60 So. 623 | La. | 1913
Felicia D. Christ died in the year 1911, leaving a last will and testament by which she bequeathed and devised unto her husband, Joseph Christ, the undivided one-third of her estate and the usufruct of the remainder, without bond and security, and appointed him testamentary executor.
The will was probated, and an inventory of the estate was taken, showing what property belonged to the community, and that certain real estate and movables were claimed by Joseph Christ as his separate property. After the completion of the inventory, Joseph Christ ruled the heirs of the deceased wife to show cause why the inventory should not be approved and homologated. Five of the heirs appeared and opposed the homologation of the inventory, on the ground of the omission therefrom of certain notes, shares of stock, moneys, and movables belonging to the estate, and on the further ground that the real estate and movables figuring on the inventory as the separate property of Joseph Christ belonged to the community. The opposition was tried, and judgment was rendered, ordering that seven different items set forth in the opposition be included in the inventory, and rejecting the demand of the opponents as to the real estate and certain movables claimed by Joseph Christ as his separate property.
Opponents have appealed, and the appellee has not prayed for an amendment' of the judgment.
The real estate was acquired during the marriage by a duly recorded act of sale, but the appellee contends that the transaction was really an exchange of his separate property for other property.
The record facts are as follows: On August 8, 1884, Joseph Block conveyed, by act of sale, to Joseph Christ the E. % of section 31, township 7 S., range 1 E., containing 310.48 acres, for the price of $930, of which the sum of $480 was paid in cash, and the balance of $450 was represented by the note of the purchaser, due January 1, 1885, with 8 per cent, interest after maturity. ,
On the same day and before the same notary, Joseph Christ conveyed, by act of sale, to Joseph Block two certain tracts of land for the price of $930, of which the sum of $480 was paid in cash, and for the balance ($450) the purchaser assumed the payment of two notes of Joseph Christ to the order of C. F. Lemelle,' one for $200, due January 1, 1885, and the other for $250, due January 1, 1886, bearing 8 per cent, interest after maturity, and duly paraphed to identify
• It follows that Joseph Christ could not have invested more than $480 of his separate funds in the purchase from Joseph Block, and that the balance of the price, represented by his note for $450, was a debt of the community. There was no exchange of property, but two sales, in which the cash portion of the price due Joseph Christ was compensated by the cash portion of the price due Joseph Block. The case presented is that of a purchase by the husband, during the marriage, partly with his separate 'funds and partly with community funds.
The community consists of the estates which the husband and wife may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. Civil Code, art. 2402.
“is to bind' the husband irrevocably, so that he should be unable to subsequently abandon the property to the community, in order to exercise upon it, as a creditor, a right of priority for the replacement of the sum expended for its purchase.”
In a recent ease this court said:
“In the instant case there is nothing in the act 'by which the property was acquired to indicate that Rusch intended, in making the purchase, to reinvest his separate funds for his separate benefit, so that there can be no doubt that the title fell into the community, and that he became a creditor of the community for so much of his separate funds as he invested in it.” McWilliams v. Stair, 128 La. 756, 55 South. 343.
As the title of Joseph Christ does not on its face indicate any intention to reinvest his separate funds for his separate benefit, the purchase in question must be considered as having been made for the benefit of the community.
The parol evidence adduced in the court below to prove the intention of the husband to reinvest his separate funds for his individual benefit should have been excluded.
It is obvious, however, that the rule supra has no application to wagons, tools, and furniture.
It is therefore ordered that the judgment appealed from be so reversed and amended as to decree that the real estate and movables, except live stock, as described in said judgment, belong to the community formerly existing between Joseph Christ and his deceased wife, Felicia D. Andrus, and that said property he duly inventoried as such in her succession, without prejudice, however, to any claims that the said Joseph Christ may have against said community. It is further ordered that said judgment as thus reversed in part and amended be affirm'ed; and that the appellee pay costs of appeal.