delivered the opinion of the court.
The plaintiffs in this case claim from the defendants an account of the estate of their deceased mother, which, they allege, was held in community with him; and pray a decision [563]*563in their favour for whatever amount may be found to have been the property of the deceased. Before judgment could be rendered, the defendant Descuirs died; and the suit was prosecuted against his heirs, of whom a great number were cited; and many of them formally renounced the inheritance. During the progress of the cause in the court below, the plaintiffs brought suit against a certain Antoine Abat, to cause a conveyance made to him by Descuh's, during his life-time, of all the property of the latter, to be annulled, on the grounds of simulation and fraud. These suits were consolidated, and proceedings took place on them, in virtue of which judgment wras rendered in favour*of plaintiffs, from which the defendant Abat appealed.
The principal facts of the case, as they appear by the documents and testimony, are as follows: In the year 1781 the mother of the plaintiffs (then the widow^ of Jos. Decoux) and Jean Pierre Descuirs entered into a marriage contract, by which they formed a community of property. The part of this community which was to be brought in by the husband, was not specified at the time, but was, by agreement, to be ascertained at some future period. That brought by the wife was estimated at $1095 37. Their marriage was celebrated in pursuance of this contract. They lived together under the matrimonial union, holding their property in community, the wife having a right to one-half of the acquets and gains, until 1805. On the 21st of May, in that year, they entered into a contract, by which both parties agreed to a separation of property, and a dissolution of the community, in presence of several of their neighbours, called in to assist them in the division of the estate — which was divided, both as to the bienspropres and the gananciales, up to that period, each party taking separate possession of the property assigned to them under this division. They continued in this state of separation until the death of the wife, each party having the use and enjoyment of the portion assigned to them, separately. The motives for this sepa[564]*564ration are not made known in the contract; it is simply stated, that it was done by mutual consent. There is, howev-erj a probability raised by the testimony of some of the witnesses, that the wife acquiesced in this measure the more readily, in consequence of a supposed criminal intercourse between her husband and a young mulatto slave, belonging to the household: for, after the separation of property and dissolution of the community, the spouses lived no longer together. There is no evidence of any personal abuse, or ill-treatment exercised by the husband towards his wife, or that he drove her by force from his bed and board. At the time of the dissolution of the community, the property which each of the parties brought into it, originally amounted, by estimation, to $25,000; and on this basis the whole, both capital and profits, was equally divided. Abat, the appellant, produced in evidence an authentic act, clothed with all the formalities of law, by which it appears that Descuirs’ sold to him all his estate, &c. The act of separation, &c. which was made in private form, was acknowledged by the parties before a person exercising the functions of judge and notary, immediately after the occupation of Louisiana by the United States, was recorded, and a copy is taken from the archives of the parish of St. Martin.
The construction and effect of an act of voluntary sepa-vision’ of property between husband and wife, made in 1805, before the of°the°civil ovdes^ ^Ry^the^aX'of sPain-
[564]*564On these facts several questions of law are raised:
1st. Whether the act of separation of goods, and dissolution of the community, is valid and binding on the parties, in any respect, according to the laws in force in this country, at the time of its execution?
2d. If good as to the gananciales, whether it is not void as to the $25,000 acknowledged to have been brought into the community by the husband, on the ground of this part of the stipulations in said act being a disguised donation to the r ° , husband by the wife, not tolerated bylaw?
A .third question relates to the truth and genuineness of the deed of sale from Descuirs to Abat. .
