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FLEITAS v. RICHARDSON

decided: March 6, 1893.

FLEITAS
v.
RICHARDSON, (NO. 2.)



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Author: Gray

[ 147 U.S. Page 552]

 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The law of Louisiana as to the rights of married women, which must have a controlling influence on the decision of this case, differs widely from the common law, and a statement of some of its principal rules cannot well be avoided.

By the law of Louisiana, persons contracting marriage may, by ante-nuptial contract before a notary public and in the presence of two witnesses, make such agreements as they

[ 147 U.S. Page 553]

     please (not affecting the legal order of descents,) concerning the title and enjoyment of their property, and of donations made to them by third persons in consideration of the marriage. Civil Code, Arts 2325 (2305), 2328 (2308), 2329 (2309), 2331 (2311). And the partnership or community of acquets and gains exists between them by operation of law, unless otherwise stipulated in the contract. Arts. 2332 (2312), 2399 (2369).

The separate property of the wife is that which she "brings into the marriage, or acquires during the marriage by inheritance, or by donation made to her particularly," and "is divided into dotal and extra-dotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extra-dotal property, otherwise called paraphernal property, is that which forms no part of the dowry." Arts. 2334 (2314), 2335 (2315).

"The wife has a legal mortgage on the property of her husband," for the restitution or reinvestment of the dotal property or dowry, and "for the restitution and reinvestment of her paraphernal property." Art. 3319 (3287). The marriage contract, out of which this mortgage arises, is required to be recorded in the parish where the husband's property is. Art. 3349; Louisiana Rev. Stat. § 2381. Such a mortgage is not required, like ordinary mortgages, to be reinscribed every ten years. Civil Code, art. 3369 (3333). It attaches to any lands acquired by the husband during coverture, and while his liability to the wife continues exist. Johnson v. Pilster, 4 Rob. (La.) 71, 76.

As a general rule, contracts of sale between husband and wife are prohibited; but one of the exceptions to this rule is that he may transfer property to her in settlement of claims arising out of her separate property. Civil Code, art. 2446 (2421).

The wife has no estate of dower in the lands of her husband, nor any right corresponding or equivalent to dower at common law. The decision in Porter v. Lazear, 109 U.S. 84, therefore, has no application to this case.

The liability of the husband to the wife, for her separate

[ 147 U.S. Page 554]

     property received by him under the marriage contract, is in the nature of a debt secured by mortgage of his lands, and may be ...


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