| La. | Oct 15, 1846
The judgment of the court was pronounced by
The plaintiff alleges that, having married his wife Harriet, the mother of the minors, represented by the defendant as under-tutor, she subsequently obtained a judgment of separation of property, and that some years thereafter he paid sundry sums of money on her account, which he now claims from her estate. The under-tutor answered by a general denial. At the trial the plaintiff offered in evidence the record of the suit of Harriet Handy against her husband, by which it appears that a judgment of separation of property was rendered, in the year 1831. By this judgment it was decreed that, “ she be separated in property from her husband, and that she have full administration of her separate property; that she recover of her husband certain slaves,” (which, in her petition, she had alleged she acquired by donation from her mother,) “ and that they be set apart as her separate property.” It
It appears by the evidence that the monies alleged to have been paid by the plaintiff, were paid to certain mortgage creditors, holding mortgages on a plantation, which, although it is not so expressly alleged or proved, we infer from the record, was acquired by the wife by purchase during the marriage, and after the decree of separation ; and we shall so assume the case to be, in our present inquiry.
By art. 2402 of the Civil Code, it is declared that, “ the separation of property, although decreed by a court of justice, is null if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a Iona fide non-interrupted suit to obtain payment.” As the judgment in this case was that, the wife recover of the husband, with costs, the slaves mentioned in the judgment, the apparent title of which was in their joint names, and of which the possession was alleged to have been joint, it was a judgment susceptible of and requiring execution, and should have been executed by a writ of execution and possession, or by an authentic act. No such writ appears to have been executed or even to have issued, no authentic act was passed, nor is the judgment even shown to have been notified to the husband.
But it is said that the nullity proceeding from non-execution, is a nullity as against creditors only. The Code has made no distinction between creditors and the parties themselves, in article 2402. We are not aware of any other article restricting the generality of the terms there used; and we find that under the Code Napoléon, which, with some modifications notpertinentto the present en-quiry, contains a similar provision, the nullity is considered as existing between the parties, as well as with regard to creditors. Toullier, vol. 13, title 5, chap. 11, § 74, &c. Pailliet, Code Civil, and notes on article 1444 of the Code Nap.
From the date of this judgment of separation till the alleged payments for which the husband asks relief, a period of ten years intervened. During that entire period the judgment remained unexecuted; and, so far as the record informs us, so remained till the dissolution of the marriage, by the death of the wife. We have no hesitation in saying, under these circumstances, that the judgment of separation must be regarded as a nullity; that we have no'evidenee of a dissolution of the community; and that the property acquired by the wife, after the separation was decreed, must be considered as community property, and the mortgages created upon it as community debts, and their payment by the husband as made on account of the communily, and therefore not forming a basis for the present suit. Judgment affirmed.