
    Louisa Hanna v. D. M. Pritchard, Sheriff, et al.
    Property purchased in the name of the wife during the marriage, belongs to the community, and is subject to the payment of the community debts, unless tbe wife shows that it was purchased with funds belonging to her, of which she had the administration at the time, or that she was separated in property from her husband.
    Where property purchased in the name of the wife, has been seized on execution as community property, and the wife, in support of her claim to it, sets up a judgment of separation of property between herself and husband, the seizing creditor may show the nullity of the judgment by all kinds of legal evidence.
    A judgment of separation of property between husband and wife is null and void, where there was no basis forthe action, the husband not having been indebted to the wife.
    Where an act of donation from a third person to the wife, was a real contract, and intended by the parties to be binding, it cannot be disregarded by the creditors of the husband, and tho property donated seized on execution against him. They must resort to a direct action to annul such an act
    
      APPEAL from the District Court of Catahoula. Barry, •!.
    
      James G. Taliaferro, for plaintiff, contended :
    1st. That tho plaintiff having introduced her judgment in evidence, solely to sustain her allegation that she is separate in property from her husband, and not to show her right to any property that ever belonged to her husband, or which was acquired through or by an execution issued on her judgment, and not even naming the word judgment in her petition, as incorrectly stated in defendant’s answer, the defendant had no right, under such circumstances, to set up against her judgment the allegation that it was fictitious and fraudulent. I endeavor to sustain this position by the following argument: By reference to all the cases reported, touching controversies between married women and the creditors of the husband, it is found, with only one exception, the case of Bertie v. Walker, 1 R. R. 431, that in every case where the creditor was allowed to setup, incidentally and collaterally against the wife’s judgment, the allegation of fraud and collusion, the circumstances under which such allegation has been allowed, fall distinctly under one or more of the following heads, which were set forth in a motion to strike out, and which, for convenience, I beg leave to repeat here: Where the wife is endeavoring to enforce her judgment against the property of her husband to the detriment or injury of the creditors of her husband; or, where she alleges titlo to the property seized by the creditor, under and by virtue of her judgment and proceedings under it against her husband; or, where the wife is seeking to enforce her judgment against property in the hands of third persons, by virtue oí a tacit lien, or otherwise, arising from her judgment. None of these conditions occur in the present suit. The following lists comprise all the cases that I have been able to find in our reports, and I believe they embrace all: 1st. Turnbull v. Davis, 1 N. S. 568 ; 2d. Buisson v. Thompson, 7 N. S. 460; 3d. Beard v. Pejeau, 8 N. S. 459 ; 4th. Serapum v. Lacroix, 1 L. R. 373 ; 5th. Deblane v. Deblanc, 4 L.R. 419 ; 6th. Eastin v. Eastin, 10 L. R. 197 and 198 ; 7th. Tennessee v. Gonselm, 11 L. R. 419, Revocatory suit; 8th. Muse, Syndic v. Yarborough, 11 L. R. 521; 9th. Bostwick v. 'Gasquet et al. 11 L. R. 534; 10th. Dimitry v. Pollock, 12 L. R. 296; 11th. Adamsv.His Creditors, 14L. R. 415; 12th. Brassac v. Ducros, 4 R. R. 335; 13th. Dugas v. Her Husband, 6 R. R. 527; 14th. Oliver v. Oliver, 6 R. R. 36; 15th. Fulton v. Fulton, 7 R. R. 73; 16th. Gates et ais. v. Legendre, 10 R. R. 74.
    In all the above cases, the facts and circumstances fall under one or more of the above heads.
    The circumstances of the case at bar, are entirely different from all the foregoing. The following list includes all the cases that bear any analogy to the one before the court, viz, 1st. Hickey v. Dúplantier, 4 L. R. 315; 2d. Bertie v. Walker, 1 R. R. 431; 3d. Darock v. Darcy, 6 R. R. 342.
    The first of these cases fully sustains the ground I take in the present case, that the creditor can only attack the wife’s titles by a revocatory suit. That case, Hickey v. Duplantier, seems to have settled the doctrine, that where the wife holds property under deeds made to her. after a separation of property, such deeds can only be set aside, if they be simulated and fraudulent, by a suit for that purpose.
    The second case, Bertie v. Walker, seems to sanction the opposite opinion. But the doctrine in that case is, clearly, not sustained by the opinion of the court, in the third case, (Darock v. Darcy) decided about two years afterwards, where the court says, “admitting that the appellant can, in this way, (by direct seizure,) attack the validity of a judgment rendered by a competent court, which may well bo questioned, &e.” The principles laid down in this case, seem to accord with, and confirm those announced in Hickey and Duplantier. It is contended, on the part of the plaintiff, that under the circumstances in this case, she cannot be required to sustain, contradictorily with the creditors of her husband, the validity of her judgment of separation; and that the present caséis notone in which the creditors can setup, incidentally, against that judgment, fraud and collusion.
    2d. That the defendant, by admitting that Tidwell sold the three slaves, and contending that he conveyed them to Rob'erl H. Hanna, thereby asserts that deed to be a real, but fraudulent conveyance. If a real, but fraudulent act, it can be set aside only by a suit to annul. The same remarks apply to the donation under which the plaintiff holds the slave Venus.
    
