The judgment of the court was pronounced by
Rost, J.The plaintiff married one Abner Smalley in the State of Mississippi. She had no property, and Smalley was much in debt. They came to Louisiana, and, a few months after,Smalley bought at public sale, from the United States, one thousand acres of land, partly in his own name and partly in the name of the plaintiff, and paid for it. His creditors pursued him in Louisiana, and obtained against him judgments, which were duly recorded after the purchase of the lands. In consequence of those judgments, Smalley made to all his creditors, in March, 1841, a voluntary surrender of his property, which was accepted by them. They appointed a syndic, and, in the month of May following the surrender, Smalley died. There are some debts due by the community; but the larger portion were due by him previous to his marriage. The proceeds of the sale of the lands are not sufficient to pay the amounts of the judgments recorded against him. The plaintiff, who has accepted the community, now asks to be placed on the tableau for one-half of the nett proceeds of the land, after deduct-*228mg community debts, on the ground that she was half owner of the commu, property, and that her share cannot be taken to pay the debts of her has? band, anterior to marriage. The judge of the court beiowrefused her application, and she appealed. .
The laws of Louisiana have never recognized a title in the wife during marriage, to one-half of the acquéfs and gains. The rule of the Spanish law on •that subject, is laid down by Febrero with his usual precision. The ownership of tho wife, says that author, is revocable .and fictitious during marriage. As Jong as the husband lives and the marriage is n.ot dissolved, the wife must not say that she-has gananciales, nor is she tp prevent .the husband from using them, under die pretext that the law gives her one.-half. But, soluto matrimonio, she becomes irrevocably the owner of one undivided half, in the manner provided by law for ordinary jbint ownership. The husband is, during marriage, real y verdadero dueño de todos, y tiene en el efecto de .su dominio irrevocable. Febrero Adic., tomo I y 4, part 2d, bk. 1st, chap. 4. parag. 1, nos 29 and 30. Pothier, Communauté, p. 35 and following. 12 Toullier, chap. 2, nos. 72 to 31. 14 Duranton, Droit Franc. p. 281 and foll. 10 Dalloz, Jurisp. p. 198 and fol.
The provisions of our Code on the same subject are the embodiment of those ,of the ¡Spanish law, without any change. The husband is head and master of the community, and ha§ power to alienate the immovables which compose it by an encumbered title, without the consent or permission of his wife. Civil Code, art. 2373. The voluntary surrender of his property by Smalley to iiis .creditors, became him, after acceptance, such an alienation. Under the express provisions of the act of 1823, he was absolutely divested of the title, and hia .creditors were vested with it. 2d Moreau’s Dig. p. 437.
If this alienation can be considered as made in fraud of .the rights .of the wife, the only recourse iyljich the above article giv.es her is, against the heirs of her husband after the dissolution of the marriage. Iu the case cited from 9th La, the alienation complained of, took place after the title of the wife had become irrevocable, by the dissolution of the marriage. We agree fully with the opinion delivered by judge Bullard on that occasion, and consider it, as far as it goes, a .correct exposition of the law on the subject. With th.e reasoning of the court in 4th La. w.e canno.t agree; although the conclusion to which th.eycame, may have been correct on other grounds. The difference supposed by the court'ta .exist between our Code and that of France, is imaginary. Under both, cases of fraud are excepted from the general power given to the liusbapd to alienate the ¡acquéts and gains. Se.e 7th Sirey, 1st sect. p. 401. The proviso of art. 2373 cannot be construed as giying or recognizing a title to or in the wife. As well might it be said that children have a title in the property of their father, because he is prohibited from disposing of it in fraud of their legitime. Dixon v. Dixon, 4 La. 188.
Tho plaintiff h.ad not applied for a separation of property, and .could not have obtained it, as she brought nothing into marriage, and appears to have had no separate avocation of any kind. The surrender was, after acceptance, an alienation, by which she is bound. The proceeds of the land must go to the payment .of the debts proved in concurso, giving the preference to those contracted .during the .community, and reserving to the plaintiff her rights against the syndic for one-half of any balance in his hands after the payment of all the debts, pnd also the rights she may have against the heirs of her liusbqnd, under .art, •2373 of the .Civil Code,
*229For the reasons assigned, it is .ordered that the judgment in this case be amended, so as to reserve to the plaintiff her right to one half of any 'balance remaining in the hands of the syndic after payment of all the debts, and also any rights she may have against the heirs of her husband under art. 2373 of the Civil Code. It is further ordered, that the judgment aa amended be affirmed, with costs.