Morton v. Copeland

Taliaferro, J. The plaintiff brings this suit in his own name on a .promissory n.ote drawn payable to his wife or bearer, and which was [593] executed by defendant for the price of certain lands purchased by him from the wife, the same being her paraphernal property. The plaintiff’s right to institute this action was excepted to on the ground that the law does not confer upon the husband the personal actions of the wife growing out of her paraphernal property, unless he has the sole administration of her property, and article 107 of the Code of Practice is referred to, and in connection with it the case of Dugat v. Markham, 2 La. 29, and that of Cowand v. Pully, 9 An. p. 12. It is contended on the part of the defendant that the facts in this case show that the plaintiff did not have the administration of the wife’s paraphernal property. On the other hand, it is held that this is not a real action, and that by article 107 of the Code of Practice the plaintiff in this case has the right to sue for the debt due the wife. We think the ground assumed by the plaintiff correct. Tlie fact that the husband brought tbe suit would seem to imply that he was administering the wife’s paraphernal property. The defendant sets up defect in the title to the land forming the consideration of the note sued upon, yet he does not allege in his answer, or show by testimony, that he has ever been threatened with eviction or that he has ever been disturbed in his possession. He states in his own testimony, on cross-examination, that no one has brought suit against Mm for the property. The judgment of the lower court was in favor of the plaintiff, and we see no reason to alter it. It is therefore ordered that the judgment of the district court be affirmed with costs.