Metcalf v. ClarkMetcalf v. Clark
Ma/rgan'et B. Sprout, wife of the defendant, and her sister Ma/ry Ann Sprout, claiming the ownership of the lots of ground seized in this case, as the the property of the defendant, have enjoinеd the sale.
By agreement of the parties in the record, the contestation is limited to the claim of Mrs. Glande. Eroin the judgment rendered in her favor perpetuating the injunction, the plaintiff has appealed.
The property in controversy was purchased by Mrs. Glande and her sister, Ma/ry Ann Sprout, through the agency of Charles H. Kellogg, from the estate of Robert Lanjton, of whose last will Judge Preston was one of the executоrs, for the price of $3010, partly in cash and partly on terms of credit. This sum it is proved, was paid out of the share inherited by the vendees from the estate of James Brown, of whose last will Judge Preston was also the executor. Thus it is shown that the paraphernal funds of Mrs. Glande, with which her share оf the price was paid, never came into the possession of her husband.
In Dominguez v. Lee et al, 17 L. R. 295, which is one of the leading cases on the subject, the learned Judge, who delivered the opinion of the Court, remarked : “ It is true, as a general rule, that the law considers to be common
property thаt which is acquired by the husband and wife during the marriage, although the purchase be only in the name of one of the two, and not of both. C. C, 2371; 10 L. R, 148. The reason is that, in that case, the period of time when the purchase is made is alone attended to, and not the person who made it. But we are not ready to say that no distinction ought to be made when the propеrty is clearly shown to have been bought with the separate funds of one of the parties, and particularly with funds of the wifе which never came under the administration of the husband. 1 L. R, 523. It is a well settled doctrine in our jurisprudence, that money received during the marriage, even by the husband on account of the wife, does not fall in the community, but remains her separatе property, 7 L. R, 292. According to article 2363 of the Louisiana Code, the wife has the right to administer her paraphernal property, without the assistance of her husband; and by article 2315, paraphernal property is considered аs the separate property of the wife. There necessarily results from these provisions of the law a pоwer allowed to the wife to administer alone her paraphernal estate, as she pleases; and a right to alienate her separate property and to invest her paraphernal funds in whatever manner she thinks prоper and most advantagnous to her interest, provided she does it with the authorization of her husband."
The next is the case of Terrell v. Cutrer, 1 R. R, 367, in which the same prinсiple is not only affirmed, but extended further in favor of the wife. In that case the husband was in possession of the paraрhernal funds of the wife, which he applied to the payment of the price of the property conveyed to her. The Court held, that as the wife has at any time the right to resume the administration of her paraphernal property, there was no necessity to prove that she had the actual administration at the time she appropriatеd part of it to the purchase of the slave with her husband’s consent. That act alone was one of administration, and was done with the consent of the husband.”
The same doctrine was again affirmed in other cases. See 4 R. R, 194 • % An. 930 ; 5 An. 611. A careful сonsideration of the different provisions of our Code on the subject, would, it seems to us, remove any doubt on our minds, if any еxisted, as to the correctness of the principle thus settled by our predecessors. Under article 2421 of our Code, a contract of sale between husband and wife is declared to be valid, “when the transfer to the wife, even though nоt separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.” If the paraphernal funds of the. wife may be thus invested in regard to the husband, we are at a' loss to discover why the same rule should not be applicable to all cases.
But it is urged that the investment of the paraphernal funds should be expressed in the act by which the wife acquires the property. The objection does not appear to us to be founded in law. In rеgard to creditors, such a statement
We deem it unnecessary to -determine whether the wife could purchase on credit; as, it suffices tо say, that she had then under her separate administration sufficient funds of her own with which the price of the property has been paid. As the evidence ■ in the record would, in our opinion, bind her, if the property had diminished in value, or totally рerished, it is but just to conclude that she should be entitled to hold it in her own right as an investment of her paraphernal funds.
Considering- this аs one of the cases in which creditors have a right to en-quire into the validity of the wife’s title, and no malice is shown, we аre of opinion that the appellee is not entitled to the damages claimed by her.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be affirmed, with costs in both Courts.
Notes
Ogden, J., did not sit in this case, having been of counsel when the case was submitted.