Dihkelspielj J
This proceeding arises through a rule -brought by Mrs. Sophie Gaste,uer, against the l;.w firm of Woodville & Woodrille, and J. A. Woodville and J. L. W. rieodville, the individual Members of said firm, to ffloapel them to turn over to George Montgomery, Esquire, for the purpose of being included in prooes of partition, whioh had been referred to him and whioh ha had been ordered to dr=w up by the Judge having jurisdiction of this matter, the sum of One Thousand Dollars, whioh money is claimed by plaintiff in rule v/Sis re'lizsd from the s-'le of a mort.g .gs note, property of the oommunity existing between plaintiff in rulo "nd her husband, from whom she h.s by order of Court, been divorced and separated in property.
Plaintiff in ruis alleges th:t the One Thousand Dollars involved should be turned over to s- id Notary for the reason th'.t st the time this fund.o['i.i3 into ' bhe Irnds of Tfoodville & Tfoodville, it was community property, bo their knowledge, end that same is being retained by them in satisf- ot&on of the separate debts of her divorced husb'-nd, whioh debbs are not chargable og«inst her ;nd therefore these p-rties should be compelled to account for said money in full, aiding legal interest thereon, to the Notary before whom the partition proceedings were ordered to be taken, h:d been referred by the Court.
The rule w-s taken out in the 3uit originally filed by the wife «gainst h*r husband, for sep: ration of property, in whioh suit she claimed that the property upon whioh the CWg Thousand Dollars above referred to had been borrowed, was her sep-rate property, but whioh the Supreme Court decreed was the property of the oommunity existing between horself end her husband, from whom at that time she had not been divorced and against whom, in the same decree, the Court granted her o■ separation of property.
[387]*387Gastauer vs. Gastauer, 131 Ann, pc. 7-8.
The rule was made absolute by. the Judge aqua, to the extent of ordering defendants in rule to turn over to the Notary, the sum of $173.35, and in all other'respeots was dismissed and from that judgment plaintiff in' rule has taken this appeal.
A oareful investigation of the reoord in this oase proves that since 1909, up to the present time, there has been a great deal of litigation between the spouses, beginning in. the year above referred to, with a suit for divoroe by the husband against his wife, but whioh suit was subsequently discontinued and terminated with the rule now before this Court.
After the husband discontinued his suit for divoroe against his wife and prior to the institution by her, of a suit of separation of property, from her husband, he, Gastauer, borrowed from -a olient of Woodville & Uoodvilde, the One Thous- and Dollars in question, giving as seourity therefor, a mortgage on the property whioh plaintiff in rule claims as her sep-trate property, but whioh as above stated, our Supreme Court decided, belonged to the oommunity, and in whioh -deoi3lon plaintiff in rule aoquiesoed by formally acoepting said property with benefit of inventory and subsequently demanding a partition thereof.
In thst suit this property, with some other personal property, as shown in the inventory taken by the Notary in these proceedings, ss belonging to the oommunity, were ordered to be sold,by the Court for the purpose of being partitioned and the parties were referred by the Court to the Notary who was ordered to partition same -ond all funds of the community teeing- ordered to be turned over to the Notary for that -purpose.
A proces of partition was submitted by the Notary to the interested parties but 3Sme was objected to by the wife and kx others, not. parties to the rule, and which, objsotions 'vrere finally p:s-;.d upon by the Court.
[388]*388Amongst the items objected to by Mrs. Gastauer as not ohargable against me community, was an item of 55314.60, whioh represented oosts expended in the matter of the wife against her husband, whioh oosts, it was claimed should be oharged against the separate share coming to the husband.
There was the further objection made to the One Thousand Dollars, represented by the mortgage note, e.geinst the oommunlty property, as same ws.s illegally exeouted by the husband on the property and said note is asked to be decreed null' and yoid.
Other objections filed to - said prooes of partition by the wife, in our opinion have no bearing upon decision of the matter now before us.
