| La. | Jul 15, 1855
The motion to dismiss the appeal in this case is overruled. The neglect of the Clerk to file the appeal bond which he has certified as a part of the record in this suit cannot be imputed to the appellants, and therefore cannot prejudice them.
This action is brought to enjoin the Sheriff of the parish of Union from selling a negress and certain town lots in the town of Earmerville.
It seems that the plaintiff was married to Isaiah P. Henderson, in the State of Georgia, sometime in the month of February, 1840. At the time of the marriage she was a minor in the possession of an interest in lands and slaves inherited by her from her deceased father. It does not clearly appear whether or not the slaves had been divided among the heirs at the time of the marriage. As the maiden name of the plaintiff is used in the proces verbal of the partition, signed Pith February, 1840, we infer that it was made prior to the marriage. Two slaves, Tom and Henrietta, and a small sum of money were set apart to her in this partition. In the year 1842 her husband left the State of Georgia for Louisiana, and his wife came out the year succeeding.
The evidence, though not very clear, leaves it probable that the slave Tom remained in the partial possession of Mrs. Bryan, the mother and former guardian of the plaintiff, from the marriage until sometime after the removal of Henderson and wife to the State of Louisiana, when he was sent to them.
It' also appears that plaintiff’s portion of the proceeds of the lands in Georgia and Alabama were sent to them during their residence here. Four
In 1846 Henderson, the husband, sold the slave Tom to one Feazel for six hundred dollars.
In 1849 the plaintiff instituted a suit for separation of property against her husband, claiming judgment for the price of the slave Tom, and $700 in money, received by her husband. A decree of separation of property was rendered in her favor in June, 1849, recognizing her demand against her husband for $1200, and awarding her judgment against him for that sum.
This judgment was, therefore, previous in date to the date of the receipt for $338, her portion of the proceeds of the Alabama land, though the testimony leaves it somewhat uncertain whether this sum had not been received by Henderson, prior to the date of the receipt.
In October, 1849, the property, now in controversy, having been seized at the suit of Garrollton, Frothingham & Go., against Henderson, was sold at Sheriff’s sale to the plaintiff, and adjudicated to her by the Sheriff
The defendants, Paul Tulane & Go., having a judgment against the husband of plaintiff, caused an execution to issue and be levied upon the negress and lots in controversy, as the property of Henderson, disregarding the Sheriff’s sale to the plaintiff and her decree of sepai'ation of property.
She injoined the sale, and in this action she sets up her suit of separation of property and proceedings under it, and her purchase of the property in controversy under the execution levied in the suit of Garrollton, Frothingham & Go. against her husband, as the basis of her title.
The defendants aver that the forms of law in the suit of separation were not complied with; they deny that her husband was indebted to the plaintiff, and allege that the whole matter of plaintiff’s pretended separation and her claim is a fraud, and intended to defraud her husband’s creditors, and that there had been no legal execution of said judgment.
The lower Court rendered a judgment in favor of plaintiff, perpetuating the injunction and quieting the plaintiff in her title and possession, and the defendants appealed.
On the part of the appellants it is contended, that as the marriage was consummated in Georgia, a State in which the common law prevails, the slaves (being there considered personal property) together with all other personal effects of the wife, became the property of the husband by fact of marriage.
The plaintiff, in order to avoid this consequence, alleges, and has attempted to prove, that the slave Tom, as well as the money, was not received by Henderson until after his removal to Louisiana.
It is clearly established that Thomas Bryan, the father of plaintiff, died two or three years previous to her marriage.
Not being aware of any statute of Georgia changing the common law in this respect, we are of the opinion that it was not necessary for the husband t have had the exclusive possession of the slave Tom, in order to make him his property. The act of marriage invested the husband with all the personal effects of the wife, (the ehoses in action excepted,) in full property. We therefore think that the judgment of separation, so far as it embraced the price of the slave Tom, was erroneous. As the husband does not become by the common law the. owner of the real estate of the wife, we think Henderson was
Had the money sent been the proceeds of dioses in action, not reduced to possession, but collected after the removal of Henderson and wife to Louisiana, it would have also belonged to the wife, and justified the judgment pro tanto.
There is nothing in the fact that the plaintiff instituted her action for the price of the slave Tom, as well as the proceeds of the sale of the lands in Georgia, which could be considered as characterizing her suit for separation of .property as fraudulent. If she erred, the Judge who decided the case by decreeing her the price of the slave, erred also.
We do not think (where there is nothing to show fraud and collusion on the part of the parties to the action of separation of property,) that an error in the amount for which the judgment has been rendered, should avoid it as to its effects upon after acquired property. We think it should be permitted to stand and produce the effect of dissolving the community, and of leaving the wife separate in property from her husband, and consequently the right to acquire property by purchase. If the creditors have any right to all or any part of the proceeds of the sales made on the execution of the wife on her judgment of separation against her husband, their remedy is in a different proceeding.
We do not think that there is anything in the objection, that, in plaintiff’s petition for a separation of property, there was no express prayer for a dissolution of the community. The tenor of the petition and theprayer for general relief, justified the decree.
Were it necessary to be proved, the proceedings now before us leave us sufficient from which to infer the embarrassed circumstances of the husband at the time of the judgment of separation, but we do not understand that this fact has been put at issue by the answer although urged in argument.
It is therefore ordered, adjudged and decreed by the Oourt that the judgment of the lower Oourt be affirmed, and that the appellants pay the costs of appeal.