
    Charles Morgan v. Mary C. Morgan et al.
    Parol testimony will not be received to contradict a written release or establish title to real estate, as being part of a community property.
    APPEAL from the District Court of St. Tammany, Stirling, S.
    
    
      Jesse R. Jones, for the plaintiff,
    contended: The property having been acquired during the marriage, one-half of it must still belong to the heirs of the deceased wife; unless they have been legally divested of the title. C. C. articles 2371, 2374 and 2375. Morris v. Covington, 3d Ann. 261.
    The defendant gave in evidence a suit brought into the court of probates by the plaintiff and his brother, against Gen. D. B. Morgan, their tutor, claiming forty thousand dollars, accompanied with an agreement, in virtue of which a judgment was given approving the account rendered by the tutor, and granting a full discharge. The counsel for defendant on the trial, contended that if plaintiff had any interest in the property in controversy, that that interest was conveyed to his tutor by the agreement and judgment. The agreement must be understood and interpreted by reference to the suit which it settled.
    Articles 172 and 173 of the Code of Practice require, that in bringing a suit '‘the petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the titles, or of the cause of action on which it is founded;” and ‘‘ifthe plaintiff demand a specific object, he must describe it with certainty in his petition, in such a manner as to leave no doubt as to the object demanded.”
    The suit brought by the plaintiff and his brother claimed of their tutor $20,000 each, in money arising from his administration of property inherited by them from their mother and others, and concluded by a prayer for a judgment against him for that sum, or for such sum as should appear to be due. Clearly, that was not a petitory action; no property was described or claimed.
    The plaintiff and his brother, after examining the account rendered by their tutor, became satisfied that he had accounted for all the monies coming into his hands on account of the administration of their property during their minority, and consequently signed the discharge. But the property now in controversy was held in common, and as much in their possession as in the possession of their tutor. The act referred to no more conveys the title of plaintiff in these lands than it does the title to the slaves which the tutor mentions in his account.
    Such was the understanding of all the parties, which plaintiff offered to prove upon the trial, but the testimony was rejected by the court; and to the opinion of the court in rejecting the testimony we reserved a bill of exceptions. By that testimony it would have been shown that Gen. Morgan always acknowledged these lands to be communily property, and to be held jointly by him and the three children of his first wife. To sustain the bill of exceptions, see 1 Greanleaf’s Evidence, secs. 109 and 189.
    
      
      Alfred Hennen, fox' defendants,
    contended : There is a bill of exceptions taken by the plaintiffs to the refusal of the court to receive the evidence of William Marbury, who was offered as a witness to prove that “JD. B. Morgan had at various times, from the year 1820 up to the year 1847, acknowledged that the lands in controversy had been paid for with the funds belonging to the community that had existed between him and his first wife, the mother of the plaintiff; and that he held and possessed the same jointly with the plaintiff and the other children of his deceased wife.”
    The objection to the evidence was, that it came from the father of the petitioner in a suit against his wife. It was the same as if the husband had been introduced to give evidence for his son in a suit against his wife; which is forbidden. C. C. art. 2260.
    The evidence, if admissible, could not affect the titles of the defendant, who claimed as a third party, against whom the declarations of the grantor could not be received. The titles are in dii'ect opposition to such admissions. If the evidence were before the court it could make no difference in the merits of the case. Its only effect would be to prove that the claim of the petitioner is unfounded; for it would then show that the purchase of the property had been made after the dissolution of the community on the 22d January, 1816. The use of community funds for the purchase, after the dissolution, did not make it community property. C. C. 2269.
    The admissions of Morgan would have been good in an action against himself; but they could not be given to prejudice the mortgage he had granted to the Citizens’ Bank on the 15th August, 1837, nor to the prejudice of any one claiming under it, especially as it is not pretended that these acknowledgments wei'e known to the bank, or to those claiming under the mortgage granted to it.
   The judgment of the court was pronounced by

Slidell, J.

We are of opinion, that the plaintiff is precluded from sustaining this action by the I'elease executed in favor of his father in 1835. Its terms are studiously full and comprehensive.

There was an offer by the plaintiff to show by parole that D. B. Morgan verbally acknowledged the property in question to be community property held and possessed jointly by himself and his childi'en. We think the testimony was properly excluded, so far as it would go to contradict the release or establish title in the plaintiff. We are not prepared to say, that the evidence woxxld not have been admissible, with reference to the defendants’ plea of prescription, for the pui'pose of showing the character of the defendants’ possession. But as the case is with the defendants upon the release, the evidence, if it had been admitted for the purpose of the question of prescription, would not have changed the result of the cause.

The judgment of the district court is therefore affirmed, with costs.  