
    Helen Barbet v. Eloise Langlois and Husband.
    Under the Code of 1808, where the right to acquire property existed before a marriage although it maj' not have been acquired until after, the property does not enter into the community. But if paid for out of community funds,- the price must be re-imbursed to the community. O. C. C. p. 336,. art. 64.
    
      Under the Code of 1808, where the husband had a right to enter a back concession of land before his marriage, but did not do so until after, the land belongs to his individual estate and does not enter the community.
    APPEAL from the District Court of Iberville, Burk, J.
    
      J. J. Berry, for the plaintiff,
    contended: The land was purchased during the marriage, and is, consequently, a part of the community, unless the case forms an exception to the rule governing purchases made by either of the spouses during the existence of the marriage. The articles 2314 and 2371 of the Civil Code, and arts. 14, p. 324, and 64, p. 36, Old Code, declare what property shall enter into the community. Art. 2314 C. C. and art. 14 O. C. lays down in general terms that all property acquired during the marriage shall form part of the community, except in certain cases; and no mention is made in the exceptions stated, of any kind of property acquired in any manner by purchase as forming one of them. The language is positive, that all property acquired by either of the spouses, or by both, shall form a part of the community, except such as are therein excepted. In these exceptions we look in vain for property aequhed by purchase. Article 2371 C. C. and ait. 64 O. C. states explicitly that all property purchased during the marriage, whether in the name of one or both of the spouses, shall enter into the community. The Supreme Court has decided repeatedly, that when there is a purchase of property, even with the paraphernal funds of the wife, the purchase shall he held community property, and she only has her legal remedy against her husband, for the restitution of her paraphernal monies. In Brown and Wife v. Cobb et al., 10 L. R. 181, the court sanctioned the doctrine, that in all cases where there is a real sale of property, and a purchase by one of the spouses, the purchase shall be considered community, though the one purchasing be interested in the property, and it be sold to effect a partition. There appears to be but three exceptions to the rule recognised in our law, that all purchases shall inure to the benefit of the community: 1st. When dotal property is sold and the funds re-invested; for this there is a special provision made by law. 2d. When the wife retains the administration of her paraphernal property, and purchases with her own money. 3d. When there is a real giving in payment or exchange for obligations or goods of the wife. Stokes v. Shackleford et al., 12 L. R. 170. 1 L. R. 522. 18 L. R. 361. 19 L. R. 406.
    But this case does not fall under either of the foregoing exceptions. Here there was a real sale and a real purchase. There was not even a preexisting imperfect title in the husband. The ownership of the front tract did not invest him With any species of title to the back concession, but simply the right to acquire a title, in preference to other persons, if he was in a situation and choose to avail himself of this right. This right did not even exist at the time the marriage gave existence to the community, but was created subsequent thereto. If he did not, or could not purchase the land, as he could have done, had he the ability or the will, he lost the right by not availing himself of it in the manner prescribed by law. Whether willingly or not, it matters not. He, perhaps, might have acquired the land [for the sake of argument] had he purchased with his own funds; but he chose to purchase with the funds of the community, and the benefit of that purchase must result to the benefit of the community. The presumption is, that he intended to purchase for the benefit of the community; his right was exercised for the benefit of the community of which he was the head and master. Stacey v. Hammond.
    
    By our law, the husband is the head of the legal partnership, and is bound in law and conscience to administer it for the best interests of both parties. The wife, on the contrary, has no control over it, or interest in its administration, until after its dissolution. This circumstance would seem to impose on the husband, more strenuously than in the case of an ordinary partnership, the obligation of exercising the powers in him vested, for the mutual benefit of both parties. Now, between men dealing as commercial partners or otherwise, neither law nor conscience would sanction the conduct of one who would abstract a portion of the common fund for the purpose of embarking it in a private speculation. If such an act were done, the law would declare the purchase to be for the mutual benefit of both parties, if the article bought were one in which the parties dealt; if not, the other partner would have the option either to take his share in the speculation or not, as he might choose. Land is an objectwhich the husband, as head of the community, may buy and sell for its benefit, and such a transaction would-be perfectly legitimate.
    
