Page:United States Reports, Volume 209.djvu/326

 300 OCTOBER TERM, 1907. Opn of the Courg 9 U.S. code, for. the purpose of protecting the community and se- curing a just liquidation of the respective interests in the same, expressly provides, Article 1407, that "All the property of a marriage shall be considered as community property until it is proven that it belongs exclusively to the husband or to the wife." Although the presumption thus created was not ex- pressed in the text of the Partidas, it was from ancient times a part of the Spanish law, having been declared in Ley, 203, Del Estilo (A.D. 1566), and such presumption common to both the Cole Napoleon and the Louisiana Code (Code Na- poleon, Art. 1403; Louisiana Code, Art. 2405), was, in express terms, embodied in Law 5, title 4, book 10, of the No 'vima Recopilacion. In speaking of the ancient Spanish law on the subject in Savenat v. Le Breton, 1 Louisiana, 520, 522, the court said: "This question must be decided according to the Spanish laws relating to fights which subsist in the marriage state between the parties to the matrimonial contract. By these laws 'everything purchased during the marriage fell into the common stock of gains, and at the death of either of the par- ties was to be divided equally between the survivor and the heirs of the deceased. And this effect was produced whether purchases were made with the money or capital of the com- munity or with that of either of the married parties, whether in the name of both, or that of one of them separately. See Febrero add. part 2, lib. 1, chap. 4, sec. I, no. 6." And the text of the Novisima concerning the presumption was expounded and applied by the Supreme Court of Spain on May 7, 1868, in a case wMch came before it from Havana. Jurisprudencia Civil, vol. 17, No. 124, pp. 435-439. It is un- doubted that all the real estate to which the agreement re- lated was acquired by the husband after the marriage, and therefore was controlled, generally speaking, by the presump- tion of community. True it is, that the bill, as originally drawa, alleged that some of the property which was trans- ferred to the mother by the agreement was acquired by in-

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