BROUSSARD vs. BERNARD ET ALS., 7 La. 211

Porter, J., delivered the opinion of the court. This case grew out of an action, which was originally brought to ascertain, and settle the claims of the heirs of the late wife of the present plaintiff, to the property held in community, at the dissolution of the marriage, and to annul and set aside certain conveyances, which the plaintiff had made, of all the real and personal estate.

He and those to whom he had sold, pleaded to the action, and after the cause stood at issue for some time, a decree was entered up by consent, declaring the deeds of sale null and void, directing an inventory and estimation of the property to be made; that the plaintiff should take the whole of the estate, at the price of the appraisement, and that after deducting the debts due by the community, he should pay the heirs of the wife their shares, at certain periods of time, therein mentioned.

The petition in this case, sets forth these facts, and avers, that an inventory had been made by the parish judge; that the whole estate amounted to eleven thousand nine hundred and forty-two dollars; that he has paid debts to a greater amount, viz: sixteen thousand and eighty-six dollars, and that the defendants refuse to ratify these proceedings, or carry them info effect. It concludes with a prayer, that they may be cited, that the whole of the proceedings may be homologated, and that the plaintiff may be discharged from all further responsibility.

Customs result from a long series of actions constantly repeated, -which by such repetition and by uninterrupted acquiescence, acquire the force of a tacit and common consent. The particular custom, that the comnmnity of properly continues after the death of one of the partners until inventoryis made, is required to be proved by other partitions and divisions, that may have been made in the same place, and thatit has prevailed •without interruption. The establishment of a custom necessarily admits proof other than that required to establish laws.

The answer contains a general denial; that the parties to this, and the former suit, were minors and married women, and that no legal consent could be given by them, to such a decree as that set forth in the petition ; that the conduct of the plaintiff was fraudulent, in delaying the inventory and appraisement, until property had greatly fallen in price; that the sum, which the plaintiff now avers he had paid of community debts, exceeded by more than four thousand dollars, the amount stated in the answer, filed by him in the first suit; and lastly, that after the death of his wife, he had acquired property which must enter into the community. ' On the trial, the defendants offered evidence to prove, that after the death of their ancestor, the plaintiff had made large crops with the slaves, which were common property.

This was rejected. They then offered to prove by parole, and by the record books of the Court of Probates of Attakapas, that it was the usage and custom of that county, and of the state of Louisiana, to consider the community as existing, until an inventory was made; that the Fuero Real of the kingdom of Spain, was in force, where the succession was opened. This evidence was also rejected by the court, to which the defendants excepted.

Customs, according to our Civil Code, result from a long series of actions, constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent. La. Code, art. 3. The particular custom, on which the defendants relied in this instance, is required to be proved by other partitions and divisions, that may have been made in the same place, and that it has prevailed without interruption. Febrero, p. 2, lib. 1, cap. 4, § 4, No. 91. 3 Martin, 120.

The recognition of customs, by our Code, necessarily admitted proof, other than that required to establish laws. The custom which the defendants attempted to prove, was not as plaintiff objects, contrary to the general law of the land, but an exception to the ordinary rules, which regulate partnerships. If the proof of customs could be rejected, because it established something different from the law, no custom could be proved, for if jj, were not different, it would make a part of the law.

Parole evidence to prove the eustomsi of a coun- The hooks and parish3 judge’s office are legal and the proper evidence to prove a particular custom in retinuation^ofThe thed^ü'^of1^61' of the partners made™7™101713 But the court, in our opinion, acted correctly, in rejecting parole evidence of this custom, first, because the law directs, it shall be proved in another manner; and second, because parole evidence is not the best of matters, which the law required to be executed in • writing.

There was no legal ground', for rejecting the evidence of the books of the parish judge; it was precisely that species of proof, which the law demands, in relation to this custom, and the cause must 3 3 be remanded, to give the party an opportunity of producing it. ^ *s’ therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; that the cause be remanded for a new trial, with directions to the judge a quo, not to reject the record books of the parish of St.

Martin, to prove that the Fuero Real was in force there; and it is further ordered, adjudged and decreed, that the appellee pay the costs of this appeal.