Chachere v. Dumartrait

2 La. 38 | La. | 1830

Mathews J.

delivered the opinion of the Court. In this case the husband made a cession of his goods to his creditors. His wife claimed to be placed on his bilan as a creditor with a right of tacit or legal mortgage to the amount of $1900. The Court below admitted her as a creditor for the whole amount claimed, but restricted her mortgage to the sum of $1600 : and from the judgment thus rendered the syndic, on behalf of the mass of creditors appealed.

The $1600 for which the legal mortgage was accorded, to the wife, seem to have been considered as a donation made to her by her father, which fell into the hands of her husband, the insolvent, and was by him appropriated to his own use.

A donation of im-moveadle property may be made, and stand good a-against creditors, where the father put his daughter and her husband in possession of land, which was after-wards sold and the price received by the husband of the daughter and the sale ratified by the father. In this case the price of the land sold will be considered as due to the father, but as re-cieved by the son-in-law as a donation or marriage portion to the daughter, which is as completely effected, as if delivered from the father to the daughter.

The donation appears to have been made in the following manner : Chacheré the father, was the owner of certain tracts of land of which he permitted the husband of his daughter to- take possession and occupy for some time, who afterwards sold this property to one Johnson for $1600, which was paid (on Chacheré’s ratification and confirmation of sale) to his son-in-law. From the whole tenor of the evidence we do not doubt the intention of the father to give these tracts of land to his daughter as a marriage portion : but before any legal transfer was made to that efiect, her husband was permitted to make the sale as above stated. .

The price, although paid to him by the vendee must be considered as really due to the owner of the property, Chacheré the father ; and was left in the possession of the reciever as a donation to his wife, he recieved it as her agent, delivered from her father through the agency of the vendee of the land, who was really a purchaser from Cha-cheré, altho’ nominally from Martel. The donation was thus fully and completely effected. It was as fully executed as if the money had been delivered from the father to his daughter and by the latter transfered to her husband. If it was of moveable or personal property and was executed, it is good according to law. See La. Code, Art. 1528.

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