
    
      M’DONOUGH vs. TREGRE & AL.
    
    Appeal from the court of the first district.
    When the wife renounces the community, she has a mortgage on pro-band.
   Porter, J.

delivered the opinion of the court. The plaintiff issued a in virtue of a judgment he had obtained against the defendant, and on the 22d of December, 1827, sold, in virtue of this execution, a slave called Jean-Denis.

On the 9th of January, 1828, the intervener, who is wife of the defendant, had judgment against him of separation, and recovered at the same time the amount which he had received of her proper effects, from the date of her marriage up to that of separation. On that judgment she has collected, as is shewn by the sheriff’s return, $257.

She claims the proceeds of the slave, avering that her mortgage is higher than that of the plaintiff—he resists the demand, on the ground that the property seized was acquired during marriage, and that it is first responsible for community debts.

So that the only question of any importance in the case is, whether the wife has a mortgage on the property purchased during coverture, which takes precedence ot the ordinary ere* ditors of the husband.

We have no doubt that she has. Some of the jurists of France have lately agitated this question, and expressed their opinions against the claim of the wife. But one of them, in the last edition of his works, acknowledges that the court of cassation has settled the question in opposition to his views of the law, and that he is bound to conclude those views were erroneous. One of the principal grounds of these writers, is, that the code gives a mortgage on the property of the husband, and that the property acquired during marriage, belongs, not to him, but to the community. This argument proceeds on the idea, that during marriage, the wife, by the effect of the law, is a partner in all the acquisitions made by the ^us^an<^' But she's only so, in our judgment, when she accepts the community. From the moment she renounces, as she did in this case, everything done during coverture, in regard to the purchase or alienation of property, concerns the husband alone; and as such, her mortgage attaches as completely on the effects purchased by him, as those he possessed before marriage. The arguments on both sides of this question, are given at length in a note by Paillette 2121 st article of the Nap. Code. Persil, regime hypothecate, 2 edit. vol. 1 ,p. 268. Délvinconrt, cours ¿le droit civil, vol. 2. 654. Manuel de droit franjáis. 5 ed. p. 641.

We think there is sufficient evidence on record to shew that the husband did receive of the wife’s property an amount larger than the proceeds of the sale of the slaves now claimed by her; and the objection of the lien not being recorded, cannot avail the plaintiff, for there does not appear to have been any written instrument ever given by him which could have been registered.

It is therefore ordered, adjudged and decreed, that the judgment of the district court b# affirmed with costa

M’’Caleb for the plaintiff—Cuvillier •defendants. for the  