On ti-ib Merits.
W a tic ins, J.At the suit of the defendant a judgment was rendered, decreeing a separation from bed and board, and a separation of property, and dissohUion of the community theretofore existing between herself and plaintiff.
*415The plfiiutiff brings this suit for a settlement of the community between himself and wife, “from the date of their marriage, on the 3d of February, 1873, to the date of the judgment, April 25, 1885.”
He alleges that defendant has tacitly renounced all her rights in the community having failed to signify her acceptance of it within the time prescribed by law, and hence he is owner of the entire community7 property in his owm individual right.
He claims that the revenues and crops of defendant’s paraphernal property, during the existence of the community7, amounted to $17,100; and that he advanced about $1000 for the benefit of defendant’s separate property.
He claims further that the community owns a stock of goods, kept in a store on defendant’s property, worth $600, with some outstandings, of small value.
He claims further that ho “has placed repairs on said store to the amount of $80, out of Ms separate means ; and upon the defendant’s separate property7, through Ms own labor, material, bills paid, improvements in the ‘way of ditches, fences, mátiv&tion and other works, and repairs, to the amount of $7000.
He prays judgment against defendant for the $18,330, and that he be decreed the owner of all the community property7.
There was judgment for the defendant in the court below, and plaintiff has appealed.
I.
The salient facts are these :
When defendant married the plaintiff she was Widow Virginia Rogas, and as such, the owner, in her own right, of one-half of the community7 theretofore existing between herself and Felix Rogas; and the half inherited by the children of the marriage was adjudicated to her, upon an order of court, on July 30, 1874, thereby investing her with full and complete title.
The property consisted of two pieces of improved real estate, situated in parish of Plaquemines, valued at $10,000, and movable effects valued at $4,725 82. There were, also, two pieces of property in New Orleans valued at $12,500.
The value of the entiie amount of her separate estate aggregated $27,275 82.
Atthe time of the marriage, the plaintiff was possessed of no means or property of any kind.
The defendant was the mother of four children by her former marriage. two of them minors.
*416After the marriage with plaintiff, she settled with her children by making sales of her separate estate.
The whole of the defendant’s separate property passed under her husband’s administration, and the fruits wnd revenues thereof fell into the new community.
Defendant does not deny that she lias renounced and abandoned tho community; and avers that she owes the plaintiff'nothing; and that her separate property has been in no way benefited, or improved by the community, or its value enhanced.
At the dissolution of the community, by the judgment, there was ■no community property on hand, except the claims enumerated against defendant, as assets.
A quantity of testimony -was introduced in the court below, for the purpose of proving that the plaintiff was a sober, industrious, hardworking man ; and that the value of the orange crops produced annually, on defendant’s separate property, had greatly increased, under his management, and were sold for more money than theretofore.
But the fruits of the paraphernal property were not in esse at the dissolution of the community. They had been used and eonsu/med during the husband’s administration, and, presumably, for the account of the community. They were absolutely at the plaintiff’s disposal. R. C. C. 2404.
II.
The matrimonial community is not a partnership. R. C. C. 2807; 32 Ann. 792, Succession of Cason.
Therefore, there can be had no reckoning, as between the members, inter seso, as to the quantum of labor bestowed, or capital, by either withdrawn. The legal import of the words “ community property ” is a community of property.
R. C. C. 3401 declares that the community consists of “ the profits of all the effects of which the husband has the administration, and enjoyment, either of right or in fact, of the produce of their reciprocal labor and industry of both husband and wife, etc.”
Tn the same manner, the debts contracted during- the marriage outer into the community, and must be acquitted out of the common property. R. C. C. 2403.
At the dissolution of the community, “ all effects which both husband and wife reciprocally possess, are presumed common effects, or gains,” until the contrary is shown. R. C. C. 2405.
It is provided by R. C. C. 2406, that “the effects which compose the * * community of gains, are divided into two equal portions be*417tween the husband and wife, or between the heirs, at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by the husband and wife conjointly, although what has thus been brought m marriage, by either the husband or wife, be more considerable Hum what has been brought by the other, or even although one of the two did not bring anything at all.
