Fisher v. Gordy

2 La. Ann. 762

• Court: Supreme Court of Louisiana
• Decided: August 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

King, J.

The plaintiff has onjoinod the execution of two writs offierifaciass directed against her husband, Daniel Fisher, in virtue of which she alleges that a quantity of sugar, the product of her separate property, has been seized. The injunction was sustained for one-half of the sugar levied upon, and for the other half dissolved. From that judgment the defendants-have appealed.

It appears from the evidence that the plaintiff, at a sheriff’s sale of her husband’s property, became the purchaser-of-a tract of‘land and two slaves, and that, at the time of her marriage, she owned several other slaves. The sugar seized under the writs enjoined was the product of thedand and slaves of which she thus claims the ownership. At the date.of the adjudication to the plaintiff she had been separated in property from her.-husband, but shortly after instituted a suit claiming aseparate administration, -which-was'pending during the time that the sugar was produced and at the date of the seizure. The judgments under which the.levies were-made, were for debts of-the husband contracted prior to the marriage, and-the question presented is, whether the whole, or any part, of the crop thus produced, could be seized -in satisfaction of his debts. Our law considers the‘profits of all the-effects of which-the husband has the administration, and the estates-which the husband and-wife may acquire during the marriage, although the purchase of the latter be only in the name of one of the two, to belong to■ the community. iC. C. 237.1.

In addition to a title in her own name, it -was incumbent.on the -plaintiff to show that the price of the laud and slaves adjudicated was paid .with her paraphernal funds of which she had the administration,.in order to establish that she had been invested with title to them in her separate right. This proof has net been made. No circumstances have been shown which exclude the land and slaves adjudicated to her from the operation of the general rule, which-render-s that property common which is acquired by either of the married parties during the existence of the community. 17 La. 299. 1 Rob. 367. The husband appears to have retained the administration of the property thus acquired, and the wife could not have legally opposed his administration. The fruits which it yielded, although produced in part by the labor of the plaintiff’s slaves, belonged to the community of which the husband was’head, and were liable for the payment of his debts, whether contracted prior to or during the marriage. C. C. 493. If the plaintiff has a,privilege upon the sugar for the labor of her slaves in producing it, that right must be exercised by means of a third opposition ; it forms no ground for an injunction.

The judgment of the District Court is therefore ‘reversed. It is further decreed that the injunction obtained by the plaintiff in this case be dissolved, and that the plaintiff and his surety be condemned, in solido, to^ay to -the defendants five per cent damages on the amounts of their respective judgments enjoined, reserving to the plaintiff her right of enforcing any claim she may have to reimbursement for the labor of her slaves in producing the sugar seized ; the appellee to pay the costs of both courts.