The opinion of the court was delivered by Watkins, J.
The opinion of the court, on the application for rehearing, was delivered by Breaux, J.
The opinion of the court, on rehearing, was delivered by Miller, J.
Waticins, J.
The demand and prayer of the plaintiff are for a judgment of divorce, a vinculo matrimonii, from his wife, the defendant, forever dissolving the bonds of matrimony between them, and granting him the custody of their minor children.
On the trial there was judgment rejecting the plaintiff’s demands, and one rendered in favor of the defendant, decreeing a separation a mensa et thoro, and giving- her “the permanent care and custody of the minor children” of the marriage, the defendant’s money demand being- dismissed.
In the lower court the defendant filed a rule for a new trial solely ■on the ground that her money demand against her husband had been rejected, affirming the correctness of the judgment in all other respects, and the same having been discharged, she prosecutes this appeal, the plaintiff having acquiesced in the decree as rendered, confessing thereby that the charge of adultery he had preferred against his wife was not sustained by the evidence.
[57]*57Hence the question presented for decision is rather one of money than of divorce.
In the answer of the defendant she avers that “in the month of April, 1895, she gave to her husband her check for two thousand three hundred dollars, proceeds of the sale of her paraphernal property, old No. 232 N. Galvez street, which said property was sold for two thousand five hundred and fifty dollars, he receiving the check from her amounting to two thousand three hundred dollars, and that he collected same, and converted it to his own use,” for which sum she prays judgment against him personally.
It appears from other averments of her answer that those alleged transactions occurred during the marriage, which was celebrated on the 11th of March, 1879, and the deed of sale which was executed in favor of the defendant bears date December 10, 1886.
The position assumed in argument by defendant’s counsel is that the property acquired thereby became the separate paraphernal property of the wife, and that the proceeds of its sale were likewise; and the receipt and use of the proceeds by the husband created a paraphernal indebtedness in her favor for which she is entitled to recover judgment in such suit as this.
On the contrary, it is assumed in the argument by plaintiff’s counsel that the property purchased became and was an asset of the matrimonial community at the time existing between the spouses, and that the proceeds were likewise — the purchase price of said property having been paid with funds and money of the community.
To this last contention defendant’s counsel replies that the plaintiff is equally estopped from urging the aforesaid plea as a defense, because he appeared before the notary who passed the act of sale, and in his presence, and that of witnesses, signed and ratified the sale to his wife as parairhernal property, and can not now be heard to gainsay or deny that act of ratification and acquiescence in an action to which the husband and wife are the only parties — no creditor of either asserting any interest therein.
For this last contention counsel for the defendant relies upon the support furnished by the opinions of this court in Kerwin vs. Hibernia Insurance Company, 35 An. 33 and Maguire vs. Maguire, 40 An. 579, and having consulted those decisions we have found that the plea of estoppel was maintained in each of them.
But in Succession of Bollando, 41 An. 491, the court held thats [58]*58under appropriate averrments, error might be shown, the act reciting that the property “was acquired by (the) wife with her paraphernal funds and for her separate benefit and advantage, although (the husband) was a party to the act.”
And in the same case (42 An. 24) we repeated what was said in the first report of that case; that the husband “must be held to establish the error by strong, legal, and convincing evidence.”
But even giving' the defendant the full benefit of those decisions, she is, at all events, bound by the recitals which are contained in the act of sale to her.
Consulting- them wo find the following, viz.:
“That Charles Garvey” * * * for the consideration and on the terms and conditions hereinafter set forth and expressed, does by these presents grant, bargain, sell, etc., * * * unto Mrs. Sophie Muir, wife * * of Joseph Numa Jórdy * * * her said husband, with her here present * * * accepting and purchasing with her own separate paraphernal funds, for herself, * * the following described property, to-wit, etc.”
