author: Buchanan, J. Spojtokb, J. Merrick, C. J.,

text:
    Eliza Scott et al. v. R. S. Key et al.
    An infant, or minor born out of wedlock, son of a resident of Arkansas, was, by an Act of the Legislature of Arkansas, legitimated, or put upon the same footing, as if his parents had been married at the time of his birth. The question was, whether he could inherit, as a legitimate child, property in Louisiana.
    The heritable quality of legitimacy which W E. had received from the Legislature of the State of his residence, accompanied him when he changed his domicil.
    A general law of the place of domicil, changing the ¡status of its citizens according to circumstances, isa personal statute, accompanying the party to every other country; provided the circumstances which operate such change, have occurred before the change of domicil. So, a special law, removing a disability from a particular citizen by name is such a personal statute*
    The Legislature of Arkansas gave to W. E. the status of a legitimate son of S. E., and this status accompanied W. E. into whatever country he might go. — Spofford, J
    W. E came hither with his status. He inherited, 1¶ our law, from his father S. E, beeause he was, to all intents and purposes, a legitimate son, having become so /by the law of the domicil of his _origin, and not in fraud of our law, nor in violation of its policy. — Spofford, J.
    The statute of Arkansas must have as much effect, and no more, as a general law of that State would have, wherein it should be declared that all natural children born, or resident in the State of \ rkansas, should be considered as legitima te and inherit from their fathers the same as if horn in wedlock. Were such an Act allowed to have any extra territorial effect, another State would be permitted to provide a new class of heirs for immovables and successions in Louisiana. — Merrick, (J. J., dissenting.
    Foreign jurists class statutes in regard to legitimacy or illegitimacy, as personal. But, in principle, such statutes should have effect only where they cure some want of formality in regard to the marriage of persons who have really lived together as husband and wife, and not where at most they create a purely fictitious status. — Merrick, 0. J., dissenting.
    Conceding the statute of Arkansas to be a peraonal statute, it is against the policy of our laws to enforce it to the exclusion of the heirs at law, as regulated by the Civil Code. — Merrick, C. J., dissenting.
    There can be no safe rule except to consider those only as legitimate children whose parents have at some time lived together as man and wife. Hwres et Jilius est quem miptice demonsinmt. The Civil Code designates what persons shall inherit, and when a person presents himself, who has not the qualities required by our law, except in an absolute fiction created by the statute of another State, the real facts of the case should be looked at, qnd the inheritance given to those entitled under our own laws. — Meruick, 0. J., dissenting.
    Code, 219. 224, 882, 910.
    APPEAL from the District Court, Tenth District, parish of Carroll, Snyder, J.

      Short & Fwham and Goodrich & De France, for plaintiffs. Selby, for defendants and appellants.

      The counsel for plaintiffs made the following points:
    Did William Estill have any heritable right in the estate of Samuel Es-till ?

    In order to arrive at a proper solution of this question, it beeomes necessary to consider the force and effect of the statute of legitimation passed by the General Assembly of the Territory of Arkansas, by which, to use the language of that Act, William Estill “was made the legal heir and representative of Samuel Estill in as full and ample a manner as though he had been such from his birth, and as capable of inheriting the estate of the said Samuel as though said Samuel had been married to his mother at the time of his birth, and thereafter to be known and called by the name of William Estill."

    Is this a real, a personal, or a mixed statute ?
    We will examine it under each of these aspects, and under whichever it may be placed, it will unquestionably appear that Wm. Estill was without any right or capacity of heirship to the estate of his father, and that the plaintiffs in this case, the brothers and sisters of Samuel Estill, and their descendants, will be declared to be his true heirs. Fortunately for our investigations, the principles and distinctions involved in this abstruse, intricate branch of jurisprudence, have been elaborated with great learning, and adjudicated with great ability by this tribunal — the earliest and leading case being that of Saul v. His Creditors, 5 N. S., 569.
    I. Then, let us suppose this to be a real statute, which is defined to be one, which regulates property within the limits of the State where it is in force. If it be, then it can have no extra territorial effect on the account of Sam. Es-till’s succession when opened in this State. Brosnaham v. Tamer, 16 L., 433.
    II. Suppose it to be a personal statute. This court has adopted, in the case of Saul v. His Creditors, the definition of Chancellor D’Augusseau who considers a personal statute to be “ where all the attention of the law is directed towards the person, to provide in general for his qualification, or his general and absolute capacity: as wh^n it relates to the qualities of major or minor, father or son, legitimate .ortllegitimate,” &c., p. 594. It would then be controlled—
    1st. By the law of legitimation in our State, viewing it also in the light of a personal statute; for, upon the same authority, a personal statute here controls a conflicting personal statute of another State which seeks to enforce a right here, p. 590, 591. This operates as well whether the organic or statutory law operates. Con. of Laws, p. 11, § 10. 3 An., 426. (Bottom,) but—
    2d. The real statutes of the situation must prevail over the personal statutes of the domicil, p. 586. It would be idle to assert that Samuel and William Estill could import into the State of Louisiana a statute of Arkansas, passed for their benefit there, which conflicts with one of her real statutes, and changes the line of inheritance established by her laws. The property of a succession within the State must be distributed by the laws of the State. 11 M.,' 26 ; 3 N. S., 3 ; 7 N. S., 44; 5 An., 158.
    Judge Story, in his Conflict of Laws, after reviewing all the principles governing this branch, arrives at the conclusion “ that the heir, whether by testa-mentaiy, or by intertacy of immovable property, can take only according to the lex loci rei sitse, or, in other words, he is not admissible as heir unless he is duly qualified according to the principles, rules and forms of the local law.” Con. of Laws, p. 419, § 509.
    It cannot be pretended, in this case, that Wm. Estill was ever so qualified. Again:' The descent and heirship of real estate is exclusively governed by the law of the country within which it is actually situated. Con. of Laws, p. 404, § 483. The utmost that could be claimed for Wm. Estill would be that of a natural child. O. O. The utmost he could claim from his father’s succession would be alimony. C. C., 227, 914. The only heir he would'take precedence over, would be the State. O. C., 913, 914; 2 An., 98; 6 An., 156. And even all this on the hypothesis that the requirements of the local law had been complied with. An acknowledgment of an illegitimate child has, under our law, a peculiar formality. C. C., 217. This does not appear ever to have been complied with. A mere verbal or general acknowledgment or recognition, does not meet the case, and an admission to that effect amounts to nothing. It does not appear, from the Record, that the mother of Wm. Estill was ever in the State of Louisiana. The conclusion to which we must irresistibly arrive, under this division of (he case, considering the statute as a personal one, is, that its effect and operation are controlled by one law ; and that Wm. Estill could take nothing to the exclusion of those recognized by our laws as the proper heirs of Samuel Estill. But—