The Judge of the Court aqua dismissed the opposition to the two items above referred to, from whioh on appeal was again taken to the Supreme Court, whioh Court maintained the validity of the mortgage, holding:
"The.t even though this mortgage may have been executed, as alleged, solely for the purpose of defrauding the wife or ner oommunlty rights, but ¡'s the money had been advanced on the faith of said property, by on innocent third party end as at the time of said mortgage, there were no suits pending by the husband against the wife or the wife against the husband, for & separation of property or person, the husband had a right, os the head of the community, to mortgage the property and having done ao, s*ms must stand and be given full foroe :,nd effect."
Gastauer vs. Gastauer, 143 Ann. 751-752.
In so far as the item of §314.60, costs are concerned, the Supreme. Court held that the judgment in the separation suit
retroaoted to the filing of that suit and that suit h ving been filed, •.nd the oosts incurred after the decree of sapor-.tion of property, same could not be oh rged ag-inst the community, but [389]*389must be oharged against the husband seprrutely.
Gastauer vs. Gestauer, 143 Ann. 754.
We have quoted fully from whot we consider the salient facts as disolosed by this record, for the re' son that while it is our opinion that the only point upon which we are oalled upon to adjudicate is a right vel non of Hr. Gastauer as head and master of the oommunity, to dispose of the One Thousand Doll-srs which defendants in rule are oslled upon to turn over to. the Hotary, at the same time, it was necessary for us to determine first, if said One Thousand Dollars wee community property, end if so, to whet extent same oould be disposed of by Mr. Gs.etauer in connection with the various suit for sspsr=.tion, divorce, .eto. which this xsacaxdx record shows to hove been brought against him by his wife.
The Supreme Court having deoided that the property mortgaged, was oommunity property, (131 A#n. 6-7) and that the mortgage exeouted by Gasteuer \r-s valid (143 Ann. 751-752), we have no doubt that e.s head and master of that community, he had the right to do with the proceeds of that-mortgage, i s he pleased, without consulting his wife or in any way obtaining her consent thereto.
Revised Civil Code, Artiole 3404.
This right, however, \r- 3 his only as long as there existed a community of property between himself and his wife and s.3 the suit of separation of property v/ s instituted by plo.intiff in rule, agiinst her husb;-nd, on Febru-ry 23rd, 1916, to which said separation she was deoreed to be entitled (l31f Ann. p. 2) and as she,in a'subsequent proceeding v»3 granted a. divorce agsinst him, (132 Dr. 942), whioli said judgment 'was deoreed to be retroactive to the d»'te of its filing (143 Ann.
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Dihkelspielj J
This proceeding arises through a rule -brought by Mrs. Sophie Gaste,uer, against the l;.w firm of Woodville & Woodrille, and J. A. Woodville and J. L. W. rieodville, the individual Members of said firm, to ffloapel them to turn over to George Montgomery, Esquire, for the purpose of being included in prooes of partition, whioh had been referred to him and whioh ha had been ordered to dr=w up by the Judge having jurisdiction of this matter, the sum of One Thousand Dollars, whioh money is claimed by plaintiff in rule v/Sis re'lizsd from the s-'le of a mort.g .gs note, property of the oommunity existing between plaintiff in rulo "nd her husband, from whom she h.s by order of Court, been divorced and separated in property.
Plaintiff in ruis alleges th:t the One Thousand Dollars involved should be turned over to s- id Notary for the reason th'.t st the time this fund.o['i.i3 into ' bhe Irnds of Tfoodville & Tfoodville, it was community property, bo their knowledge, end that same is being retained by them in satisf- ot&on of the separate debts of her divorced husb'-nd, whioh debbs are not chargable og«inst her ;nd therefore these p-rties should be compelled to account for said money in full, aiding legal interest thereon, to the Notary before whom the partition proceedings were ordered to be taken, h:d been referred by the Court.
