
    No. 11,173.
    Succession of Mrs. E. F. Lewis.
    1. The court maintains the rules laid down, in Miller vs. Handy, 33 An. 160, as regulating purchases on credit by a wife in community; but when a wife has SO' purchased and has actually paid, out of her own funds, two-thirds of the purchase price, besides all interest, taxes and expenses, and has held and administered the property in her own right for more than sixteen years, and for six of them after the death of her husband; when her husband went into bankruptcy and omitted this property from his schedule without complaint from any creditor; when the inventory of his succession omitted it without any such complaint; when the wife has died without any attack on her title, we consider that the laches and long acquiescence of the husband’s creditors till after her' death would relax the rigidity of proof ordinarily required in such cases, and that the evidence in this case would, under such circumstances, suffice to defeat an attack by them, which, however, has never been made or threatened,, and is only suggested by an adjudicatee as an objection to accepting the title.
    2. In this case the heirs of the husband are also sole heirs of the wife and are interested in maintaining the latter’s title.
    3. There would be no motive for attack by creditors in any event, because the unpaid price and restitution of wife’s paraphernal funds would about absorb the value of the property.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    C. L. Walker for the Executor, and Chrétien & Southon for the-Public Administrator, Appellees.
    As to title to property purchased by a wife and deeded to her, the fact of ownership, of record and of public information being unquestioned and undisputed by the husband for more than nine years preceding his decease, or by any creditor or heir for seventeen (17) years, is sufficient, even in view of Arts. 2405. and 2402, Civil Code, to overcome any presumption as to any claim of the community or of the husband’s estate against the same.
    
      Article 2405, Civil Code, which provides that all effects which husband and wife reciprocally possess are presumed common effects or gains, unless it be satisfactorily proved which of such effects are otherwise acquired, in itself affords the right to the surviving marital partner to maintain his or her title by such evidence as is usually admissible in ordinary actions.
    When it appears from the evidence that property bought during marriage, by the wife and in her name, with the authority of her husband, who was a party to the deed of sale, was paid for out of money that belonged to the wife, neither the executor of the husband nor any devisee of the husband, who is not his creditor or forced heir, can contest the widow’s title to the property, and set up that it is community. X>rumm vs. Kleinman, 31 An. 124.
    The actual possession as owner of immovable property, purchased and recorded in the wife’s individual name for more than ten (10) years (in fact for seventeen (17) years), constitutes under Art. 3478, Civil Code, such “ possession in good faith and by a just title ” as to amount to sufficient proof of ownership as might be required by Art. 2405, C. C.
    The recorded title of the wife and the possession by the wife during the existing of the matrimony, however incomplete or inchoate, is a faet as any other fact, ultimately depending on proof, and is not an absolute nullity; such incompleteness does not vest the title in the husband, nor in the community through him as its head; the decedent’s estate has only a right of action for one-half of the property or its contribution to the extent of one-half of its value.
    
      Chas. F. Claiborne for Appellant:
    Declarations in an act of sale to the wife that the property was purchased for her account, and with her own separate and paraphernal funds, are binding only upon the husband and his collateral heirs, but do not affect his forced heirs nor his creditors. Bachino vs. Coste, 35 An. 570; 1-L. 206; 9 E. 211; 10 An. 686, 784, 739; 11 An. 326; 28 An. 314; 31 An.126; 33 An. 612; 34 An. 374.
    The law presumes the existence of the community of acquets and gains; astipulation to the contrary must be proved. C. C. 2399 (2369), 2405 (2374).
    All property purchased during marriage, “ even though the purchase be only in the name of one of the two and not of both,” is presumed to be common, “because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” C. C. 2402 (2371).
    The title being taken in the name of the'wife does not even raise a presumption in her favor. 9 E. 214; 7 An. 104; 29 An. 76; 30 An. 170.
    Even though the title specifically declares that the price was paid with her separate funds under her administration accruing to her from a designated source. 1 L. 206; 5 An. 741; 11 An. 326; 18 An. 126; 20 An. 531; 30 An. 169; 33 An. 612; 35 An. 570.
    ■The burden of proof is upon the wife, or heirs, or assigns, to establish affirmatively and clearly that she paid with her own separate funds, under her own separate administration. 17 L. 300; 12 R. 582; 2 An. 763; 5 An. 611; 8 An, 286; 12 An. 598; 15 An.119; 16 An. 214; 20 An. 532 ; 21 An. 344; 24 An. 521; 30 An.170; 35 An. 570.
    Even when the act contains specific mention thereof, giving derivation of funds. 1 L. 206; 11 An. 326; 18 An. 126; 20 An. 531; 33 An. 612; 30 An. 169; 5 An. 741; 85 An. 570.
    The husband alone, and not the wife, is liable upon notes furnished by the wife for part of the price of property purchased in her name during the community, when her means did not justify a reasonable hope of her ability to pay them— upon the ground that the purchase is one made really for account of the community, for whose debts the husband alone is liable, and that the wife can not bind herself for the debts of her husband or of the community. O. C. 2398; 12 R. 582; 2 An. 808; 6 An. 57; 10 An. 30; 12 An. 350; 13 An. 593; 19 An. 250; 29 An. 76; 32 An. 907; 34 An. 977, 1063; 33 An. 160 (167).
    A purchaser can not be made to take a title which is not unquestionably good and which is suggestive of litigation. Janies vs. Meyer, 41 An. 1100; Succession of Justus, No. 11,061 X. R.; Succession of Dumestre, 40 An. 571 (574).
   The opinion of the court was delivered by

Fenner, J.