When the effects of the community arc partitioned, the husband and wife are equally liable for the debts contracted during the marriage. R. C. C. 2409.
But the wife may exonerate herself from them by renouncing the community. R. C. C. 2410.
She thereby loses all right to the community assets ; but sbe may retake her paraphernal property. R. C. C. 2411.
The wife, separated from bed and hoard, who has not evinced her intention to accept the community, within the time allowed to beneficiary heirs for deliberating, is presumed to have renounced it. R. C. C. 2414, 2420; 12 Ann. 76.
•( The distinct interests of the parties attach at the dissolution of the marriage, subject to the right of the rvife, or her heirs to renounce, and he exonerated from community debts.” 9 La. 583, German vs. Gay; 4 O. S. 652, Gale vs. Davis.
“ Although the distinct interests of the rvife or her representatives attach at the dissolution of the marriage, subject to tlie right to renounce, they can claim nothing- until the debts be paid. They cannot sue for half the price of any specific property acquired during the marriage, where the liquidation of the community does not shoio any gains lo be divided.” 1 R. 378; 7 R. 378; 2 Ann. 30.
“Jn settling a community between a surviving partner and the heirs of the deceased, particular reference must be had to its affairs at the. dissolution.” 16 La. 40, Thibodeaux vs. Thibodeaux.
“ The property, found at the dissolution of the marriage, constitutes the body of acquets and gains.”
Reduced to this last analysis, this suit is for the recovery from the wife of oue half of the alleged profits of her separate property, while under the administration of the plamtijf, and which he had the right to use at pleasure, and his alienation and enjoyment thereof could not have been prevented by the wife; and the whole of which have been consumed by the community, and not one tithe of which is now in existence.
*418Tlie- effect of liis recovery would be to entitle him to take from the wife’s separate property enough to reimburse him, and thus confiscate her estate.
If such an interpretation be placed upon the provisions of the Code in relation to the community of acquets and gains, the paraphernal property of the wife would be completely at the mercy of the husband. By his administration its fruits and revenues become subjected to his absolute control; and the wife is powerless to restrain either his use or abuse of them.
But when used and consumed — according to plaintiff’s theory — he is entitled to east up all accounts, for the value of his labor, material employed, bills paid, cost of cultivation of crops and the value of crops produced and sold during the community, and charge up to the wife’s debit one half and collect it out of her separate estate.
In our view of the law, it is subject to no such construction.
The partition and settlement of the community must he predicated upon the condition of things at the date of Us dissolution. Whatever property there is remaining at that date, is subject to the payment of community debts and the residue may be divided between the spouses. If the debts exceed the value of the property, or there he a likelihood of it, the wife may relieve herself from responsibility by making a renunciation. But, in no event, can any part of the expenses or expenditures of the community he charged against the wife’s separate property.
To permit this to be done would be to violate a prohibitory law.
“The wife, whether separate in property by control or judgment, or not separated, cannot hind herself for her husband, or conjointly with him, for debts contracted by him before or during the marriage.” R. C. C. 2398.
The law could contradict itself by denying the. wife the power to bind herself for debts contracted by the husband, and yet authorize the husband to use. and consume the property of the community and charge her separate, property, without her cousent, for its value.
This view of the law dispenses us from the necessity of passing upon plaintiff’s bill of exceptions, reserved to the rejection by the court of the evidence of his witness, Antonio Piaggini, which had been taken on a former trial and which comes up with the record annexed to the bill. It would be of no avail.
III.
With respect (o (he plaintiff’s claim for improvements placed, during the existence of the community, upon the, wife’s separate property, *419whereby its value became enhanced; and for debts of the wife paid by the community, the proof is desultory and unsatisfactory.
The Code provides that when the separate property of either spouse has been increased or improved during the marriage, the other shall be entitled to one half the value of the increase, “ but there shall be no reward due if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or the chances of trade.” R. C. C. 2408. 2 Ann. 30, Depas vs. Ruz; 6 R. 514; 4 R. R. 236; 33 Ann. 540, Succession of Roth; 38 Ann. 700, Succession of Foreman; 38 Ann. 728, Succession of Beaux.
The evidence fails to establish plaintiff’s demands.
Judgment affirmed.