author: Buchanan," J.

text:
    W. Whittikam v. A. Swain.
    A tutor who permits a debt due to his ward to become prescribed is personally bound for it.
    An administrator should be held to proof of due diligence in the collection of the active debts of the succession. lie cannot be relieved of responsibility by showing that he offered them for sale at public auction in a lump, and could not get a bid.
    The fee of counsel for filing the account of the tutor, is an expense chargeable to the minor, ugder Art. 852, O. C.
    A tutor who pays a debt from which his ward has been relieved by prescription, is liable to the ward for the amount so paid.
    APPEAL from the District Court of the Parish of Point Coupée, Farrar, J.

      Cooley, for plaintiff, cited succession of Guiltlemin, 2 Ann, 634, Monget v. WaVcer, 4 Ann. 214. Provosty, for defendant.
   Buchanan," J.

This is an appeal from a judgment upon opposition to an account of tutorship. The judgment of the District Court, which appears to have been laboriously and carefully prepared, fixes the balance due the plaintiff by his tutor at the sum of two thousand and twelve dollars and twelve cents, with interest. The representatives of the estate of the tutor and of his security have appealed, and assign various errors. The appellee has also prayed, in his answer to the appeal, that the judgment of the Court below be amended in his favor in various particulars.

The first error assigned by appellant, is the charging the tutor with a sum of $2544 90, being the balance due by Rutis Morgan on notes given with Charles Morgan, Jr., as endorser, for the price of land belonging to the minor and his co-heirs, sold at probate sale, and purchased by said Rutis Morgan. The balance in question remained after the seizure and sale of the land in the hands of Morgan. Upon this point, we do not think the District Court erred. The notes of Rutis Morgan matured in 1843, 1844, 1845 and 1846. The endorser was the security of the tutor, on his bond of tutorship. None of the notes wore paid, and no steps wore taken to render the property sold liable, until January, 1847, when executory process was issued, and the property was sold, leaving the above mentioned deficit. The drawer of the notes, Rutis Morgan, appears to have lived until after the last of them had matured, but no attempt was ■ ever made to make the money by a personal action against himself or his endorser. All the notes were prescribed before the plaintiff reached the age of majority; and we think that the tutor and his security are clearly liable.

The appellant next avers that the District Court erred in allowing plaintiff one-fourth of the amount of the notes and accounts due his mother’s estate, which were not sold by the Parish Judge for want of a bid. This circumstance, on which the appellant lays much stress, appears to us of no importance. The mode adopted by the tutor in this instance, of settling an estate by setting up at auction to the highest bidder, the outstanding claims by note and book account, for whatever they will fetch, within a short period after the death of the ancestor of the midor under his tutelage, is at best objectionable; hardly warranted by law, and liable to the greatest abuses. This case seems to illustrate the latter observation. About two thousand dollars of nominal value of notes and accounts due the estate of plaintiff’s mother were sold, in six lots, for the aggregate price of less than seventy dollars; and, among other suspicious circumstances, we have been struck by the fact, that in one of those lots, amounting to two hundred and fifty dollars, and adjudicated for twenty-five dollars, -was included a note of David Gay for fifty dollars; while the plaintiff is charged in the account of tutorship with one hundred and five dollars and eighty-seven cents, amount of an account of this same David Gay for boarding, washing and schooling of plaintiff, which the voucher produced shows to have been paid by the tutor six months before the sale in question, or while he had Gay's. nc:e in his hands. This fact evinces the grossest negligence and mismanagement of the tutor in his administration; and we think the doctrine to be properly applicable : that an administrator should be held to proof of due diligence in the collection of the active debts of the succession. He cannot be relieved of responsibility by showing that he offered them for sale at public auction in a lump, and could not get a bid.

The appellant also contends that the District Court improperly classed the claims of Boyle and others as debts of the community of acquests of plaintiff’s mother and her last husband, Qooper. We think, after examining the evidence, that the Judge did not err.

The appellant next contends that the judgment does not allow the item of $100 charged in the account for the fee of counsel, who filed the account. This item comes properly within the purview of the article 352 of the Civil Code, and we think its amount reasonable.

On the other hand, the appellee claims the amendment of the judgment appealed from, in these particulars:

1st. By rejecting the item of $25 charged as the one-fourth of the balance due on Bernoudy & Dwfilho's note. That note matured in December, 1834, some seven years before the death of the maker, plaintiff’s mother, and though made for $240, an endorsement shows that at maturity there was only due $98 83 upon it. In December, 1843, being nine years after the maturity of the note, an endorsement signed by the tutor shows that he paid it. The circumstances under which the tutor took upon himself to renounce a prescription acquired before the commencement of his administration, do not appear. The Civil Code, Art. 3425, declares that the capacity to alienate must exist in him who renounces a prescription acquired, in order to make the renunciatien valid. It is clear that a tutor is without capacity to alienate the property of his ward. He cannot therefore renounce the prescription which has been acquired. See 21st Duran-ton, No. 130, p. 196.

2d. By rejecting an item of a fee allowed a lawyer for professional services in the hypothecary action against the widow of Butis Morgan. The record of that suit is in evidence, and we think the charge of Mr. llsley is not unreasonable.

3d. By reducing the allowance to the tutor for the personal expenses of his ward from $200 per annum to the amount of his revenue, which in argument are assumed at five per cent, on the judgment rendered by the District Court. The Article 343 of the Civil Code certainly favors this position of the appellee’s counsel. The expenses of the support and education of the minor, says that Article, should never exceed his revenues. Hubbell v. Hubbell, 5 Ann.; Moore v. Nichols, 5 L. R. In conection with this subject it is proper to notice a bill of exceptions in the record to the admission in evidence of an account in the tutor’s handwriting, and unsupported by any voucher, of moneys expended by him for the personal expenses of his ward. We think the Court erred. By Art. 2244 and 2245 of tho Code, parties cannot make their hooks evidence in their favor. 3 M. R., 188 ; 8 Rob. p. 6 : 12 Rob., 407.

The evidence shows that plaintiff was living with his tutor for about two years after the death of his mother; that during- that time the tutor furnished him nothing but the strict necessaries of life. It is even probable that the boy was not boarded by his tutor, but by a man named Gay, who has been already named; for wo find among- the evidence the following- voucher:

“ Mr. J. W. Swain, tutor of William Whittiicam, Dr. to David Gay for

boarding, washing and schooling,.$06 87

Dr. Lyne, bill for,. 9 00

$105 87

Dec. 10, 1842. Roc’d payment, Da/oid Ga/y.”

The judgment of the Court below has reduced this bill by tho amount of Gay's note in favor of the estate, which the tutor ought to have collected. And we think that the amount allowed by that judgment should go in deduction of the amount to be allowed to the tutor for the support of his ward, which we fix at $210, or with the deduction of $55 paid Gay, one hundred and fifty-five dollars.

It is therefore decreed that the judgment of the District Court be amended, 1st, by allowing the item of one hundred dollars paid A. Prowsty for professional services in rendering- the account of tutorship ; 2d, by rejecting the item No. 33 in the account of tutorship, being $25 for balance still due on Bernoudy S Dufilho’s note; 3d, by reducing the allowance to the tutor for the support and education of the minor from $400 to $155; thatthe plaintiff have judgment against Augustine Swain, as administratrix of the succession of her deceased husband, J. W. Swain, and against Charles Morgan, Jr., as administrator of the succession of his deceased father, Gha/rles Morgan, Sr., security of said J. W. Sioain, on his bond as tutor of the plaintiff, in solido, for the sum of two thousand one hundred and eighty-two dollars and twelve cents, with interest at the rate of five per cent, per annum from the third of April, 1847, until paid the costs in both Courts to be paid by the appellants.


source: Caselaw Access Project

author: Vookuies, J.

license: Public Domain

text:
    E. Imbeaux Co. v. A. Severt.
    A Parish Ordinance of Iberville authorizes every inhabitant, proprietor of land, in the Parish to arrest all wild and mischievous animals, and requi? es the owner to give one dollar for the prize. Held: That remuneration can be recovered only on proof that the animals were wild and mischievous.
    A stray is an animal found in an unusual place for such an animal, or an animal that has roved for some time in a certain place, whose owner is unknown. '
    A person who takes up a stray has no right to retain possession of it until the damages and charges are paid ; for these he has a direct action.
    THIS case was tried by a jury before Robertson, J., in the Parish of Iberville.

      B. W. Robertson, for plaintiff. Labauve, for defendant and appellant.
   Vookuies, J.

The defendant is appellant from a judgment rendered against him, in favor of the plaintiffs, on the verdict of a jury, for damages resulting from a quasi-offence.

