dissenting. On the 4th of March, 1850, TJrsule Martin commenced a suit against her husband for a separation of property, and enjoined him from disposing of their community property during the pendency of the suit. On the 12th of October, 1850, she obtained judgment in her favor, and decreeing, that a lot in the town of Mandeville should be sold, and the net proceeds divided between them. She, however, did not issue execution until the 15th of June, 1051. But, during the pendency of the suit, on the 9th of September, 1850, the husband, in the city of New Orleans, sold the lot to the plaintiff, who alleges that he placed improvements on it before the execution was issued, amounting to $400. In fact, from some cause, he commenced improving the property before the bill of sale was passed.
The plaintiff contends, that the decree of separation is forfeited, and the community not dissolved, as it has not been followed by a prompt and bona fide execution. I am unable to say there has been such neglect on behalf of the wife, in following up her judgment by execution, as to forfeit her rights under the judgment. Third persons can take advantage of the failure of the wife to issue execution on her judgment, only so far as they are injured; and, the district court would undoubtedly provide, in the distribution of the proceeds of the sale of the property, by allowing the plaintiff for any valuable improvement made after the judgment and before execution.
2d. It is contended, that it is not alleged, or shown that the parties were married at the time the properly was acquired by the husband. I think the evidence leaves no doubt of the marriage; and it appears by plaintiff’s bill of sale, that he knew a suit was pending for separation from bed and board. Now, at the dissolution of the marriage, all property is presumed to belong to the community of acquets, and it becomes those who are interested to show the contrary, to prove it.
3d. It is argued that, even if the property belonged to the community, the husband could legally alienate it. He cannot do so after suit brought for a separation of property, and an order of court to the husband forbidding him to dispose of it.
4th. That no injunction was obtained, or notified to the husband, to prevent his alienating the property during the suit. It was not necessary. He was ordered not to do so, and an order accompanied the petition.
The 5th ground taken has no relevancy to the case.
6th. That the defendant cannot be made to profit by a state of things which she has brought about by her own laches.
I think that she was neglectful in executing her judgment, and that the court, in distributing the proceeds of the sale, should provide equitably for any value the plaintiff added to the property after judgment and before execution; and, indeed, for any other improvements, so far as they may add to the saleable value of the properly, unless it should appear that the plaintiff acted in bad faith, which does not, so far, appear.
*182The wife has a right, by her judgment, to the half of the community property; and, as that in controversy is indivisible in kind to its partition by licitation, that would be the only effect of the execution.
I think the judgment of the district court should be affirmed.