For a solution of the first two of these questions we must [565]*565resort to the Spanish laws, which afford the only legitimate rules by whichthe acts of the parties are to be construed. According to these laws it is clear that husband and wife were considered so far separate persons; that they could validly enter into any onerous contracts between themselves. sale is the example given to illustrate this doctrine. They seem to have been prohibited only from making donations to each other, during the marriage, of property actually in pos- , . , . .. . , 1 session. i>y the same laws the wire was permitted to renounce her rights to the matrimonial acqets and gains, at any time before, during, or after the dissolution of the marriage. These rights and disabilities are fully established by si ij m • , , , , _ _ Gomez ad leges 1 aums, and in his treatise entitled Barm Re-solutiones, by Febrero, Matiengo, and other authorities.— See Gomez en leges Taure, 633 and 634. Farce Resolutione, p. 434. Maliengo, folio 271. Verzo, no. 2. Febrero, part 1, ch. 10, § 1, no. 2; and part 2, book 1, ch. 4, § 2, no. 57, 58, 59 and 60.
According to these laws the hus-were considered^ sons^tluxt they could validly enter into any onorous contract — a sale to*mustíate this doctrine'
wT^wereprohibti ¿0d £*£¡21 other du«ng marriage, of property actually in posses-might renounce quet^at any'time ’t *’¡[¡f,^ tion of the marri-
contract in which husband and wife mutually agree to separate, taicifa specific poí ü°n of the commu-renounce all right community of ac-par®akesndstrongiy of the nature of a contract of exchange, by which ^ves°upthaiiPciaim to wlwle> ™ obtaining a distinct . right and title to a part of the matrimonial community property.
[565]*565. . The contract by which Descuirs and his wife agreed, in 1805, to a separation of property, and dissolution of the matrimonial community which had previously existed between them, may be considered as partaking strongly of a contract of exchange, by which each one of the parties gave up his common right or claim to all the property, in consideration of his having obtained a separate and distinct title to a part, .... ... It was, strictly speaking, a partition of common property, and cannot be assimilated to a donation. It is well, known that contracts of exchange, and agreements to divide a common property, create many obligations between the parties to such contracts very similar to those which arise out of the contract of sale. We, therefore, conclude that the contract of 1805 did operate a good and valid separation of goods be-r . ° . , ,.
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delivered the opinion of the court.
The plaintiffs in this case claim from the defendants an account of the estate of their deceased mother, which, they allege, was held in community with him; and pray a decision [563]*563in their favour for whatever amount may be found to have been the property of the deceased. Before judgment could be rendered, the defendant Descuirs died; and the suit was prosecuted against his heirs, of whom a great number were cited; and many of them formally renounced the inheritance. During the progress of the cause in the court below, the plaintiffs brought suit against a certain Antoine Abat, to cause a conveyance made to him by Descuh's, during his life-time, of all the property of the latter, to be annulled, on the grounds of simulation and fraud. These suits were consolidated, and proceedings took place on them, in virtue of which judgment wras rendered in favour*of plaintiffs, from which the defendant Abat appealed.
The principal facts of the case, as they appear by the documents and testimony, are as follows: In the year 1781 the mother of the plaintiffs (then the widow^ of Jos. Decoux) and Jean Pierre Descuirs entered into a marriage contract, by which they formed a community of property. The part of this community which was to be brought in by the husband, was not specified at the time, but was, by agreement, to be ascertained at some future period. That brought by the wife was estimated at $1095 37. Their marriage was celebrated in pursuance of this contract. They lived together under the matrimonial union, holding their property in community, the wife having a right to one-half of the acquets and gains, until 1805. On the 21st of May, in that year, they entered into a contract, by which both parties agreed to a separation of property, and a dissolution of the community, in presence of several of their neighbours, called in to assist them in the division of the estate — which was divided, both as to the bienspropres and the gananciales, up to that period, each party taking separate possession of the property assigned to them under this division. They continued in this state of separation until the death of the wife, each party having the use and enjoyment of the portion assigned to them, separately. The motives for this sepa[564]*564ration are not made known in the contract; it is simply stated, that it was done by mutual consent. There is, howev-erj a probability raised by the testimony of some of the witnesses, that the wife acquiesced in this measure the more readily, in consequence of a supposed criminal intercourse between her husband and a young mulatto slave, belonging to the household: for, after the separation of property and dissolution of the community, the spouses lived no longer together. There is no evidence of any personal abuse, or ill-treatment exercised by the husband towards his wife, or that he drove her by force from his bed and board. At the time of the dissolution of the community, the property which each of the parties brought into it, originally amounted, by estimation, to $25,000; and on this basis the whole, both capital and profits, was equally divided. Abat, the appellant, produced in evidence an authentic act, clothed with all the formalities of law, by which it appears that Descuirs’ sold to him all his estate, &c. The act of separation, &c. which was made in private form, was acknowledged by the parties before a person exercising the functions of judge and notary, immediately after the occupation of Louisiana by the United States, was recorded, and a copy is taken from the archives of the parish of St. Martin.
