
    
      FORD vs. FORD & AL.
    
    An attempt to screen property acquired during the marriage from the payment of community debts,by a separate right alleged by one of the parties, requires strict proof of the right alleged.
    Appeal from the court of the third judicial district, the judge of the eighth presiding.
    The defendant, Selah Ford, obtained an order of seizure and sale, on a judgment against Freeman Ford, (the husband of the plaintiff,) in the State of Mississippi, by virtue of which certain slaves were seized as the property of Freeman Ford, by the sheriff of East Baton Rouge. Rhoda Ford obtained an injunction, alleging in her petition that the order of seizure and sale improperly issued, the record from Mississippi not being properly certified,and con-tainin gmoreover, many erasures and interlinea-tions. She also claimed the slaves as her separate property. The defendants excepted to that part of the petition which alleged the insufficiency of the record, on the ground that if any irregularities existed therein, and the order of seizure and sale improperly issued. Freeman Ford, who was present, was the only competent person to contest the proceedings. These exceptions were sustained. It appeared from the „ evidence, that the slaves m controversy were purchased by one Knighton from Freeman jronj on 23d March, 1829, and that Knight-on by an authentic act of 20th April, 1829,being the same day on which the order of seizure and sale issued, conveyed them to the plaintiff, Khoda Ford, the husband authorizing the purchase, and the act of sale specifying that the price was paid from her paraphernal estate.
    The court below dissolved the injunction, and the plaintiff appealed,
    
      Duncan and Thomas Gibbes Morgan, for appellant,
    urged the following points:
    1. The court below erred in sustaining the exceptions of the defendant.
    2. The court below erred in receiving the copy of the judgment from the State of Mississippi, and in overruling the objection to its introduction in evidence. C. P. p. 252, arts. 746 and 747.
    3. There was error in dissolving the injunction. If the defendant, Selah Ford, had a judgment on which executory process could issue, she should have insituted a suit to set aside the sale under which plaintiff claims the slaves seized, previous to issuing the order of seizure. 9th Martin, 648; 7th Martin, n. s. 137; idem 580.
   Mathews, J.

delivered the opinion of the court. In this case, Selah Ford, one of the the defendants, obtained an order of seizure and sale, on a judgment obtained against Freeman Ford, in the State of Mississippi, by virtue of which certain slaves were seized as the property of the latter, by the sheriff of East Baton Rouge. The plaintiff in the present suit, claims the property seized as belonging her, and obtained an injunction by which its sale was arrested. The injunction was afterwards dissolved and judgment of non-suit given against her, from which she appealed.

It appears by the record, that the order of seizure was obtained on the 20th April, 1829, and was executed by'seizing the slaves in question on the following day. The letter introduced in evidence on the part of the plaintiff, bears date on the same day on which the order of seizure was granted. It is an authentic act, and purports to be a sale and conveyance of the slaves by one James A. Knighton, who derived title by a sale from Freeman Ford, the husband of the plaintiff, dated on the 23d of March, 1829.

These acts afford very strong internal evidence of fraud, although in the instrument of sale from Knighton to the plaintiff, a covering is attempted, by an acknowledgement of the parties to that act, that the purchase was made with the paraphernal property or funds of Ford’s wife, he authorizing her to buy. In consequence of the acquisition having been made during the marriage, notwithstanding the purchase was made by the wife in her individual name, the judge before whotn the cause was tried in the court below, seems to have been of opinion that the property acquired constituted a part of the community of acquets and gains, and as such, was subject to seizure to satisfy the debts of her husband. The correctness of this opinion depends on a just interpretation of several articles of the L Code. According to the art. 2361, the wife has the right to administer personally her pa-raphernal property, without the assistance of her husband. By the art. 2315, parapher-nal is considered as the separate property of the wife. The act immediately preceding, declares that to be common property which is acquired by the husband and wife during marriage; except such as is acquired by either, by inheritance, or by donation, made to him or her, particularly according to the art. 2371,?the partnership or community between husband and wife, consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase,or in any other similar way; even although the pur-' chase be only in the name of one of the two, and not of both: 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.’

From the nature of the partnership, or community, of acquets and gains, as established by law between husband and wife, it is not necessary that any common stock should exist between the partners at the commencement of the partnership for all the property which they have at that period, may be separately owned and administered by each individual of the marriage, when no marriage contract has been made.

An attempt to acquireduring from the rIpayt nity debts by a alleged by o^fof qufresarties’strict aneged!th°risht

The property acquired during the marriage by purchase, whether it be bought in the name of either husband or wife, becomes common to both. The first question that can arise in relation to such acquisitions, is whether a distinction must be made, when the .property is shown to have been bought with the separate funds of one of the parties?

2d. Whether strict proof should not be required to support an individual and separate claim of this nature?

Whatever would be a proper solution of the first of these questions, need not be determined in the present case; as we are clearly of opinion, that an attempt to screen community Pr°Perty from the payment of community debts, by a separate right alleged by one of the partners, requires strict proof of the right alleged. The principles laid down in the last article of the Code cited, creates a legal presumption that property acquired during marriage by purchase, .whether the acquisition be made in the joint names of husbánd and wife, or in the name of either separately, must be considered as common property, which can be defeated only by certain and positive evidence that it was acquired by the separate funds of one of the parties: even admitting that such evidence could be allowed in pursuance of the provisions of the Code, no evidence of this kind has been offered in the cause under consideration.

We are opinion with the judge a quo, that the slaves seized are community property of Freeman Ford and his wife Rhoda,the plaintiff; and as such was subject to seizure on the judgment from the State of Mississippi, as it appears to have been obtained against the husband duirng his marriage with the appellant.

Objections were made in the court below to the judgment from the State of Mississippi on which the order of seizure and sale was obtained. They relate to erasures and inter-lineations, and the want of a certificate as required by the laws of the United States. The record of the proceedings in the case, on which that judgment was rendered, does not come up to this court in any shape whatever: and consequently we are unable to decide on the force and effect of these objections.

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