Omitting the description of the property the consideration is thus .stated, to-wit:
“This sale is made and accepted for and in consideration of the price and sum of two thousand five hundred dollars, of which the sum of seven hundred and sixteen dollars and nineteen cents has been paid in cash by said purchaser to said vendor, and for the balance of said price said purchaser assumes and binds herself to pay in the lieu and •stead of said vendor, a certain promissory note, drawn by said vendor to his own order and by himself endorsed, dated 12th of September, 1885, and made payable for four hundred dollars in two years after date” (and secured by mortgage), * * * and for the balance of said price said purchaser has made and furnished her two promissory notes, drawn by him to her order, and countersigned by her said husband to authorize her, dated this day, and made payable each .for the sum of six hundred and ninety-one dollars and ninety cents respectively, at one and two years after date,” and secured by vendor’s lien and mortgage.
From the foregoing it appears that of the total price the sum of •seven hundred and sixteen dollars and nineteen cents only was paid on the execution of the deed, and that she assumed and promised to pay for the vendor a mortgage note which burthened the property, and [59]*59executed two notes for the aggregate balance of one thousand three hundred and eighty-three dollars and eighty cents, secured by mortgage and vendor’s lien on the same.
The question necessarily arises on the face of the act containing those recitals, whether it carried to the defendant a separate paraphernal title to the property.
We are not disposed to think it did.
In Bouligny vs. Fortier, 16 An. 209, our predecessors gave this question most serious and thoughtful consideration, and in the course of their opinion, said:
“We have stated that the right of the wife to invest or reinvest her paraphernal effects is derived from the liberal interpretations given to Articles 2361 and 2367 of the Civil Code. Were it not so, the investment would inure to the community to the extent of the amount invested. Wo have searched in vain, in our reports, for a case where the right of the wife to invest beyond her means was sanctioned by this court, but we have, on the contrary, found numerous decisions, either setting aside conveyances made to the wife, on her failure to• shoiv adequate means, or maintaining similar conveyances by reason of such adequate means.
“Ellis vs. Rush, 5 An. 116; Squier vs. Stockton, 5 An. 742; Young vs. Young, 5 An. 611; Metcalf vs. Clark, 8 An. 286; Pearson vs. Pearson, 15 An.
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The opinion of the court was delivered by Watkins, J.
The opinion of the court, on the application for rehearing, was delivered by Breaux, J.
The opinion of the court, on rehearing, was delivered by Miller, J.
Waticins, J.
The demand and prayer of the plaintiff are for a judgment of divorce, a vinculo matrimonii, from his wife, the defendant, forever dissolving the bonds of matrimony between them, and granting him the custody of their minor children.
On the trial there was judgment rejecting the plaintiff’s demands, and one rendered in favor of the defendant, decreeing a separation a mensa et thoro, and giving- her “the permanent care and custody of the minor children” of the marriage, the defendant’s money demand being- dismissed.
In the lower court the defendant filed a rule for a new trial solely ■on the ground that her money demand against her husband had been rejected, affirming the correctness of the judgment in all other respects, and the same having been discharged, she prosecutes this appeal, the plaintiff having acquiesced in the decree as rendered, confessing thereby that the charge of adultery he had preferred against his wife was not sustained by the evidence.
[57]*57Hence the question presented for decision is rather one of money than of divorce.
In the answer of the defendant she avers that “in the month of April, 1895, she gave to her husband her check for two thousand three hundred dollars, proceeds of the sale of her paraphernal property, old No. 232 N. Galvez street, which said property was sold for two thousand five hundred and fifty dollars, he receiving the check from her amounting to two thousand three hundred dollars, and that he collected same, and converted it to his own use,” for which sum she prays judgment against him personally.
It appears from other averments of her answer that those alleged transactions occurred during the marriage, which was celebrated on the 11th of March, 1879, and the deed of sale which was executed in favor of the defendant bears date December 10, 1886.
The position assumed in argument by defendant’s counsel is that the property acquired thereby became the separate paraphernal property of the wife, and that the proceeds of its sale were likewise; and the receipt and use of the proceeds by the husband created a paraphernal indebtedness in her favor for which she is entitled to recover judgment in such suit as this.
