
    
      PROVOST vs. PROVOST & HENNEN.
    
    Appeal from the court of the fifth district.
    A sale of land, by a husband to his wife, to replace the value of real estate part of her paraphernal property, by aim sold, is valid.
   Derbigny, J.

delivered the opinion of the court. The appellant, Alfred Hennen, who is a party intervening in a suit between Henrietta Provost, the appellee and her husband, is the purchaser of a tract of land, seized upon the said Joseph Provost, and sold by the sheriff: which tract is claimed, by the appellee, by virtue of a previous public act of sale to her made by her husband, for replacing in part her paraphernalia, which had been by him disposed of and alienated.

West’n. Dist’ct.

Sept. 1816.

The appellant alleges that this deed was not made bona fide, but with a view to defraud creditors and third persons: the appellee avers that it is a bona fide contract, and denies the fraud. The case stands before us on that issue.

Our civil code (book 3, tit. 6, chap. 2, art. 45.) authorities the contract of sale, between husband and wife, in certain cases, one of which is, where the transfer is made by the husband, to the wife, for a legitimate cause: such as replacing her dotal or other effects alienated. The question here is whether this be such a contract.

The appellee has proved that she was possessed of paraphernalia, consisting in money, cattle and other effects, and two slaves, which with the exception of one slave, were disposed of by her husband, for his own use, previous to the sale on which she relies. It is unnecessary here to determine whether there can be any such thing, as replacing money and other moveable effects with real estate, and whether a sale like the present can ever take place in any other case, than those where real property or slaves, the title to which was in the wife, have been alienated, because there has been in this case that kind of alienation evidently contemplated by the law, to wit, the alienation of a slave whose title was in the wife. For the replacing of that property, the contract is assuredly legal; and as the value of that slave, at the time of his alienation, is proved to have been fully equal to the value which the property transferred to the appellee, by her husband, had at the time of such transfer, we must pronounce the transfer to be a valid contract.

Baldwin for the plaintiff, Hennen, in propria personâ.

It has been suggested that no delivery of the land in contest was made to the appellee; but this fact making no part of the issue, the appellee cannot suffer for having not offered to prove it.

It is adjudged and decreed, that the judgment of the district court be affirmed with costs.  