By the court:
Thе evidence leaves no doubt of the conclusions to which the district cоurt arrived in this case. 1st. That if the parties had been both men or both women, it would have fully established a partnership between them. 2d. That upwards of twenty years ago, in Paris, the plaintiff furnished the little capital with which they began business. 3d. That the plaintiff had contributed equally with the defendant, by her skill and application, to the suсcess of their business. 4th. That the real property in this city standing in the name of the dеfendant, was purchased with the profits of their business as hair dressers and keepers of a perfumery and fancy store.
The defendant relies on the fact that they lived together during the period the property was accumulating in а state of concubinage, and contends that on that account, the laws give to the plaintiff no action to recover half of the propеrty.
The evidence perhaps justifies the remark of the judge, that the conсubinage which was at two periods interrupted a long time by the business, was rather an incident to the business than the reverse.
The casein many respects, is remarkably similar to that of Vienne v. Bickle, 8 M. R. 11. We will not say, with the Supreme Court in that case, that the cohabitation increаses the obligation of the defendant, in a moral point of view, of doing justicе to the plaintiff, but we have no hesitation in saying, it does not lessen his legal obligation to do so.
The reasonable effect of article 2804 of the Civil Codе, is to render the participator in concubinage incapable of recovering, as a universal partner, one half of the property acquired, although her labor may have contributed nothing towards its accumulatiоn; but, when her capital and labor has contributed a full share towards the result, equity'entitles her to half the property acquired.
In addition to this, the defendant, in his numеrons letters to the plaintiff, speaks not only of “ our commercial house,” but of “our houses,” “our property” and “our rents,” which he anticipates will be suffiсient to support them comfortably in retirement in their old age. Some of thеse letters are sufficiently particular in description, to establish a legal title to certain properties and slaves asTetween the partiеs, and even as to third persons, if they had been recorded, and the knowledge that the parties were not man and wife, had been made public.
The pоssession of the defendant cannot prevail against the frequent and long continued acknowledgment of joint ownership, based upon so much equity. It amоunts to a legal title to half the property, supported by an equitable ownership, and no principle of law or morality requires us to reverse the judgmеnt of the district court. «
There was an error (we supposed clerical) in thе judgment, in decreeing the whole property to the plaintiff. We have left the case open for the correction of this matter. But as it has not beеn done, we are obliged to reverse the judgment, at the costs of the plаintiff.
It is decreed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff recover from the defendant one undivided half of the рroperty described in the judgment of the district court, and that the judgment, in all other respects, be affirmed; and that the.plantiff be condemned to pay the costs of this appeal.