
    Stroud et al. v. Humble, Sheriff, et al.
    Slaintiff, .a- married woman, purchased certain property in her own name, at a prohate salo of the succession of her father, made for the payment of debts and to effect a partition, the price of which was less than her ¿hare in the succession. The sale of the property of the succession was directed to he made for one-tenth cash, and the balance on credit. The act of sale declared that the pvicd had been "in hand paid.” Tlie Succession was solvent. In a'partition subsequently made between the heirs, a note given by the plaintiff for the credit portion of-the price was given up to her/.as a payment pro tanio on her shave in the succession. Held? thattheinterest of plaintiffin the succession of-her father being paraphernal, the property so purchased by her must also he considered paraphernal, being an exception tó tlie general rule that property purchased during marriage, whether in the name of' the hushhnd or wife, belongs to tlie community; and that the law, in this respect, was tha same before the promulgation of the Civil Code of 18S5 that it is at present.
    One whose property has been seized’under execution against another, may recover damages against the sheriff and plaintiff in execution, in solido.
    
    Appeal from the District’Court of Caldwell,' Farrar, J.
    
    
      Purvis and Me- ■ ' Quire, for the plaintiffs. Garrett, for the, appellants.
   The judgment of. the court was pronoun'ced’by'

Slidell; J.

This suit was beford“U's at our last term, and was then remanded for further proceedings. See 1 An. Rep. 310. At the trial on the merits, the title of the plaintiffs as the heirs of their mother, Sally Grady, the deceased wife of Stroud,' to the female slave and her issue, lyhich had been seized up'on'exectttions against William Stroud, their father, was recognised?, ahd judgment’whs also given' for $>150' as damages. From this judgment the sheriff, and his co-defendants, have appealed. It is submitted by the counsel for the defendants that the only issues before the court are 1st. The title of the plaintiffs, as the heirs of Sally Grady, deceased, to the property. 2d-Whether, if they establish this,, they Have shown themselves entitled to the damages awarded by the court.

Upon the first point it is necessary to premise by a brief statement of the factS-It is conceded by the defendants’ counsel that the negro woman Betcy, who has been seized" under execution, belonged to the succession of John Grady, deeeasedj and that the children seized are her issue; that the plaintiffs are the children of ’Sally Grady, and that Sally. Grady in the daughter of John Grady. But' the-contest' as presented by the argument for the defendants is, as to-th© legal consequences of the following facts: After John Grady's death, his testamentary executor and one-of his children presented a petition to the court of Probates in which tlie succession-had been opened, stating that there were considerable debts which the executor had not funds to pay, and praying that the estate of tho deceased be sold for the purpose of paying debts, and making a partition among the co-heirs ; and'that'the terms of sale should be ten.per-cent-cash, and the residue on a credit- It is evident that tlie estate was abundantly solvent, although in want of cash funds to pay debts: for we find that the debts, executor’s commissions, and the costs, only absorbed about one-fourth of the proceeds of sale. The other heirs, and among them Sarah Stroud, the mother of the plaintiffs, accepted service of the petition, waived notice, and concurred in the prayer of the petitioners. A sale was accordingly Orderod by the judge. The decree was: “ Let the prayer of the petitioner be--g»anted,- arid let a-sale be made as prayed for.” The.proces-verbal of the sale, which was conducted by the parish judge himself, sets forth that it was made for the purpose of paying debts, and making a partition among the heirs. The terms announced were for slaves, one-tenth cash, aad:the balance on the 1st January ensuing. It.heclares that the negro Betcy was adjudged to. Sarah Stroud, the last and highest bidder, for the sum of f G50, “ who signs hereto by • consent of her husband, who also signs agreeing to consent to the terms of sale; and John Sims signs as her surety.” On the same day, before the same parish judge, the executor executed .a deed of sale of the slave to Sarah Stroud, by consent of the husband. Both husband and wife- signed this deed. A few months after this, and in the same year, a partition was made among the heir’s, which is of recoi’d with the mortuaria. In this partition Sarah Stroud- and her husband are-stated to be represented by an attorney in fact, and the instrument stales the share of each heir at $1,033 59, and that William Stroud, -who has married Sarah Grady, has received $1,033 59, in the note and mortgage of himself and wife for $585, the note and mortgage of Wood and Broion for $414, and from a coheir $54 in cash.