    3d. That, under the circumstances of this case, the rule'strictly applies, that the nullity of a judgment cannot be set up by persons not parties to it. The plaintiff’s motion to strike out, was overruled by the lower court, and a bill of exceptions taken.
    j nQw briefly notice the objections urged against the validity of the wife’s judgment of separation of property, to the defence of which, the plaintiff was forced by the ruling of the court below. That no judgment by default was taken against the defendant, Robert H. Hanna. It is admitted that the minutes of the court do not show that a judgment by default was taken. But it is shown, both by the judge’s and clerk’s docket, for the June term, 1848, (the term at which the plaintiff obtained her judgment,) that a judgment by default was taken at the proper time. The omission of the clerk to enter the default on the minutes, cannot prejudice the party taking it. Further, thejudgment finally recites, that “the judgment by default not having been set aside, &c.” This corroborates the entry on the judge’s and clerk’s dockets, and makes it clear, that » judgment by default was taken. . These dockets were introduced to show, that the non-appearance on the minutes of the taking a default, was not the fault of.' the plaintiff, and were not intended to contradict the minutes. It was admissiblo surely, to make this showing, that the wife had no just rights or claims against her husband. The evidence shows that she had. That thejudgment became null through delay in executing it. Our laws do not prescribe any specific time within which the wife shall proceed to execute her judgment. See Fulton v. Fulton, 7 R. R. 73. In that case, sufficient diligence, the court said, had been used, where the execution issued about four months after the rendition of the judgment. In the present case, execution issued within less than four months from the date of the judgment. That the plaintiff’s judgment was not advertised according as required by law. The evidence shows that it was. By agreement of counsel, the clerk, in making up the transcript, was allowed to omit copying two of the advertisements and to certify the filing of the gazettes in evidence on trial. That the sheriff’s return upon the execution does not show that a demand was made of the defendant to show'property, and of the plaintiff to point out property, &e. The articles 726 and 727 of the Code of Practice, being introduced under the head of capias ad satisfaciendum., their provisions seem intended more particularly as preliminary steps to the issuing of the capias„ in order that it might clearly appear that the debtor, before his incarceration, had no property, out of which the judgment could be satisfied. But, givingthose articles the most general application that they are susceptible of, they can properly be only applied to cases where parties directly interested might be injured by the non-fulfillment of their provisions, as in the case of sureties on bonds, &c.;; or in the case of the judgment creditor, at whose instance the execution issued, and who might have pointed out property of his debtor, if he had been called) upon. The plaintiff, as the judgment creditor in the present case, is the only one to complain, and she could not complain, unless through the omission of the sheriff, to call upon her to point out property, she had been injured. The defendant himself, distinctly avers, that Robert H. Hanna “has no property or means. His own judgment remained dormant from June, 1848, to July or August, 1850, because “Robert H. Hanna, had no property or means” out of which his judgment could be satisfied; and he seeks now to make his debt out off the property of the plaintiff, because his debtor has nothing. But suppose the plaintiffs execution had been returned by the sheriff, strictly in conformity with those articles; in what better condition would it have placed her husband’s creditors. Such a return would not have precluded the plaintiff from afterwards issuing another execution and seizing her husband’s property, if any could be found. Such a return would not have satisfied her judgment, or left a cent the more for her husband’s creditors. By the return that was made upon the execution, it is seen, there was no property of Hanna out of which judgments could have been satisfied; a fact well known to the defendant, and by a knowledge of which, it is difficult to see how he could be benefitted, come in what way soever it might. Then where is the necessity of the sheriff’s return, showing that he called first upon the defendant, and then upon the plaintiff, to show property ? “Lex neminem cogit ad vana.”
    