The rule w-s taken out in the 3uit originally filed by the wife «gainst h*r husband, for sep: ration of property, in whioh suit she claimed that the property upon whioh the CWg Thousand Dollars above referred to had been borrowed, was her sep-rate property, but whioh the Supreme Court decreed was the property of the oommunity existing between horself end her husband, from whom at that time she had not been divorced and against whom, in the same decree, the Court granted her o■ separation of property.
[387]*387Gastauer vs. Gastauer, 131 Ann, pc. 7-8.
The rule was made absolute by. the Judge aqua, to the extent of ordering defendants in rule to turn over to the Notary, the sum of $173.35, and in all other'respeots was dismissed and from that judgment plaintiff in' rule has taken this appeal.
A oareful investigation of the reoord in this oase proves that since 1909, up to the present time, there has been a great deal of litigation between the spouses, beginning in. the year above referred to, with a suit for divoroe by the husband against his wife, but whioh suit was subsequently discontinued and terminated with the rule now before this Court.
After the husband discontinued his suit for divoroe against his wife and prior to the institution by her, of a suit of separation of property, from her husband, he, Gastauer, borrowed from -a olient of Woodville & Uoodvilde, the One Thous- and Dollars in question, giving as seourity therefor, a mortgage on the property whioh plaintiff in rule claims as her sep-trate property, but whioh as above stated, our Supreme Court decided, belonged to the oommunity, and in whioh -deoi3lon plaintiff in rule aoquiesoed by formally acoepting said property with benefit of inventory and subsequently demanding a partition thereof.
In thst suit this property, with some other personal property, as shown in the inventory taken by the Notary in these proceedings, ss belonging to the oommunity, were ordered to be sold,by the Court for the purpose of being partitioned and the parties were referred by the Court to the Notary who was ordered to partition same -ond all funds of the community teeing- ordered to be turned over to the Notary for that -purpose.
A proces of partition was submitted by the Notary to the interested parties but 3Sme was objected to by the wife and kx others, not. parties to the rule, and which, objsotions 'vrere finally p:s-;.d upon by the Court.
[388]*388Amongst the items objected to by Mrs. Gastauer as not ohargable against me community, was an item of 55314.60, whioh represented oosts expended in the matter of the wife against her husband, whioh oosts, it was claimed should be oharged against the separate share coming to the husband.
There was the further objection made to the One Thousand Dollars, represented by the mortgage note, e.geinst the oommunlty property, as same ws.s illegally exeouted by the husband on the property and said note is asked to be decreed null' and yoid.
Other objections filed to - said prooes of partition by the wife, in our opinion have no bearing upon decision of the matter now before us.
The Judge of the Court aqua dismissed the opposition to the two items above referred to, from whioh on appeal was again taken to the Supreme Court, whioh Court maintained the validity of the mortgage, holding:
"The.t even though this mortgage may have been executed, as alleged, solely for the purpose of defrauding the wife or ner oommunlty rights, but ¡'s the money had been advanced on the faith of said property, by on innocent third party end as at the time of said mortgage, there were no suits pending by the husband against the wife or the wife against the husband, for & separation of property or person, the husband had a right, os the head of the community, to mortgage the property and having done ao, s*ms must stand and be given full foroe :,nd effect."
Gastauer vs. Gastauer, 143 Ann. 751-752.
In so far as the item of §314.60, costs are concerned, the Supreme. Court held that the judgment in the separation suit
retroaoted to the filing of that suit and that suit h ving been filed, •.nd the oosts incurred after the decree of sapor-.tion of property, same could not be oh rged ag-inst the community, but [389]*389must be oharged against the husband seprrutely.
Gastauer vs. Gestauer, 143 Ann. 754.