      3. Let us suppose the Arkansas statute to be a mixed statute, which is defined to be “one which concerns, at once, persons and property.” This would seem to be really the character of the statute of legitimation, but Merlin, after giving the foregoing definition, discards-such a classification's unnecessary, or as comprehended in the other two. Story’s Con. of Laws,’ p. 12. If such a classification is admitted, we have only to add, that if, neither as a real or personal statute, it can bestow on Wm. Estill the estate of his father, it cannot do so as a mixed statute, as it could acquire no additional virtue or efficacy from the combination.
    Thus, we think that we have established the proposition with which we set out, that under neither of these categories can Wm. Estill's heirs, his natural half-brothers and sisters, claim the estate of Sam. Estill, and are enabled to regard this Arkansas statute in its true light.
    It cannot be denied that within the limits of the State of Arkansas, its operation was absolute and complete ; but the moment Sam. Estill and Wm. Es-till ceased to be citizens of that State, and moved beyond its limits, that moment they renounced and forfeited all the benefits and advantages it was intended to secure to them. The point relied on by defendant’s counsel, in the previous argument of this case, as to the right of States to pass such Acts, does not meet the question. It presents an issue only when such Acts are sought to be made operative elsewhere, and then they are regulated alone by the comity of States. “ It is plain,” says Judge Story, “ that the laws of one country can have no intrinsic force, proprio vigoro, except within the territorial limits and jurisdiction of that country. They can only bind its own subjects and those who remain within its jurisdictional limits. No other nation or its subjects are bound to yield the slightest obedience to those laws. Whatever extraterritorial force they are to have, is the result not of any original power to extend them abroad, but of that respect, which, from motives of public policy, other nations are disposed to yield, giving them effect with a wise and liberal regard to the common convenience and mutual benefits and necessities.” Con. of Laws, p. 767. Again, he says, p. 32: “ It is difficult to conceive upon what ground a claim can be rested to give to any municipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other nations or to those of their subjects." So, also, this court has decided, that while contracts may bo governed by the laws of the country where they are made, they cannot be enforced to the injury of a State whose aid is required to carry them into effect. Saul v. His Creditors. Thus—
    4th. We arrive at the conclusion that this Arkansas statute has only such force and vitality as our jurisprudence will give it, with due regard, and without prejudice to the rights of our citizens. Should the natural half-brothers and sisters of Wm. Estill be declared the heirs to the property in controversy, we submit that it would exceed the comity which regulates it, and be extremely prejudicial in its operation.
    The principles which should govern in determining the legitimacy or status of Wm. Estill, mast be distinguished from those which usually prevail in such cases. The general rule is, that the question of legitimacy or illegitimacy is to be decided exclusively by the law of the domicil of origin. And the governing maxim Pater est, quem justise nuptse demonstrant legitimacy, established by the subsequent marriage of the parents, is admitted everywhere, and this for the reason that the institution of marriage is recognized jure gentium. It is very different, both from principle and policy, when a statute assumes the functions of a natural relation, demanded for the good of society, by the requirements both of the civil and divine law. Judge Story in his learned and elaborate discussion of this branch of jurisprudence, contemplates only the legitimacy that results from intermarriage between the parents, never regarding such a thing as statutory legitimation ; and after giving even the former its utmost scope, quotes from the decision of the King’s Bench this conclusion : “ The very rule, that a personal status accompanies a man everywhere, is admitted to have this qualification, that it does not militate against the law of the country where the consequences of that status are sought to be enforced.” Con. of Laws, p. 87, 91. So that we conclude—

