McVey v. Holden , 15 La. Ann. 317 ( 1860 )

Merrick, C. J.

This suit is brought for a divorce a mensa et thoro, the recovery of separate property, and a dissolution of the community.

The divorce is claimed on account of neglect, abandonment, excesses and “moral cruelty.”

The District Judge was of opinion, that the proof aaus insufficient to support the allegations for separation from bed and board. An attentive examination of the testimony has led us to the same conclusion.

The only serious question in the case, is that presented by a post nuptial contract executed in the State of Mississippi, (ivhere the parties resided for a time,) by which the defendant transferred to a trustee the negroes now claimed by the Avife.

The parties were married in Louisiana in 1821, and the slaves in controversy were acquired during the marriage and prior to the removal of the parties to Mississippi.

The instrument by which the slaves were conveyed to the trustee, was under seal and purports to be a conveyance of the negroes to the trustee in consideration of five dollars paid by him. The trustee covenants that the plaintiff shall be permitted to retain possession of the slaves, have the direction of their labor and appropriate the same to her OAvn use, free from the liabilities of her husband. The trustee further covenanted to transfer the property to such persons or uses as the plaintiff should direct, and in default thereof, and at her death, that the property should be freed from the trust and descend to the joint heirs of the said plaintiff and defendant.

Defendant contends that this act is void under the Act of Feb. 15th, 1839, of Mississippi, which declares that “ Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution in her OAvn name and as of her property; provided the same does not come from her husband after coverture.’’

The appellant contends that this statute has not changed the law of Mississippi in reference to property settled in trust for the benefit of the wife, and cites the case of Radciffe v. Dougherty, 23 Miss. R. 182.

We do not feel called upon to express our- opinion upon this question. The parties were married in this State and had their domicil here at the time the slaves in controversy were purchased. They halting long since returned to their ancient domicil, which they now make their permanent residence, their rights may Avell be determined by the laws which were in force at the time of the marriage, the acquisition of the property, and the rise of the litigation. By our laAv the property belongs to the community, and as the wife brought nothing iuto the marriage, has inherited nothing, and acquired nothing by donation, there is no ground for a contract between the husband and wife fot the transfer of property to her for the replacing of dotal or paraphernal effects alienated by him. 0. 0. 1784, 2421.

Our law does not permit the parties to make any change in relation to the rights of the spouses after the marriage, (0. 0. 2309,) and donations to each other are always revocable. 0. 0. 1742.

The trust estate created by the post nuptial settlement in Mississippi, is in contravention of the above and other .provisions of our law. Now, as the wife, (conceding the instrument to be valid by the laws of Mississippi,) acquired only an equitable interest under the laws of that State, which could not be enforced in a court of law, and only by a suit in chancery, we think, comity does not require us to recognize the validity of such settlement, particularly in tho absence of the trustee. Wailes v. Daniel, 14 An. 578. Had the rights of the parties been fixed by the dissolution of the marriage, while they were resident in the State of Mississippi, or if the property conveyed to the trustee had not belonged to the community under our law, the question might possibly have been different.

Judgment affirmed.

Land, J., absent.