
    No. 11,674.
    Solomon Reinach vs. Maurice M. Levy.
    The husband deserted his wife after two weeks’ marriage and permanently disappeared.
    The wife bought real estate with her paraphernal funds during the marriage.
    She sold it after the dissolution of the 'marriage. It was her property and never belonged to the community. The title involved here is valid and legal.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    
    
      Ohrétien & Suthon for Plaintiff, Appellant.
    The burden of proof is upon the wife to establish affirmatively and clearly that she bought with her own separate funds, under her own own separate administration. 17 La. 300; 12 R. 582; 2 An. 763; 5 An. 811; 8 An. 286; 17 An. 598; 15 An.- 119; 16 An. 214; 20 An. 532; 21 An. 344; & An. 521; 30 An. 170; 35 An. 570.
    Even when the act contains specific mention thereof, giving derivation of funds. 1 La. 206; 11 An. 326; 18 An. 126; 20 An. 531; 32 An. 612; 30 An. 169; 5 An. 741; 35 An. 570.
    The purchaser cannot be made to take a title which is not unquestionably good and which is subject to litigation. 41 An. 1100; 40 An. 571 (574).
    
      Benjamin Ory and Lazarus, Moore & Luce and Branch K. Miller for Appellees:
    When a husband has voluntarily lived separate and apart, and the wife during that time has purchased real estate, the title to which being on record in the name of the wife, as a donation made to her individually, was subsequently acquired by an innocent third person in good faith, under a chain of title from the Wife, it was held that the husband could not, after the wife’s death, recover the property, as having belonged to the community and having been sold by the wife without authority.
    The husband, by parol evidence, could not thus despoil the purchaser of immovable property, acquired under a chain of recorded titles apparently perfect, without notice, actual or constructive, of the husband’s latent claim, which has no basis in equity. Wooters vs. Feeney, 12 An. 449.
    Though it be not so stated in the act, the wife may show that property purchased in her name was purchased with her paraphernal funds, under her own administration. Such property is paraphernal, not community. Succession of Pincard vs. Holten, 30 An. 167.
    Where one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upon him who put it in the power of the third party to inflict the injury. McMahon vs. Dubuclet, 27 An. 45; Gardner vs. Maxwell, 27 An. 562.
    Submitted on briefs, April 26, 1895.
    Opinion handed down, May 6, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff was subrogated to the rights of the adjudicatee of property offered at auction. He made the usual deposit of ten per cent, with the auctioneer.

He sued for the cancellation of the adjudication and the return of the amount deposited, having ascertained, he avers, upon an examination of the title that it is defective, as it was bought from a divorced wife; that it was bought by her prior to the decree of divorce, and became part of the community existing before she obtained her divorce.

Defendant’s author married one Oohn about twenty-five years ago. Two weeks after the marriage he deserted his wife, ran away, and she has not heard from him since. She was a servant at Mobile, Ala., at the date of her marriage. Her employer testifies that to his knowledge she had a few thousand dollars — an amount larger than the amount she paid for the property involved in this case.

She had obtained her divorce some time prior to the sale by her to the defendant.

The good faith of the defendant is not questioned. The record does not disclose that he knew that the property was acquired by his vendor during the existence of a former marriage.

The proof is that it was not community property. It was bought by Caroline Weil in 1883, and the act of sale to her does not show that she had ever been married at that time. She appeared in the act as a femme sole.

Having contracted a second marriage, in her act of sale to the defendant she was authorized by her second husband. It is evident that in her business transactions, at least, she was quite reticent regarding a first marriage.

Having bought the property with her separate funds, it is manifest that her first husband, if living, has no right to recover any portion of the property.

Much less could he recover the property from the defendant, a third person, who purchased from a wife (duly authorized by her second husband) who was the owner by purchases, in her name, prior to her second marriage.

Even without reference to the great lapse of time since the date of her first husband’s desertion and disappearance, the title is not defective.

But long acquiescence is in itself a factor which must add great weight to existing conditions.

The conclusion of the court had much less support in Wooters vs. Feeney, 12 An. 449, 450, and yet the sale was declared legal.

The court regarding the husband, pertinently says:

“ He lived apart from his wife, unknown to the world as her husband; permitted her to manage her affairs as a femme sole, contributed nothing to the common fund and during her lifetime did not pretend to have any interest in her affairs.

“ He can not, by parol evidence, succeed in despoiling the defendant, who is a purchaser for a valuable consideration of immovable property under a chain of recorded title apparently perfect, without notice, actual or constructive, of the plaintiff’s latent claim which has no basis in equity, and is the result of his own negligence or misconduct.”

Such being the conclusion, under the state of facts in that case, we are convinced the judgment should be here affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.  