delivered the opinion of the court.
The defendants are appellants of a judgement by which a sum of eight hundred and one dollars was allowed to the plaintiff, as the proceeds of a negro slave sold by her husband to Hazleton, on the ground that she had a mortgage on her said husband’s property for the sum of two thousand dollars, *562tbe amount of her dower, and that of five thousand five hundred and twenty-eight dollars, for the amount of her paraphernal estate, disposed of by her said husband.
In an hypothecary action of the wife againstproperty a'third posse'ssor, on which have a tacit fte' restitution phernal e&ctsi it is incumbent upon her to prove that her proper^was actually re-husband^ betion oFthéfobject of her suit, or she will be nonsuited.Her claim is resisted on the ground that what she calls her dower, is nothing but a donation propter nuptias from her husband, which gave her no mortgage; and that the sale to Hazleton was made in October, 1819, at which period it is not proven that any part of the' paraphernal property had come into the hands of her husband.
We think the judge of the Probate Court erred in giving judgement against the defendant. The plaintiff’s counsel in this court has abandoned her claim as to the dower; and it is not in evidence that any part of the paraphernal property had come to the husband’s hands at the time of the sale to Hazleton. The only piece of evidence on which her counsel relies to show that her husband had received the paraphernal property for which she claims a mortgage, before he sold the slave, is a receipt of his for a note of the corporation of the city of New-Orleans, given on the compromise of some rights of hers. This compromise is stated in the receipt to have taken place in August, 1819. The sale of the slave was made in November following. But the receipt of the husband bears date of December, 1820, upwards of a year after 7 7 r J the sale.
It was the province of the plaintiff to prove that her proper£y was received by the husband before the sale. It cannot be assumed without any evidence that the note was given on the day of the compromise; and that Johnston to whom the husband gave this receipt, was his agent, and actually received it on the day the compromise bears date.
. . . 1 he judge below, m our opinion, erred m concluding that the mortgage of the plaintiff attached on the slave,
R is, therefore, ordered, adjudged, and decreed, that the judgement of the Court of Probates be annulled, avoided, and reversed; and that there be judgement for the defendants as ’ , , , in case of a nonsuit, with costs m both courts.