This is a proceeding to compel compliance'by the adjudicatee with an adjudication made of certain property sold at pub-lie'auction under an order of court in this succession.

The defence is:

“That neither the deceased nor her succession was owner of the whole of said property; that said property was purchased from the heirs of J. Waterman and wife by act of A. Hero, notary, dated April 8, 1876, in the name of Emma Frayser, wife of Robert N. Lewis; that said property was therefore owned by the community existing between the said Emma Frayser and her said husband, Robert N. Lewis, and that it could be sold only by him or in his succession, and was liable for the payment of his debts; that the said R. N. Lewis died on March 31, 1886, leaving three minor children, and debts exceeding in value the amount of the assets, as appears by record No. 17,608 of the Civil District Court.”

After a careful study of the evidence in the record we find no reason to disturb the finding of facts as made by the careful judge a quo, which he states as follows:

“Mrs. Emma F. Lewis, then the wife of Robert N. Lewis, acquired the property sold, 185 St. Charles street, on April 8, 1876. There was no separation of property; the community of acquets and gains existed between her and her husband, Robert N. Lewis; the act recites that she purchased with her own separate and paraphernal funds, derived, as she declared, from her father, Dr. John A. Frayser, of Memphis, Tenn.; the purchase price was $9800, of which $2450 was paid cash, the balance on terms of credit, secured by vendor’s lien, and evidenced by thirty notes. Mrs. Lewis, at the time of the purchase, received from her father $2500, and subsequently, for the purpose of paying the mortgage notes, $1400; her father and husband were both at that time wealthy. It was clearly the intention of Mrs. Lewis to acquire a .home, and thus provide against her husband’s future financial embarrassment.
“ Mrs. Lewis and her husband lived in the house from 1876 to about 1883.
“ In 1882, Robert N. Lewis failed. On May 22, 1883, he took the-benefit of the insolvent laws of this State, and was adjudicated, in suit No. 8653 of this court, an insolvent. The property sold herein was never included or mentioned in the insolvent proceedings. On the 29th of March, 1886, Lewis died. His succession was opened in this court and numbered 17,608. The property in controversy was not inventoried or referred to in the succession proceedings. His succession was insolvent.
“On the 22d of February, 1892, Mrs. Lewis died. From 1884 to the date of her death the property, with the furniture therein, was-rented by Mrs. Lewis, individually, or by her agents, for her account. It was rented at $125 per month from 1884 to 1891, and after 1891 at-$80 per month; Mrs. Lewis collected the rents herself, or they were remitted to her by her agent; the property was always assessed and the taxes paid in her name. Up to the time of her death, mortgage-notes amounting to $3879.17, and the interest thereon, were paid; twelve notes amounting to $3470.83 are due and unpaid. There is-no positive testimony as to who paid the notes, but the court is satisfied that they were not paid by the bankrupt husband, and concludes from the circumstances of this case and the presumption arising from the facts disclosed, that they were paid, as well as the purchase price, by the wife out of the money received from her-father and the revenues of the property.”

On these facts the judge maintained the wife’s title, and the adjudicatee has appealed.

We are not disposed to depart from orto extend the rules carefully-formulated by us in the case of Miller vs. Handy, as follows:

“ It is difficult to lay down precise rules as to the limits within which, the wife’s liberty to purchase on credit should be restricted, but we think the following general propositions are reasonable, viz.:
“1. It should be regarded as essential that the wife should have-some paraphernal funds to invest, because such investment is the-foundation of her right to purchase.
“2. The cash so invested should bear such fair proportion to the total price of the purchase as to render it reasonably certain that the property purchased would furnish sufficient security for the credit portion of the price.
“ 8. The wife’s paraphernal property and revenues should be ample to enable her to make the acquisition, with the reasonable expectation of being able to meet the deferred payments.” Miller vs. Handy, 33 An. 160.

The two first rules are fully complied with in this case; but it must be confessed that the evidence would hardly be sufficient, under ordinary circumstances, to establish compliance with the third rule. But the circumstances in this case are unusual and extraordinary. We are confronted with the facts that Mrs. Lewis has actually paid about two-thirds of the price of this property, besides all the accruing interest, taxes and expenses; that she purchased it in her own name and as an investment of paraphernal funds under her own administration; that she has held and administered the property in her own right, under a title never questioned, for more than sixteen years; that when her husband went into insolvency, this property was not placed on his schedule and no creditor ever complained of its omission; that when her husband died, this property was not included in the inventory of his estate and no creditor, objected; that six years after his death she has held and administered the property as her own, without question from any source; and that it is only after her death, when her lips are sealed, which might fully have justified her right, that this issue is, for the first time, raised — not by any creditor or heir, but by an adjudicatee who anticipates an improbable and, we think, an impossible disturbance of the title.

So far as the heirs of R. N. Lewis are concerned, they are the three children of his marriage with Mrs. E'. T. Lewis, and are her sole heirs and sole testamentary legatees, and are obviously interested in maintaining her title.

So far as his creditors are concerned, if, after this lapse of time, any such remain, we think that, considering their laches and long acquiescence, up to the death of Mrs. Lewis, the rigidity of proof ordinarily required in support of a wife’s title would be so far relaxed that the evidence contained in this record would suffice to destroy any attack which they could make upon it. We may add that, even if the property were held to be in the succession of R. N. Lewis, the unpaid mortgage and the satisfaction of Mrs. Lewis’ paraphernal claims would about absorb its value.

On the whole, we see no reason to disturb the judgment.

Judgment affirmed.  