Tho facts are briefly these : The plaintiffs were owners of a certain number of beeves, in possession of an agent in the parish of Iberville, to be shipped to New Orleans. Fifteen of tho beeves having escaped from the enclosure, in which they were kept, were taken up as strays by the appellant under an ordinance of the police jury of said parish; and while in his possession, were claimed by the plaintiffs, whose title to the same was undisputed. But the appellant refused to give up said beeves, unless the plaintiffs paid him the remuneration which he claimed under the said ordinance. On the refusal of the plaintiffs to do so, the appellant delivered said beeves to a justice of the peace, to be sold as strays, at auction, for cash, which was accordingly done, and the net proceeds of sale placed in the parish treasury, subject to the order of the proprietors, for the period of one year.

The only point submitted to us by the appellants, arises out of the charge of the Judge to the jury, as to the construction put on said parish ordinance. The appellant excepted to the charge so far as it related to, or might come under the 17th Article of said ordinance. In order to understand the objection fully, it is proper to state that the ordinance contains two Articles on the same subject; the 17th obviously applies to cases where the proprietors are absent or unknown, and is as follows, to wit:

“Art. 17 th. Every person shall have the light to arrest and take up all cattle or animals running at large, without mark or brand of any person residing in the parish, and to take saidanimals to a Justice of the Peace, who shall have them sold at auction for cash, after thirty days’ advertisements for horses, and fifteen days for horned cattle. The taker shall have the right to one dollar for the prize of a horse, and fifty cents for the prize of a horned animal, and also twelve .and a half cents per day for feeding and keeping, for each head of said animals; all costs deducted ; the remainder of the amount of such sale shall be placed in the treasury of the parish, there to remain at the disposal of the proprietor, during one year and one day.”

The other Article is in these words: “Every inhabitant, proprietor of land in the parish, is authorized to arrest all wild and mischievous animals, branded or not branded, and to give notice of the same to the proprietor (if known), who shall pay one dollar for the prize; and if the proprietor neglects to pay the said dollar, and to take away said animals in the twenty-four hours after being notified, said animals shall then be sold by a Justice of the Peace, after notice in writing during three days: said notice to be posted up in two public places in the parish, at the expense of the proprietor. If the proprietor is not known, the person who shall have taken up such animals, shall keep them for himself.”

The averment in the appellant’s answer, is, that he arrested and took up fifteen stray and wild, and mischievous animals, and is evidently framed on this Article. We do not think the Judge a quo erred in charging the jury, that the appellant had a right to demand the remuneration prize only on proving to their satisfaction that the animals were wild and mischievous. But it appears that the appellant shifted his position, and relied on the other Article on this branch of the case; the Judge instructed the jury, and, we think, correctly, “ that a stray is an animal found in an unusual place for such an animal; or an animal that has roved for some time in a certain place, whose owner is unknown “ that the defendant had no right to retain possession of the property .until the damages and charges were paid, no person having a right to take the law in his own hands; that if the appellant was entitled to the ‘ prize’ for taking up the beeves, or so much per head for taking them up, and to damages committed by them, ho had a direct action for the amount; and that the possession of the defendant, from the time he became aware of the real owner, was ¡ilegal, and he became responsible for any damages accruing from such possession.” Moreover, if the appellant had the right to retain the beeves until the payment of the privilege asserted by him, why did he cause them to be sold as strays at public auction, for cash ? A privilege giving a creditor the right to retain the property of his debtor, is more properly a right of pledge. The inn-keeper’s privilege is so considered, and yet he has not the right to sell the property retained by him, of his own authority, but must apply to a tribunal to have his debt ascertained, and the property seized and sold for the payment of it. C. 0. 3200, 3203. It is likewise so in relation to pledge. C. 0. 3133. We are not aware that the present case forms an exception to that rule.

On the whole, we are of opinion that the verdict of the jury is not so mani-festlyr erroneous, as to require its reversal. It is proper to add that the defendant, in his answer, has set up no claim of quantum meruit for what trouble and expense he may have incurred in taking care of the beeves until they were called for.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


author: Ogden, J.

text:
    E. G. Davis v. John P. R. Stone.
    "Where the amount pleaded in compensation is less than what would be due under the contract as stated by the defendant to have existed, the plea does not admit the whole claim of plaintiff.
    APPEAL from the District Court of the Parish of Iberville, Robertson, J.,

      Talbott, for plaintiff and appellant. Edwa/rds & Barrow, for defendant.
   Ogden, J.

The plaintiff alleges, he was employed by the defendant as overseer on his plantation for the year 1852, at a- salary of $800, and that having been discharged on the 1st of September, without cause, he is entitled to the full amount of his salary for the year. The defendant pleaded a general denial, but admitted in his answer, that he had employed the plaintiff by the month, at the rate of $800 per year, with the understanding that he should have the the right of discharging him at any time he might thinlUproper. He further avers, that he was justified in discharging the plaintiff, in consequence of his had management and neglect, by which he, defendant, sustained damages to the amount of $300, by the loss of two mules; and this amount, together with $150 for provisions and money alleged to have been furnished to plaintiff’s family, he plead in compensation.

The plaintiff offered no evidence of the contract, but relies on the plea of compensation being considerad a waiver of the general issue.

As the amount pleaded in compensation is less than what would be due under the .contract, as stated by the defendant to have existed, and as the admission cannot be extended, the plaintiff was bound to prove a contract by the year, in order to entitle him to recover the full salary. There being no such proof, it is unnecessary to determine whether the cause assigned by the defendant for discharging him was sufficient.

The judgment of the .court below, which was in favor of the plaintiff for his services up to the 1st of September, is .correct; and is therefore affirmed at the costs of the appellant


author: Vooriiies, J.

text:
    Julien Tardif v. Estival Baudoin et al.
    A receipt for money paid is not conclusive between the parties, but open to explanation by parol testimony
    Parol testimony is admissible to prove fraud.
    APPEAL from the District Court of the Parish of Assumption, Oole, J.

      A. Gentile for plaintiff:
    Now we contend that we have the right to explain the receipt of $1100, and to show that it included and annulled the preceding receipt of $833 33, and that we were not bound to allege error or fraud, being unaware of what might be produced against us. We are plaintiif in the cause. Replications are not allowed in our law; and therefore all the allegations in the answer are open to every objection of law and fact, as nonage, coverture, fraud, prescription and the like, in the same manner as if such exceptions had been specially pleaded, and if defendant be surprised, the proper remedy is by a continuance or new trial. Hennen, p. 1212, §11. Where fraud is charged or error alleged, parol testimony is admissible to contradict even an authentic act. 3 L. 347. 9 L. 574. 6 L. 254. 10 L. 209. 15 L. 311, and the authorities there cited. 2 Starkie, pp. 555, 558. 1 Greenleaf §§ 296, 305. 1 Howard, 119. 2 Story on Equity §1531.
    The admission of parol evidence to defeat written contracts by the proof of fraud, is a rule of universal jurisprudence. 0. 0. 1812. 6 L. 258. 2 Ann. 458 and 908. In a suit on a joint note, evidence was admitted to prove that one of the apparent makers of the note had signed it as surety. 19 L. 453. 9 R. 112. In 5th Ann. 236, the court re-affirms the doctrine laid down in 5th Ann. 408, and says: “We decided in the case of Fletcher v. Fletcher, that the consideration of a receipt may be explained by testimony.” In 5th Ann. 550, it is decided, “ that the acts which cannot be contradicted by parol evidence, are those which contain contracts and create mutual obligations.” In regard to receipts, so far as they go only to acknowledge payment or delivery, they are merely primá fade evidence of the fact and not conclusive. 1 Greenleaf 401, §305.
    Upon the whole, we may consider that the theory of the receipt is best embodied in the expression, that it transfers the burthen of the proof. Straton v. Rastall, 2 T. R. 366. He who receives from his creditors a simple admission that a certain sum has been paid, does not acquire any very absolute or effective moans of preventing further inquiry into the fact of the payment, and into its justice and adequacy under the circumstances, he holds an instrument nearly powerless to silence others, the utility of which is confined to this: that it relieves him from the responsibility of making inquiry behind it, or of producing evidence in addition to it. If subsequently the payment receipted for is claimed again, he can by the production of a receipt, throw upon the other party the burden of proof, while he himself stands upon the defensive. 4 Harring, 206. Our claim is based on an authentic act; the defendant alleges payment; they must prove it.

      Malhiott & Mills, for defendant and appellant:
    1st. The exception of non numerata peaunid is abolished. G. C. 2234; 11 Robertson’s R. 241; and as well in private as authentic acts, G N. S. 312. Now the receipts were acts of sale with acknowledgment of payment. 3 N. S. 337, and 1 L. R. 314. 6 R. R. 88. Hen. Dig. p. 1382, No. 7.
    2d. Because parol evidence is inadmissible against or beyond what is contained in writen acts regarding the transfer of immovable property. O. 0. 2256. Plaintiff attempts to show that the receipt of $1100 87, was given for the first and not the second payment, which is against and beyond what is contained in the act itself. See 3 L. R. 447. In 5 Rob. Ill, the court held that even a receipt for price of personal property could not be contradicted. And though in 2d Ann. 93, it was held that C. O, 2256, applied only to contracts, effecting real estate, is not such the character of this receipt? See also 3d Ann. ^93. 5 th Ann. 231. In 5th Ann. 407, parol testimony was admitted to contradict a written act, because the contract was made in Mississippi where the rule is different.
   Vooriiies, J.

