Hawes v. Bryan

10 La. 136 | La. | 1836

Bullard, J.,

delivered the opinion of the court.

Several judgments having been recovered against Elizabeth Hawes, the wife of the appellee, an execution was levied on certain paraphernal rights of the wife in the hands of her husband, as evidenced by her receipt for $ 566 39, on account of her mother’s estate; and the appellant, William Hawes, became the purchaser at sheriff’s sale. The present suit is instituted against the husband, to compel payment to the purchaser of the amount specified in the receipt.

The defence set up, is, in substance, that the wife herself could not recover, during the existence of the marriage, without a decree for the separation of property, and that the plaintiff can have no greater right. He further pleads payment to his wife, as evidenced by her receipt, bearing date in May, 1834.

The District Court dismissed the suit, on the ground that the wife herself • could not recover the amount of her paraphernal rights without obtaining a separation of property, or showing the existence of some of the circumstances mentioned in articles 2399 and 2400 of the Louisiana Code. Those articles of the Code point out the cases in which a wife is entitled to a general separation of property on account of the disorder of the husband’s affairs and the dangers of her dotal rights. But this court held in the case of Gilbeau vs. Cormier, 8 Martin, N. S., 231, that the wife may at any time demand the administration of her paraphernal properly, and the restitution of the objects forming that property. This right is given by article 2368, of the Louisiana Code.

The wife may, at any time, demand the administration of her paraphernal property, and the restitution of the objects forming that property. A receipt of the wife, under private signature, that she has received her Feetsf^Vom1 her husband, given when a suit ior á divorce was Sn^wiil^not ÍSi^perXsm-creditors, when ofeíts execution!

The evidence under the plea of payment consists of a . r _ \ . t . receipt purporting to be signed by the wife under private signature, at a time when a suit was yet pending between them for a separation from bed and board, and for a divorce 1 ’ _ for the alleged adultery of the husband. There is no other evidence of payment, nor is the real date of the receipt shown. Being under private signature, it has no certain date as to third persons; and being produced under such circumstances, we think it ought not to operate against the plaintiff,

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed ; and proceeding to give such judgment, as, in our opinion, ought to bave been rendered below, it is further adjudged, that the plaintiff recover of the defendant five hundred and sixty-six dollars and thirty-nine cents, with legal interest from judicial demand, and costs in both courts;