¶1The petitioner alleges she is the owner of certain negroes, and is entitled to the separate administration and control of the same ; she prays to be decreed their owner, to be vested with their separate administration, and also to be divorced from her husband.
¶2There was judgment of nonsuit, and plaintiff has appealed.
¶3It appears from a “ deed of gift,” executed in Alabama in 1849, that the father of plaintiff donated to her two slaves, one of which has since had three children.
¶4Petitioner and her husband were married together in the State of Alabama in 1836, and moved to Louisiana in 1840; they brought with them Martha, one of the slaves mentioned in the act of donation, who had been loaned to plaintiff by her father for a nurse.
¶5Afterwards, they visited Alabama, and on thoir return in 1841 brought with them Peggy, the other slave named in the deed.
¶6The evidence clearly establishes, that the slaves were loaned to the wife for her use and subsequently were donated to her.
¶7Defendant avers that he has been in possession of thorn, as owner, for a time sufficient to perfect the prescription applicable to slaves, and pleads the same; he further avers that the private act of donation can have no legal effect, and that the parol evidence was inadmissible.
¶8When the contest is between husband and wife, and property given to the wife has been entrusted to the husband as her agent, the husband can not set up the plea of prescription. C. C. 3489.
¶9It would also be improper to allow the husband, when he has no adverse title, to defeat Ms wife’s claim on account of technical defects in her title; he receives the property as agent, he cannot change the nature of his tenure, nor can ho, as agent, refuse to surrender it on account of defects in the title of his principal.
¶10The allegations for a divorce are not sustained.
¶11It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; further, that plaintiff is decreed to be the owner of the slaves described in the petition, to wit: of Peggy, of Martha and her three children, Ann, Elias and Sylva, and the separate administration of said slaves is given to plaintiff; it is further ordered and decreed, that the writ of sequestration sued out by plaintiff be sustained, that the Sheriff of the parish of Union be and is hereby ordered to deliver said slaves to plaintiff: it is also ordered, that there be judgment, as in case of nonsuit, for the claim of plaintiff for a divorce from defendant, and that defendant pay the costs of both courts.