This is an action to recover the sum of $2505, as the price of a tract of land sold by the plaintiff to the defendant, Estival Baudoin, on the 16th of August, 1847, payable in three equal instalments, maturing in March, 1848, 1849 and 1850, with eight per cent, per annum interest from maturity until paid. The other defendant is sued as the surety of the purchaser.

The defence rests on the plea of payment by Baudoin, except as to the sum of $406, for which, it is averred, a legal tender has been made.

The only matter in dispute between the parties litigant in this case, relates to the sum of $833 33, amount of the receipt given for the first instalment, which the plaintiff contends was annulled and included in the subsequent receipt for $1100 87, ei-roneously stated to be for the second instalment.

It is obvious that the receipt for $833 33, is less than the amount of the first instalment, and that the one for $1100 87, greatly exceeds that of the second instalment. How is this accounted for? The evidence proves conclusively the fact, that a certain receipt was annulled and included in the one given for $1100 87. This is corroborated by the defendant’s own evidence. Labat, one of the subscribing witnesses to the receipt for $1100 87, deposes that the receipt for $833 33, was annulled by the parties, and included in the receipt for $1100 87. His testimony is fully corroborated by the other subscribing witness, and other circumstances disclosed by the record. The defendant has, however, endeavored to impeach the credit of this witness, on the ground that his testimony is contradictory. A careful examination of it, satisfies us that it contains no material variance. To rebut it, the defendant relies on the testimony of Joseph Bichólas, who states that the defendant requested him, in January, to make a statement of what he owed the plaintiff in capital and interest for the second instalment of the price ef the land, and showed him two receipts from Julian Tarrdif, one for $833 33, for the first instalment, and the other for $600, on account of the second instalment. According to the statement made by this witness, the sum of $600 was deducted from $833 33, as the second instalment, leaving a balance of $233 33, to which the sum of $34 21 was added as interest from the 31st March, 1849, to the 31st January, 1851, making an aggregate of $267 54 then due. What was the object of making the calculation to that date, is not very satisfactorily explained.

In the cross-examination, this witness states that he does not recollect the names of the witnesses to the receipts. His testimony is sought to be corroborated by that of Eli Landry, but we think unsuccessfully. This witness deposes that he attested the receipt for $833 33, and also another for four hun idred and some dollars, but at what period he does not recollect; neither does he recollect whether it was given by Baudoin or Ta/rdif; he did not read it; ¡be did not see Tawdif make his mark to it- and cannot say whether Tardif ■was present or not when he attested it. Such testimony, it must be conceded, .deserves but little w'eight. On the other hand, when it is considered that the ■plaintiff neither reads nor writes; that every one of the receipts introduced .against him is attested by two witnesses; that no attempt has been made by Baudoin to account for the subscribing witness or witnesses to the alleged receipt of $6004 ¡the conviction forces itself upon our minds, as it no doubt did on that of the District Judge from his conclusion on the facts, that the testimony of Meólas, standing in the relation of son-in-law to the defendant, is not entitled to much weight.

The record contains numerous bills of* exception taken by both parties on the trial of the cause below. It is urged by the defendant that parol evidence was inadmissible to vary or contradict the receipt of $1100 87. In suppoi’t of his position, he has presented two propositions : 1st. Because the exception of non numerata pecunia is abolished, not only in relation to public, but to private acts ; that the receipts in question were acts of sale. 2d. Because parol evidence is admissible against or beyond what is contained in written acts regarding the transfer of immovable property.

We do not think that this case comes under, either of these propositions. The receipt in question does not come under the operation of the principle recognized by our jurisprudence, that a receipt acknowledging the payment of property is considered as evidence of a sale. In the case of Payne v. Hopkins, (4 N. S. 223,) Judge Porter said, that it was clear that payment of the price of an immovable might be established by parol evidence, although that species of proof was insufficient to show both the sale and the receipt of the purchase money. The' distinction appears to us not only perfectly clear but well founded in principle. If parol evidence is admissible to prove payment of the price of immovable property, is there any reason why it should be excluded to explain error when the payment is evidenced by written receipts? We can see none. It is obvious that the parol evidence in this case was not intended, neither could it effect the title of Baudoin to the land, which is not the matter in dispute. It has been ruled by this court, that a receipt for money paid, was not conclusive between the parties, but open to explanation by evidence. 5th Ann. 406.

If any doubt existed in our minds as- to the admissibility of the evidence under this rule, we think that none can exist as to its admissibility to prove fraud. What,is fraud as applied to contracts? Our Code defines it to be, “the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other.” If the receipt in question be viewed as a contract, is it not obvious that the evidence disclosed by the record, shows such a design on the part of Baudoin ? If so, we think parol evidence was clearly admissible to prove it.

The conclusion to which we have come in this case, renders it unnecessary to notice the bills of exception on the part of the plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: VooRniES, J.

text:
    A. Beatty, Syndic, v. F. A. Tete et al.
    The 16th section of the Act of 1889, which provides that “in all cases where, by any provision of the Code of Practice, an oath of a party is required, it may (in the case of the absence of said party) be made by his agent or attorney,” does not extend to cases where parties may be absent from court, for parties are, as a general rule, bound to be in court on the day fixed for trial, at their peril.

      An executor may bind himself individually for a debt of the succession; and where the promise is made to pay the debt at a specified time, it is not merely an acknowledgment of the debt, but itis a contract which may be enforced against him individually, although the promise be made by ara instrument in which he describes himself as executor.
    APPEAL from the District Court of Assumption, Randall, 3.

      J. G. & *4. Beatty, for plaintiff:
    Defendant denies her personal responsibility, and claims that only the estate of her husband is responsible, on a note in this form. On this point we refer' to the following authorities: Balletic. Gaor, 3 M. 496; Russellv. Cast, 2 L. 188.
    The affidavit was insufficient, because made by the attorney — the absence of the party from the parish not being shown or suggested. Paine v. Tourni, 2 E. 98; Penne Y. Tourné, 2 La. 677 : Lizardi v. Arthur, 16 L. 577.

      Ilsley, for defendant and appellant:
    The court below erred in refusing a continuance to enable the defendants to procure the testimony of Marché. The defence is similar to the case sustained in the suit of the Bank of Louisiana v. Dejean, 12 Rob. 16. See afeo Gillety. Rachel, 9 Rob. 276; and the affidavit of the counsel was sufficient. Act of 20th March, 1839, sec. 16, amending C. P. Penny v. Tourné, II L. R. 468. Lizardi v. Arthur, 16 L. R. 577. The case should be remanded for a new trial.
   VooRniES, J.

The defendant, Rose Clement, widow of Auguste Tete, deceased, is appellant from a judgment making her personally liable for the payment of three promissory notes signed by her as administratrix, payable to the order of, and endorsed by F. A. Tete, her co-defendant.

The defendant denies any such liability. She avers that the notes sued on were given, not as a novation, but as a liquidation and settlement of a debt originally due to the Union Bank by her said husband, of whose estate she is administratrix, the original debt having been previously evidenced by other notes with the same endorsement, given in her said capacity and afterwards reduced by partial payments to the amount for which the notes sued on was given.

The defendant complains of the refusal of the District Judge to grant her a continuance, on the affidavit of her attorney, stating her absence from the court, the facts she expected to prove by the absent witness, and the diligence used by her since the adjournment of the last term of the court, at which she had obtained a continuance to procure the deposition of the same witness. The District Judge was of opinion that sufficient diligence had not been shown, and we are not prepared to say that he erred. One of the grounds urged against the validity of the affidavit is, that it was not sworn to by the appellant herself, but by her attorney. It is stated in the affidavit that she was absent from the court. The appellant relies on the 16th section of the Act of 1839, which provides that “ in all cases where by any provision of the Code of Practice an oath of a party is required, it may (in the case of the absence of said party) be made by his agent or attorney,” &e.

The operation of this act does not, in our opinion, extend to cases where parties may be absent from court. If the construction contended for be conceded, it seems to us that it would, in its consequences, lead to serious abuses in the administration of justice. Parties to a cause are, as a general rule, bound to be in court on the day it is fixed for trial, at their peril. This case affords a striking illustration of the necessity of such a rule. It is obvious that the appellant’s counsel must have been aware, previous to the session of the court, of the circumstances which rendered it necessary to apply for a continuance ; and yet no seasonable steps appear to have been taken by him to procure the affidavit of the appellant, who resided in the parish, for that purpose; and no reasonable excuse offered for the omission.

On the merits, we do not think that this case can be distinguished from the case of Winthrop v. Jarvis, recently decided by us, in which we held that an executor may bind himself, individually, for a debt of the succession; and where the promise is made to pay the debt at a specified time, it is not merely an acknowledgment of the debt, but is a contract which may be enforced against him individually, although the promise be made by an instrument in which he describes himself as executor.