      In this case the land was-not sold by the husband, as he certainly had the right to do, had he chose. But suppose he had done so, and realised a profit on the transaction, would he individually, or the community, be entitled to the profit? Is it just to allow one to use a common fund in trade for his individual benefit ? Suppose, for a moment, the land had been sold at a sacrifice; on whom would the loss have fallen ? On the community, certainly; for the wife has no power to call the husband to account for his transactions as administrator of the community. He may alienate, transfer, and even give away the property. ’Tis true, he cannot transfer the real property by a gratuitous title, but he can convert it into money, and dispose of that as he pleases. If the sole property of one of the spouses is improved, by the mutual industry or the funds of the community, such improvements and ameliorations as are made by such means, become community property. C. C. arts. 2376 and 2377. Code of 1818, p. 336 and 338, arts. 69 and 70. The back concession is an addition to the front tract, in the nature .of an improvement or amelioration, and within the meaning of the law. So by the rule it must be considered as belonging to the community.
    The laws of Spain are the source from whence is derived our jurisprudence on the subject of the legal community, and as such, must be looked to for light in cases of doubtful interpretation. By the Spanish law, not only all property purchased during the marriage, but also the young of cattle, and slaves brought in marriage, were held to belong to the community. The rule is, that all produce of the common industry and care was held in common; and the natural produce of these things was considered to proceed as much from the common industry and care as the wages of labor itself. 8 N. S. 197. 11 R. R. 526, and authorities cited.
    
      Zenon Labauve and A. Talbot, for the defendant,
    contended: The land in dispute is not community property, because it was purchased by the deceased André Langlois, in his own right, as front owner of a tract of land brought into marriage! Stroud et al. v. Humble et al. 2d Ann. 930, and the authorities therein quoted. This is in accordance With Pothier, Traité de la Communauté, vol. 1, art. 157. He says: “Les acquets de chacun des conjoins par marriage, ne sont conquéts que lorsque le titre ou la cause de leur acquisition, n’a pas précédé le temps de leur communauté; sinon ils sont propres de communauté.” See also Toullier, vol. 12, art. 180. Let us then test this case by the rule laid down by Pothier, and ask where was, in whom rested, the title or cause of the acquisition ? — (le titre ou la cause de 1’acquisition,) it was not in the plaintiff; it was not in the community; it was not in Langlois, as master and chief of the community ; but it was in Langlois in his own right as owner, and on account of his front tract brought into marriage.
    Reverse the case, and suppose that the plaintiff brought into marriage the front: tract, the purchase of the land in contest should have been made in her name, and it would have become her bien propre.
    
    To apply well the above rule of Pothier, it is only necessary to see and examine whether the purchase or acquisition, as prescribed in Louisiana Code, art. 2371, can be made indifferently and indistinctly, in the name of either of the two; if it can, the title or the cause of the acquisition would be in the community, but if it cannot, the title or cause of the acquisition would then be exclusively in one of the two,
    In the case before the court, it is clear that the plaintiff could not, under the law, purchase from the government any part, however small, of the land in contest, and that she cannot be benefitted by the purchase made by André Langlois.
    
   The judgment of the court was pronounced by

Slidell, J.

This is a petitory action instituted to recover the one undivided half of a certain tract of land, which was purchased by the plaintiff’s husband from the United States during their marriage, and the existence of the community of acquests, which was its consequence. The facts were all admitted in the court below; and the sole question presented is one of law. Does the land in dispute belong to the community, or is it the separate property of the heir of the deceased husband?

The plaintiff and André Langlois intermarried in the year 1818. At the time of their marriage he owned and possessed a tract of land fronting on the Bayou Plaqumine, under a title confirmed by the United States. In May, 1822, during the marriage, he purchased from.the United States, by virtue of his right of preference as front proprietor,the double concession, or lands lying in the rear of his estate.

By the; act of 1811, every person in. Louisiana who owned a tract of land bordering on a riyer, creek, bayou or water course, wás entitled to a preference in becoming the purchaser of the vacant land adjacent to and back of his own tract to a depth of forty arpents. Three years were given to file applications under the provisions of the act. This law was revived and continued in force for two years by the act of 11th May, 1830, and again for eighteen months by the act of 28th February, 1823. ' '

' This legislation was founded upon a just respect for the usage which existed under the'French and Spanish governments, of granting, on application of the proprietors of land fronting on a river or bayou, what was called a double concession, or forty arpents in depth in the rear of the original concession. It was not so much apure liberality on the part of the United States, as a just fulfilment of the reasonable expectation which the grantee under the ancient government had been encouraged to entertain, when he went forth to subdue the wilderness.

