The judgment of the court was pronounced by
Rost, LIn the suit of Jacobs, for the use of George W. Copley, v. Robert H. Hanna, the sheriff seized four slaves, as the property of the defendant. His wife enjoined the seizure, on the ground that she was the owner of those slaves, having purchased three of them from D. F. Tidwell, after her separation of property from her husband, and holding the other, under a donation, from R. D. Percy, to her.
The seizing creditor, among other grounds of defence, alleges, that the judgment of separation of property, on which the plaintiff relies, was null on two grounds. 1st. That the plaintiff had no claim against her husband, which could be the basis of an action of separation of property. 2d. That if she had, the decree of separation had lapsed, for want of execution within the time required by law.
The decree and proceedings had in the suit for separation of property, were adduced on the trial, and the plaintiff further offered as evidence, to substantiate the claims upon which the judgment had been rendered. The defendant introduced rebutting evidence, and the court, after hearing, dissolved the injunction with damages, allowing the sheriff to proceed under the execution. The plaintiff has appealed.
The three slaves purchased from Tidwell, were acquired by the plaintiff during marriage; they, therefore, belong to the community, and are subject to the payment of the community debts, unless the plaintiff has shown either that the slaves were purchased with funds belonging to her, and of which she had the administration at the time, or that she was separated in property from her husband. She has adduced, as the foundation of her title, the proceedings and decree in the suit for a separation of property. The defendant has, therefore, the right to show the nullity of the judgment in that suit, by all kinds of legal evidence. Collins v. Batterson, 3 L. R. 245.
We are not prepared to admit, that the first ground of nullity is tenable. Execution issued upon the judgment of separation within a reasonable time, and was returned by the sheriff, “no property found.” It not appearing that the husband was possessed, at the time, of property subject to seizure, this return would probably be sufficient to prevent the lapsing of the judgment; but we are of opinion that the second ground is well taken. The claim for a separation of property is based exclusively upon the allegation, that the husband had *735received, during marriage, and converted to his use, large sums of money belonging to the petitioner, and that the disorder of his affairs induced her to believe that her rights were in danger. We are compelled to say, that she has failed to prove that allegation by legal evidence. The testimony of her father must be entirely disregarded: that of her brother is too vague and uncertain to be relied on, and the receipt given by her husband does not, by itself, make proof. There having been no indebtedness from her husband to her, the action of separation had nothing to rest upon, and the judgment rendered therein is null and void. The slaves sold by Tidwell are, therefore, community property, and subject, as such, to the defendant’s execution. It is otherwise with the slave given to the plaintiff by Percy. Although not separated in property, she was capable of receiving by donation, and the act under which she holds, a real contract, intended by the parties, and by Hanna, to be binding. Whether the true consideration of that contract was such a fraud upon the creditors of Hanna as entitles them to avoid it, is a question which could only have been inquired into in a direct action.
It is therefore ordered, that the judgment, so far as it dissolves the injunction arresting the sale of the slave, Venus, be reversed, and that the injunction to sell lhat slavo be reinstated and ihade perpetual. It is further ordered, that the judgment be otherwise affirmed, the plaintiff paying the costs of the district court; and those of this appeal, to be paid by George W. Copley.