
    No. 8286.
    Mrs. Rosina A. Brown vs. George Stroud, Executor, et als.
    In cases where the rights of creditors, forced heirs or other third persons, are in no manner affected, the declarations and admissions of the husband, made at a time not suspicious, that certain property belongs to his wife and was acquired by her, in her own right, by purchase or otherwise — in the absence of any charge of fraud or error, are legal and proper and sufficient evidence against himself or persons claiming through him. And such admissions may be proved under the general issue. Affirming previous decisions.
    A petition for a rehearing must contain substantially the reasons, points and authorities upon which the petitioner relies to obtain a rehearing. When further time is allowed him by the Court, it is only for the purpose of elaborating an argument on the points presented in the petition.
    APPEAL from the Civil District Court for the Parish of Orleans. Laemus, J.
    
      Wm. TP. Mellen, Julius Aroni and D. <7. Mellen, for Plaintiff and Appellee.
    
      W. 8. Benedict, for Defendant and Appellant.
   The opinión of the Court was delivered by

Todd, J.

Tbe sole matter in controversy in this ease relates to the ownership of a number of shares of stock of the Cincinnati Gas Light Company, and a small dividend thereon.

The plaintiff, who is the universal legatee of George T. Rowe, deceased, claims that the stock belonged to the community that existed between the said deceased and Louisa P. Rowe, his wife, also deceased, and that the community interest of the'former belongs to her as such universal legatee. The defendant, who is the executor of the succession of Mrs. Rowe, and the attorney for absent heirs, claims that the stock in question was Mvs.-Rowe’s paraphernal property, and belongs to her succession.

Mrs. Rowe die,(l in 1878, and George T. Rowe in 1880.

The property in dispute was inventoried as belonging to tlie succession of the former. By the last will of Mrs. Rowe, her surviving husband, George T. Rowe, was given the usufruct of this and other property, which was specifically namedin the will, and under this-devise lie had possession of it and received its revenues up to the time of his death.

The plaintiff assumes that the property in question belonged to the community existing between the deceased spouses, basing her claim upon the legal presumption that all property acquired during the marriage, whether'in the name of the husband or wife, and remaining at its dissolution, belongs to the community. The property was purchased and stood in the name of the wife during the marriage, and the defendant, as stated, contends that it was her separate property.

We find it unnecessary, from our view of the case, to take into consideration a great deal of evidence in the record referring to the origin of the fund, or how and whence derived, with which the purchase was in the first place made.

These facts are certain:

That the purchase or purchases of the first shares acquired were made in the name of Mrs. Rowe.

That the remaining shares accrued or were acquired by the dividends or profits arising- from the shares purchased.

That these shares were treated by the Company as the separate property of Mrs. Rowe, and the dividends paid or accounted for to her.

That her husband, George T. Rowe, during the long series of years that these transactions were going on, verbally, and in writing, acknowledged, both during the lifetime of Mrs. Rowe, and after her death, that they were her individual or separate property; that he joined in an act to authorize his wife to pledge a number of the shares to secure a loan made to her individually; he acted as her agent at times with reference to the business with the Company connected with these shares. In short, in every possible way, both by act and word, he disclaimed any title or interest in this property, and admitted and declared the title of his wife thereto.

The usufruct of this property — the right to receive its revenues — was given to the husband by the will of his wife; they were inventoried as belonging to her estate. The revenues from them were received by liim after her death, and we hear no claim asserted by him .to the property itself.

In the face of all this evidence — with these facts opposed to him— George T. Rowe, after the death of his wife, could not have recovered this property from her estate. His acts and admissions would have placed the matter beyond controversy. These admissions were made at times not suspicious, when there was no motive whatever for concealment, when there were no creditors, and the rights of third persons were not involved.

They show conclusively that he had no right to this property, and , therefore, could convey none.

The plaintiff, claiming only as an object of Ins benevolence, being neither croditornor forced heir, has, and could have, no better right, than the testator possessed, and we clearly see that he had none. There is no allegation by the plaintiff of fraud or simulation on the pari of the person under whom she claims in connection with his acts and admissions referred to, and from her position, she would be suffered to make no such charge.

