(Buciianan, J., dissenting.) This is an action for the partition of property belonging to the community, which formerly existed between the parties. *
The defendant claims the reversal of the judgment rendered against her on several grounds.
#i First. The evidence shows that plaintiff had made a dation en paiement *515in his half interest in the slaves to the defendant, and lie is bound by the evidence by which it is sought to be sustained.”
The only question which this ground presents is, whether the plaintiff has been divested .of his title to the undivided half of the slaves claimed as community property. We think not. A demand in reconvention is the only plea interposed by the defendant. She alleges in substance, that she was married to the plaintiff in October, 1825, with whom she had two children, Theophile and Emma JDorvin, the former being born on the 30th of October, 1S26, and the latter on the 28th of .February, 1830; that iri June, 3881, she and her children were abandoned by him, without any just cause; that on the eleventh of July, eighteen hundred and thirty-eight, she obtained a judgment against him for separation from bed and board, on the ground of abandonment, in which the right was reserved to establish their respective claims against the community ; that the only property of the community then, consisted of the negro woman named Anais and her two children, Claire and Gecile, the former aged about three years and the latter about twenty months; that the other two children of Anais, Franpois and Carmelite, born subsequently, are now aged, one about twelve and the other thirteen years ; that Anais had nine children, five of whom died quite young; that she had to defray the expenses incident to the birth, burial, &c., of the children of Anais, which amounted to upwards of $150, as a charge against the community ; that she paid $103 for parish and municipal taxes on the slaves, from the year 1842 to that of 1850, inclusive, which was due by the community; that the plaintiff is bound to her for one-half of the expenses for the clothing and support of the slaves of the community, at the average rate of $4 per month, to bo reckoned as follows, to wit, Anais from June, 1831, Claire from July, 1834, Ceeile from September, 1835, Franpois from February, 1838, and Carmelite from February, 1830, until the final settlement of the community ; that when she was abandoned by the plaintiff, her daughter Emma, an infant, was lying dangerously ill, and continued to remain so upwards of twenty months; that the plaintiff, having made no provision either for her support or that of her children and their education, she was compelled to labor in order to procure the necessary means for that purpose; that Emma and Theophile Dorvin, both died of lingering diseases of many months, the former on the 11th of April, 1849, and the latter on the 30th of May, 1851; that the plaintiff, although legally and morally bound, never paid or contributed any thing for the support and education of his children ; that he is bound for the reimbursement of the expenses incurred by her for that purpose, at an average rate of $20 per month for each of them, from June, 1831, to the period of their respective deaths, and also for the sum of $223 50, their funeral expenses; and that she is entitled to a privilege for the reimbursement of her claims, which greatly exceed the interest of the plaintiff in said community property. She concludes, by praying for judgment against the plaintiff, with privilege on Ms half interest in the community property, for the reimbursement of the sums thus claimed by her, &c.
In answer to her reconventional demand, the plaintiff pleaded a general denial, and specially, that the claims set up by her was compensated by the hire of the slaves which remained in her possession; and also claimed as a charge against the community, the sum of $2,790 74, alleged to have been inherited by him from the successions of his father and grandfather, and converted to the use of said community.
*516We think it is clear, under these pleadings, that the defendant is precluded from asserting title to the plaintiffs’ interest in the property as a dation en paiement. Parol evidence of the plaintiffs’ admission that he promised to abandon the slaves in question to the defendant, although received without objection, is not entitled, in our opinion, to the effect contended for by the appellant’s counsel. The cases on which he relies to sustain his position, do not appear to us to be analogous to the present.
“Second. The court erred in allowing wages for Aliáis from the 11th of July, 1838, date of separation, and for the four children from their fifteenth, year, because wages should have been allowed only from the date of the institution of the present suit.”
We do not think the judgment is erroneous in this respect. The plaintiff ceased, by the effect of the judgment of separation from bed and board, to be the master and head of the community, and one undivided half of the property thereof vested immediately in each of the spouses, who thereby became joint owners. The defendant having continued to possess nomine aommuni, was clearly accountable for the fruits of the property, more especially as she claimed in rcconvention such charges as those sought to be recovered by her.
“ Third. The court erred in deciding that the services of slave children to the ago of fifteen years compensated for the expenses and trouble of raising them. Because there are n.o proofs and -facts which can be taken as the basis for the foundation of such a rule; and because, on a separate examination of the pleadings, the evidence, and a decision of the late Supreme Court, the very reverse of the proposition will be made evident.”
The only question which this ground of defence presents, is one of fact, and, as is usual in such cases, generally founded on speculative opinions. It does not appear to us from the evidence, that the Judge erred to the preiudice of the defendant. Neither do we understand that his decision establishes any rule of compensation in regard to the raising of the children of slaves, as urged by the defendant’s counsel. His conclusion that the defendant would be compensated for the trouble and expense, by charging her with the hire of the slaves only from their fifteenth year, appears to us to be fully sustained by the evidence.
“ Fourth. The court erred in disallowing under the above erroneous principle, the third item of defendant’s claim, being for the food, clothing, &c.,of the four children and of Anais herself, because the claim was admitted by the pleadings to be correct, and was fully sustained both by defendant’s and plaintiff’s evidence.”
We do not think that the plaintiff’s answer to the demand in reconvention contains any such admission.' In adjusting the claim for the hire of the slaves, we infer from the evidence that the Judge must have taken this claim into consideration.
“ Fifth. The court erred in not allowing for the expenses of rearing Theo-phile and Emma, from 1831, date of the abandoment, instead of the 11th of July, 1838, date of dissolution of the marriage; because plaintiff’s plea in compensation admitted their correctness, and because he is as much bound by law for the expenses incurred prior, as for those incurred subsequent to the separation from bed and board; and if not legally, then he is by a natural obligation.”
We do not think, as already observed, that the plaintiff’s answer contains *517any such admission. Tho defendant’s claim for expenditures fn'ior to the dissolution of the community, is clearly inadmissible. It is neither alleged nor shown by her, that those expenditures were defrayed with her separate or paraphernal funds. O. 0. 2371.
The plaintiff has prayed for an amendment of the judgment in his favor, by allowing him the amount of his alleged inheritance as a claim against the community. We concur in the opinion of tho Judge a quo, that the evidence is insufficient to show that any part of it was ever brought into the community. Nor is it even shown by him that the notes which he received as his share in those estates, have ever been paid-or any part of their proceeds applied to the purchase of Aneéis, as alleged by him.
It is urged, that the affirmance of the judgment will prejudice the appellant, by compelling her, in the event of becoming the purchaser of the property, to deposit the purchase money into court. Wo do not understand that such will be the effect of the judgment. Either party, in becoming the purchaser of the property, will have the right to retain in his or her hands, tho portion of the price coming to him or her, the defendant to retain first the .amount.awarded in her favor as a creditor of the community by this judgment.
It is therefore ordered and decreed, that the judgment of the court below be affirmed, with costs.