BROWN AND WIFE vs. COBB ET AL., 10 La. 172

Mathews, J., delivered the opinion of the court. This suit, after having passed through the ordeal of many exceptions, taken in limine' litis, finally settled down in a contest touching the partition of the community property acquired during the marriage of the defendant with Samuel Cobb. The plaintiff, Mrs. Brown, demands a division between herself (as having succeeded to the interests of the deceased husband,) and the defendant, widow, in community. As to the claim for a partition of the community of acquests and gainá, it is not disputed.

But questions were made by the pleadings arising out of the different pretensions of the parties.by which each claimed as their separate property certain slaves which had been inventoried as common. The court below decided against the claims of both parties.

The judgment thus rendered having a tendency to affect the interest of the plaintiffs in a greater degree than that of the defendant, the former appealed. where it is j*0™ w *aJjula chased with the funds of the wife, an(j the title is 0fthehus-band, community pro- ^ °°me a lc:S'al charge against the community, °f t!ie Where the certain Slaves to foe husband, during* marriage, purports to be a saiefon Lfface^ ^eC0Bs^eredas community pro- evi_ deuce is inad-that

an act of sale was different from what it purports to be on its face, as far as relates to title, although it might he legal and propel*, in a claim against the community of ac-quests and gains, to show that the price of the

article was paid out of the separate funds of the husband. As to the slaves claimed by the defendant, viz.: Simon and Francois, her pretensions need not be here examined, as she did not appeal, and it is acknowledged by her counsel, in his brief of argument, that the decision of the court below is correct, decreeing them to be property of the community; , ' . , _ . ,‘ n , , . but as Simon was purchased with funds belonging to the wife, although the title was taken in the name of the husband, the price given will constitute a legal charge against the communitjt.

In relation to the slaves Rhoda and her children, claimed as the separate property of Mrs. Brown: the evidence of 1 1 x J 7 title produced, shows that they were purchased by the husband during the marriage. A document was adduced indicating that the purchaser had some interest in the property which was sold at auction, amongst other effects. The amount and value of his interest are not shown by the J t written document, and the deed of sale for the slaves in question, exhibits a purchase without reference to any right of property previously existing in the purchaser.

We are, therefore, of opinion, that the court below did not err in considering the deed as evidence of a simple sale, by which the purchaser acquired property pending the marriage, and not a licitation of effects held in common by him and other persons. Parole evidence was offered to show that the act of sale was different from what it appears on its face.

This evidence, we think, was properly rejected, as it relates to the question of title, although it might and probably would be proper in a claim against the community of acquests and gains, in favor of the plaintiffs, to show that the price was paid out of the separate funds of the husband. The articles of the Louisiana Code, relied on by the defendant, are explicit, and demonstrate clearly that the slaves Rhoda and her children constitute a part of the matrimonial community as it existed at the death of the husband. Louisiana Code, articles 2314, 2371.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be affirmed, the costs to be paid out of the community property, reserving to the respective Parties to this suit their right to prove the amount paid out of the separate funds for the property now in dispute, as a charge on the community, &c.