Hence, it is evident that the authorities relied on by her counsel, and cited in their argument, have no application to the facts upon which, in our opinion, the proper determination of the case rests. The principle upon which our conclusion .is based has been frequently recognized in the decisions of this Court, and is firmly imbedded in our jurisprudence. Thus, in the case of Drumm vs. Klemman, 31 A. 124, in which Chief Justice Manning was the organ of the Court, where the effect of the acts and declarations of .the husband touching property held as the separate property of the wife, was under consideration, we find the following language:

“ Can the present plaintiffs gainsay this declaration in the deed, to which the husband had put his hand ? If they were creditors or forced heirs of the testator, there is no doubt they could. "Were it otherwise, collusive declarations made by parties to an authentic act would conclude those whose interests are affected by them. But the plaintiffs are neither creditors nor forced heirs. One is the mere executor of the will, with no substantial interest in the question. The other two are simply subjects of gratuitous bounty, who have no claim to any of the testator’s property except that derived from the will. They stand in his shoes. They are bound by his acts and his words. They cannot claim as his that which he declared or admitted was another’s.”

And in the case of the Heirs of Compton vs. Maxwell, 33 A. 688, the irresent Court, referring to a like state of facts, said:

“ This recognition (by the husband) is shown by the purchase of property in the name of the wife, including the property in controversy, in some of which purchases the husband joined to authorize her, by powers of attorney executed by her to her husband, empowering him to represent her in her business affairs, which, during his life, were conducted in her name. ? In the face of-these acts and proceedings, it would:hardly be contended that Thomas A. Compton. (the liusband) if alive, could be listened to in asserting a claim to this property. His heirs, claiming through him, stand in no better condition.”

See also, Barbet vs. Rath, 16 A. 271; Arnover vs. Case, 9 A. 242; Stewart vs. Mix, 30 A. 1036.

The case of Kernan vs. Ins. Company, 28 A. 312, cited by plaintiff’s counsel, is not in point, for that involved a contest between the heirs of the father and the creditors of the mother, where it was competent and legitimate to show the falsity of the declarations of the husband in favor of the wife.

This matter in no manner involves the question of estoppel raised by the plaintiff’s counsel. It is not a case where plaintiff or any one else has been induced to act upon the statements of another party, and would be prejudiced by permitting him to deny their truth; but, on the contrary, is a case where the representations of a party in whose favor the statements or declarations were made, simply assert them as a matter of evidence against the adverse pretensions of the one, who claims under him, by whom they were made. We, by our ruling on this point, merely announced that, in cases where the rights of creditors or forced heirs, or other third parties, are in no manner affected, the declarations and admissions of the-husband, made at a time not suspicious, that certain property'belongs- to his wife and was acquired by her in her own right, by purchase or otherwise, in the absence of any charge of fraud or errory-aré proper and. sufficient evidence against him, and those claiming through or under him, and that such admissions may be proved under-tbfe-'géne-ral issue.

Entertaining these views, we think the judgment of the lower court, which was in favor of the plaintiff, was erroneous.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demand be rejected with costs of both Courts.

Mr. Justice Poché takes no part, not being present during argument.

On Ai’plioation for Rehearing.

Bermudez, C. J.

We have given a patient and deliberate attention to the exhaustive brief of plaintiff’s learned counsel in support of the application for a new hearing.

The close and intelligent criticism to which our appreciation of the circumstances of this controversy was subjected, confirms us in an adherence to our finding of the substantial fundamental facts elicited during the trial of the cause, and to our previous decree.

It is sufficient that it was proved that Mrs. Rowe had ample means to acquire the gas stock, which is the object of this litigation; that she administered lier property separately ; that her husband has time and again unequivocally acknowledged it to belong to her j that he has left no creditor or forced heir, charging against those acknowledgments, to debar those who claim gratuitously' under and through his benevolence.

It is a significant circumstance that Mr. Rowe never, before or after the death of his wife, intimated the slightest claim that the gas stock was not her paraphernal property. He must have known of, and never objected to, the inclusion of it, as such, among the assets of her succession. Even in his will there is nothing to indicate that he contemplated or claimed the right to dispose of this property. In her will, Mrs. Rowe mentions it as belonging to her, and gives her husband the usufruct of it.

Had the marriage been dissolved otherwise than by' death, and the spouses proposed to liquidate the community affairs, the husband could not have been admitted to attack the title of the wife to the stock.

The authorities to which the able counsel once more calls our attention have our unqualified approval, but only in those cases in which the rulings were made, in which predominate. conspicuously either creditors or forced heirs, assailing investments made to their alleged injury' in the name of the wife.

We have been shown, and we know of no authority permitting the husband — after a dissolution of the community, aud upon a settlement of it, in the absence of any clamor on the part of injured parties— to go behind his acknowledgments of ownership or title, honestly made in favor of his wife, and to raise any claim to the whole or to part of the same.

