247 F. 385 | 5th Cir. | 1918
This was an appeal from an order of the District Court, sitting in bankruptcy, settling the account of the trustee in bankruptcy of the estate of James J. Woulfe. The decree allowed the appellant the principal of her claim against her husband’s estate, as a prior claim, but denied her interest on the principal of the claim, and it’ is from this feature of the decree that the appeal is taken.
The appellant contends for the allowance of interest: (1) Because of a judgment in her favor in the state court, which provided for interest, and which she claims conclusively adjudicates her right to' it; and (2) because she claims interest is justly due her under the law of Louisiana.
■“Third. That the said futxxre wife brings into the marriage the following described movable and immovable property, which she hereby constitutes as her dowry.”
As to this property the husband acknowledged receipt, and that he took charge of it for account of his future wife, and became responsible to her for it. As to any remaining property of the wife, the contract
The Supreme Court of the United States, in the case of Fleitas v. Richardson, 147 U. S. 550-553, 13 Sup. Ct. 429 (37 L. Ed. 272), said:
“The separate property of the wife is that which she brings into the marriage by inheritance, or by donation made to her particularly, and is divided into dotal or extradotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Civil Code. art. 2.3:57. Extradotal property, otherwise called paraphernal property, is that which forms no part of the dowry.”
For each class “the wife has a legal mortgage on the property of her husband,” given by the provisions of Civil Code, art. 3319. The wife has the right at any time during the marriage to sue for and retake possession of paraphernal property. Her dotal property is not generally recoverable from the husband while the marriage lasts. Civil Code, art. 2347. The husband alone administers the dowry, and the wife cannot deprive him of it. Civil Code, art. 2350. The income or proceeds of the dowry belong to the husband, and are intended to help him support the charges of the marriage, such as the maintenance of the husband and wife, that of their children, and other expenses which the husband deems proper. Civil Code, art. 2349.
The appellant contends that the property brought by her into the marriage was paraphernal and not dotal property, and that upon paraphernal property of the wife the husband is chargeable with interest. That he is not chargeable with interest upon dotal property is apparent from the quoted articles of the Civil Code. Appellant’s contention that the contract creates paraphernal and not dotal property is based upon the provisions of the contract which make the wife separate in property as to her property generally, and also those that recite the husband’s receipt of the property brought into the marriage for account of his wife and his acknowledgment of liability to her therefor. If there had been no express recital in the contract that the property, contributed by the wife, constituted her dowry, the argument might prevail. in view of the express characterization of the fund and property as the wife’s dowry, it would be giving too much weight to the fact that there was to be no community of acquets and gains and a separation of property and administration as to her general property, to accord it the effect of nullifying the express term of the provision relating to the contribution of the specific property which the wife brought into the marriage. The contract should bear this construction, especially in view of Civil Code, art. 2338, which provides that:
““Whatever in the marriage contract is declared to belong to the wile, or to be given to her on account of the marriage by other persons than the husband, is part of the dowry, unless there be a stipulation to the contrary.”
“When the wife, who is separate in property, has left the enjoyment of her property to her husband without any procuration, he is not answerable for the fruits, until a demand of them be made by his wife, or if it is not made, until the dissolution of the marriage. He is not accountable for the fruits which have been * * * consumed.”
While, under the terms of the marriage contract in this case, the husband received the property as that of his wife and became responsible for its custody, and return of the unexpended corpus to her, we do not understand that his use and enjoyment of it, pending the marriage relation, and his possession, was as agent for his wife. Whether the money be deemed dotal or paraphernal property, we do not think the appellant was entitled under the law of Louisiana to interest on it while the marriage relation endured, and the husband was permitted to possess and enjoy it, under the contract.
Conceding, without deciding, the jurisdiction of the state court to render the judgment relied upon by the appellant, we think there is another sufficient reason for not giving to it the effect of an adjudication binding either upon the trustee or upon the other appellees, and regardless of whether the latter were or were not represented By the trustee and privy to him. An adjudication is binding upon parties and privies, as to questions which were, in fact, in controversy and determined, and as to those which should have been raised, though they were not. Werlein v. New Orleans, 177 U. S. 390, 20 Sup. Ct. 682, 44 L. Ed. 817. It covers questions of both law and fact, upon which their (the parties’) rights depend and those which might have been determined, as well as those which were. Handlan v. Walker, 200 Fed. 566, 119 C. C. A. 46. This rule applies in courts of bankruptcy equally as it does in other forums. The questions then are: (1) Was the matter of the allowance of interest a litigated question in the state courts ? and (2) if not, was it a question of law upon which the rights of the parties in the' state court depended ?
1. The judgment of the Court of Appeal for the Parish of Orleans, which was affirmed by the Supreme Court, allowed the appellant interest. However, there was no contestation, either in the civil district ■ court, or in the Court of Appeal, or in the Supreme Court, as to whether interest was properly allowable or not. It was not a controverted issue between the parties, before the rendition of judgment, and
Appellant’s right to interest not having been actually a matter of contestation between the parties, and not having been necessary to a decision of any of the issues involved in the state court litigation, we hold that ihe. appellant’s plea of res adjudicata fails.
The order of the District Court appealed from is affirmed.