      5th. The Arkansas statute did not bestow such a status or legitimacy on Wm. Estill as to make him legitimate elsewhere than at the domicil, being exceptional and different from that legitimacy flowing from marriage, which is recognized jure gentium.
    From an examination of the phraseology of that statute, it will be seen that Wm. Estill is described as the infant son of 8am. Estill, and not of him and Mary Coleman, the mother. And the Judge á quo was of the opinion, conceding that William could have been maintained in the possession of the property during his life, at his death it must pass to the heirs of Sam. Estill, the father, who, by the terms of the statute, had made the only public acknowledgment of him. C. C., 913, 916 ; Succession of Briscoe, 2 An., 268.
    In conclusion we have only to add, that in addition to the above, the whole current of principles in the learned commentary of Judge Story on Conflict of Laws, and the whole reasoning of this tribunal in the case of Saul v. His Creditors, which, by the way, is the fruitful source to which Judge Story is indebted for his leading principles and data, all sustain the decision of both the Judges a quo ; an affirmance of which is respectfully asked.

      Selby, for defendants:

      Samuel Estill and his infant son, William Eslill, in 1835, living in and being citizens of Arkansas, where they had been, before and afterwards, by a law of Arkansas, were made heirs to one another.
    It is contended that William Estill, being once the heir of Samuel, in Arkansas, was always his heir, till'his death; and that the removal from Arkansas to Louisiana, did not deprive him of the heirship.
    It is only by the statutes, the written laws of the State, that legitimate children inherit to the exclusion of others. L. 0., 882 et seq.; idem, 898 et seq. Were all the statutes upon this subject repealed, the distinction between legitimate and illegitimate children would be gone. Legitimate children succeed to the property of their parents only by virtue of written laws, and perhaps not always to those who beget them : for children conceived during marriage, and those whose parents intermarry at any length of time after their birth, inherit. L. 0., 203 and 217.
    It is contended that Arkansas as well as Louisiana, cam repeal or alter her laws on this, or any other subject, not prohibited by the United States Constitution or Laws, generally or specially, as in the case of Samuel and William Estill, father and son. Throughout the United Stales we have numerous instances of special laws making even strangers heirs to each other, dispensing with the usual age of majority, and changing the names of persons. Such laws in Louisiana are very numerous. Acts of 1852, pp. 214, 199, 177, 175, 161, 152, 151, 148, 147.
    Louisiana sustains such special laws passed by her own Legislature, and Arkansas within her territory would sustain this law in favor of the Estille. “ Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” U. S. Const., Art. VI, Sec. 1., and a fortiori, the laws of another State will be sustained ; for the laws of a State are its most public acts.
    The argument of plaintiffs’ counsel, that the statute is real, and that to give it effect here, would be to admit Arkansas to change the laws of descent of real property in Louisiana, to me, is not obvious. As I understand the books, no part of the statute is real', and if it were, I do not perceive its application to the case at bar.
    A will made in, according to the laws of another State, although not having the requisitions prescribed by the laws of Louisiana, may pass lands here. 3 A. R., 579 ; G A. R., 522. This would appear as much changing the laws of descent as would the statute making William the heir of Samuel Estill.

    By the laws of Louisiana, the marriage of the father and mother at any time after its birth, makes the child legitimate. L. 0., 217. In Arkansas it is not so. In such a case, were the parents and child, after the marriage, to remove from Louisiana to Arkansas, would the child again become illegitimate ? When the name of a citizen of Louisiana has been changed by her Legislature, must he take his original name again by removing to another State? Were a widow to marry in Mississippi, where there is no prohibition against it, before her first husband had been'ten months dead — -L. C., 134 — and after having raised a family from the marriage, come with it to Louisiana, would her marriage become illegal, her children illegitimate, and her collaterals take her property upon her death from her children ? These are a few of the many examples which may be put.
    Our statute books are full of special laws dispensing with the age of majority, changing names, and making those heirs who, by the general laws, were not so. It would seem to be as immoral in Louisiana to do so as in Arkansas — if there is any immorality in so doing. And it is only by the written, the statute laws, that the legitimate child is preferred to the illegitimate. By nature it is not so; and there is no natural reason why it should be.
   Buchanan, J.

This cause has already been before this court, and was remanded to make proper parties defendant. See 9 An. 213.

Plaintiffs are the surviving brother and sisters of Samuel Estill, deceased, and the children of a deceased brother of said Samuel. They claim to be heirs at law of Samuel Estill. The defendants are the curator, and the half-brothers and sisters, heirs of one William Estill, who was a natural son of Samuel Estill, but legitimated by a statute of the State (then territory) of Arkansas, of which Samuel and William Estill wore at the time residents, passed October Zith, 1835, and entitled “an Act to legitimatize the son of Samuel Estill." For a copy of the said statute in full, see the report of this case in 9th Annual.

