145 So. 118 | La. | 1932
In the brief filed herein on behalf of the defendant we find the case stated substantially thus:
Plaintiff, as head and master of the community between himself and his wife, instituted this action against defendant, praying therein to be recognized as owner of certain real property and for judgment compelling defendant to deliver possession thereof; also for rent from judicial demand.
Defendant denied plaintiff's title, and in a reconventional demand claimed to be the owner of an undivided one-half interest in the property, under a verbal agreement made at the time of the purchase.
The property, though belonging wholly to the community (unless defendant's claim to a half interest therein be well founded), was purchased in the name of the wife; and the alleged verbal agreement is claimed to have been made with her. Accordingly,
In order to prove his claim to a half interest in the property, defendant annexed to his answer and reconventional demand interrogatories on facts and articles, addressed to plaintiff, and also to plaintiff's wife, based on the allegation that the wife was a party interested in the suit as the other member of the community; and for the further reason that she had acted as the agent of the community in the transaction.
On the merits he gave plaintiff judgment decreeing him (i.e., the community) to be the sole owner of the property and rejecting defendant's claim to a half ownership therein. He also rejected plaintiff's claim against this defendant for rents and revenues; as well he should, in view of plaintiff's declaration aforesaid that he had his own tenant in the property and that defendant merely resided with her. Answers to interrogatories on facts and articles form part of the pleadings. McKerall v. McMillan, 9 Rob. 19.
Since the amendment to article 2334, R.C.C., by Act No. 186 of 1920, it is the law that, "when the title to community propertystands in the name of the wife, it cannot be mortgaged or sold by the husband without her written authority or consent." *1101
But the reverse of this is not true. In such case neither can the wife herself mortgage or sell the property without the authority and consent of her husband, since he is still "head and master of the * * * community." R.C.C. art. 2404.
But it is clear that a husband or wife who, by confessing judgment, by suffering a judgment by default, or by admissions made in answers to interrogatories, enables another to take away the community property, does in fact alienate such property as effectively as if he or she had sold it. And it would be too narrow a construction to place on the statute, in view of its manifest purpose, to hold that the prohibition against any alienation by the husband (and by the same token, by the wife) applies only to conveyances by deed of sale, for a judgment awarding property to another conveys it as effectively as the most formal deed. Cf. 12 Corp. Jur. 206, verbo Common Recovery; 25 Corp. Jur. 1141, verbo Fine.
The case of Knoblock Rainold v. Posey,
ODOM, J., dissents.
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