In 30 A. 1036, our immediate predecessors, in an analogous controversy, said:

This whole proceeding is bad in law, and equally bad in morals. If the wife is not really the owner of this property, the husband has done all that he could to establish and confirm the ownership in her and to mislead the public as to the real ownership. If her title is apparent, not real; if it rests upon a basis of false pretenses and assumptions, the husband’s hand must not be the first that is raised to strike down the fabric of which he was the chief architect.”

This ruling was subsequently affirmed in 31 A. 124, by the same Court. In 33 A. 688, the same doctrine was announced and it is now reiterated. It rests upon solid foundation. 16 A. 271; 23 A. 83; 21 A. 344; 28 A. 314 ; 10 A. 739; 33 A. 612.

We have made in our previous opinion extracts from the two first cases, bearing also directly upon the point under consideration.

After a careful review of the facts and of the law, as well as of the reasons assigned in support of our anterior decree, we cannot perceive how we could be justified in admitting error in our finding, which is correct and does justice.

Before concluding, we will take occasion to say that we have felt much perplexed as to our right to review the judgment complained of; but we did not hesitate to do so, considering that the conclusion which we had again reached, favorably to the defendant, could impair no vested right.

The opinion pronounced in this case was rendered on the 19th of December past. On the sixth judicial day following its rendition, viz : on the 31st of the same month, the plaintiff and appellee, dissatisfied with the judgment, presented through her counsel a petition for a rehearing, the sole allegation whereof is, “ that there is error in the opinion and judgment rendered herein, as she will show by her printed statement of points and authorities to be filed, and that she is aggrieved by said judgment.” On the same day, on motion, ten days were allowed the petitioner to prepare and file a brief in support of the petition for a rehearing. On the 7th of January following, a brief was filed.

The question which presents itself to our minds was, simply, whether we had a right to revise that judgment.

-v • The solution of that question depended upon whether there had been •presented to that end such a petition as is required by law, in order to suspend: the course of the delay prescribed for the finality of the judgment.

Where the six judicial days fixed by Article 911 of the Code of Practice, as the time within which a petition for a rehearing should be filed, elapse before the filing of such a petition as is required by law, the irresistible consequence is, that the judgment becomes final and is not reviewable.

Article 912 of the Code of Practice provides, that in the interval between the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the Court for a new hearing in the cause, and for this purpose shall present a petition in which he shall state substantially the reasons for which he thinks that the judgment is erroneous, and shall cite the authorities in support of his opinion.”

Rule IX., par. 1, of this Court, reads, that applications for rehearing must be made by petition filed within the legal delay, and must be accompanied by a printed statement of all the points and authorities on which the party founds his application. Additional time for elaborating tlie argument on such points and authorities may he granted upon a proper showing, if made before the dolay expires.”

It is apparent that both the Article of the Code and the rule of Court require that the petition shall contain substantially the reasons, points and authorities upon which the petitioner relies to obtain a new hearing, and that the petition so drawn up shall be filed within the six judicial days.

The petition presented in this case was filed on the sixth judicial day, but it states no reason, no point, no authority, in justification of the complaint and charge of error which it embodies. Far from it, it charges error in the judgment, as 'will be shown by a printed statement to be filed.

The order allowing ten days to prepare and file a brief in support'of the petition, was rendered on a motion which was not intended and did not purport to inject into the petition, the lacking allegation, reason, point or authorities. It was an authority for an extension of .time to elaborate an argument on the points which the petition was supposed to contain, but, in reality, did not in the least embody.

To countenance petitions not presented in compliance with mandatory requirements of the law, would be to inaugurate a loose practice. To .consider briefs, into which are incorporated grounds,.when no ground has been embodied in the petition, would be to sanction an enlargement by argument, of a groundless petition, by allowing an amendment to vivify that which would otherwise be lifeless, after the. sixth judicial day. . Such a course can, under no circumstance, be permitted.

The appellee, by not presenting within, the six judicial days such a petition, setting forth the reasons or points in support of her complaint, and charge of error, as is demanded by law and by the rule of this Court, might have been considered as having suffered the delay to expire uninterrupted, and the judgment to acquire the same finality which it would have acquired, had the document termed a petition for a rehearing never made its appearance.

' The Article of the Code of Practice, and the rule of Court on the subject, will be hereafter enforced.

The prayer .for a rehearing is refused.

Mr. Justice Pochó takes no part, not having participated in the original decision.  