The question now presented for our decision is, whether the statute in question had an extra territorial effect, and enabled William Estill to inherit, as the legitimate son of Samuel Estill, the property left by the latter in Louisiana. The solution of this question appertains to a distinction (which has been recognized by various decisions of the Supreme Court of Louisiana) of statutes real and statutes personal. The leading case ón this subject is Saul v. His Oreditors, 5 N. S., in which it was decided, that the general law of Virginia, which renders property acquired during marriage, the property of the husband, is a real statute, which did not follow a couple, who had contracted marriage in Virginia, into the State of Louisiana, where they resided many years, and where the wife died ; but that property acquired in Louisiana after their removal thither, entered into the matrimonial partnership of our law, and on the dissolution of the marriage, belonged one-half to the wife’s heirs. And in the ease of Banna v. Alpuente, 6 N. S. (the same Judge, Porter, who had, in the case of Saul, reviewed all the authorities, being the organ of the court,) it was decided that the laws of the domicil of origin, govern the state and condition, into whatever country the party removes; in other words, that such laws are personal statutes. And those two decisions are in harmony with the definition by Chief Justice Eustis, of the real and personal statute, in the case of the Augusta Insurance Company v. Morton, in 3 An. 426: “Those laws are real,” says the learned Judge, “in contradistinction to personal statutes, which regulate directly property, without reference to the condition or capacity of its possessor ."I There are some expressions of Judge Strawbridge, in the case of Brosnaham v. Turner, 16 L. R. 439, which are relied upon by plaintiffs’ counsel, and which are scarcely consistent with this definition. But the decision in Brosnaham v. Turner, turned upon a totally different point, the validity of a Sheriff’s sale. The remarks in Brosnaham v. Turner, as to the incapacity of the testamentary heirs of Tillao'ude to inherit in Louisiana, under a will probated under the authority of a statute of Florida, are at best but obiter dieta, and besides refer to a very different state of facts from that presented in this case. Here, an infant, or minor, son of a resident of Arkansas, born out of wedlock, was, by an Act of the Legislature of the country of his domicil, legitimated, or put upon the same footing as if his parents had been married at the time of his birth.

It is admitted of record, that William Estill, then a small child, October 27, 1835, resided with his natural father, Samuel Estill, in Arkansas, who was then a citizen of Arkansas, and resided in Arkansas, and that both of them resided therein for several years before 1835, and also continued to reside in Arkansas until some time between 1837 and 1841.” Arkansas was then the Iona fide domicil of the Estills, at the time of the passage of the Act of the Legislature in question. William was, by law, the legitimate son of Samuel in Arkansas. Can it be said, that he lost his status by crossing the State line into the frontier parish of Carroll, some j'ears afterwards? We think not. The heritable quality of legitimacy which he had received from the Legislature of the State of his residence, accompanied him, when he changed his domicil.

The error of the judgment appealed from, consists in regarding William Estill as illegitimate, at the time of his father’s death. But he was not so. The original taint of illegitimacy had been removed by the Act of the Legislature. Legitimacy and illegitimacy are the result of positive laws, which differ very materially in different countries/ To illustrate this idea, suppose William Estill had been born in Louisiana, and, that after his birth, his father and mother had got married in Louisiana, and subsequently to tiieir marriage, removed with their child to Arkansas. Their marriage after his birth, would have legitimated their offspring by the law of their domicil; yet, by the law of Arkansas, a subsequent marriage would not have produced that effect. Nevertheless, the status of legitimacy being acquired in Louisiana, would have accompanied him into Arkansas. There are many precedents, in the legislation of various States of this Union, of legitimation by Act of the Legislature, and particularly in Louisiana. This seems identical with the legitimation per reseriptum principis of the Roman law.

Yoet, Commentarios ad Pandectas, lib. 25, tit. 7, sections 4 and 13.

If it be true that a general law of the place of domicil; changing the status of its citizens according to circumstances, is a personal statute, accompanying the party to every other country, provided the circumstances which operate such change, have occurred before the change of domicil, which we consider to be the doctrine settled in Louisiana; a fortiori, is a special law, removing a disability from a particular citizen by name, such a statute? The constitutional power oí the Legislature to enact such exceptional enabling statutes, was drawn directly in question, and ruled affirmatively, in the case of Pritchard v. Citizens Bank, 8 L.R. 133. The maxim cited by Story, Conflict of Laws, § 51, from Boullenois, “Habilis vel inliabilis in loco domicilii, est habilis vel inhabilis in omni loco,” must therefore be deemed law in Louisiana,

And it is not correct to .say, that the statute of Arkansas, to legitimate William Estill, (which is a personal statute) conflicted with the statute of distributions of Louisiana (which is a real statute)^ and consequently, as was held in Saul’s case, is overruled by the latter statute. By the Louisiana statute of distributions, the legitimate son inherits in preference to the brothers and sisters of the deceased. By the effect of the statute of Arkansas, William Estill was the legitimate son of Samuel Estill. Upon the demise of Samuel Estill in Louisiana, in 1849, fourteen years after that statute, William Estill, as his legitimate son, was his heir, by the law of Louisiana.

In confirmation of this view of the subject, we may quote the language of the High Court of Errors and Appeals of Mississippi, in the case of Smith v. Kelly, 28 Mississippi Reports, 170: “It is a well settled principle, that the status or condition, as to the legitimacy, must be determined by reference to the law of the country where such status or condition had its origin.”

Judgment of the District Court reversed; and judgment for defendants, with costs in both courts.

Spojtokb, J.

It w'as competent for the Legislature of Arkansas, the domi-cil of his origin, to fix the status of William Kstill.