It is therefore decreed, that the judgment of the District Court be affirmed, with costs.


author: Campbeul, J.

text:
    A. Beatty, Syndic, v. A. Tete.
    The 25th section of the Act incorporating the Union Bank, permite a wife to bind herself jointly and in soUdo with her husband, in all hypothecary contracts or obligations with the bank.
    An individual renunciation of prescription cannot be implied from an acknowledgment of the debt as administratrix.
    *0. 0. 8517.
    APPEAL from the District Court of the parish of Assumption, Randall, J.

      J. O. & A. Beatty, for plaintiff, llsley, for defendant.
   Campbeul, J.

The defendant is appellant from a judgment for the sum of ■three thousand five hundred dollars, with ten per cent, interest from July 1, 1846, rendered jointly and severally against herself and the succession of her •deceased husband, of which succession she is the administratrix. The demand of plaintiff is based on a joint and several mortgage bond for five thousand dollars, given by the appellant and her deceased husband to the Union Bank of Louisiana, for a loan of money. The bond was executed on the 1st of July, 1840, and payable on the 1st of July, 1841, fixed. Defendant, in a seperate answer, pleads the general issue, the prescription of ten years, and a special •denial of any personal liability.

On the trial, it was admitted that the bond had been legally transferred by the Union Bank to P. Marcháis, whose syndic the present plaintiff is. The signatures of the defendant to the bond sued on, and to a written memorandum thereon endorsed, are likewise admitted. The memorandum is in the following words: “I recognize that there is due on the within bond,by the estate of Auguste Tete, of which I am administratrix, the sum of three thousand five hundred dollars, with ten per cent, interest from July 1, 1846. The whole bearing mortgage on said property, described in the act of mortgage with which this bond is identified. April 23, 1850.” (Signed,) “ Vv. Augte. Tete.” The mortgage was recorded July 2, 1840, and re-inscribod, May 3, 1850.

If by the averment in appellant’s answer, that she is “not personally liable,” it is intended that she is not liable, because the debt is a debt of her husband, for which she could not bind herself, the objection is answered by reference to the 25th section of the act incorporating the Union Bank, which provides : that “ in all hypothecary contracts and obligations entered into hy any married individual, with, or in favor of said Union Bank, it shall be lawful for the wife of said individual to bind and oblige herself, jointly and in solido, with him ; and in such case, the property and right of the wife, whether dotal, or of any other description, shall be effected hy the said contracts or obligations.” Acts 1882, p. 62.

The only fact upon which the plaintiff relies to defeat the plea of prescription, is the acknowledgment signed by the administratrix in April, 1852, at which time more than ten year’s had elapsed from the maturity of the bond. The question, therefore, is one of the renunciation, not of the interruption of prescription, and the Article 3517 of the Civil Code, which is confined to cases of interruptions, seems inapplicable.

A renunciation of prescription is the abandonment of a right acquired. C. C. 8125.

Individually, the appellant has made no acknowledgment; and, as the general rules are that prescription is not to he extended, and that to deduce an implied renunciation, the implication must be clear and unequivocal, we think an individual renunciation cannot be implied from her acknowledgment as admi-nistratrix.

No appeal having been taken from the judgment as against the succession of the deceased Augusto Tete, we do not deem it necessary to inquire whether an administratrix has the capacity to renounce a prescription already acquired hy the succession which she administers.

Upon an examination of the acknowledgment above referred to, it appears that the original debt was at that time reduced from $5,000 to $3,500, and that interest was due only from July 1, 1816. It has occurred to us, that this condition of the affair probably has resulted from payments, which, if made before the acquisition of prescription, would establish its interruption.

Under these circumstances, we think a nonsuit would be proper.

It is therefore ordered, adjudged and decreed, that the judgment appealed from, so far as it affects the appellant individually, be annulled and reversed; and that there be judgment in her favor, as in case of nonsuit, with costs in both courts.


author: Oampbbll, J.

text:
    Bank of Louisiana v. J. Tournillon, Jr.
    "Where notice of the non-payment of a note is sent by mail to the endorse", it should be directed to the post office, if known, nearest to his residence. But if he is in the habit of receiving his letters at a more distaut post office, or through a more circuitous route, and that fact is known to the person sending the notice, notice sent by the latter mode will be good.
    The rules prescribing the diligence to be used in communicating notice of the non-payment of notes and bills, are founded in general convenience, and should be interpreted and applied so as to impede as little as possible, consistently with the safety of parties, the circulation of commercial paper.
    APPEAL from the District Court of Assumption, Randall, J.

      O. A. Johnson, for plaintiff, cited Citizens' Bank v. Walker, 2 Ann'. 792. Canal Bcmk v. Ba/rroio, 2 Ann. 326.

      Ilsley, for defendant and appellant,
    cited Folletín v. Dwpré, 11 Rob. 454. Nicholson v. Marden, 3 Rob. 3J)_2. Oanal Go. v. Barrow. 2 Ann. 326. Bird v. McGalop, 2 Ann. 351. New Orleans and Carrollton Bank v. Patton, 2 Ann. 352. Harris v. Alexander, 9 Rob. 151. Mechanic's Bank v. Gompton, 3 Rob. 4. "
   Oampbbll, J.

The defendant is sued as endorser of a promissory note for in point of time. $370, made at Donaldsonville, April 27, 1849, and payable to his order, at the Bank of Louisiana at Donaldsonville, twelve months after date. The only question involved is, as to the manner in which notice of non-payment was given to the endorser; no objection being made to the sufficiency of the notice

The material facts before the court on this subject, are that, on the day of protest, the notary, who made it, deposited in the post office at Donaldsonville, a written notice in due form, addresssed to Mr. J. Tournillon, Donaldsonville P. 0. That the notary making the protest, (and who deposed to the manner of service of notice, for the certificate is not relied on,) was the deputy of the post master of the Donaldsonville post office, from a period long anterior to the 30th of April, 1850, down to the month of October, 1850, and knew of his own knowledge that the defendant regularly, twice a week, on the arrival of the semi-weekly mails, sent his servants or called himself at the post office in question for papers and letters which frequently came there to his address. The witness likewise, before depositing the letter in the Donaldsonville post office, was informed by the post master, upon inquiry, that that was the post office of the defendant.

Andrew Gingry was post master on the 30th April, 1850, date of the protest, and so continued till October following, when Victor Maurin became post master.

Gingry swears that newspapers which he names, not occasionally sent, butfor-warded as regularly as published and from the publishing offices, were received at his office as long as he was post master, addressed J. Tournillon. Hero it should be noticed, that it is in evidence (testimony of D. Leblanc,) that the defendant is known as Julien Tournillon, and his father as St. Julien Tournil-lon. It is also admitted that in the notarial acts passed by the defendant and those passed by his father, the same distinction of names is preserved. The address of the newspapers regularly received as above stated by Gingry, shows that they were for the defendant, and Gingry goes on to state, that all mail matter so addressed was regularly called for by the servants of the Tournillon family; that it had been for years the invariable practice of the office to deliver all such matter to these servants, and that no objection or complaint was ever made respecting it. That there was a box in his office, which, indeed, stood in the name of St. Julien Tournillon, the father, but that it was the receptacle of all the mail matter which came to his office to the address of either the father or the son, and that this mail matter was delivered as aforesaid to the servants of the Tournillon family. That he knew these servants from having often seen them in the personal service of the defendant, and never knew defendant to have any other post office so long as he was post master, to wit, from 1838 to October 1850. In this connection, it should be noticed, that it is proved by Leblanc, that the defendant and his father not only resided on the same plantation but in the same dwelling, and form but one family; that the same fact is proved by Grane, witness for defendant, as well as the additional fact that the servants of the Tournillon family, passed almost daily back and forth between their plantation and Donaldsonville.

Maurin states that he took charge of the Donaldsonville post office, October 1,1850. He declares unequivocally, that the Donaldsonville office continued to be the office of the defendant up to the'30th September, 1851. After that time he says, that the regular mail matter to his address, such as newspapers, to which he was a regular subscriber, ceased to come there; that up to the time mentioned, and especially during the first four months after he took charge of the office, the servants of the defendant called regularly once or twice a week at the office, and received such mail matter as was in the office to the address of defendant.

Grane, the only witness for the defence, states that, on the 1st January, 1850, a new post office was created under the style of Crane’s Porge Post Office, situated on the road between Donaldsonville and the plantation where defendant resides, which plantation is on the Bayou Lafourche, about seven miles from Donaldsonville. Grane, the witness, was the post master who took charge of this new office, as soon as it was created; and his testimony is relied upon to show a change of post office by the defendant prior to the 30th April, 1850.

In his examination in chief, Grane states, that “ from the time the said post office was opened until October 1852, defendant received his mail matter, letters and newspapers, regularly at the Crane’s Porge Post Office, and witness considered it as the post office of defendant from January, 1850, till October, 1852, when he ceased to officiate as post master.”

