By the court (Preston, J., dissenting):
In March, 1850, TJrsule Martin brought a suit against her husband, Meyer, for a separation from bed and board, and obtained an order that he be enjoined from disposing of the community property during the pendency of the suit. No writ of injunction issued, but a citation was served upon Meyer, in April, 1850. Judgment of separation from bed and board was rendered in favor of the wife, -in October, 1850; and the decree further adjudges as follows: “It is further ordered, that a separation of property take place between said parties, and that she recover one-half of the property acquired during the marriage; and to effect a partition, that the sheriff be ordered to sell said community property and to pay one half of the net proceeds of the same to the plaintiff.” It will be observed, that this decree does not specify what was the community property; the plaintiff’s petition contained no such specifications; the evidence was equally silent on the subject, and no settlement whatever of the community appears to have taken place. Upon this judgment the wife obtained a fieri facias, in June, 1851, and caused a house and lot of ground, in the psssession of Lozengheim, to be seized. Thereupon, he brought the present suit to enjoin the sale, alleging that he bought the lot from Meyer in September, 1850; has paid the price, and has expended $400 in improvements. Mrs. Meyer answered, admitting the seizure, but alleging that the property belonged to the community which existed between herself and husband, and was lawfully seized under her judgment. There was judgment in the court below, dissolving the injunction, and condemning the plaintiff, and his surety in the injunction, to pay damages. The plaintiff has appealed.
We think the judgment of the district court was erroneous. The judgment on which tine fieri facias was issued, did not ascertain what property belonged to the community. It is uncertain, under the evidence in this cause, whether the property in question was bought by Meyer before or after his marriage. The wife should have resorted to an action against the purchaser, and so have that decreed, which her judgment against her husband has not decreed, namely, whether this property is or is not community property.
It is therefore decreed, that the judgment of the district court be reversed, and that the injunction be perpetual; the costs in both courts to be paid by the defendant, Ursule Martin, reserving to her her right to bring an action against the plaintiff to set aside the alienation.