
    5506.
    (Court of Appeal, Parish of Orleans.)
    ROMALIE MATHIEU vs. LOUISIANE MATHIEU, ET ALS.
    1. During slavery the presumption of servitude attached to negroes alone and not to persons of color.
    2. The' vendee of a married woman possesses the same right as she herself had of showing that real estate purchased by her during the community in fact belonged to her separate paraphernal estate.
    Appeal from the 28th Judicial District Court, for the Parish of St. John the Baptist.
    Jas. Legendre, for appellant.
    Robert J. Perkins, for appellee;
   GODCHATJX, J.

The property in. question, was purchased in 1872 by Azelie Francoise, who is still living, daring the community which existed between her and her husband, Jean Baptiste Matbieu, wbo died in 1886.

Tbe act of purchase contains no declaration that it was made with her separate paraphernal funds by ber separately administered and for account of ber separate paraphernal estate. Tbe plaintiff, Romalie Matbieu, daughter and sole heir of one of tbe male children of this marriage, claiming that tbe property belonged to tbe community wbicb existed between Azelie Francoise and lean Baptiste Matbieu and that she inherited through ber father an interest in tbe one-half belonging to tbe estate of Jean Baptiste Matbieu, prosecutes this suit for partition against tbe defendants, wbo purchased tbe 'property in 1909 from ber grandmother, Azelie Francoise.

Tbe defense is that tbe property never belonged to tbe community, but on tbe contrary was purchased by Azelie Francoise for her separate paraphernal estate with ber separate paraphernal funds under ber sole administration, and that consequently plaintiff is without interest.

Tbe plaintiff now appeals from a judgment sustaining this defense and dismissing ber suit.

It is claimed first that defendants should not have been permitted to rebut tbe presumption that tbe property, purchased during tbe marriage of Azelie Matbieu. and ber husband, belonged to tbe community and to prove that it was tbe separate paraphernal estate of tbe wife, tbe plaintiff contending that tbe right to establish tbe paraphernal character of ber property rests in .the wife alone and does not extend to ber vendees.

We cannot concur in this view and we do not find such' doctrine-announced in our jurisprudence or in tbe following cases cited by appellant: Hero vs. Bloch, 44 An., 1030; Hall. vs. Taussaint, 52 An., 1763, and Sharp vs. Zeller, 110 La., 62. The principle which permits the, wife to show that property purchased in her name during the regime of the community belongs to her separate, estate, would confer upon her an extraordinary faculty if the doctrine contended for were recognized; for it would mean that as long as she kept the 'title in her own name she could establish her paraphernal ownership; but the moment she assigned her interest therein she would in fact confer no rights upon her vendee, for the latter would not be permitted to show she owned the property at the time of its transfer and that it did not belong to the community.

The only evidence on the merits is the testimony of Azelie Francoise and it is to the effect that she is a colored woman and that she purchased the property for cash with funds which she separately administered derived from the sale of a slave which she inherited during the war and before her marriage from her mother. Without going into the evidence in detail suffice it to say that it establishes that the property in question was the separate paraphernal property of Azelie Francoise, the author of the defendants, and plaintiff’s only contention on this score is that the testimony of Azelie Francoise as to her funds derived from the sale of a slave inherited from her mother, is unworthy of belief, because, being a colored woman, she is "presumed to have been a slave herself at the time of the alleged inheritance. The contention has no merit, for during slavery the presumption of servitude attached to negroes alone and not to persons of color; and we find nothing in the record that would even tend to impeach' the witness’ testimony.

Hennen’s Digest, Volume 2, pages 1447, et seq.

Plaintiff pleads the prescription of thirty years, but as Jean Baptiste Mathiéu died only in 1886., and as prescrip;tion did not run during the- marriage, it is evident that the prescription relied upon, even if applicable, has not accrued.

March 4, 1912.

Rehearing refused April 1, 1912.

April 23,1912, decree Supreme Court, writ denied.

There is no error in the judgment appealed from and it is affirmed.

Judgment affirmed.  