
    BABIN vs. BROSSET.
    Eastern Dist.
    
      February, 1838.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF THE SECOND PRESIDING.
    The wife may alienate her paraphernal property, with the consent of her husband; but if the husband has received, individually, the amount of the paraphernal property thus alienated, the wife has-a legal mortgage ■on all his property, for reimbursement.
    Where a sum of money was received by the husband and wife, jointly, during marriage, which constituted her paraphernalia, and there is no evidence that the money -thus received was converted to his individual ■use, the wife has no legal mortgage on her husband’s property.
    This is an action for a separation -of property between husband and wife.
    
      The plaintiff alleges, that in December, 1831, she was married to the defendant, and at the time, she was possessed of, and brought into the support of the marriage, as her separate and dotal property, the sum of two thousand and sixteen dollars in cash, which was paid to her and her husband, by her tutor. She further states, that her husband’s pecuniary affairs have become very much embarrassed, and she is in danger of losing her dotal rights; wherefore, she prays to be separated in property from her husband, and that she have judgment for two thousand and sixteen dollars, with a legal mortgage on all his property, for the- restitution of this sum.
    The plaintiff had judgment separating her in property and goods from her husband, and against him for two thousand one hundred and thirty-nine dollars, without mortgage; and she appealed.
    
      .Edwards, for the plaintiff.
    1. The judgment of the District Court is erroneous, and should be reversed, because it does not recognize and decree a legal mortgage to the wife, for the restitution of her dotal and paraphernal effects.
    
      2. It was shown that the paraphernal effects of the wife sued for, consisted in money, which was received duringmarriage, for the replacing of which, she has a legal mortgage on all the property of her husband. Louisiana Code, 2367, 3287. 3 Martin, Jf. S., 239. 7 Louisiana Reports, 292.
    
    
      Labauve, for defendant,
    contended, that the wife had no legal mortgage on the property of her husband, in this case. ’ She has not brought her case within the law, because it is not shown that the husband received and used her paraphernalia • for his individual benefit.
   Bullard, J.,

delivered the opinion of the court.

In this case, the only question presented for our solution is, whether the plaintiff has a legal mortgage on the property of her husband for an amount of money received by them jointly, during marriage ; which, it is not denied, constitutes her paraphernalia.

The "wife may alienate her pa-raphernal pro perty. with the consent of her husband $ but if the husband has received individually the amount of the pa-raphernal property thus alienated, the wife has a legal mortgage on all Ids property for reimbursement.

Where a sum of money was received by the husband and yife j°inthJ.{lu" ring marriage, which constitu-phernaiia, piand ¿Xce^that XT money thus reverted toTis^n-^^fhasXo ie-gal mortgage on property,

The Louisiana Code, article 2367, provides, that the wife may alienate her paraphernal property, with the consent of her husband; but should it be proved that the husband has received the amount of the paraphernal property thus alienated, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursing of the same.

■ The wife has the administration of her paraphernalia, and if she has confided it to her husband, she may resume it during marriage. There is no evidence that the sum received has been converted to the individual use of the husband; and we, therefore, think the wife has failed to bring her case within the article relied on.

The case of Robin vs. Castille, which has been cited, has no analogy to the present. In that case, we held, that money received by the husband during marriage, on account of his wife, was her separate property; and that her heirs, on the dissolution of the community, might recover it without waiting for a final settlement of the community. 7 Louisiana Reports, 292.

The wife, in our opinion, acquired no separate title by the sheriff’s sale, which is relied on. The community still existed, and such a sale cannot be .construed to be a replacing of her paraphernal effects, by contract with her husband, according to a just interpretation of article 2421 of the Louisiana Code.

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