On cross-examination, he states, that all the postage bills in the name of Tournillon, at his office, were paid by the father, and the newspapers received there were to the address of the father, though he thinks a greater part of the letters were for the son. He says nothing of any newspapers at all received at his office for the defendant; while, on the other hand, by the concurrent statements of Templet, Gingry and Maurin, it is affirmatively shown, that several newspapers to the address of defendant, and to which he was a regular subscriber, were regularly forwarded to and received at the Donaldsonville post office, and his correspondence also, as long as Gingry remained in the office, and for several months after Maurin became post master1. It further appears that the Crane’s Porgo Post Office was nearer the residence of defendant than that of Donaldsonville, it being between Donaldsonville and defendant’s residence ; from which last, it was distant only one mile. Defendant contends, that not having been notified of the non-payment of the note, by letter addressed to him at the post office nearest his residence, his liability as endorser has been discharged.

The general rule of the commercial law doubtless is, that when the notice is sent by mail, it should be directed to the post office, if known, nearest the residence of the party whose liability is sought to be fixed. But this rule, though a general one, is not of universal application. In the case of the United States v. Carneal, 2 Peters, 551, Mr. Justice Story says: “If the party is in the habit of receiving his letters at a more distant post office, or through a more circuitous route, and that fact is known to the person sending notice, notice sent by the latter mode will be good. And where the party is in the habit of receiving his letters at various post offices, to suit his own convenience or business, it may be sufficient to send it to either.” See also the Bank of Columbia v. Lance, 1 Peters, 583 ; and Follain et al. v. Dupré, 11 R. 472.

After a careful consideration of the testimony, we are of opinion that the notice, as given, was good. From the facts of the case, it would have been sufficient, if addressed to the defendant, either at Donaldsonville or the Crane’s Forge Post Office. The rules proscribing the diligence to be used in communicating notice, are founded in general convenience, and should be interpreted and applied, so as to impede as little as possible, consistently with the safety of parties, the circulation of commercial paper.

Judgment affirmed.


author: Voorhies, J.

text:
    D. Turnbull v. R. R. Barrow.
    Facts. — The District Court refused to continue a cause, and was sustained by the Supíneme Court.
    APPEAL from the District Court of the Parish of Terrebonne, Gole, J. J.

      G. & A. Beatty, for plaintiff. Ilsley and Mercer, for defendant and appellant.
   Voorhies, J.

This is a suit on a promissory note. The defendant, JR. At Barrow, avers that it was given in renewal of another held against him by the plaintiff, for a larger sum, which had been reduced by partial payments; that, by an error in the calculation of interest, it was given for a much larger amount than that actually due on the original note. He further avers, that he has just reasons to believe that it has been paid by B. Barrow, the other defendant ; and that this suit was instituted without the knowledge and consent of the plaintiff, as he believes.

At the April term, 1853, the defendant probed the conscience of his adversary, by propounding to him interrogations on facts and articles. As the plaintiff was absent, this produced a continuance of the cause. At the June term— not a jury term — -the defendant having prayed for a trial by jury, which was granted, the cause was consequently again continued. At the December term, after having unsuccessfully challenged the second array of jurors summoned for the term, the defendant moved for a continuance on his affidavit, which was refused by the District Judge, on the ground that due diligence had not been shown. The trial by jury was then waived, and the cause submitted. The answers to the interrogatories propounded to the plaintiff, were filed on the Tth of December, the day fixed for the trial of the cause.

It is urged by the defendant, that the continuance was incorrectly refused. He asks that the judgment be reversed and the cause remanded, in order that he may exercise his legal rights.

After mature consideration of all the circumstances, we are not prepared to say that the District Judge erred in refusing to grant the continuance.

The appellee prays for damages, on the ground that tho appeal is frivolous and taken for delay. We are not satisfied, from the evidence disclosed by the record, that such is the case. On the merits, no error has been suggested, neither do we find any.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


author: Slidei.l, C. J.

text:
    Sturgis & Wright v. H. Arcenaux.
    Ihe defendant agreed to become security for a purchaser of property at a sale on twelve months’ credit; he refused to comply with his promise; no act affecting his interest was done by the creditor on the faith of the promise. Held: Defendant contemplated a written contract, and until it was signed, he had a right to recant.
    APPEAL from the District Court of Terrebonne, Gole, J.

      J. 0. & A. Beatty, for plaintiff and appellant. E. Belche, for defendant.
   Slidei.l, C. J.

Under a fieri facias issued by the plaintiffs against Leblanc, and several other writs of execution issued by other judgment creditors against the same parties, a plantation and slaves belonging to Leblanc were seized and sold, at twelve months’ credit, and were adjudicated to Leblanc, at the price of $40,000. This and several other suits brought by judgment creditors have been consolidated. The petitions allege that Leblanc offered Arcenaux as his surety on the bonds, to be given to the plaintiff respectively, and that Arce-naux agreed to become such security, and was accepted by the Sheriff and plaintiff; that the bonds were not prepared on the day of sale on account of their great number and the calculations which were required of interest, costs, &c.; that some days afterwards, the bonds were prepared and signed by Leblanc, and then presented to Arcenaux, who refused. The petitioner prays that he be adjudged to sign the bonds, amounting to upwards of $20,000, or for such relief, by execution, as they would have had if he had signed them.

There was judgment for the defendant in the court below, and the plaintiffs have appealed.

The promise of Arcenaux rests upon the testimony of two witnesses, who state that after the adjudication was made, Leblanc was asked by the plaintiffs’ attorney, who his surety was to be, and he said Arcenaux would be. The attorney said he was good, if he would agree to it. They then stepped towards Arcenaux, who was standing near, and heard the conversation, and he said he would agree to it. It was then agreed between Leblanc, Arcenaux and the attorney, that they should meet on the following Wednesday, at the Sheriff’s office, and sign the bonds.

It does not appear, from this evidence, that Arcenaux, when he promised, knew, or that any explanation was given to him, of the amount, creditors, or terms of the bonds he was to sign, or even that he was present at the reading of the mortgage certificate.

The defendant contemplated a written contract, and until it w;as signed, ho had a right to recant. See Blocker v. Tilman, 4 La. 80.

It is proper to observe, that no act affecting his interests, appears to have been done by the creditor on the faith of the promise, and that the adjudication was made before the promise, and was independent of it.

Judgment affirmed, with costs.


author: Eustis, C. J.

text:
    James Pepper et al. v. R. G. Dunlap.
    The patent for lands issued under the authority of the United States, is conclusive evidence of their severance from the public domain, and of the divestiture of title from the United States, which may have remained in them notwithstanding a sale and receipt of the price by its officers. But the issuing of the patent does not affect any rights subsisting between third persons and the patentee, growing out of contracts in relation to the land covered by the patent. The patent, to whomsoever issued, inures to the benefit of the party to whom the patentee is bound to convey it, or for whose use he ought in law to hold it.
    The vendor being without fraud — the vendee cannot resist the payment of the price for defect of title, when he himself has perfected the title by improper and deceitful means — the object of which was to prevent the recovery of the purchase money. Under such circumstances, the ven-dee is only entitled to a credit for the money paid by him to perfect the title.
    It is true there is a statute of the United States against the survey and settlement of the public lands, by individuals, passed in 1840. But since that period, the policy of the government on this subject, has been entirely changed, and has tended to encourage actual setlers on the public lands; and the several preemption Acts, and those for the relief of settlers, are in this sense, and the whole legislation of Congress is in that direction. It seems to be a necessary consequence of this policy on the part of the government, that courts, in determining on the rights of individuals under it, should act concurrently with it.
    C. C. 8417, 8420, 8488, 8487, 8465, 8466.
    Under the Spanish law, property could be acquired by prescription against the crown. At least, we find no exception in its favor, nor any principle which prevents the operation of the laws of prescription. Under our Code we find no express exception in favor of the State.
    APPEAL from the District Court of the Parish of Madison, Perkins, J.

      Stockton & Steele, for plaintiffs and appellants. Bemiss, Stacy & Spa/rrow, and Snyder, for defendant.
   Eustis, C. J.

The litigation between certain parties now before us, and which we shall consider under the title of Pepper and others v. Dunlap, commenced as far back as 1830. The suit has been three times before our predecessors, and is reported in 16th Louisiana Reports, 168; 19th id. 163; 9th Robinson’s Reports, 283 : it was before this court in 1850, and is reported in 5th Annual Reports, 200.

The suit originated in an order of seizure and sale, issued on certain mortgage notes given by Bicha/rd O. Dunlap to James Pepper and others, for a tract of land and negroes. It is not material to note the details of this complicated litigation. It is sufficient for all the purposes of the present inquiry, to state that the cause, by the judgment of this court, was remanded for the purpose of having certain issues of fact made up and tiled. They have been accordingly determined, and the verdict of the jury and the judgment of the court below are against the plaintiffs, who have taken this appeal.

The judgment rescinded the sale of a portion of the tract of land sold, known and described as section 22, and allowed the defendants fifty dollars per acre for the quantity. The controversy, it is conceded, is narrowed down to the single point of the rights of the parties in relation to the title to this section.

