
    VERRET AND OTHERS vs. A. BOURGEOIS.
    Eastern Dist.
    March, 1840.
    APPEAL PROM THE SAME COURT.
    By agreement of counsel the same judgment must be rendered as in the case of Verret and others vs. Theriot.
    The judgment of the court below is, therefore, affirmed with costs.
    A rehearing was granted at the instance and on the prayer of the plaintiffs.
    At this term it was argued by Messrs. Beatty, Roselius and C. Janin, for the appellants.
    
      Miles Taylor, for the defendant, appellee.
   Morphy, J.,

delivered the opinion of the court.

.This case was determined in last March term, and now comes before us upon a rehearing. The facts on which it Some time in 1818, Solomon turns are few and undisputed Verret died intestate, in the parish of Lafourche' Interior without descendants, but leaving his father, two brothers and a sister. The three latter are plaintiffs in this suit.

So, the provision in article 227, page 258 of tlje old Civil Code, that the surviving husband or wife, who marries again, is forbidden to dispose of the property inherited from any of the deceased children of the first marriage, it being reserved for the children of that marriage, is taken from the 15th laur of Toro.

Jacques Verret, as sole heir of his deceased son, under the old Civil Code, took possession of the property left by him, and on the 27th of January, 1820, sold to the defendant a tract of land which was part of the estate.

Long previous to the death of his son, Verret, had contracted a second marriage.

This suit is brought by the plaintiffs to recover the land thus sold to the defendant, on the ground that, their father,on account of his second marriage, inherited only the usufruct during life of the property left by Solomon Verret., their brother; but that the right to the said property rested in them, and therefore, he was without any power or title to sell the same.

The defendant pleaded the prescription of ten years, ibased . i r -, • , , i * on possession, good iaUn and a just tule.

The plaintiffs’ right to the property sold by their father is asserted under article 227, page 258, of the old Civil Code, By this law the surviving husband or wife who marries again, is forbidden to dispose of the property which he or she inherits from some of the children of the first marriage, these „ , . . . , ‘ . , .... effects being reserved for the children of said marriage, This provision is evidently taken from the 15th law of Toro, which provides that “in all cases in which women 1 . shall contract a second marriage, they shall be bound to reserve to the children of the first marriage the property they shall hold from the first husband, or shall have inherited from any of the children of the first marriage. The same obligation to reserve shall exist for men who marry a second or third time, so that whatever the law ordains as to women marrying a second time, applies to men who marry a second or third time.

The opinion we have formed on the law invoked by the plaintiffs, as applicable to the facts of this case, renders it unnecessary for us to notice several questions argued at bar.

The Civil Code of 1808 is a digest of the civil laws which were in force in Louisiana, and the re-enactment of them did not repeal the exceptions which limited their operation under the Spanish jurisprudence.

But the Spanish laws make an exception, that the surviving spouse, on marrying again, is not bound lo reserve property acquired otherwise than by inheritance, for the children of the first marriage. It becomes his absolute property, if it has been purchased by his deceased child, from the moment of his death.

The old Civil Code of 1808, being a digest of the civil laws which were in force in this country when it was adopted, it has always been held by this court that their re-enactment in that work did not repeal the exceptions which limited their operations under the Spanish jurisprudence. See Duncan’s Executors vs. Hampton, 6 Martin, N. S., 38.

This obligation to reserve, which was imposed as a penalty on the surviving spouse who contracted a second marriage, was restricted by several exceptions, which we find laid down in the writers; one of them was, that this obligation to reserve did not extend to property acquired by the children of the first marriage otherwise than by inheritance from the deceased father or mother, whose memory was supposed to have been offended against by such second marriage ; but that whatever the children of the first marriage acquired by inheritance from any other relation or stranger, by donation, sale, exchange, by their own industry, or in any other way whatsoever, except by inheritance from their deceased father or mother, was not embraced in the obligation to reserve, and became the absolute property of the surviving spouse. Febrero, part 1, cap. 3, No. 2; Idem., part 2, lib. 11, cap. 5, §1, No. 9, and §11, No. 16; Gomez ad Legis Tori, 14, 15 and 16, No. 2.

In this case the evidence shows that Solomon Verret purchased the property which is the subject of the present controversy, from one Peter Daspit, a great number of years after the death of his mother, and but a few months before his own. It is not shown what estate was left by Jacques Verret’s first wife; nor is it pretended that the land was acquired by money derived from her. We must then say, that on the death of Solomon Verret, his father acquired an absolute and unconditional ownership in the property he afterwards sold to the defendant.

It is, therefore, ordered, that the judgment of this court remain undisturbed.  