Schexnayder v. Schexnayder

GAUDIN, Judge. This is an appeal from a July 7, 1983 judgment of the 29th Judicial District *1193 Court maintaining an exception of prescription filed by Mrs. Delbert J. Schexnayder. Mr. Schexnayder filed suit against his wife, appellee herein, to void and set aside a notarial act of partition agreement previously entered into because his wife had not adhered to terms of the agreement. Husbands and wives, however, can not prescribe against each other, and prescription in this ease can’t start to run until the marriage is terminated by divorce. According to the brief filed by Mr. Schex-nayder, the Schexnayders have “... again separated and are currently in the process of obtaining a legal separation.” Obviously, they are not as yet divorced. LRS-C.C. art. 3523 was in effect until January 1, 1983, when it was replaced by Art. 3469. Art. 3523: “Husbands and wives can not prescribe against each other.” Art. 3469: “Prescription is suspended as between: the spouses during marriage, parents and children during minority, tutors and minors during tutorship, and curators and interdicts during interdiction.” (Underlining provided.) Accordingly, we nullify and set aside the appealed-from judgment maintaining the exception of prescription, and we remand to the district court for further proceedings. REVERSED AND REMANDED.