We have quoted fully from whot we consider the salient facts as disolosed by this record, for the re' son that while it is our opinion that the only point upon which we are oalled upon to adjudicate is a right vel non of Hr. Gastauer as head and master of the oommunity, to dispose of the One Thousand Doll-srs which defendants in rule are oslled upon to turn over to. the Hotary, at the same time, it was necessary for us to determine first, if said One Thousand Dollars wee community property, end if so, to whet extent same oould be disposed of by Mr. Gs.etauer in connection with the various suit for sspsr=.tion, divorce, .eto. which this xsacaxdx record shows to hove been brought against him by his wife.
The Supreme Court having deoided that the property mortgaged, was oommunity property, (131 A#n. 6-7) and that the mortgage exeouted by Gasteuer \r-s valid (143 Ann. 751-752), we have no doubt that e.s head and master of that community, he had the right to do with the proceeds of that-mortgage, i s he pleased, without consulting his wife or in any way obtaining her consent thereto.
Revised Civil Code, Artiole 3404.
This right, however, \r- 3 his only as long as there existed a community of property between himself and his wife and s.3 the suit of separation of property v/ s instituted by plo.intiff in rule, agiinst her husb;-nd, on Febru-ry 23rd, 1916, to which said separation she was deoreed to be entitled (l31f Ann. p. 2) and as she,in a'subsequent proceeding v»3 granted a. divorce agsinst him, (132 Dr. 942), whioli said judgment 'was deoreed to be retroactive to the d»'te of its filing (143 Ann. 753), we are of opinion th?t from Febru..ry 23rd, 1910, the date of the filing of suit for esperetion of property, that Hr. Ge.ste'uer -Tf.e no longer,under the low, m-ster of the -orob-[390]*390erty, consequently had no right to dispose of same as suoh.
Referring to a statement filed by Messrs. Woodville & Woodville, the testimony of Mr. J. A. Woodville, in connection therewith, we have arrived at the following conclusion: First: The item of Fifty Dollars, charged against the OUe Thousand Dollars mortgage note, for negotiating sale thereof, prior to February 33rd, 1910, is 'a proper oharge end should be allowed.
Second: That the Five Hundred Dollar fee of ’Woodville & Woodville, attorneys,for sarvioes rendered for Mr. Gastauer deducted by them at the time, this money came into their hands, is a proper ohn.rge and also should be allowed. Third: That the costs of both Courts advanced by said low firm, in the divorce suit brought by Mr. Gastauer against paid his wife,/Hi3Exaacjta by them prior to February 33rd, 1910, amounting to $33.90, should be allowed,
Fourth: That the further sum of Two Hundred Doliere, paid by Woodville & Woodville from this One Thousand Dollars, to Mr. Gastauer should be deducted from the amount v/hich said attorneys-are compelled to turn over to said Notary, for the purpose of being partitioned, the Notary not h ving been appointed until January, 1913, while the firm of Woodville & Woodville had no right to retain this money in or any part thereof, after demand h*.d been made upon asrayxttrgxHfgxgx them therefor, by Mr. Gastauer, to whom it belonged. Henoe there remo ins the sum of $173,33 which Messrs. Woodville & Woodville admit to be in their hands, being balance due for the account of Gastauer end which under the decision of the Supreme Court, as above quo ted, 'should be ohorged against the separate funds of said Gastauer, meting a total of $334.90, which sum should be turned over to the Notary, by Woodville “ Woodville, for the purpose of being partitioned.
[391]*391It is therefore ordered, adjudged s.nd decreed, that the judgment of the lower Court be amended so as to order the firm of Woodville & Woodville and the individ-ua,! members thereof, J. A. Woodville and J. L. ¶. Woodville to turn over to George Montgomery, Esquire, Notary Public for the purpose of being inoluded in the partition proceedings, in the matter of Mrs. Sophie G&stauer versus George Gast&uer, the sum of $334.90, with five per cent interest thereon, from February 33rd, 1910, and in all other respeot said judgment of the Court aqua, 4s affirmed, the defendant in rule to pay costs of this Court,
-Judgment amended and affirmed-