In substance and effect, that Legislature gave him the status of a legitimate son of Samuel Kslill.

The Arkansas statute, legitimating William Kstill, was a personal statute.

Therefore, the status of a legitimate son of Samuel Kstill, would accompany William Kstill into whatever country he might go.

He came hither with the status. He inherited, by our law, from his father, Samuel Kstill, because he was to all intents and purposes, a legitimate son, having become so by the law of the domicil of his origin, and not in fraud of our law, nor in violation of its policy.

I, therefore, concur in the opinion and judgment of Mr. Justice BucnANAfK

Merrick, C. J.,

dissenting. I find myself unable to concur in the opinion of the majority of the court.

The difficulty in my mind, arises from the facts admitted by the parties, by which it appears that Smnuel Kstill was never married to Mary Ooleman, the mother of Willimi Kstill; that she had been previously married to ox\e Richard, Burnett, by whom she had two children ; that after the death of Burnett, she conceived and gave birth to William Kstill; and that after the birth of William Kstill, she married Kdward House, by whom she had six children, the defendants in this suit.

It does not appear whether the Act of the Legislature of Arkansas was passed before or after the marriage of Mary Ooleman with Edward House. The term infant used in the statute, means one under the age of twenty-one years. I The Legislature of that State, without doubt, had power to enable William Kstill to inherit from his acknowloged father, all effects situated within its boundaries*

The statute must have as much effect, and no more, as a general law of that State would have, wherein it should be declared that all natural children born or resident in the State of Arkansas, should be considered legitimate and inherit from their fathers, the same as if born in wedlock,/ Were we to allow such an act to have any extra-territorial effect, we should allow another State to provide a new class of heirs for immovables and successions in Louisiana./-

It is true, that foreign jurists class statutes in regard to legitimacy or illegitimacy, as personal. But on principle, it seems to me, that such statutes should have effect only when they cure some want of formality in regard to the marriage of persons who have really lived together as husband and wife, and not where, at most, they create a purely fictitious status.

And the law in regard to legitimacy, does not appear to be extended by civilians, to any case except where there has been a marriage. The maxim is, Pater est quern justa nuptim demonstrant. Story says, that this maxim is true only in a limited sense in the civil law. In applying it, he says: “They, the civilians, therefore hold, that" if by the law of a country, (as Scotland,) a man born a bastard becomes, legitimate by a subsequent marriage of his parents, he ought to be deemed legitimate everywhere.” Story, § 93, 94 and 105.

But in England, a contrary doctrine prevails, and it has been held, that “A child born in Scotland, of unmarried parents, domiciled in that country, and who afterwards intermarry there, is not by such marriage rendered capable of inheriting lands in England.” Doe v. Vardeli, 5 Barnwell & Cress., 11 Com. Law Rep. 266.

The doctrine of the civil law ought to be enforced doubtless, in those cases where our own statute recognizes a mode of legitimation by acknowledgment by notarial act and subsequent marriage, (C. C. 219, Art. 1831, p. 86,) although the form in which it has been done in another State differs from our own./

In the case oft Smith v. Kelly's Heirs, 1 Cushman Mississippi Rep., 170, it -was held by the very able bench which then presided in the Supreme Court of •that State, that a child, illegitimate by the laws of South Carolina, where born and where his parents were subsequently married, could not inherit in Mississippi, although the child would have been legitimate in Mississippi, had he been born and the subsequent marriage of his parents taken place in that State.

In the case just cited, the maxim of the civil law was invoked, not to admit, but to exclude, the child from the inheritance, and as there was a marriage of the parents of the child, at most it only proves that the principle of the civil law is admitted in Mississippi, to apply to those cases where there has been a marriage recognized by the laws of another State.

But it seems to me, (conceding the statute to be personal,) it is against the policy of our law to enforce it to the exclusion of the heirs at law as regulated by the Civil Code. C. C. 882, 910, 224. Story Conflict Laws, 268. Saul v. His Creditors, 5 N. S. 697. The right of declaring who shall inherit immov-^ ables, has always been considered as belonging to the State where they are situated, and I question much if the comity of nations has yet been earned to the extent proposed in this case.

The Supreme Court of the United States says: “It is an acknowledged principle of law, that the title and disposition of real property is exclusively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one person to another.” McCormick v. Sullivant, 10 Wheaton, 192. See also 2 Burrows, 1079; 2 Peere Williams, 291; Marcenaro v. Mordella, 10 An.

Savigny, one of the most liberal writers of the present day, and one who has carried the law of the domicil to a greater length than any other writer with whom I am acquainted, finds it necessary to place a limit to its application. In substance, he says, in order that a personal statute should be enforced in another country, there should be something in common in the jurisprudence of the two countries in respect to the statute so sought to be enV forced.

He says, and I make a translation, though rough, yet nearly literal: “ If a law relative to the personal condition (legal capacity) belongs to the absolute laws which, on account of their anomalous nature, lie outside of the common legal principles (Rechtsgemeinshaft) of independant States, the Judge does not apply the law of the domicil of the party, but the local law of the country to which he belongs.