On the contrary, it is assumed in the argument by plaintiff’s counsel that the property purchased became and was an asset of the matrimonial community at the time existing between the spouses, and that the proceeds were likewise — the purchase price of said property having been paid with funds and money of the community.
To this last contention defendant’s counsel replies that the plaintiff is equally estopped from urging the aforesaid plea as a defense, because he appeared before the notary who passed the act of sale, and in his presence, and that of witnesses, signed and ratified the sale to his wife as parairhernal property, and can not now be heard to gainsay or deny that act of ratification and acquiescence in an action to which the husband and wife are the only parties — no creditor of either asserting any interest therein.
For this last contention counsel for the defendant relies upon the support furnished by the opinions of this court in Kerwin vs. Hibernia Insurance Company, 35 An. 33 and Maguire vs. Maguire, 40 An. 579, and having consulted those decisions we have found that the plea of estoppel was maintained in each of them.
But in Succession of Bollando, 41 An. 491, the court held thats [58]*58under appropriate averrments, error might be shown, the act reciting that the property “was acquired by (the) wife with her paraphernal funds and for her separate benefit and advantage, although (the husband) was a party to the act.”
And in the same case (42 An. 24) we repeated what was said in the first report of that case; that the husband “must be held to establish the error by strong, legal, and convincing evidence.”
But even giving' the defendant the full benefit of those decisions, she is, at all events, bound by the recitals which are contained in the act of sale to her.
Consulting- them wo find the following, viz.:
“That Charles Garvey” * * * for the consideration and on the terms and conditions hereinafter set forth and expressed, does by these presents grant, bargain, sell, etc., * * * unto Mrs. Sophie Muir, wife * * of Joseph Numa Jórdy * * * her said husband, with her here present * * * accepting and purchasing with her own separate paraphernal funds, for herself, * * the following described property, to-wit, etc.”
Omitting the description of the property the consideration is thus .stated, to-wit:
“This sale is made and accepted for and in consideration of the price and sum of two thousand five hundred dollars, of which the sum of seven hundred and sixteen dollars and nineteen cents has been paid in cash by said purchaser to said vendor, and for the balance of said price said purchaser assumes and binds herself to pay in the lieu and •stead of said vendor, a certain promissory note, drawn by said vendor to his own order and by himself endorsed, dated 12th of September, 1885, and made payable for four hundred dollars in two years after date” (and secured by mortgage), * * * and for the balance of said price said purchaser has made and furnished her two promissory notes, drawn by him to her order, and countersigned by her said husband to authorize her, dated this day, and made payable each .for the sum of six hundred and ninety-one dollars and ninety cents respectively, at one and two years after date,” and secured by vendor’s lien and mortgage.
From the foregoing it appears that of the total price the sum of •seven hundred and sixteen dollars and nineteen cents only was paid on the execution of the deed, and that she assumed and promised to pay for the vendor a mortgage note which burthened the property, and [59]*59executed two notes for the aggregate balance of one thousand three hundred and eighty-three dollars and eighty cents, secured by mortgage and vendor’s lien on the same.
The question necessarily arises on the face of the act containing those recitals, whether it carried to the defendant a separate paraphernal title to the property.
We are not disposed to think it did.
In Bouligny vs. Fortier, 16 An. 209, our predecessors gave this question most serious and thoughtful consideration, and in the course of their opinion, said:
“We have stated that the right of the wife to invest or reinvest her paraphernal effects is derived from the liberal interpretations given to Articles 2361 and 2367 of the Civil Code. Were it not so, the investment would inure to the community to the extent of the amount invested. Wo have searched in vain, in our reports, for a case where the right of the wife to invest beyond her means was sanctioned by this court, but we have, on the contrary, found numerous decisions, either setting aside conveyances made to the wife, on her failure to• shoiv adequate means, or maintaining similar conveyances by reason of such adequate means.
“Ellis vs. Rush, 5 An. 116; Squier vs. Stockton, 5 An. 742; Young vs. Young, 5 An. 611; Metcalf vs. Clark, 8 An. 286; Pearson vs. Pearson, 15 An. 119; Clark vs. Norwood, 12 An. 596; Cormier vs. Ryan, 10 An. 688; Bass vs. Larche, 7 An. 104.
