Fortier v. Barry

Citations

• 111 La. 776
• 35 So. 900
• 1904 La. LEXIS 559

Syllabus

<p>COMMUNITY PROPERTY—SEPARATE PROPERTY OP WIPE—BURDEN OP PROOF—PURCHASE OF PROPERTY—BUILDING ASSOCIATION—LIABILITY TO SEIZURE.</p> <p>1. The presumption of law is that property purchased during the existence of the community, whether in the name of the one or the other of the spouses, belongs to the community, and, whore the wife claims it as separate estate, the burden' rests upon her to establish, by proof dehors the recitals of the act by which it has been acquired, (1) the possession of some paraphernal funds under her administration, and available for investment, (2) that the cash portion of the purchase price bears such a relation to the whole as that the property will afford sufficient security for the credit portion, and (3) that her paraphernal property and revenues are ample to enable her to make the purchase with reasonable expectation of meeting the deferred payments.</p> <p>2. It is no doubt true, to some extent, that the law which denies to the wife the power to bind herself by the purchase of property for which she has no reasonable prospect of paying is intended for her protection, but it must nevertheless operate for the benefit of whom it may concern, and it may concern and be invoked by the creditors of the husband.</p> <p>3. There is nothing in Act No. 74, p. 88, of 1894, relating to the dealings of married women with building and loan associations, which authorizes a married woman, without means, to bind herself by the purchase of-real estate, or which in any way enlarges her capacity in that respect. On the contrary, the act expressly provides that nothing in it shall be taken or deemed as authorizing any married woman to “* * * buy or sell real estate without the authorization of her husband.”</p> <p>4. In this case, it appears that a married woman, claiming the possession and administration of paraphernal property valued at $2,000, and yielding a gross revenue of $20 a month, upon the same day bought two pieces of real estate, the one from a