Comeau v. Fontenot

19 La. 406

• Court: Supreme Court of Louisiana
• Decided: September 15, 1841
• Status: Published

Opinion

Bullard, J.

delivered the opinion of the court.

The question presented for our solution in this case is, whether the slave Rose and her children are the separate -property of the plaintiff, or whether they belong to the community. The defendant received her in discharge of a sum of $750, to which the wife was entitled by inheritance, and which sum formed consequently a part of her paraphernal property. The conveyance of the slave was to the husband, without the concurrence of the wife, and it appears, that he had the administration of her paraphernalia. Since the acquisition of her, she had several 'children, one of whom, it appears, has been alienated by the husband, and for whose value she also asks a judgment.

We cannot distinguish this case from that reported in the 10th La. Reports, 180, in which we held, that property purchased during the marriage by the husband, and in his name, though bought with the funds of the wife, belongs to the community. In the case of Domingues vs. Lee et al., 17 La. Rep., 295, we ruled, it is true, .that property acquired by the wife by a dation en paiement, made to her -by her tutor, and which never came under the husband’s administration, still con-stjtut;es separate or paraphernal property. The two cases are quite distinct. Tn the one the husband, employing a fund belonging to the wife, in the purchase of property in his own name, without her consent, becomes the owner as head of the community, and owes to his wife the amount thus employed. In the other the wife, who has retained the administration of her paraphernal property, employs it herself in the acquisition-of other property, with his consent, or receives a dation en paiement from her own debtor. Such was also the case reported in the 1st La. Rep., 523, and in several others, to which our attention has been called by the defendant’s counsel. We are by no means satisfied, that those judgrnentswere erroneous. The contrary doctrine might lead to great injustice. Suppose, the slave Rose, purchased with the funds inherited by the wife, instead of becoming the mother of several children, had died? According to the argument of the plaintiff, this loss would have fallen upon her, although the purchase had been made, without her consent, by her husband, who had taken upon himself, and was responsible for the administration of her paraphernal estate.

It is therefore ordered and decreed that the judgment of the District Court be affirmed with costs.