Splane and Linton, for the defendant, insisted that the WESTern Dist. seizure in this case was properly made, and the judgment of September, 1840. the District Court should be reversed. 2. Because the debt which was sought to be collected against Joubert, was a community debt, and all the property of both husband and wife, so long as the same remained in community, was bound for its payment. N. B. This debt was created before the contract between husband and wife. 3. The husband cannot transfer to the wife his own property, or that of the community, for the purpose of replacing her dotal or other effects, by a contract before a notary, before the amount of her claim is established by a court of competent jurisdiction, contradictorily with the creditors. 4. If the paraphernal property be administered by the wife, or set aside to her by contract, the revenues arising from such property must be applied to the payment of the marriage charges, community, &c., and may be seized and sold to satisfy a community debt. Louisiana Code, 2362, et seq.; Idem., 2409, and authorities there referred to. Lewis, in reply: 1. If the wife who administers her paraphernal property be bound to contribute to support the marriage charges, this may give an action to creditors to compel such contribution, but does not authorize a seizure of the fruits of her paraphernal property to pay a debt of the husband. Louisiana Code, article 2366. 2. There is no evidence showing the debt, on which the judgment was rendered against Joubert, was contracted for marriage charges, and if there were, such debt cannot be collected by seizure of the wife's property, without first obtaining judgment against her. 3. The community consists only of the fruits of the effects administered by the husband, &c., and not of the fruits of paraphernal property administered by the wife; Louisiana Code, 2371 which last are not liable to be seized to satisfy the debts of the husband. LAMBERT 28. FRANCHEBOIS ET AL. WESTERN DIST. 4. The sale of July 23, 1838, is valid in law; was made September 1840. for a legal consideration, as is proved in the record, and is not even alleged to be fraudulent. Louisiana Code, 2421. LAMBERT vs. FRANCHEBOIS ET AL. 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 claims is established contradictorily with the creditors: And WESTERN DIst. 3d. That if the paraphernal property is administered by September, 1840. the wife, the revenues arising therefrom must be applied to the payment of the marriage charges. LAMBERT V8. FRANCHEBOIS ET AL. The parapher nal property of I. It is perfectly clear, that the paraphernal property of a married woman is not bound for the debts contracted by the husband; and, that the fruits, proceeding from such pro- married women perty, do not belong to the community, unless the wife is not bound for permits the husband to administer it. articles 2363 and 2371. the debts con Louisiana Code, tracted by the husband while at the head of the com ble when the ty. A sale by the husband to the wife, when made for replacing her ticularly when ed. II. It is necessary to remark, that the defendant's answer munity; neither contains no allegation of fraud, or collusion between the are the fruits liaparties to the act. The law authorizes the wife to with- wife administers her own properdraw 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 dotal and paralaw when it has been made for the replacing of her dotal phernal property or effects, is or other effects, particularly when no fraud and collusion is valid in law, parurged against it: Louisiana Code, article 2421. In this case, no fraud and colthere is satisfactory proof that the sale in question was made lusion is allegfor a legal and valuable consideration, and we cannot see any A sale from reason why the husband's creditors should be permitted to wife for replac attack it, unless it be on the ground of fraud and collusion. ing her dotal and paraphernal efIII. The defendant has not shown that the debt, to satisfy feets, should not which the seizure complained of had been made, was con- less on the tracted for marriage charges; and, had such evidence been ground of fraud 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. husband to the be attacked un and collusion. WILCOXON vs. ROGERS ET UX. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF Titles to land must be located according to their calls; and, where part of the place called for by the title, is abandoned, and another person locates it and acquires a better title, the party abandoning cannot make his location in another place to the prejudice of others. He must suffer the loss. Where two confirmations of land titles are of equal dignity, and one is regularly located and accompanied by possession, and no steps taken by the other, the first will hold the land by the prescription of ten years. A corporeal possession in the beginning, a civil one will be sufficient to complete the possession already begun, and to support the prescription of ten years. This is a petitory action. The plaintiff alleges, he is owner and possessor of one thousand arpents of land situated at the confluence of the rivers Teche and Atchafalaya, having twenty-five arpents front on the Teche. He derives title from the heirs and legal representatives of Henry and John Bosler, deceased. He further alleges, that Matthew Rogers and wife have taken illegal and forcible possession of a part of said land, and have committed waste thereon to his damage one thousand dollars. He prays judgment dispossessing the defendants of his land and for his damages. The defendants denied generally the allegations, and averred that they were the lawful owners of land on the east side of the Teche, having a front of seven arpents with the depth of forty; the title to which they derived from Levi Foster, who held under one Wm. Biggs. That Foster sold to the former husband of one of the defendants (Sojourner,) with warranty, and has since died, leaving a widow who is administratrix of his estate, and whom they call in warranty. They plead prescription of thirty, twenty, and ten years; and pray to be quieted in their title and possession to said land. WILCOXON V8. ROGERS ET UX. The widow Foster set up title under Biggs, from whom WESTERN DIST. her husband purchased the 5th November, 1816. She calls September, 1840, the heirs of Biggs in warranty. Biggs's heirs denied the right of the plaintiff, or widow Foster, to recover. They aver their ancestor had a good title to six hundred and forty acres of land on the east side of the Teche, the title to which was confirmed by Congress the 29th April, 1816. They admit their ancestor sold to Levi Foster the tract of land specified; that he acquired it by a valid title; and that the plaintiffs have no title. They deny that this is the same land sold by Foster to Sojourner; and also deny that they are responsible to Foster's widow in warranty; and plead prescription of ten and twenty years. On the trial, the plaintiff exhibited title to a tract of twenty-five arpents front of land on the east side of the Teche, at or near its junction with the Atchafalaya, which was granted by virtue of a requête to John and Henry Bosler, dated 7th December, 1801, on a certificate of vacancy by the commandant. This title was confirmed by the government of the United States the 29th April, 1816. The defendant showed title under Biggs, who had possession and resided on the land. The main contest arises out of the manner of locating these claims. The plaintiff contends, that his land cannot be located at the confluence of the two rivers, according to the calls of the title, because an older claim of one Jacques Deronen covers that part, or about one hundred and twenty acres, and pushes his land higher up the Teche, and that Bosler's title is superior to Biggs's; and he further insists, that he has a right to push up the latter and take his quantity from the defendants who reside on it. Biggs's heirs showed title, confirmed by the government, in proof of possession, founded on settlement, occupancy and cultivation, from 1801 and '2 up to the present time. The district judge was of opinion, after an attentive examination of all the evidence and titles, that the defendants had the best title, and were entitled to the land they claimed. |