    But it is respectfully urged, that the issuing of the execution, within a reasonable time, is a showing of sufficient diligence on the part of the wife, and that the manner of the sheriff’s retui'n upon that execution, is wholly indifferent, and does not create lacheson her part. And lastly: That the Code of Practice does not require sheriff’s returns upon executions, in all cases, to pursue strictly the provisions of articles 726 and 727, is clear, from the general tenor of those parts of the code which treat of the execution of judgments, adjudication, &c., and especially from articles 711 and 712, where we meet with those expressions: “return of execution, no property found,” and “return of the execution, no property found belonging to the debtor." I contend, that according to these articles, 711 and 712, returns, such as those just quoted, would amply fulfill the law in all cases, except where, by special laws founded upon particular reasons, greater formality is required ; and I respectfully'submit, that no special provision of law requires, in cases like the one under consideration, a more formal return, Ilian the one that is made on the execution issued by the plaintiff, on her judgment.
    
      T. Phelps, on the same side.
    O. Mayo, for defendants, contended:
    This suit originated in the seizure of a number of slaves, as the property of R. H. Hanna, to satisfy a writ oí fieri facias issued in a judgment rendered in the suit of Jacobs, use of Coply, against said Hanna.
    
    The plaintiff, wife of defendant in execution, enjoined the sale of this property, and sets up, in her petition for injunction, that she is legally separated in property from her husband, and that the slaves seized, are her own separate property; to establish which, on trial, she introduced a title, derived from Tidwell, to three of the slaves, and an act of donation, executed by Robert D. Percy, for the other.
    The defendant sets up in his answer, that the pretended judgment of separation between plaintiff and her husband, was, and is, an absolute nullity, even between the parties thereto, and is wholly without legal force or effect as to third persons; for the reasons, that the wife had, in fact, no rights against her husband. The judgment in separation suit, was rendered on illegal evidence, (that of her father taken ex parte,) that the pretended judgment was never executed or enforced in a legal manner; and further answering, defendant sets forth and alleges, that the transfers to Mrs. Hanna, were disguised and simulated transactions ; that Mrs. Hanna had no money or means with which she could have paid the price; that the price was, in fact, paid by the husband; that the apparent donation from Percy, was not, in truth, a donation, but a disguised sale, Percy having long since been paid the price by Hanna, and that the whole scheme, commencing with the suit for separation, was an artifice resorted to, to disguise the real title, and place the property out of the reach of Hanna’s creditors.
    The first inquiry then is, upon what evidence was the judgment of separation based. That on page 22, consists in what purports to be a receipt, signed by the husband, R. H. Hanna, by which he acknowledges to have received $600 of his wife’s money, from R. W. Thompson, her father. That on page 30, purports to be an ex parte affidavit of said Thompson, wherein he states, that he gave to his daughter, at the time of her marriage, in money and furniture, eight hundred dollars; five hundred dollars being in money, and three hundred dollars in articles of furniture; and that the money was appropriated to her use.
    On trial of this suit, the receipt above referred to, was offered and received by the court, and a bill of exception retained. James Thompson, plaintiff’s brother, was introduced to sustain the j udgment of separation. He states that Hanna went to St. Louis in 1848, in February; while there hada settlement with Mrs. Hanna’s' father; was in the room with them at the time, their backs were towards him; saw no money; “both had their pocket-books out as though they had money.” The court will notice that this occurred at the time the receipt is dated, 15th February, 1848. The suit for separation was filed the 9th March, 1848. But twenty-three days, therefore, intervened between this' parade of pocket-books and the filing her suit for separation. This fact, connected with the other evidence, raises the presumption, at least, that the scheme was devised with the express view of procuring evidence to sustain the suit for separation.
    The plaintiffs have totally failed to show, any conversion of the wife’s property to the husband’s use, except the surgical instruments, and that was done in Mississippi, where the common law prevails, and the personal property of the wife becomes the husband’s the moment he reduces it to possession. There is no evidence that the amount paid by Thompson for hire of the slaves, or rent of office, or the price of the tombstone, were ever charged to Mrs. Hanna; or that her money, to the amount of one cent, was ever, during their residence in this State, converted to the husband’s use. There was, therefore, no basis for the judgment of separation. The judgment was never legally enforced by such 
      bona fide non-interrupted suit to obtain payment, as the law requires. No attempt was made by the sheriff to find property. No application was made by him to the plaintiff or defendant to point out the property. The law is not complied with by the mere formality of issuing and returning the writ; there must be a real attempt to execute it.
    On fhe merits, it is shown by the testimony of Williams, that the money paid for the slaves purchased from Tidwell, came out of Dr. Hanna's pocket. Mrs. Hanna was directly called upon by the pleadings, to show from what source she derived her means. She has totally foiled to show that she had any. On the contrary, her own allegations in the separation suit, show, that if she had any, they were used by her husband; and the evidence shows, that what she had, was reduced to the husband’s possession before they removed to this State. The return on her execution shows she made no part of the judgment.
    