The title to this section, it is contended, and so the verdict has determined, does not belong to the succession of either of the brothers Dunlap, both of whom have died since the institution of this suit, but is still outstanding and is vested in MeKiernan, who is the brother-in-law of the late Pi. W. Dunlap.

Note.- — This case was accidently omitted in the last volume.

After the original order of seizure and sale was granted against the property in the possession of the purchaser, the late B. G. Dunlap, he sold his interest in it to his brother, 3. W. Dunlap.

The investigation of the rights of MeKiernan, as to this section, involves the whole controversy between the parties in interest before us.

The Supreme Court thought it was incontestable that James James, under whom the plaintiffs’ vendors set up title, never had any title to this section, founded upon any confirmation of claim, either by settlement, right, or otherwise, under the Spanish or American Government. On the contrary, it appeared that his pretentions to the land were rejected by the land commissioners as unsupported by evidence, according to the Act of Congress, and that it formed a part of the public lands of the United States. The court was also of opinion, that no title by prescription was vested in the plaintiffs’ vendors. 9th Robinson, 286.

As the case was remanded for a new trial, without any conclusive decree on this question of title, the matter is still open for adjudication, and as we have not concurred with the late Supreme Court on this point, it is proper that w-e should state the grounds of our opinion.

It-appears that the claim of James James to this land was rejected by the Land Commissioners for want of testimony, and has never been confirmed. In the report of the Commissioners to the Secretary of the Treasury, made in the year 1812, the claim of James, for another tract of a less quantity of land, situated in the county of Concordia, was confirmed. It is stated in the original notices of claims in the land office at Opelousas, that these claims were for the same land, according to the plats filed; but this fact is not established, nor is there any written evidence of this claim, except this note of it in the land office.

It appears further, that this confirmed claim for 433 acres, was located upon this section 22, which is in township 16, and was so returned on the township maps to the general land office. In 1842, this location, on the report of the Surveyor General, was declared to be improperly made, and the tract to he public land, and was directed to be surveyed and laid out in lots corresponding with the adjacent land. This was accordingly done.

The Commissioner of the land office, in a letter to the Register and Receiver at the land office of the district; thus describes the condition of this business :

“ The first mentioned section (22) was erroneously surveyed as the confirmation of James James, and the latter as the hack concession of said confirmation. This error being discovered, the Surveyor General was directed to subdivide those sections, so that they might he disposed of as public land. You will therefore permit the entry by those claimants, if by the proof filed, they shall show themselves entitled to the benefit of said law, that of 4th September, 1842. As the land was not returned to your office as public lands until after the 22d June, 1842, claimants under the Acts of 1838, 1840, (should there be any,) were prevented from proving up and paying for their claims before that time, and may secure their land by malting proof thereof and payment for the same, at any time within a year after the receipt by you, of a plat of those sections. This fact is mentioned, because,” &c.

By the proceedings of the House of Representatives of the United States, it appears that in 1843, the plaintiffs had applied to Congress for a confirmation of their entry of the back concession adjoining this section twenty two.— This entry was based upon their right of ownership of the front section, about which much confusion existed as to the location, which it is difficult to solve, and even not easy to explain. It seems that the confirmed claim was located upon this section, and for the quantity and location called for by the unconfirmed claim; at all events there is no mention or note made of any short quantity. The entry of the back concession was confirmed to the plaintiffs by an Act of Congress. The committee of private land claims make this statement in reference to the location:

“ From the correspondence of the Commissioner of the General Land Office on this subject, it appears that section 22d is laid down on a township plat, approved by the Surveyor General, Gideon Fitz, on the 11th of April, 1881, in the name of James James ; and also in a similar manner on a plat previously approved by Surveyor General Turner; that there is no evidence on file to show why this private claim was erroneously located ; that the present Surveyor General appears to assign no other reason for setting aside the location, than that it is already located in adjoining townships.”

The committee came to the conclusion, that the plaintiffs were in good faith in making the entry, but that the Commissioner acted correctly in canceling the entry of the back concession, and declaring the front tract to be public land.

The testimony adduced on the trial of this cause, establishes the fact, that James James lived on this land from the year 1805 or 1806, until his death, in 1823, except when prevented by inundation at three several times. At one time he returned the same year; at the second, a year or so after ; and the third time, it was two years before he returned. The wife of James Ja/mes continued to reside on the place after his death. Afterwards it appears that Aaron Lilly, who had married one of the daughters of the deceased, bought out the interest of one of the heirs, and held and improved the property until 1831, when he sold it to Cicero Jefferson, otherwise named Joseph Pepper, under whom the plaintiffs claim.

It appears that in 1816 or 1817, the bayou, a portion of which was through a corner of this tract, was then and is now known as James’ Bayou. No question is made as to the continuous possession of Joseph Pepper and the defendants, Dunlap.

On the 18th of June, 1842, the Commissioner of the General Land Office, having been satisfied from evidence before him, that the claim of James James, B. No. 15, had been improperly located and laid down on this section 22, and that the tract was public land, directed the Surveyor General to have it surveyed and laid off into lots corresponding with the adjacent land, and to return plats thereof to his office, and the land office at Monroe. This was accordingly done; the tract was thus declared to be public land of the United States, and subject to entry as such.

On the 4th of February, 1843, patents were issued to G. B. McKiernan, W. A. Greesham, John Bartlett, and B. W. Burney, for this section under the preemption Act of September 4th, 1841. McKiernan subsequently purchased the three-quarter sections, and now holds, under the United States, title to the whole section. This is the outstanding title which caused the disallowance of a portion of the price, by the verdict of the jury.

It appears that this section 22, was laid down in the name of James James, confirmation not found, on the township plat in the general land office, approved by the Surveyor General as far back as 1828, and on two other plats in said office, returned from Surveyor’s General in 1829 and 1831.

We will now proceed to consider what effect the law gives to the title of the plaintiffs conveyed to the defendant, Dunlap, under the facts disclosed.

The patent for lands issued under the authority of the United States, is conclusive evidence of their severance from the domain and of the divestiture of the title from the United States, which may have remained in them, notwithstanding a sale and a receipt of the price by its officers; but we have never understood that the issuing of the patent affected any rights subsisting between third persons and the patentee, growing out of contracts in relation to the land covered by the patent. The patent, to whomsoever issued, inures to the benefit of the party to whom the patentee is bound to convey it, or for whose use he’ ought in law to hold it.

Notwithstanding the technical effect assigned under the laws and jurisprudence of the United States to patents, as constituting the perfect title to lands, our jurisprudence has, from the origin of our courts, been conversant with equitable and imperfect titles to land. Indeed, a large portion of the cultivated lands of the State have been held for long periods by titles other than those of complete grants, patents or confirmations by Act of Congress, and to exclude them from contracts and the laws incident to other species of property, would have been impossible under an organized government.

The receipts of the Receivers of public moneys for the price of lands, have been held to be sufficient evidence of title to constitute the basis of the petito-ry action, and courts have been under the necessity of dealing with this class of imperfect titles, notwithstanding the outstanding title of the United States, in conformity with our laws relating to the ownership and possession of real property.

It is true, there is a statute of the United States against the survey and settlement of the public lands of the United States, by individuals, passed in 1804. But since that period, the policy of the government on this subject, has been entirely changed, and has tended to encourage actual settlers on the public lands, and the several preemption Acts and those for the relief of settlers are in this sense, and the whole legislation of Congress is in that direction. It seems to be a necessary consequence of this policy on the part of the government, that courts, in determining on the rights of individuals under it, should act concurrently with it.

Under our Code, the rights common to all possessors in good or bad faith, are, that they are considered provisionally, as owners of the thing which they possess, as long as it is not reclaimed by the true owner or person entitled to reclaim it, and even after such reclamation, until the right of the person making it is established; that every person who had possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession or to be restored to it in case of eviction, whether by force or otherwise. Art. 3417, §§1 and 2. And that such a possession may, by prescription, acquire the property of the thing which he thus possesses, after a certain time, as he is possessed, in good or bad faith. Id. § 3.

Prescription is one of the modes of acquiring property by the effect of time and under the conditions regulated by law. Code, 3420.

There are no other prescriptions than those established by the Code. 3483.

Prescription runs against all persons, unless they are included in some exception established by law. Code, 3487.

The property of immovables is prescribed for by thirty years, and that of slaves by fifteen years, without any need of title or possession in good faith. Code 3465. The possession necessary for this prescription, must be public and unequivocal, continued and uninterrupted, and under the title of owner. Code, 3466.

Under the Spanish law, property could be acquired by prescription against the crown. At least, we find no exception in its favor, nor any principle which prevents the operation of the laws of prescription. Sanchez v. Gonzales, 11 M. R. 210. Mitchell v. U. S., 9 Pet. 760. Partida 3, title 29, law 18.

Under our Code, we find no express exception in favor of the State.