“As the ability of the wife to acquire, during marriage, property in-her own name and for her separate account, is, in our jurisprudence,, an exception to the general rule (C. C; 2374). Ir must be, therefore, strictly and rigidly construed and,, consequently, the wife is required not only to -prove that she had paraphernal effects at her disposal, but also that they were ample to enable her, reasonably at least, to make-the new acquisition, othemoise[ the contract will be treated as a contract of the commimity. * * *
“The authority to invest does not carry with it the unbounded liberty to run into wild and ruinous speculations, and was never intended to place the wife, having paraphernal property, on a footing of perfect equality with a wife separated in property by judgment or by contract, as would be the case did we hold the third opponent toller contract.
“We therefore conclude that it is against the policy of the law, and [60]*60the spirit and letter of our system of legal community, to sanction contracts made by the wife, under the pretext of investing her paraphernal effects, when, as in the case at bar, the amount invested bears no proportion to the value of the property substituted in its place, but on the contrary, that all such acquisitions belong to the community, saving always to the wife her action for the reimbursement of the price contributed by her.”
In that, as in the instant case, the wife attempted to purchase a piece of real estate in her own paraphernal title during the existence of her marriage, to a large extent upon terms of credit, the greater portion of the purchase price being represented by the vendees’ assumption of the vendor’s obligations, which were secured by mortgage on the property.
To our thinking there is a strong analogy between the two cases, in each of which the wife, during her marriage, sought to acquire paraphernal property, largely upon terms of credit, without making any proof of her possession of adequate separate property or revenues to meet her obligations at their maturity.
Under this state of facts it goes without saying that same would have to be mot by the application of community revenues when they become duo, to avoid seizure and sale of the property, and this result demonstrates clearly that the wife had no separate title at the time of the sale.
But there was evidence administered by the defendant at the trial which strengthens the conclusion that the property was not her paraphernal property, same being to the effect1 that the credit of the purchase price was paid by the husband to a great extent.
The statement of Numa Jordy, Jr., one of the children of the marriage, is shown by the following interrogation, to-wit:
“Q. Who paid the notes as they, became due ?
“A. My mother and father both; they both threw in and helped. My mother gave music lessons, and she borrowed money when she did not have the requisite amount — the required amount.”
In addition to this the fact was developed that the plaintiff was in the employ of the firm of Stauffer, Eshelman & Co. at the time the deed was executed, and borrowed from them the sum of seven hundred and fifty dollars on that day, that being about the amount which was paid in cash for the property as recited in the deed.
[61]*61The cashier of the firm, as a witness, makes the following statement, viz.:
“I will state to the court that when I received instructions to pay ■ out those sums it was stated to me, and instructed, that I should make .a memorandum that this money was to be refunded by monthly payments, and that it was given for the purpose of paying up for a residence.”
After making this statement the following occurred, viz.:
“Q. Will you swear, also, that these advances were made by you as .an agent of the firm, through instructions of the senior member of that firm, and that those instructions were that those advances were to be made on condition and for the purpose of meeting partial payments on a residence — due on a residence ?
“A. To the best of my recollection these were my instructions.”
To the foregoing interrogatory, and the answer sought, counsel for the defendant objected on the ground that the testimony i was “hearsay, irrelevant and incompetent,” and his objection having been overruled he reserved a bill of exceptions.
In our opinion the testimony was relative and competent. It was not hearsay, because the alleged instructions came from the senior member of the firm, and it was not made to appear that they were given primarily by the plaintiff.
This evidence goes to strengthen the inference that is to be drawn from the book-entry showing that the amount the plaintiff borrowed on the day of the sale was the identical money used in making the purchase.
Altogether we are thoroughly impressed with the belief, founded upon the law7 and the evidence, that the sale did not invest a separate paraphernal title to the property in the defendant, and resting our decision upon this basis we feel constrained to hold that the judge a quo decided the case correctly.
Juclgmeut affirmed.