      Percy, in answer to interrogatories, states that he made the donation of the slave, Venus, to Mrs. Hanna, to prevent her from ever being seized again for Hanna's debts; that he was paid her value by Dr. Hanna and Bradslreet; and it was shown that Bradslreet was the partner of Dr. Hanna in the practice of medicine.
    The facts in this case are very similar to the case of Dopon v. Ward, sheriff, decided at Monroe, October term, 1848, (not reported.)
   The judgment of the court was pronounced by

Rost, L

In the suit of Jacobs, for the use of George W. Copley, v. Robert H. Hanna, the sheriff seized four slaves, as the property of the defendant. His wife enjoined the seizure, on the ground that she was the owner of those slaves, having purchased three of them from D. F. Tidwell, after her separation of property from her husband, and holding the other, under a donation, from R. D. Percy, to her.

The seizing creditor, among other grounds of defence, alleges, that the judgment of separation of property, on which the plaintiff relies, was null on two grounds. 1st. That the plaintiff had no claim against her husband, which could be the basis of an action of separation of property. 2d. That if she had, the decree of separation had lapsed, for want of execution within the time required by law.

The decree and proceedings had in the suit for separation of property, were adduced on the trial, and the plaintiff further offered as evidence, to substantiate the claims upon which the judgment had been rendered. The defendant introduced rebutting evidence, and the court, after hearing, dissolved the injunction with damages, allowing the sheriff to proceed under the execution. The plaintiff has appealed.

The three slaves purchased from Tidwell, were acquired by the plaintiff during marriage; they, therefore, belong to the community, and are subject to the payment of the community debts, unless the plaintiff has shown either that the slaves were purchased with funds belonging to her, and of which she had the administration at the time, or that she was separated in property from her husband. She has adduced, as the foundation of her title, the proceedings and decree in the suit for a separation of property. The defendant has, therefore, the right to show the nullity of the judgment in that suit, by all kinds of legal evidence. Collins v. Batterson, 3 L. R. 245.

We are not prepared to admit, that the first ground of nullity is tenable. Execution issued upon the judgment of separation within a reasonable time, and was returned by the sheriff, “no property found.” It not appearing that the husband was possessed, at the time, of property subject to seizure, this return would probably be sufficient to prevent the lapsing of the judgment; but we are of opinion that the second ground is well taken. The claim for a separation of property is based exclusively upon the allegation, that the husband had received, during marriage, and converted to his use, large sums of money belonging to the petitioner, and that the disorder of his affairs induced her to believe that her rights were in danger. We are compelled to say, that she has failed to prove that allegation by legal evidence. The testimony of her father must be entirely disregarded: that of her brother is too vague and uncertain to be relied on, and the receipt given by her husband does not, by itself, make proof. There having been no indebtedness from her husband to her, the action of separation had nothing to rest upon, and the judgment rendered therein is null and void. The slaves sold by Tidwell are, therefore, community property, and subject, as such, to the defendant’s execution. It is otherwise with the slave given to the plaintiff by Percy. Although not separated in property, she was capable of receiving by donation, and the act under which she holds, a real contract, intended by the parties, and by Hanna, to be binding. Whether the true consideration of that contract was such a fraud upon the creditors of Hanna as entitles them to avoid it, is a question which could only have been inquired into in a direct action.

It is therefore ordered, that the judgment, so far as it dissolves the injunction arresting the sale of the slave, Venus, be reversed, and that the injunction to sell lhat slavo be reinstated and ihade perpetual. It is further ordered, that the judgment be otherwise affirmed, the plaintiff paying the costs of the district court; and those of this appeal, to be paid by George W. Copley.  