FASTIN vs. EASTIN'S HEIRS, 10 La. 194

Bullard, J., delivered the opinion of the court. The plaintiff, in this case, having obtained judgment' of separation of property from her husband and recovered the sum of about one thousand dollars for the amount of her par-aphernal property, caused an execution to issue, which was returned nulla bona.

She then instituted the present action against the widow and heirs of Herbert Eastin, in order to annul, so far as it relates to her claim, a sale made by her husband to Eastin, in his life time, of certain lands and slaves, which sale she alleges was in fraud of her rights, and she prays that at all events she may be declared to have a legal mortgage on the property thus alienated to secure the payment of her claim against her husband. Another creditor of the husband intervened, but as he is not made a party to the appeal, that part of the case requires no further notice.

The defendants denied the important allegations in the petition, and further set forth, that they are the widow and heirs of Eastin under benefit of inventory, that all the property of the estate had been sold except two slaves, who had been taken possession of by the plaintiff, and they pray judgment against her for their restitution. They further allege that the sale to their ancestor was valid, and aver that the judgment of the plaintiff against her husband was obtained through fraud.

The plaintiff then amended her petition, claiming to be paid the amouut of her judgment by preference out of the price for which the slaves in dispute had been sold subsequently to the inception of this suit. The claim in reconvention appears to have been abandoned. The questions thus raised were submitted to a jury, whose verdict being in favor of the plaintiff, the court decreed that the defendants should satisfy the judgment of the plaintiff against her husband out of the proceeds of the property in their hands, and recognized the validity of her legal mortgage on said property. The defendants appealed.

The defendants rely mainly on the principles established in 8 Martin, N. S., 459, and 4 Louisiana Reports, 422, and contend that a judgment obtained by the wife against her husband may be impeached by the creditors; and that in an hypothecary action against third possessors, if fraud be alleged, the burden rests on her to show the genuineness of her claim.

Where the fairness of a judgment of separation of property, obtained by the wife against her husband, is put at issue, and. the jury find in support of it, their finding will not be disregarded, even where tl^e evidence appears doubtful in relation to the amount for which it was rendered. ' Parole evidence is/admissible to show the amount of property brought into marriage by the wife, even when the witnesses speak of written evidence existing inrelation to it, if they derived their knowledge of this fact from hearsay.

If the legal mortgage of the wife attach to property before the ‘ sale, the court will give' effect to it on the property in the bauds of the vendee. The fairness of the judgment first obtained by the plaintiff against her husband was put in issue in this case, and the jury found in support of it. The evidence in the record shows that she did bring some property into the marriage, consisting of horses, horned cattle, and furniture. Whether it was worth one thousand and fifty dollars or less is left perhaps doubtful, because the value of the different articles is not detailed.

But the jury appears to have been satisfied that the first judgment was fair, and we are mot enabled to correct their finding. Some of,the evidence upon which the jury came to that result was objected to, and a- bill of exceptions was taken. It is contended that parole evidente was inadmissible to show the amount of property brought into marriage, where the witnesses declared that there was evidence of a higher character. We do not find it positively proved- that there was a written memorandum or inventory taken at the time of the marriage.

The supposed existence'of such a document "rests mainl'y on hearsay, and as the property consisted-of moveables, except a tract of land not now in controversy, we think the court did not err in admitting the evidence. Whether the sale from Labauve to Eastin was bond, fide, or intended merely to. secure the latter the payment of a debt due him by the vendor, does not appear to us material in this case. The legal mortgage of the wife appears to have attached before the sale, and as the judgment of the District Court merely gives effect to her mortgage, we are not satisfied that it was erroneous.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court be affirmed, with costs.