It is said, and, as we think, coi'rectly, that the lights oí-Sarah Stroud under these facts, must be determined by our system of laws and jurisprudence, as existing before the Code of 1825 took effect. This sale was made in January, 1825. It is not necessaxy, in the view which we have taken of this case, to say whether they are to be exclusively determined by that standard. The settlement by the heirs, in December, 1825, being subsequent to the promulgation of the new Code, the two systems would pei-haps be considered as both .qperating upon the subject matter to a certain extent. But we do not think that, under either system, the rights of Sarah Stroud .would be different.

IVe are of opinion that, as the interest of Sarah Stroud as heir in the succession of her father was clearly paraphernal, the slave purchased under the circumstances at the probate sale was paraphernal also, and did not fall into the community existing between her and William Stroud. The sale was made to hex', in her name. The thing sold was sold not only to pay debts, but to effect a pai’tition of a succession of which she was an heir; the purchase was for little more than half of her share as heir. The counsel for the defendants has laid much stress upon the fact, that there was, by the terms of sale, a cash payment ; and has urged that, there is no px-oof that Sarah Stroud paid the money; and that the law, in the-absence of such proof, 'will presume it was;]xaid by the husband, and consequently, in legal contemplation, by the community. But he has ovcilooked the fact that the deed from the exeeutox1, executed on-the same day as the px-obate sale,, asserts that the price .was in hand paid to him. by Sarah Stroud. The whole current of axxthoi'ity, both under the. existing Code and the system of laws wliich..preceded it, sanctioned the opinion that the title, vested in Sarah Stroud by these proceedings, was -.pax-aphernal. In Savenat v. Le Breton, 1 La. 520, the case was weaker than this, for-the conveyance, on its face, was to the husband,-who, however, acknowledged.in the act, that he received it as a part of the plaintiff’s paraphernal estate. Proof was .admitted, apparently in .part ox-al, that the wife’s sharein the succession of her parents had been deposited in money in the hands of an aunt, and that-the aunt conveyed the pi’operty to the husband in dischax-ge of this debt. The case was stated as being decided under the Spanish laws ; but Mathews, Justice, in delivering the opinion, intimates that the doctrine of matrimonial rights, as.es'lablished by our Codes, is more favorable to the wife. In Newsom v. Adams, 3 La. 231, it was considered that on this subject there was no conflict between our former and present systems. The cases under our present Code are numerous and conclusive, that such a purchase stamps the property as paraphernal. The leading cases are Dominguez v. Lee, 17 La. 301. Terrell v. Cutrer, 1 Rob. 368. See also Maussard v. Her Husband, 11 Rob. 446. Rousse v. Wheeler and wife, 4 Rob. 118. It is-true that the Code of 1808 harmonised with the Spanish law, and with the Code of 1825, in the general principle that property acquired by-purchase-during marriage, whether in the name of the husband or of the wife, belongs to the community. See 11 Rob. 529. J3ut we are not aware of, nor has the counsel'cited, any article of-the .Code of 1808, nor any authority, which establishes that such an acquisition, in the name of the wife, would not fall under a fair and reasonable exception to the general rule.

We do not consider ¡the subsequent settlement made by theheirs as affecting •Sarah,Stroud’s title. The title of the slave was in her ; its price was less than ¡her share ; the act of partition, .and the restoration of her note to her was a •settlement between the heirs, and did not overthrow the paraphernal acquisi-tion. Neither the husband-nor wife so .considered it, at the time; and what has’been done twenty years.ago, in good faith, and in the legal and just exer•cise of the wife’s separate rights as an heir of her father, cannot now be disturbed by the creditors of the husband, and to the detriment of her children.

Upon the question of the allowance of damages, we have been asked by the .appellees to increase them, and by the appellants to -reduce them. An examination of the ¡testimony ¡has not satisfied us that we .-ought to disturb the finding ¡of the district judge. Judgment affirmed.  