“ Where polygamy is allowed by law, he who is already married, has a capacity to take a second and a greater number of wives. The Judge of a Christian State would afford him no protection for this. In reference to this kind of legal capacity, the law of the former and not the law of the domicil will be applied.

“Where he to whom the law of his home denies a legal capacity as being a heretic, wishes to acquire rights and undertake business in a country where such a law in regard to heretics is rejected as immoral, and where perhaps the religion is the same as that of the so called heretic, the Judge should follow the law of his own country, and not that of the domicil of the person.

“If the law of one country declares Jews incapable of acquiring real estate, it binds foreign as well as resident Jews. The resident Jews, however, are not prevented thereby from acquiring land in another country which has no such law. In both these cases the law of the domicil of the person does not apply.

“The same may be said of the eivil death of the French and Russian law. The magistrate of a State where the institution of the civil death is not adopted, will not make any application of it, nor observe the law of the domicil.

“ The like rule prevails where the status of a negro slave is questioned in a country where the institution of slavery is not recognized.” Savigny, German Ed., Berlin, 8 vol., Sec. 365, Art. 1, 2, 4, 6 and 7, p. 160, 165.

The principle recognized by Savigny, that personal statutes are only enforced where there is something found in common with them in the general laws of the country where they are sought to be enforced, has occurred to Mr. Parsons in his works on contracts. He says: “In regard to the first class, it is true that wherever the incapacitated person goes, he carries his incapacity with him: but this is perhaps not because his incapacity was created by a law of the home from which he came, for it was only recognized by that law; and being recognized by every'other law, he finds himself under the same incapacity in every State, because he finds a similar law everywhere in force. For this law may well be called a law of nature; that is a law created by the Supreme Creator of, and law-giver for human nature, and as wide in its scope and operation as that nature.” 2 Parsons on Contracts, 85.

A brief analysis of the statute in question, I think, will render it very far from dear that it is not a real instead of personal statute. The title of the act in common law countries, as I understand, is no part of the Act. 1 Wm. Black R., 95. We must therefore look to the body of the Act to see what it means.

It enacts that William, Estill, the infant son of Samuel Estill, be made his legal heir and representive in as complete a manner as though he had been such from his birth. The maxim of the common law is Memo esthaeres viven-tis. Hence the Legislature of Arkansas did not intend to perform a legal impossibility when.it declared that William Estill was the heir and representative of Samuel Estill, then living; it rather looked to his estate and provided a person who should inherit after his death his lands as heir, and succeed to his personal effects as his legal representative, than attempted to create a present personal relationship between the two.

In this view, the statute further provides that, “ He (said William) shall be capable of inheriting the estate of said Samuel Estill, in as full and complete a manner as though said Samuel Estill had been married to his mother at the time of his birth; and the said William shall be known and called by the name of William Estill.”

The second section provides that the Act shall take effect from its passage.

The Act confers upon William the right of inheriting from Samuel Estill as fully as he would have done if Samuel had been married to his mother, but it does not, I think, necessarily place William under the power and authority of Samuel, or create any personal relationship between them.

If the principle contended for in this case be once admitted, it is difficult to foresee where it .will end.

I think because the statute of Arkansas has given William Estill the status of heir of Samuel Estill, we are obliged to declare him such in Louisiana, by the same reason we should have been obliged to recognize him as heir, if the Legislature of Arkansas had declared him heir to the exclusion of the legitimate children of Samuel Estill, and be had had legitimate children, for ho would have had the so called status of heir which would have been wanting in the legitimate children. If the Legislature of Arkansas should designate a class of third persons or strangers to be the legitimate heirs of certain persons, would it not, by the same reasoning, be a personal statute, and would not the person declared heir have the status, and should we not be obliged to enforce it? If the statute of Arkansas should authorize one person to adopt as his heirs such persons as he pleased, and provide that the persons so adopted should be considered the heirs as fully as if born in wedlock, -would it not also be as much a personal statute as the one before us? Would we enforce it to the exclusion of the heirs under our own law ?

Suppose Samuel Estill had had three illegitimate children by different mothers, and two legitimate children, and the Legislature of Arkansas had declared the three illegitimate children should be considered heirs, how would this effect the legitime in Louisiana of the two legitimate children ?

The child of the fourth wife of the Mohamedan, and the child perhaps of the thirtieth wife of the Mormon, have the status of legitimacy in their own countries ; would our courts give effect to that status should such heirs present themselves here ? These questions (arising from extreme cases it is true) show the difficulties which environ the application of the principle to the extent admitted by the majority of the court.

And I can see no safe rule except to consider ihose only as legitimate children, whose parents have at some time lived together as husband and wife. Eaeres et films est quern nuptial demonstrant. The Civil Code designated what persons shall inherit, and when a person presents himself who has not the qualities required by our law, except in an absolute fiction created by the statute of another State, my present impression is, that we should look at the real facts of the case, and give the inheritance to those entitled under our own laws.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Godfrey Rudolphe, Captain of Ship Blanche, v. The City of New Orleans.
    Action to recover damages from defendant for alleged illegal conduct of the Board of Health, in ordering the ship to Fort Jackson, after her arrival in the city. By the Court: We think that the fault lies with the captain of the ship in proceeding to the city without first having been visited by a health officer, and that he thereby took upon himself the risk of being compelled to return to Fort Jackson, particularly as the cholera had so recently shown itself on his ship, and there was a case of ship fever among the emigrants.
    It will not be presumed on slight testimony that sworn officers have violated their duty in matters of discretion confided to them. Those who allege an illegal exercise of that discretion should be held to establish such allegation by conclusive proof.
    1A. PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Coold & Stansbury, for plaintiff. Livingston, City Attorney, for appellant.
   Merrick, C. J.