Considered in this light, the reviving act of 1820 was a relief from the consequences of an omission to exercise a right existing under the act of 1811, which right, although it derived its legal efficacy from that act, had its earlier moral source in the ancient usages of the former government.

For the ■ purposes, therefore, of our present enquiry, the cause of André Langlois’ being entitled to acquire the back concessions, must be considered as originating before his marriage.

Thé plaintiff relies upon a strict and liberal interpretation of an article of the Code of 1808, which was in force when Langlois purchased the land in dispute from the United States. It is found in the section which treats of the partnership or community of acquets or gains. “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment; of the produce of the reciprocal labor and industry 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 though the purchase 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 was made is alone attended to, and not the person who made the purchase.” Code of 1808, p. 336, art. 64.

Although no case expressly in point has been cited by counsel on either side, we are of opinion that a recurrence to principles and analogy afford á satisfactory solution of the present question.

Pothier, in his Treatise on Community, lays down the following rule: Les acquéts de chacun des conjoints par marriage ne sont 'conquéts que lorsque le titre ou- la cayse de leur acquisition n’a pas précédé le terns de leur communauté ;, sinon ils sont propres de la communauté. § 151. He gives numerous examples in illustration of this rule. A .person, says he, who died before my marriage, has left me by will an estate, upon a condition which is not accomplished until after my marriage. The estate is my separate property because the will is my title, and it preceded the marriage. So where I have bought an estate before marriage, at a sum below the half of its just value, and after marriage I give validity to the sale by paying my vendor the residue of the just price, the estate is my separate property. Car ce n’est pas le paiement que j’ai fait du supplément du juste prix, qui est mon titee d’acquisition; c’est la vente qui m’a été faite avant mon mariage. Toullier in treating of the same subject observes: Sous l’empire du code, la propriété est transferrée par le contrat de vente (1583); mais la promesse de vente vaut vente, dit Part 1589, c’est á dire que la promesse de vente oblige précisement celui qui l’a faite de passer le contrat de vente. Cependant la promesse de vente ne transiere point la propriété, comme le contrat. Ainsi, celui á qui á été faite la promesse, n’est point propriétaire avant le contrat; mais, comme son titre, pour conteaindre le promettant álui passer le contrat est antérieur au mariage, l’heritage n’entrera point en communauté, sauf recompense. Toullier, vol. 12, § 180. Pothier gives another illustration in the case of a sale avec faculté de réméré. Par la méme raison, si le parent á qui j’ai succédé, avait venduun héritage avec faculté de réméré, et que depuis sa mort j’ai, en qualité de son héritiér, exercé le réméré, je suis censé avoir cet héritage á titre de succession de mon parent; quoique je n’aiepas trouvé l’héritage méme dans la succession, il suffit que j’y aie trouvé le droit de réméré qui s’est realisé dans cet héritage que j’ai réméré; cet héritage n’est done propre, et en matiére de succession, et propre de communauté, sauf la recompense que je dois a la communauté de la somme que j’en ai tirée pour exercer le réméré. Pothier, Communauté, § 116.

The doctrine is a deduction from the maxim, is qui actionem habit, ipsam rem habere vidotur.

Now, although the illustrations we have cited are not identical with the'one at bar, they present a very strong analogy. It is true that the land was not purchased from the United States until after Langlois' marriage. But the “ cause” of the acquisitions may be fairly considered as having preceded the marriage. It was because he was the owner of the front land; an ownership acquired long before; that under the liberal legislation of Congress he was allowed a preference to enter, and that, too, at a low price, specific lands, which may perhaps have been worth much more.

We, therefore, think the land so acquired was his separate property. The only right of the communily was to a reimbursement of the money paid for it, if it was paid for out of the funds of the community.

J udgment affirmed, with costs. 
      
       The word propre is not used here in its ordinary sense. Pothier explains this in § 105. On appelle propre tout ce qni n’estpas communs, tout oe qui n’est pas entré en eommunauté; un Kéritage est pn-opre de communauté, lorsqu’il appartient a l’un des conjoints sans faire partie des biens de la communauté qu’il a avec Rautre conjoint.
     