Conceding, for argument sake, that the settlers on the public lands of the United States can acquire no title by prescription, to defeat the ownership of the United States (Jourdan v. Barrett, 4 Howard Rep. 184); nevertheless, as this land has been in the undisturbed possession of the plaintiffs, and those in whose right they hold under the recorded surveys of the public officers of the United States, it is not permitted under our jurisprudence, to consider the rights of parties in relation to the land, as absolute nullities, although these rights would be defeasable at the instance of the United States.

The decision of the Supreme Court in the case of Bessy v. Pintado, 3d L. R. 489, is, in'many respects, applicable to the present. It exemplifies the doctrine which we have stated.

In 1814, the defendants sold to the plaintiff a tract nf land containing 2150 arpents, which they held under a'Spanish grant. In 1826, the claim was submitted to the Land Commissioners, who confirmed the title for 640 acres onlj'.

The question was, whether this failure of the government to confirm the whole title, amounted to an eviction of the plaintiff and gave him a right of action for the recission of the sale. The case arose under the old Code. The court observes:

“ The claim which the United States may hereafter advance to this land, and enforce, cannot be satisfactorily distinguished as to its influence on the rights of the parties before us, from that of a title outstanding in a private individual. It is true, they may proceed without suit and perhaps prescription does not run against them. But in the material and important fact, namely, that they have not evicted the vendee, and that it is not certain they ever will evict him, the cases are parallel. Had this suit been instituted before there was any decision by the Land Commissioners on the title, we suppose a doubt cannot exist that it would not have been maintained. Is the case so materially changed by what has been done in relation to that title, as to enable us to say, the vendee has lost the land? We think not. The vendees chance of obtaining the land is no doubt weakened, but destroyed it cannot bo said to be. We have two many proofs of a change of policy in the government of the United States in relation to the public lands, too many instances of their liberality to enable us to say what disposition they may ultimately make of claims, such as that the plaintiff held under. At all events, while he remains in possession, he cannot be said to be evicted, and it is eviction, and not the right in others to evict, which can furnish ground to maintain this action.

It was contended the defendants sold nothing. They sold a tract of land embraced within certain limits, for which they had an inchoate title under the Spanish government. Had that government remained in possession of the country, it is probable they would have obtained a grant for it. Be that however as it may, the sale was not void because the United States refused to confirm it. Sales under incomplete titles have been common in Louisiana for the last fifty years. They have always been considered to pass the land, subject like all other alienations to the' influence of higher and better titles, if any such exist. This case offers nothing which makes it an exception to the general rule.” Miller v. Lelen, 19 L. R. 331. Griffen v. Cotton, 1 Rob. 142.

On the former trial of this cause, we authorized the pleadings to be amended for the purpose of ascertaining all the facts in relation to the outstanding title to this section, under the impression that the plaintiffs possession and location under surveys, though precarious in relation to the United States, constituted a title adversely to other persons not claiming under them, which would devolve by descent, and might be the subject of a contract, and was subjected to the incidents of property.

It is hardly practicable within the limit of length which usage has assigned to a judicial opinion, to notice, in detail, the various parties with their pleadings which belong to this suit, and those with which it is consolidated. A very correct statement of all the proceedings, has been given in a well prepared brief of the counsel for the plaintiffs, and in considering the merits of this litigation, wo will take up the subject in the order presented by the counsel for the defendants. It is stated in their brief, that there are but three questions before this court:

The first is, has there been a failure of the vendor’s title to the section 22d ?

The second, what amount of loss has accrued to the vendees by the loss of the section 22d ?

The third is, was the title to section 22, acquired by MeKiernan, obtained under such circumstances, that it inured to the benefit of the vendors.

The explanation we have given of the title of the vendors, is in response to the first question. There was a failure in the title of the vendors; the ownership of the land was in the United States and not in the vendors. At the same time, the vendors had the possession of the land with the sufferance of the United States, and had a title or right which could be disposed of, and could lawfully be the subject of the contract of sale, and, under this title, Dunlap, entered upon the land and possessed it, and there can be no doubt that, upon a proper application, the title would have been confirmed by Congress, upon the payment of the price of public lands, if the claim was not con-finned unconditionally.

The charge of deception and fraud on the part of the vendors, in relation to this subject of title, is not only repelled by the whole tenor of the evidence and the circumstances attending the sale, but it results from facts which are incon-testible, that the purchaser, B. 6. Dunlap, know as much about the title and the ownership of the United States, as the vendors.

Months before the act of sale was passed, there was an agreement for this pnrehase, for which other lands were to be given in part payment by Dunlap, in which the subject of the title was thus provided for:

“ Said Pepper is to give said B. ff. Dunlap, a regular chain of titles for the aforesaid land and negroes, at the time he shall he paid the aforesaid fifteen thousand dollars, which titles, when produced, shall he deemed good and sufficient titles for said property, and paramount to all other titles.”

Before the act of sale was passed, there was a payment made by Pepper to Lilly, on a bond given by the former to the latter, as the price of this section, with the privity of Dunlap, and under circumstances which bring home to him the knowledge of the outstanding title of the United States.

In relation then to the question concerning the failure of title, there having been no deception practised on the purchaser by the vendors, it affords no ground, under the circumstances, for the refusal to pay any part of the price. The purchaser knew the danger of eviction, -when he gave his notes, and also that the extinguishment of the title of the United States was a matter requiring time, and could only be effected in the ordinary course of congressional legislation.

On the second question, as to what amount of loss has accrued to the ven-dees by the failure of the title of this section, the answer is, the amount expended in good faith in perfecting the title, and no more. This is upon the supposition, that they have not been evicted, and we are brought to the consideration of the third question propounded by the counsel, whether the title to this section, set up by McKiernan, was obtained under such circumstances, that it inured to the benefit of the vendors..

Had there not been the verdict of a jury, which recognizes this title of Mc-Kiernan, we should have thought our duty discharged in stating our conclusion in relation to it; we will, however, proceed to give the facts in detail, on which that conclusion is founded.

It appears that George W. Oopley, Mq., was one of the attorneys of Dunlap, employed in the defense of this suit; that as early as 1840, or in the spring of 1841, he went to Donaldsonviilo on business connected with this suit. Being in Washington in July of that year, he addressed a letter to the'Commissioner of the General Land Office, suggesting that the location of thq James James' claim on this section 22, and the back concession, ought to be canceled, because it had been located elsewhere; and Mr. Oopley states in his deposition, that in his belief he was the immediate instrument that brought about the canceling of this location and the back concession. The object of his movement was to avoid, on the part of his client, paying for this land, as it was conceived by both of them, that the vendor had no just title to the land, and had conveyed none, and that it was unjust that Dunlap should pay for land to which his vendors had no title, and from which it wTas probable he would sooner or later bo evicted. The witness says, that when it was declared public land, h¡¡.probably suggested, that “it was subject to be preempted upon,” and, he thinJcs, “the intimation was sufficient, and the first I knew, the parties above named, (Mc-Kiernan, Greisham, Burney and Bartlett) had settled on said land, and were making efforts to save it by preemptions. I made no charge for fees against the préemptors, or any one else, or at least I never considered that I did. I charged Dunlap a fee of $1000, for a large portion of which I held his note. I never considered that I had a right to charge, or that I had charged any one for any assistance I was to the préemptors in getting their claims through. My impression is, that it needed no one ; that they had plain sailing and got their claims through without difficulty, at least that has always been my understanding.”

The diagrams of subdivision of this section were forwarded to the land office in Washington in July, 1842, and to the general land office in August of that year. The settlements for the purpose of preemption, were made in that month.

The Register and the Receiver at Monroe gave notice to the land office at Washington, that the section 22 was claimed by settlers under the Act of Congress of September 4,1841, who had filed proof of settlement and made a tender of payment, and that they had not permitted the entries, for the reason that the office at Monroe had not been officially informed that the section was subject to the claims of préemptors and was public land.

The answer from the general land office directed, that the entries should be permitted on the claimants showing themselves entitled to the benefit of the law. This answer is dated the 9th of September, 1842.

There were four entries for this section. No. 1 was in favor of Robert W. Burney ; No. 2, in favor of John Bartlett; No. 3, in favor of Oharles B. McKiernan ; and No. 4, in favor of Walter A. Greisham.

We have before us, by the testimony of his own agent, the purpose of Bun-lap fully disclosed, which was to defeat the plaintiffs’ claim for the purchase money of this section. The execution of the plan began at Washington, as we have seen; it remains to notice what took place at the land office at Munroe, the residence of Mr. Oopley, to which their operations were transferred.

The Register of that office says, in his testimony, that Dunlap was at Monroe twice during the year 1842. During his first visit, he inquired of us, the Register and Receiver, if our office had been furnished by the Surveyor General of Louisiana, with a plat of section 22 and 52, which was answered in the negative. He remarked, that he believed himself entitled to a preemption of part of the section 22 ; to which the Register and Receiver did not assent. The only other persons who conferred with them in relation to this section, were Bartlett, Oreisham, McKiernan and Burney ; the three first on the 17th of August, and the latter in October or November, 1842, &c.