The construction and effect of an act of voluntary sepa-vision’ of property between husband and wife, made in 1805, before the of°the°civil ovdes^ ^Ry^the^aX'of sPain-
[564]*564On these facts several questions of law are raised:
1st. Whether the act of separation of goods, and dissolution of the community, is valid and binding on the parties, in any respect, according to the laws in force in this country, at the time of its execution?
2d. If good as to the gananciales, whether it is not void as to the $25,000 acknowledged to have been brought into the community by the husband, on the ground of this part of the stipulations in said act being a disguised donation to the r ° , husband by the wife, not tolerated bylaw?
A .third question relates to the truth and genuineness of the deed of sale from Descuirs to Abat. .
For a solution of the first two of these questions we must [565]*565resort to the Spanish laws, which afford the only legitimate rules by whichthe acts of the parties are to be construed. According to these laws it is clear that husband and wife were considered so far separate persons; that they could validly enter into any onerous contracts between themselves. sale is the example given to illustrate this doctrine. They seem to have been prohibited only from making donations to each other, during the marriage, of property actually in pos- , . , . .. . , 1 session. i>y the same laws the wire was permitted to renounce her rights to the matrimonial acqets and gains, at any time before, during, or after the dissolution of the marriage. These rights and disabilities are fully established by si ij m • , , , , _ _ Gomez ad leges 1 aums, and in his treatise entitled Barm Re-solutiones, by Febrero, Matiengo, and other authorities.— See Gomez en leges Taure, 633 and 634. Farce Resolutione, p. 434. Maliengo, folio 271. Verzo, no. 2. Febrero, part 1, ch. 10, § 1, no. 2; and part 2, book 1, ch. 4, § 2, no. 57, 58, 59 and 60.
According to these laws the hus-were considered^ sons^tluxt they could validly enter into any onorous contract — a sale to*mustíate this doctrine'
wT^wereprohibti ¿0d £*£¡21 other du«ng marriage, of property actually in posses-might renounce quet^at any'time ’t *’¡[¡f,^ tion of the marri-
contract in which husband and wife mutually agree to separate, taicifa specific poí ü°n of the commu-renounce all right community of ac-par®akesndstrongiy of the nature of a contract of exchange, by which ^ves°upthaiiPciaim to wlwle> ™ obtaining a distinct . right and title to a part of the matrimonial community property.
