Bostwick v. Gasquet

| La. | Feb 15, 1838

Bullard, J.,

delivered the opinion of the court.

This case presents substantially the same questions as that of Muse, Syndic, vs. Yarborough and others, just decided, except that it is the ■ wife herself who alleges the separation of property, and seeks to establish her title to property acquired after the judgment of separation was pronounced against certain creditors of her husband.

Casquet & Co., and the College of Louisiana, having recovered judgments against John Bostwick, the husband, caused execution to be levied on certain real property. His wife obtained an injunction, on the allegation that she was separated of property from him by judgment, in 1822, which was duly executed ; and that she had acquired the property levied on, since the separation.

The defendants, for answer, denied generally the allega- • tions in the petition; and they further aver, that if any .separation ever took place, it was by fraud and collusion between the plaintiff and her husband, and for the purpose of placing the husband’s property beyond the reach of existing and future creditors.

The verdict of the jury was for the seizing creditors, and the plaintiff appealed.

• The appellant relies upon a bill of exceptions taken to the refusal of the judge to charge the jury as prayed for by her counsel: 1st. That, the judgment of separation cannot be collaterally questioned, and that a direct action of nullity should be brought. 2d. That if Busan Bostwick was in possession of the property by conveyance, before the seizure, fraud cannot be collaterally inquired into in a case comr piencing with a seizure; and that the party complaining, must bring a direct revocatory action. 3d. That when the contest is between the wife and the creditors of the husband, as to her privilege on the property, she must establish the fairness of her judgment: but it is different when she is in possession of property by deed, or otherwise. 4th. That when a wife has obtained a judgment against her husband, and had it executed, subsequent creditors .must prove that such judgment was obtained to defraud them; and that if John Bostwick had no property upon which her judgment could be executed, she was not bound to sue out execution. 6tli. That after a judgment of separation, the community ceases to exist, and the property belongs to the spouse, who acquires it until such judgment be set aside by direct action.

When the wife gives in evidence, in an action against others, a judgment against her husband, the burden of proof ison her to show, when fraud is alleged, that such judgment was fairly obtained. Property in possession, and administered by the husband, is presumed to belong to the community. A judgment of separation of property is null under the Code, if it has not been executed by the payment of the rights and claims ofthe wife, made to appear by authentic act, or at least by a bond jide non-interrupted suit, to obtain payment. A judgment of separation of property, duly obtained and published, places the parties in the situation, as if no community bad ever existed.

The judge, on the contrary, charged the jury, that when the wife gives in evidence, in an action against others, a judgment against her husband, the.burden of proof is on her to show, when fraud is alleged, that it was fairly obtained; that property in possession and administered by the husband, is presumed to belong to the community ; that a judgment of separation of property is null under the code, if it has not been executed by the payment of the rights and claims of the wife, made to appear by authentic- act, or at least by a bond, fide uon-interrupted suit, to obtain payment; and that when a judgment of separation has been duly obtained and published, the situation of the parties is as if no community had existed between them.

We fully concur with the judge of the district, in these positions; they are in accordance with the opinions of this court in the case above referred to, and supported by the-authorities therein cited.

Upon the merits, a careful examinatibn-of the evidence has failed to satisfy us that the verdict ought to be disturbed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be'affirmed, with costs.