. 930, and 5 An. 741, 116. Under the peculiar circumstances of this case, wo do not think justice requires that the appellant should be mulcted in damages, as claimed by the appellee; neither can we allow him any more than the highest rate of conventional interest to which he is entitled under the judgment. It is, therefore, ordered and decreed, that the judgment of the court below be affirmed, with costs.