
    
      DE ARMAS & WIFE vs. HAMPTON.
    
    Appeal from the court of the second district.
    If by a contract of marri* age, land purchased with money reserved as part of the dower, may be sold by the husband with the wife's consent, land in common between the wife and her children by a former marriage, and adjudged to her. at its valuation, cannot be sold under the contract.
   Maettn, J.

delivered the opinion of the court. The defendant being sued for the payment of a tract of land purchased from the plaintiffs, and which is admitted to have been part of the property of the wife’s first husband, refuses it, because the vendors were not duly empowered by their contract of marriage, to sell the premises. There was judgment for them and he appealed.

The record shews, that by the 6th article of that instrument, it is provided that, ‘‘ when the wife shall have consented that the sums, which she and the husband may receive, as part or the whole of her dower, be laid out in real property or slaves, he shall not be capable of selling or mortgaging the same without her consent, expressed in the act,” By the same instrument, she constituted all her present and future property as her dower

After the marriage she, duly authorised by her husband, obtained a valuation of the real estate and slaves, which were of her first husband, held in common between her and their children, and with the consent of the family meeting, and her then husband’s, caused such property to be adjudged to her. at the valuation.

Now at the date of the marriage, she held an undivided portion of the real estate, the whole of which was adjudged to her, and that undivided portion made part of the dower. The contract does not allow the sale of any real estate, part of the dower at its date, but only of such real estate as may be purchased with any money, of the dower, as may come to her hands or those of her husband.

The portion of the children, which was adjudged to her, was not an acquisition with any money proceeding from or received in part of her dower. For any thing that appears on the record, the price became, according to law, payable at the majority of the children with interest.

JFirkman for the plaintiff, Duncan for the defendants.

The district court erred, in giving judgment for the plaintiffs.

It is therefore* ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and that the plaintiffs pay costs in both courts.  