Dunlap was in Monroe when Mr. Oopley made application in behalf of Mc-Kiernan, Bartlett and Oreisham, to enter the lots claimed by them, which was on the 21st of October. Burney was permitted to enter lot No. 1 on the 18th of November following. Dunlap was not then present, and the witness does not know whether Burney paid for the same or not.

The Receiver at Monroe, who was also examined as a witness, states that in August, Oreisham, McKiernan and Bartlett, after filing their respective proofs and making a tender of payment, with the consent of the witness, deposited in his safe a sum of money, until it should be ascertained whether they would bo permitted to make their entries. They informed him that Oopley was their agent, and would attend to the making their entries when permitted. Oopley did attend to their business and signed their applications to enter the lots, and he directed the Receiver to appropriate the money they had deposited for the payment of the same, which he accordingly did. Dunlap was in Monroe when Oopley made the entries, but was not when Burney entered his claim.

Dunlap was not in Monroe when the first application was made in August, 1842.

The sum deposited in the safe of the Receiver was $800, the price not of three lots, but of four, and we infer from the testimony that it was appropriated as well for Burney's lot as for the other three, and that the payment was not made by Burney himself, but on his account.

The instructions from the general land office, made it necessary for the parties claiming the right of preemption under the law of 1841, to show that no other person was settled on the same lands claimed by them, in order to entitle them to their preemption. Dunlap filed his affidavit in each claim, which in the opinion of the Register and Receiver, removed all obstacles in their way, and they then decided that the claimants could enter their claims to the lots.

To each of these affidavits, it is stated that the land since April, 1837, has been in his possession, and that of his brother, until about the 2d of August, 1842, when the claimant entered and settled upon the lot claimed by him; to which settlement the affiant gave his consent.

In February, 1843, patents were issued in favor of each of these préemptors, and the titles of the three were transferred to MeKiernan, by acts of sale passed in February, 1845. The sale of Q-reisham was for $4,500 cash, of Bartlett for $1,500, and Barney, for $5,000, both cash.

This outstanding title is at length centered in MeKiernan, and what is his relation to Banlap ? That of brother-in-law — -a man with whom he had been always very intimate — his partner in the law business, to whom he had lent his name, as MeKiernan was not a licensed attorney, and who, with Greisham, ate every day, at the period of these doings, at his table, and kept his law office in Gt'eisham’s house.

Greisham was the Overseer of Banlap, from 1839 till his death, and at this time had the custody of the whole property, as the keeper of the sheriff under a formal appointment of that officer, and a written acceptance on his paid.

Bartlett, who entered lot No. 2, was the overseer of Banlap's father-in-law. MeKiernan told him that this section, 22, was public land and could only be entered by preemption, and that Bunlap preferred his friends should enter it, rather than any one else; and, in consequence of what MeKiernan told him, he settled on a quarter of the section. MeKiernan then offered to pay the entry money for him, as he owed him. He gave him the money which was deposited at the land office. In his settlement with MeKiernan, this money was not charged,. He received no rent, nor any part of cotton and corn grown on the lot in 1842 and 1843. He transferred the land to MeKiernan for his note for $1500. He cannot tell when this was done. Nothing has been paid on the note, and his other answers indicate that the transaction, so far as he was concerned, had no reality or consideration.

The other preemptor, Burney, though attached as a witness on the trial of the cause in 1848, positively refused to attend court. From which may be fairly inferred an aversion on his part to testify.

It appears also in evidence, that on the second of June, 1842, MeKiernan instituted suit against Bunlap, for the recovery of a portion of the property acquired by R. G. Bunlap from the plaintiffs, in the name of Joseph M. Looney, in his own right and as tutor of his minor son, belonging to them, as alleged, by right of inheritance from Oicero Jefferson. It seems that MeKiernan's professional relations with his client, continued as late as April, 1848.

This party has placed himself in such a position before the court, that he can only be saved from the predicament of attempting to defeat the interests of his own client, by averring that he acted in these matters for the sole purpose of securing Bunlap’s title, and thus enable his doings to inure to the benefit of his client.

In November, 1851, Looney joined the plaintiffs in their suit, thereby affirming the sale to R. G. Bunlap, and the case need not be embarrassed by any questions arising from his rights.

It is proved, that after this pretended eviction in August, 1842, Bunlap erected his plantation buildings and made permanent improvements in this section ; nor have we been referred to any evidence which establishes any change of profession during the lifetime of Bunlap. The land was cultivated as usual since 1839, and had no ostensible possessor except Bunlap. There was no rent exacted or paid for the use of the land. The payment of rent, under the advice of counsel, by the executrix of Dunlap in 1849 and since, subsequent to taking the appeal to this court, in which this cause was last remanded, makes no change in relation to rights asserted previous to that period, and then in litigation. Parties are not permitted to defeat rights in this condition, by collusion or agreements between themselves.

Having thus the facts before us — the purpose averred by Gopley, and the plan intimated by him, and executed by him at Monroe, and the want of any real change of possession, what can be the action of a court of justice on them, except to take no heed of so shallow an artifice ? Gillespie v. Cammack, 3 Ann. 249.

One of the rights of possessors is, that they are considered as owners of the things they possess, and in all cases where the object sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale. Code 2456, 1915. Vide cases under these articles collected in 2d Hennen’s Digest, 1394, verbo Bale III, 6, 5, 9.

This principle does not relate exclusively to the contract of sale, but to all divestitures of ownership and possession. It is plain that no possession has ever been acquired adverse to the plaintiffs’ title, on the contrary there has been no possession except under it.

Reliance has been placed in argument on a declaration made by James Pepper, in a conversation had with Lafayette Jones, concerning a proposition to compromise. This witness was examined in November 1850, and the conversation took place in 1843. We do not think the time of the year is fixed by the deposition of the witness. The time could have been ascertained and a party can derive no advantage from leaving evidence in a condition of uncertainty as to time, when that uncertainty could easily have been removed. Communications between parties for compromise in the attitude of hostility in which these litigants had placed themselves, ought to be in writing, if they are to have the effect of notice or putting in default. What passed verbally between the witness and Pepper, can only have effect as an admission; the weakest kind of evidence, and, at the distance of time in this instance, not sufficiently reliable to control or direct the action of a court.

This case was tried before a jury in November, 1851, who were unable to agree in a verdict. It was submitted to a jury in April, 1852, who found a verdict for the defendants, from the judgment on which the present appeal is taken.

When the case was before us, we stated the law applicable to it to be, that if the vendee buys up a bettor title than that of the vendor, and the vendor was guilty of no fraud, he can only bo compelled to refund to the vendee the amount of the money paid for the bettor title. The plaintiffs were entitled to a reasonable time to perfect the title, and the defendants have no ground to complain of the delay in this respect, as they undertook, of themselves, to- defeat the plaintiffs’ title, and did not put them in default.

Our conclusion is, that the title acquired by MeKiernan, was obtained under such circumstances, that it inures to the benefit of the vendors. Indeed, that the whole affair, from beginning to end, is a mere sham, for the purpose of defeating the payment to the plaintiffs, as averred by the agent of all the parties.

We think that the plaintiffs are chargeable with the preemption price of the land and the amount of the payment to Reynolds, Marshall & Co. ; for the balance, they are entitled to judgment.

"We have come to the conclusion, that the case is clearly with the plaintiffs on the evidence, and have less reluctance in setting aside this verdict, from the fact that we think the judge ought to have charged the jury on some points, as asked by the counsel for the plaintiffs. As the case is now closed, it is unnecessary to review the instructions asked for.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed: and that the injunction granted to Hugh Iff. Dunlap, as curator of the succession of Richard 0. Dunlap, he dissolved without damages. It is further ordered and decreed, that there be judgment in favor of the appellants for the sum of $30,782 10, with five per cent per annum interest upon $6,132 16, from the 4th of March, 1839, till paid; and a like interest upon $6,160 from the first of March, 1840, till paid; and a like interest upon $6,100, from the 1st of March, 1841, till paid ; and a like interest upon $0,160 from the 1st of March, 1842, till paid; anda like interest upon $6,160, from the 1st of March, 1843, till paid; and for all eosts of suit, subject, however, to a credit of $803 67, to be made upon the interest alone, with the vendor’s privilege and mortgage upon the land known and described as sections 22, 23, 24, 25, 52, 53, and lot No. 3 of section 54, in township No. 16, North of range 14 East, and the following eighteen slaves, to wit: Jim, Jsham, Olem, Bob, Sil, Syhia, Jacob, Nelson, Henry, Old Jacob, Henry, Rachel, Peggy, Caroline, Louisa, Alsey, Saul and Anthony, all of which land and slaves are described in the act of sale from James Pepper et als. to R. G. Dunlap, annexed to the petition. And it is further ordered and decreed, that on the claim set up by McKiernan, to the ownership of the said section 22, judgment be rendered for the plaintiffs, with costs; and that the appellees pay costs in both courts.

Rehearing refused.