I cannot subscribe to the ruling herein that the 40 shares of paid up stock and the 60 savings shares of the First Federal Savings Loan Assn. in the name of Mrs. Rowland are community property, inasmuch as these shares were acquired by Mrs. Rowland merely as the result of a recognition by the First Federal Savings *Page 218 Loan Assn. of her interest in the Shreveport Mutual Building Association.
There can be no dubt whatever that the stock issued in Mrs. Rowland's name in the Shreveport Mutual Building Assn. was her separate and paraphernal property by reason of the provisions of Section 13 of Act No. 120 of 1902 and Section 34 of Act No. 140 of 1932 which declares, in substance, that shares in building and loan associations in the name of married women "shall be for the wife's or widow's separate benefit as paraphernal property, and, during the marriage as well as after the dissolution thereof, shall not form part of the marital community or of the estate of the husband for any purpose" and further, that the husband or any other party having any interest or claim adverse to that of the wife be given a delay of 90 days from the date the act shall go into effect to assert their claim, otherwise, "the ownership of said wife or widow in and to said shares shall be and remain absolutely incontestable; and the present statutory period of prescription and repose shall run and operate against all persons whomsoever, including minors, interdicts, married women, and the State of Louisiana."
The district judge held that Section 34 of Act No. 140 of 1932 was unconstitutional, despite our ruling in Carter v. Third District Homestead Ass'n 195 La. 555, 197 So. 230, that the husband (and, of course, those claiming under him) was without right to challenge the constitutionality *Page 219 of Section 13 of Act No. 120 of 1902 or Section 34 of Act No. 140 of 1932, where he failed to assert his claim within ninety days from the effective date of Act No. 140 of 1932. See also Ferguson v. Hayes' Heirs, 202 La. 810, 13 So. 2d 223.
The majority express no opinion respecting the view of the district judge that Section 34 of Act No. 140 of 1932 is unconstitutional but it is concluded that, since Mrs. Rowland accepted the shares of the First Federal Loan Ass'n in exchange for the shares she owned in the Shreveport Mutual Building Ass'n., the shares she received in the Federal Association are to be regarded as community property, being amenable to the provisions of Section 2 of Act No. 95 of 1940 which declares that married women may subscribe for and hold shares in Federal savings and loan associations without the consent of their husbands and that such shares shall be the wife's separate property if they are purchased with her separate and paraphernal funds. It is reasoned that, when Mrs. Rowland agreed to and accepted the issue of the Federal Association's shares, in lieu of her stock in the Shreveport Mutual Building Ass'n., she became bound by Section 2 of Act No. 95 of 1940 and that, therefore, the burden was upon her to show that the original funds used in the acquisition of the shares were separate.
I take the position that the immediate property used for the acquisition of the shares in the Federal Association was unquestionably *Page 220 the separate property of Mrs. Rowland (i.e., the shares in the Shreveport Mutual Building Ass'n.) and that, when the Federal Association issued its shares in exchange for that stock, the status of the shares are to be governed either by the well settled rule that "Where paraphernal property of the wife is given in exchange, that received in place of it partakes of the same character" (see Newsom v. Adams, 3 La. 231; also Lawson v. Ripley, 17 La. 238; Percy v. Percy, 9 La.Ann. 185; Troxler v. Colley, Sheriff, 33 La.Ann. 425, 428 and Dillon v. Freville,129 La. 1005, 1014, 57 So. 316) or the doctrine announced in the leading case of Kittredge v. Grau, on rehearing, 158 La. 154,165, 103 So. 723, 730 that, where stock in a corporation is issued for property owned by a person in his separate right, he acquires the stock "not by an actual transfer to him of something which he did not already own, but by the transformation of his interest * * * into an interest in the corporation."
If the funds which Mrs. Rowland used to purchase the stock in the Shreveport Mutual Building Assn., belonged to the community, she is indebted to the community to that extent. However, this fact cannot change the status of the homestead stock from paraphernal to community property. See Succession of Land,212 La. 103, 31 So. 2d 609 and Succession of Geagan, 212 La. 574,33 So. 2d 118.
In all other respects, I concur in the decree. *Page 221