delivered the opinion of the court.
This is a suit for a separation of property, and the creditors of the husband are appellants from that part of the judgment by which the husband is charged with the price of a tract of land, theretofore the property of his wife, which is alleged to have come to his hands in the administration of her paraphernal property.
The plaintiff and appellee has prayed an amendment of the judgment, on the allegation that it is for a less sum than she is entitled to. As she did not appeal, and her husband j , . does not complain of the judgment, and he is not, conse*26quently, before us, we cannot listen to an application to increase the amount which he was condemned to pay.
Where a wife ingVoanherep0aral andhuhenotarial act of sale, acknowledges the receipt of Hie money,shecannot afterwards deny it'^ait'hough^she ®caLireceipt.tho the" wife “ may show that in uveon herself and mmiey^as^actuhusband,'Vacíu! throughhis^hands in consequence of a transfer of the land by her venqueút "salosubse‘ a vendor, iefged the receipt of the price, may allege that he never touched it, eo4 -iBsiawti^nto ttw pereon°fo? Mouse and bone.The appellants urge that the first judge erred in charging |.be huskanci witli the price of the land, because by the notarial act, which is the evidence of the sale, it-appears the x 1 price was received by the wife. 1 *
On the part of the -wife it is contended, that the sale, the x 77 ac^ 0^ which is produced, was a simulated one; that if she he not allowed, she can prove the simulation and deny that she received the money; there is sufficient evidence that it afterwards came to his hands.
The facts of the case are, that in the year 1824, apprehensions being entertained that an act of the legislature was to be passed to prevent married women from selling their lands, and the husband and wife being desirous to preserve the means of disposing of the tract, they joined in a conveyance of it to her brother: that on the rejection of the bill by the legislature, the brother re-conveyed „ the tract to the husband, who afterwards disposed of it. In the act of sale executed before a notary, by the husband and wife to the 7 . it . - . brother, the price is stated to have been paid to her. J
On these facts, we are of opinion that the plaintiff cannot 7 x x deny that she received the money; although she may have wanted the actual receipt of it from her brother, and been satisfied with his promises to pay the price or re-convey trac^ (;0 hgr husband, but nothing prevents her from showing that the money was actually paid afterwards to her husband in pursuance of such an agreement; or actually came through his hands in consequence of a transfer of the tract by the brother and a subsequent sale. Nothing prevents J ° x a vendee who has acknowledged the receipt of the funds to ° ' x uhege that she never touched, that it passsed eo instanti into hands of a third person for her use and benefit. The vendee may indeed avail herself of the vendor’s acknowledgment of the receipt of the price, but the person thus taking x A ° the money may n°t use this acknowledgment to prove that not hfo but the vendee, received the money, if his taking it b(J proyen>
pj^pí'i'erad'prí rrtcraii”ad°the mongageíitachray,1 and for "the amount received.The plaintiff has proven that his brother and vendee, conveyea the land to her husband, who disposed of it; that her husband did not give any consideration for the land. On these facts, the first judge has concluded that the consideration the husband’s vendee agreed to pay for the land, represents the sum of seven thousand dollars, which the wife acknowledged to have received from her brother, in the act of sale of 1824; it appearing that this sum was accounted for by a subsequent conveyance of the brother to the husband, and finally realized by his sale in 1829. But in our opinion, as the sale was made on a credit, the husband’s liability and the consequent right of mortgage of the wife, did not arise till she received the sajd sum of seven thousand dollars, or part thereof from his vendee. As the record affords no evidence of the amount thus received, nor of the dates of such payments, the precise extent of his liability, nor the precise date on which the right of mortgage, cannot be ascertained. This is necessary to the settlement of this case, as in our opinion, the first judge erred certainly in giving the right of mortgage from the sale of 1824, and probably on the amount allowed, as there is no evidence to esta" blish the quantum of what has been received.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded for a new trial, the appellee paying costs in this court.