This suit is brought to recover the sum of five thousand dollars damages, alleged to have been occasioned by the illegal order of the Board of Health of the city in ordering the British ship Blanche to return with its freight and passengers from Slaughter House Point, near the city, to Port Jackson, before being permitted to land at the city.

It appears that the ship had a very large number of emigrants on board; that nine had died, five of cholera, as was supposed, one after having crossed the bar at the mouth of the Mississippi, and that there were two sick persons on board, one with the ship fever.

The ship arrived at the South-West Pass the 18th of November, 1858, and proceeded up the river to Port Jackson, where sho lay twenty-four hours, and no health officer making his appearance, came up to Slaughter House Point. Dr. Hester, the boarding physician, with a scretary, Mr. BeeeTier, boarded the ship, and finding that five deaths of cholera were reported on the log, and that the vessel was in a filthy condition, communicated the facts to the Board of Health, and the following order was made, to wit:

''Resolved, That Capt. Rudolphe, of the ship Blanche, be notified that under no pretext whatever will the said vessel, or her passengers, be allowed to land at any points within the limits of the city, but that ho be ordered to return with his ship and passengers to either Port St. Phillip or Jackson and fumigate the vessel, and on proper representations from the officers of this Board, at the Quarantine grounds, at the above named Port, lie will be allowed to proceed to this city.”

In pursuance of this order the captain proceeded with the ship to Port Jackson, and twelve or fifteen days were lost by this order before the ship commenced unloading.

The Judge of the District Court gave judgment in favor of the plaintiff for $1023, cost of towage and hands, and the defendant appealed. The plaintiff has not presented us with any written or oral argument. But the charge contained in the petition is that the acts, above mentioned, of the Board of Health, in relation to the ship Blanche were “ oppressive, illegal and unnecessary.” Plaintiff alleges “that the Board of Health was organized by an ordinance of the City Council of New Orleans; that the Mayor of said city was the President of said Board, and that to the Board of Health was delegated the supervision of vessels arriving at the said city, and other sanitary matters, and that the Mayor, Aldermen and inhabitants are responsible for the acts of said Board of Health.”

It does not appear that any effort was used by the officers of the ship to procure the attendance of a health officer whilst the ship was lying at Port Jackson, either by a communication on shore or with the agent of the ship at this city. It is proven that the ship lay at Port Jackson twenty-four hours, and not having been boarded by a health officer, she was towed up to Slaughter House Point.

We think that the fault lies with the captain of the ship in proceeding to the city without first having been visited by a health officer, and that he thereby took upon himself the risk of being compelled to return to Fort Jackson, particularly as the cholera had so recently shown itself on his ship, and there was a case of ship fever among the emigrants. Dr. Hester, the boarding physician, had the reputation of being an able physician, and he was under the apprehension that one of the cases of sickness on board would terminate in cholera.

He was acting officially, and we do not think the uncertain testimony of two or three inexperienced men should be sufficient to invalidate his official acts. We have repeatedly said that we will not presume upon slight testimony that sworn officers have violated their duty in matters of discretion confided to them, and that those who allege an illegal exercise of that discretion should be held to establish such allegation by conclusive proof. Dubose v. Levee Commissioners of Carroll, 11 An. 165; - v. Police Jury of West Baton Rouge, ibid.

Although it is shown that there was considerable excitement in the city, arising from the arrival of this ship with sickness on board, we see nothing to induce us to suppose that the order of the Board of Health, in reference to the Blanche, was not justified by the facts, and that they did not, as prudent guardians of the health, and having also in view the rights of the emigrants and the owners of the ship, exercise wisely the discretion vested in them by the ordinances of the city of New Orleans.

This view of the case renders it unnecessary to examine the question whether the city can be rendered responsible for the illegal acts of the Board of Health.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff, and in favor of the defendant, and that the plaintiff pay the costs of both courts.

       The Reporter has been requested by the Chief Justice to state that after the opinion had been prepared in this case, a brief was filed by plaintiff’s counsel. It failed to change the conclusions to which the court arrived, and the decision, as prepared, remained unchanged. Through inadvertence the above expression was suffered to remain. Justice to plaintiff’s counsel requires that this explanation should accompany the report of the case.


author: Buchanan, J.

text:
    City of New Orleans v. The Wardens of the Church of St. Louis.
    A cemetery is an indispensable part of every city, or town, and wherever situated, must be in the neighborhood of private property. Such cemetry is not a nuisance because it depreciates the marketable value of the property in its neighborhood.
    The doctrine that the city of New Orleans has a right to violate a contract, and redress is to be had only in damages against the city, is as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages against the parly who has violated the contract. But the claim in such a case is for the reparation of a wrong, and the very opposite of a recognition of a right to violate a contract.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Livingston, City Attorney. Preauw, for defendants and appellants.
   Buchanan, J.