[565]*565. . The contract by which Descuirs and his wife agreed, in 1805, to a separation of property, and dissolution of the matrimonial community which had previously existed between them, may be considered as partaking strongly of a contract of exchange, by which each one of the parties gave up his common right or claim to all the property, in consideration of his having obtained a separate and distinct title to a part, .... ... It was, strictly speaking, a partition of common property, and cannot be assimilated to a donation. It is well, known that contracts of exchange, and agreements to divide a common property, create many obligations between the parties to such contracts very similar to those which arise out of the contract of sale. We, therefore, conclude that the contract of 1805 did operate a good and valid separation of goods be-r . ° . , ,. , , ° tween the contracting parties, and dissolution of the community which previously subsisted between them, and a consequent mutual renunciation of any community of acquets and gains which may have been acquired, subsequent to that [566]*566Pcr‘°& by the parties to the contract. It cannot be consid-ercd as having produced a legal separation, a mensa ei thoro. 'j’hg husband would probably have been obliged to provide for the maintenance of his wife, or to have afforded her bed and board, had she required it at his hands. It is true, the testimony shews, that after the execution of this contract, a , .. r . , , , , ,, voluntary separation or persons took place between the parties; butwe have no evidence of any violence, or actual constraint exercised by the husband or his wife. The suspicion of an adulterous intercourse between him and his mulatto s^ave’ maY have had its effect on his wife to induce her the more whlingly to abandon his bed. But, perhaps, this contract would not have afforded a legal ground for a separa-^on, as the municipal laws of Spain and, probably, of most other countries, are much more indulgent to acts of inconti- ° nency done by husbands, than offences of this kind committed by wives. The reason given by legislators for this distinction, is, that in the one case there’s danger of a spurious offspring, which does not exist in the other. This is true, And it is perhaps equally evident, from the different degrees °f rigour applied by law to the same moral offence in the different sexes, that men, and not women, have, in all ages, ’ ’ . r . been the makers of laws. Be this as it may, we are of opm-i°n that the conduct of the husband, in the present instance, did not amount to a legal constraint or coercion of his wife, in such a degree as to authorize a court of justice to declare the contract null. Having been made by parties capable of contracting, and by mutual consent, it should be held as valid in toto, unless some of its provisions contain stipulations . . . . , . ,. ,. . , , reprobated by law. 1 rom these observations, applicable to the'entire agreement, we come to consider that part of it which is alleged to cover a donation from the wife to the husband.
anddivisionawas suictiy speaking a mon property^ and ted to^donatkm.2"
ex'1]!10 c°”tr x8o°f hetween^the^hus-ted as a go od^^^ valid separation of goods between the contracting parties the community fng lie tween Sm] andarenmiciation gains subsequently
separation of husband and w.fe, did not produce a legal ITc-u/wro^ ^The husband would provide for her
of the husband hav intercourse with his mulatto slave in the common have^inifaeei/'the wife,the more willingly to abandon Ms bed; but is not gaUonstraint fand ofeimmor°talityr,in him, as to render the contract of exchange, and disso-mun^of'proper-Swtfemakes a concealed dona-ledgingf ^subse" marriage, that het husbandhroughtin, twenty-five hundred dollars when Éa by heTat^the tj^by^the Spanish laws is.oniy re-ufe tímerofth! do-het m'
[566]*5661° relation to this question we may be very brief: for, ad-m’tting that a concealed donation was made of the $2500, acknowledged to have been brought into the community by [567]*567the husband, being unsupported by any other evidence except this acknowledgment, it was revocable by the laws then in force, only, during the life-time of the donor, and at her instance; in other words, it became valid by her death.— Gomez in leges Tauri, laws 50,51, 52 and 53, no. 65.
With regard to this contract not having been sanctioned by the oath of the wife, we are of opinion that this omission doos not, in any manner, impair its legal validity. If its stipulations are directly contrary to law, then such an oath could not give them validity in foro legis; and if they are in accordance with law, they require not the sanction of an oath to make them valid and binding on the parties. — See 11 0 r Mar. 529.
Being of opinion that the plaintiffs have not shewn a right to any part of the succession of J. P. Descuirs, and as the contest between them and Abat depends solely on the recognition of such right in them,, it is deemed unnecessary to examine the third question proposed, which relates to the sale from Descuirs to him.
It is therefore ordered, that the judgment of the district' court be avoided, reversed, and annulled. And it is further-ordered, adjudged, and decreed, that judgment be here entered for the defendants in both those cases as consolidated, with costs in both court#; reserving to the heirs of J. P. Des-cuirs their rights (if any. they have) to pursue Abat, to obtain, a recision of the sale made to him by their ancestor.,
Porter, J. look no part in the decision of this case, being out of the state, under leave of absence, when it was argued.