
    Eugene Rochereau et al. v. Jean Jonau & Wife et al.
    Where the husband and wife by their marriage contract, executed in France, stipulated: 1st, That they adopted, as the law of their marriage, the dotal system, {régime dotal,) to the exclusion of that of the community, {régime en eormwwnauté,) and 2d, that the acquisitory (acquets) made during the marriage should be shared equally by the spouses, and should revert to the children of the marriage, each of the contracting parties, in default of such children, to have the free disposition of his or her moiety. It was held that this contract created under the French law a modified or limited community {commimauté camentionelle) between the spouses — and that all acquisitions made after the marriage, except such as were made by inheritance or donation to one of the spouses, belonged to this community.
    
      Held, consequently, that the husband and wife having removed to Louisiana after the marriage, immovable properly acquired here in the name of the latter was not the separate property of the wife but formed a portion of the community, aud the husband having become insolvent and having ' made a surrender of his property to his creditors, the title of the immovables so acquired, vested, by force of the surrender, in them.
    
      field, also, under this contract, the wife could not acquire a separate estate in her own name until the community was dissolved by the decree of a competent tribunal, unless the acquisition was made by a re-investment of her paraphernal capital.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    
      Magne, Latour and H. D. Ogden, for plaintiffs and appellants. Dufour, Gastera and Charvet, for defendants.
   Merrick, C. J.

The principal question in this case arises out pf a marriage contract entered into in France, by Jean Jonau and wife on the eave of their marriage.

It contains among others the two clauses following, viz:

“ Article ler. Les futures ont declaré vouloir étre mariés sous le regime dotal 5 l’exclusion de eelui de la communauté.”

“ Art. 5. ********

lis s’associent en outre aux acquets qu’ils feront, lesquels seront reversibles aux enfants qui seront provenus du present mariage, et a défaut d’enfants cha-eun des futurs disposera de sa moltié ainsi qu’il avisera.”

The wife having purchased in her own name a small tract of land and dwelling house, previous to the surrender of her husband, we are called upon to decide whether it shall be held by the wife or administered by the syndic for the benefit of the creditors of the community and insolvent.

If we give the same effect to the marriage contract which would be given to it in France, where it was executed, it will not sustain the pretensions of Mrs. Jean Jonau and it will not, therefore, be necessary to decide whether a marriage contract, executed in a foreign country, circumscribing or setting aside altogether the community of acquets and gains would be carried into effect here, where it affected the rights of third parties.

The two stipulations in the marriage contract, in France, had this effect only. It prevented the movables of the spouses, possessed at the time of their marriage or subsequently acquired by inheritance or donation, from falling into the community, as they otherwise would by the French law, and it gave the husband the exclusive control over the dotal effects during the marriage, the wife the control of her extra dotal estate with the obligation to carry the the annual revenues thereof into the limited community, and made that community to consist of all acquisitions after the marriage, except by inheritance or donation to one of the spouses, and left the respective rights of the husband and wife, in regard to this limited community, in other particulars, as in the case of the community established by law. C. N.. 1581, 1498-and 1499, Troplong du Mariage, vol. 3., Nos. 1852,18-54 and 1891.

We think it must follow, that the property purchased by the wife in her own name, before the surrender of her husband, which has not been shown to be the re-investment of her paraphernal effects, belonged to this limited community, of which the husband was the head and master; and that by the surrender it passed to his creditors. Indeed, it is difficult to perceive in what manner the wife can acquire a separate estate in her own name, otherwise than by the re-investment of her paraphernal capital, until this community is dissolved by a decree of a competent tribunal.

On the other point, we see no error in the judgment of the District Court in refusing to remove Paul Juge, jr., from his office of syndic. He may well have supposed that Mrs. Jonau could acquire separate property, and the prompt manner in which ihe sale was rescinded, satisfied the Judge of the lower court that he was acting in good faith, and we cannot say that the Judge erred in his conclusion in this particular.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, that the plaintiffs’ demand against Paul Juge,jr., & Co. be dismissed, and that said defendants recover their costs, and that the tract Of land in the parish of Plaquemines, in said State, on the left bank of the river Mississippi, about forty miles below the city of New Orleans, having a front of about two and one-fourth arpents on the river by a depth of forty arpents, and being the tract of land acquired by act under private signature from j)r jp{erre Ziafon, in the name of said Mrs. Jean Jonau, on the 7th day of December, 1853, be hereby declared to belong to the effects surrendered by Jean Jonau to his creditors, and the said Paul Juge, jr., syndic, is hereby ordered to administer the same for the benefit of the creditors of said Jean Jonau, and it is further ordered that there be judgment against the residue of the plaintiffs’ demand against said Paul Juge, jr., and that the defendants and appellees, Jean Jonau, Jeanne Jonau and Paul Juge,jr., individually, pay the costs of both courts, reserving to the said Mrs. Jeanne Jonau any right she may have to claim of said syndic the re-imbursement of any paraphernal or dotal funds or effects paid at any time on account of said tract of land, as well as the like effects alienated or appropriated by her husband to his own or the use of the community before his surrender.  