Gogreve v. Dehon

The opinion of the Court was delivered by Poché, J. Auguste Dehon having surrendered his property to his creditors under the insolvent laws of the State, and having omitted to include therein a piece of immovable property which stands on record as the separate property of his wife, these two suits were brought by one of the creditors and by the syndic of the insolvént to have it judicially declared that said immovable property truly belonged to the com- • munity, and that as such it be declared liable for sale under the insolvency proceedings for the husband’s debts. The suits were brought directly against the wife and against the husband, and the substantial ground of action is that the purchase, although made in the name of the wife alone, enured to the benefit of the community which has always existed between tlie spouses ; the petition containing the averment that the declaration in the act of sale, to the effect that the purchase was made by the Wife in her separate right with her paraphernal funds of which she had retained the administration, was untrue and fraudulent. [245] The defendants filed separate exceptions, to be hereinafter noticed, which were overruled. They then filed a general denial, and they are appellants from a judgment in favor of plaintiff. Exceptions. The wife’s exception was: no cause of action against.her on the ground that she was not responsible for her husband’s debts, and that the purchase had been affected long before the rights of the creditors had accrued. The husband’s exception was substantially the want of right on the part of the plaintiff to resort to the revocatory action against Mm, as lie had sold no property or performed no act on which such an action could be based, and because he was not a debtor of his present creditors at the time that the purchase was made by his wife. On examination, all the. grounds of exception urged by both defendants appear to be predicated on the erroneous assumption that the record presents a case of revocatory action. Under our Code, the sole object of the revocatory action is to annul or to avoid the effect of the contract of a debtor fraudulently contrived to injure his creditors, and the .result of the judgment is to avoid the contract as to its effects on the complaining creditors. C. C. 1968, 1970,1977. Now, as aptly suggested by the defendant husband in his exception, there is no complaint here as to any contract executed by him, nor is there any demand to avoid the effect flowing from any of his acts. Pearson vs. Pearson, 15 Ann. 119. There is now no demand to annul the purchase made by the wife, but the intention is merely to regulate its legal effect. The theory of the action is that the property having been purchased during the marriage under the regime of the community, the purchase enured to the benefit of said community, whether made in the name of one or both of the spouses, “because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” C. C. Art. 2402. The practical right claimed under the pleadings is to subject all the property of the insolvent debtor to the rights of his creditors, as their common pledge. And it is clear that for the purposes of the remedy thus sought to be enforced, it is absolutely immaterial to consider whether the property, alleged to belong to the insolvent, was acquired before or since he contracted the debts which are represented by the creditors or by the syn246 die. The simple question to be judicially solved is whether the property which stands in the separate name of the wife, is or not in reality the property of the community, and as such liable for the debts of the community. Such an inquiry is clearly within the scope of the rights of the creditors. Judson vs. Connolly, 5 Ann. 400; Sullice vs. Gradenigo, 15 Ann. 582. The present suit is therefore not a revocatory action and the issues herein are not affected by the rules which govern that action. We, therefore, conclude that defendant’s exceptions have no force and that they were properly overruled. This brings ns to the consideration of the case