The opinion of the Court was delivered by
Bermudez, C. J.This is an action to compel compliance with the terms of sale of a piece of property adjudicated to the defendant. The appeal is taken from a judgment in favor of the latter.
The property was .purchased in the name of the plaintiff, during *571marriage. The act contains a recital of the origin of the funds with which it states that the acquisition was made, and it was signed by the husband. The latter died a short time before the adjudication of the property to the defendant, leaving four children, the issue of his marriage with the plaintiff, two of whom are minors.
The evidence does not show that the plaintiff received herself the funds mentioned in the act of purchase, and that they identically, or virtually so, were invested in the property acquired in her name. She herself did not testify on that subject.
There is no evidence to show that the husband had no debts.
The property is presumed to be community property. R. C. C. 2399, 2402, 2405.
Where property has that character, the burden rests upon the wife, or husband, who claims it as separate estate, to establish ownership by positive evidence, dehors the recitals of the act, which alone prove little or nothing. This is done by proving not only the existence, the origin of the funds, provenance des dealers, but also the actual investment of the same. This is required whether the claim be raised, as against creditors, heirs, or anyone else. 2 N. S. 258; 11 R. 528; 7 An. 104; 30 An. 169; 33 An. 612.
The property continues to be considered as a community asset until the presumption has been effectually destroyed by conclusive proof of the claim of separate ownership to it. 4 R. 118; 9 R. 214; 29 An. 76; 1 L. 206; 5 An. 741; 11 An. 326; 18 An. 126; 20 An. 531.
In the present instance, the property prima facie belongs, subject to community debts, half to the plaintiff, in her own right, and half to the- children of her husband, the issue of his marriage with her. 6 An. 592; 14 An. 282; 16 An. 145; 20 An. 208; 29 An. 215; 31 An. 736.
The admission of the husband, in the act, that the property was bought by the wife with her paraphernal funds, does not bind his creditors, or his forced heirs, unless the latter, to the extent of the disposable portion only, which is one-third in this case. His heirs would; therefore, be co-proprietors with the plaintiff of two-thirds of his half, or one-third of the whole. 10 An. 686, 784, 739; 28 An. 314; 31 An. 126; 33 An. 612; 34 An. 374.
If the husband has left no creditors, it was incumbent on plaintiff to show it. The record does not even contain a certificate showing that no mortgage inscription existed against him.
If the children have inherited no part of the property from their father, they should have been made parties, those of age directly, those under age, through a proper representative. This was not done.
Requiring such proof from a married woman is imposing upon her *572no unauthorized or unjust hardship, or putting her to no undue inconvenience.
It may happen that property may. stand in the name of a married woman, so that her title may be indisputable on its face; for instance, where the same dates anterior to the marriage, or is mentioned in the contract of marriage, in whatever character, or was inherited by, or donated to her after marriage; but this is not invariably so.
Where, however, she has invested funds truly paraphernal, during marriage, in a piece of real estate and she offers to sell it and her offer is accepted, it would be impossible for her to prove her title on the face of the act. She would necessarily be driven to extraneous proof, written or oral, or both, as the case may be; but the purchaser who has agreed to buy must submit to that sort of evidence.
A judgment rendered in plaintiff's favor in this case could conclude neither the creditors of her husband nor his forced heirs,'and would, therefore, be no protection to the defendant who, on paying the price of adjudication, is entitled to receive a complete, valid, unclouded title. 7 N. S. 93; 6 L. 484; 11 L. 556; 6 R. 324, 472; 9 R. 417; 2 An. 384; 9 An. 560.
The plaintiff, having failed to tender to the defendant such a title as he was bound to accept, must succumb in her action, and the latter must be released.
The District Judge has, in a well considered opinion, correctly appreciated the facts and the law applicable thereto.
The judgment appealed from is affirmed with costs.
.Poché, J., concurs in the decree.