In Succession of James, 147 La. 944, 86 So. 403, 405, the wife during her marriage acquired in her maiden name and as femme sole certain immovable property, which under our law was property of the community which existed between her and her husband. Subsequently she mortgaged the property, and again she used her maiden name and represented herself as femme sole. After her death a mortgagee named in a mortgage which she had so granted sought to satisfy his claim in the succession, to the prejudice of the husband's one-half interest in the property, relying on the law of registry that no sale or encumbrance of immovable property shall affect third persons unless recorded in the proper office. In denying to the mortgage creditor the right to satisfy his claim from the husband's interest, this court said: "If, then, it is the period of time when the purchase was made, which is `alone to be attended to,' and not the name of the purchaser, the only question remaining is whether itdevolves upon a person who deals with a purchaser of immovableproperty to find out whether he or she was married or single atthe date of the purchase, and we must hold in the affirmative onthat question, or reverse a long-established jurisprudence to the effect that one cannot acquire a title to the *Page 575 interest of a deceased wife, to the prejudice of her heirs, by a purchase from the surviving husband, even though the title to the entire property stands in his name." (Italics mine.)
This court recognized in that case that the rule that the time of the purchase alone is attended to in determining whether property is community may conflict in many instances with the law of registry, and the conflict was resolved in favor of the community owner rather than in favor of the one relying on the registry. To me no sufficient or satisfactory reasons have been advanced in the instant case which warrant resolving the conflict the other way.
The judgment of divorce in this case does not describe or make any reference to any property whatsoever, and contains nothing to contradict the declaration in the husband's deed of acquisition that he was a single man at that time. Therefore, if we assume as a fact that this judgment was recorded in the conveyance records of the parish wherein the property was located prior to the sale made to the defendant herein — which the majority opinion holds was necessary —, the defendant would still acquire a valid title as to the wife's interest in the property, because he could rely on the statement in his vendor's deed of acquisition that he was a single man since there is nothing in the registry to contradict it, and, if this were true, the wife had no interest in the *Page 576 property, for under the law it is the period of time which is alone to be attended to in determining the character of property, that is, whether it belongs to the community or to the husband's separate estate.
Upon the dissolution of the community either by death of the husband or by divorce, the wife has a vested interest in one-half of the community property, and the majority holding, by applying the law of registry, has the effect of permitting the husband in this case, by his false and untrue statements made in the deeds that he was a single man, to take away from the wife her vested interest in the property. Likewise, if the wife had died, leaving minor heirs born of the marriage, their interest, inherited from their mother, would also be divested.
In the case at bar, the trial judge informs us in his reasons for judgment that in the divorce suit service was on a curator ad hoc, and apparently the wife did not learn of the suit for divorce until 1944, several years after the conveyance by the husband of the property on November 10, 1941, to the defendant herein. How could the wife, who had no actual knowledge of the divorce, record this judgment in time to protect her interest in the community property?
In my opinion, the preservation of the community interest is paramount, and should prevail against the proposition of law dealing with the protection of third persons by registry, and, as stated in the *Page 577 James case, supra, it is the duty of a person who deals with a purchaser of immovable property to find out whether he or she was married or single at the date of such purchase.
For these reasons, I think the judgment of the district court should be affirmed, and accordingly I respectfully dissent from the holding of the majority.
Rehearing denied; HAMITER and HAWTHORNE, JJ., dissenting.