dissenting. The plaintiff, the wife of .the defendant, Malady, sues him for separation from bed and board on the grounds of abandonment and adultery, and she claims half of the community property. She also attacks the titles of the property held by his concubine, Mary Caldwell, on the grounds of fraud and simulation, alleging that her husband is the true owner, and that the titles were put in her name merely to defeat the community, rights of the petitioner.
Mary B. Caldwell pleaded the general issue; and William Malady, her co-defendant, besides the general denial, denies that there existed a community of property between him and the plaintiff, because she has never resided with him in Louisiana, but has, for the last thirty-five years, had her residence in Massachusetts; he also denies that he owns any real or personal property to be divided. The court gave judgment for separation from bed and board, ordered a settlement and partition of the community property, and deciding that the property standing in the name of Mary B. Caldwell belongs to a partnership existing between her and her co-defendant, Malady, decreed that one-half thereof belongs to the community; and that Mrs. Malady, the plaintiff, is entitled to one-half of said half, and for the purpose of effecting said settlement and partition referred the parties to a notary with suitable directions.
From this judgment both the defendants have appealed.
In this Court the controversy is confined to the property, the plaintiff’s right,to a separation from bed aud board not being disputed. Indeed, from the evidence, there is no doubt that the plantiff was shamefully abandoned by her husband some thirty years ago, and that most of the time since then, he has been living in open adultery with Mary B. Caldwell.
I think the court erred in holding that there was a partnership between William-Malady and Mary Caldwell, and that the property standing in the name of the latter belongs to that partnership; *452because in tlie record there is neither an allegation nor proof that a contract of partnership existed between these parties. A partnership arises alone from a contract; it can have its origin in no other source known to the law. The court could not, therefore, give a remedy to a contract that never existed. Outside of the property standing in the name of Mary Caldwell, we find that William Malady possessed nothing. Therefore, unless it is shown that he is the real owner of that property, there will be nothing to divide. This the plaintiff has attempted to do; and from a careful examination of the evidence, I am satisfied that the attempt is a failure. It is at best a mere suspicion.
The property was never owned by William Malady; it was acquired from other parties, and it is not shown that he ever advanced a dollar to help to pay for it.
On the other hand, it is shown that Mary Caldwell had $2800, the proceeds of property inherited from her ancestors; that for the last twenty years she has been remarkably industrious and economical, part of the time being occupied as a milliner, but most of the time being engaged in keeping boarders.
William Malady was never wealthy; the most he ever owned was property not worth more than $2000. He was by occupation a dray-man, owned several drays, and ought to have made money. Because it is not shown what disposition he made of his earnings and the small property he once possessed, shall we say that the recorded titles of Mary Caldwell shall be treated as simulated; that she shall be held to be merely a party interposed,.and that William Malady is really the owner of the property worth $14,000, which she purchased from various persons, and which never belonged to Malady?
By the jurisprudence of this, State all the presumptions of law are in favor of the owner of property. His possession and recorded titles stand to protect him against the claims of all persons setting up an adverse interest, and in order to refute them he is not required to prove how he got the money to buy the property.
If he stole the money, the property bought with it would be his. It devolves on the party alleging simulation and fraud to prove it. It devolves upon the party alleging the interposition of the holder of the legal title, and claiming himself the equitable or actual title, to prove these averments affirmatively. Has the plaintiff in this case done so?
Not a particle of proof on this important point is to be found in the record. There is no affirmative proof that Mary Caldwell was an interposed party ; there is not a particle of proof to show that William Malady ever paid one dollar for the property of which he is now claimed to be the equitable or actual owner. No fraud or simulation is shown as to Mary Caldwell. There is nothing to impeach the verity of *453her or her titles, except, perhaps, she has failed to satisfy the court how she honestly acquired the $14,000 with which to buy the property. This, in my judgment, is no reason to set aside her titles. If she acquired the money as the price of her prostitution, or if she stole it (of which there is not a particle of proof in the record), still her titles in law must stand. I regard the titles of Mary Caldwell as clear and valid as any I have ever seen, and the attempt to assail them is, in my judgment, an utter failure.
If the ownership of property rests upon no better foundation than the ability of the owner to prove, when assailed, where he got the money to pay for it, property rights would be of very little value. Nothing would be more insecure. How and when one makes money to buy property with, can not well be proved, because few persons disclose their transactions to witnesses, and besides, if they do, witnesses die.
If there was a partnership between Mary Caldwell and William Malady, of which there is neither an averment nor proof in this case, I do not see how the plaintiff, the wife of the latter, can claim any specific part of the property. All that could be done would be to sue for a settlement of the partnership. Let the debts be paid, and whatever funds each partner contributed be returned to him or her, and the profits of the partnership be equally divided.
It is proved that Mary Caldwell had $2800, the amount inherited from her parents, and it is proved that she earned $500 as a dressmaker, before she became the concubine of William Malady. Now, in all justice, she ought to have these sums returned before there is a partition of the partnership property. Besides, there is an heir by a putative marriage, who has some rights to William Malady’s community rights in the partnership assets. But the judgment decreeing a partnership where none was alleged or proved, and ordering the partition thereof, is, in my opinion, a grave error into which the court has fallen. I therefore dissent in this case.
Rehearing refused.