(Merrick, O. J., absent.) The Legislature of the State, by an Act approved the 16th March, 1848, (Session Acts, p. 81,) authorized the defendants, a religious corporation, to establish within the limits of the city of Now Orleans, a cemetery for the burial of Roman Catholics; provided, says the act, said cemetery bo established at a distance of at least one mile from the bank of the river Mississippi, and provided the consent of the municipality, in which the same may be located,, be first obtained.

Under the authority given them- by this Act of the Legislature, the defendants purchased a piece of ground, measuring two arpents front, on the Bayou St. John, by a depth of fourteen or sixteen arpents, the same being more than a mile distant from the bank of the Mississippiand on the 18th of November, 1850, the council of Municipalty No. Three, within which the ground is situated, gave its consent, by resolution, to the establishment of a cemetery by defendants, upon certain conditions therein expressed, on the said piece of ground; and by another resolution, authorized the Mayor to-sign all notarial acts that the defendants might require,, in order to carry into effect the resolutions of the council.

On the 6th of December, 1850, a contract was passed by notarial act between A. D. Grossman, Mayor of the city of New Orleans, and F. Ldbatut, President of the Board of Wardens of the Church of St. Louis, reciting the above mentioned resolutions of the Council of Municipality No. Three, and containing reciprocal stipulations on the part of the two contracting parties, in conformity therewith.

The present suit is brought by the city of New Orleans, a corporation, which by the Consolidation Act of 1852, has succeeded to the Municipality No, Three, to enjoin the defendants from making use, as a cemetery, of the piece of ground on the Bayou St. John, acquired by them as aforesaid, under authority from the Legislature, and mentioned in the resolutions and notarial contract of Municipality No. Three.

The reason alleged for the injunction prayed for, is that the present municipal corporation has repealed, bjf resolution adopted the 4th December, 1854, the ordinance passed by Municipality No. Three, on the 18th of November, 1850, granting permission to the Church of St. Louis, to establish a cemetery on the land purchased by them near the Bayou St.John. The petition alleges, moreover, that said cemetery is, and will become a nuisance, and detrimental to the health of the city.

The defendants answer: 1st. That they derive their authority to have and use the land in question for a cemetery, from a statute of the State, which cannot be invalidated or rendered inoperative by a city ordinance. 2d, That the cemetry is not a nuisance. And, 8d, That by the contract with the late Third Municipality, the defendants have a vested right, of which plaintiffs, as the other-party to that contract, cannot deprive them without their consent.

On the trial of the cause, there was not a syllable of evidence to show that the cemetery in question is a nuisance. The only parol evidence offered by plaintiffs, is that of real estate brokers, who give their opinions as to the influence of a cemetery in depreciating the value of property belonging to certain proprietors in the neighborhood, being the same individuals who heretofore sued out an injunction, which was dissolved by judgment of this court last year. See the case of Masgrove et al. v. Catholic Church of St. Louis, 10 An. 431.

We cannot perceive that the fact of Mr. Ramos' or Mr. Bland's property being depreciated in a speculative point of view, by the neighborhood of a cemetery, affords a good reason for the city to prohibit the cemetery. It is very evident that, wherever located, the cemetery must be in the vicinity of private property, belonging to persons, who might be able to prove that the marketable value of their property is injuriously affected by such vicinity.

But we deem it unnecessary to maintain by argument, that a cemetery is an indispensable part of every city or town. The case of the Brick Presbyterian Church v. The Mayor, 5 Cowan, where the corporation of New' York shut up a grave yard, after it had been in use for sixty years, w'hich had been originally opened with their permission, is no precedent at all for this proceeding, when, at most, only one or two interments have been made, since the permission of the municipality was given. The other cases cited by plaintiffs’ counsel, are cases of an abatement of flagrant nuisances, proved to be such, by acts of the municipal authorities, often very summary, but justified by the police powers vested in those authorities, for the protection of the public health and the safety of life and property. The existence of very extensive powers for such purposes-in municipal corporations, has been too often recognized, to be now the subject of dispute.

But the counsel of the city takes much higher ground for his client. He holds, that if the repeal of the ordinance of 18th- of November, 1850, be not justified by the facts, and if it be even a manifest violation of a contract on the part of the city, yet the latter has the power to violate its contracts, and the defendants have no redress, except in an action for damages. The following is the language of the learned counsel:

“ The municipal corporation, acting within its corporate powers, can, as an individual, make and break contracts. If there is no justification under the powers conferred, then it can be made liable to pay such damages as would naturally flow from the breach of the contract. But the breach of the contract would put an end to the cemetery proposed to be established, and the Wardens would be compensated in the damages proved and awarded.”

This is a doctrine as unsound as it is novel. The violation of a contract may be, and very often is, the ground of an action sounding in damages, against the party who has violated the contract. But the claim in such a case is-for the reparation of a wrong; and the very opposite of a recognition of a right, to violate the contract.

This is bolioved to be the first case of the violation of a contract being made a ground of action on the part of him who has violated it.

Judgment reversed; and'injunction dissolved, at costs of the plaintiff and appellee.


author: Vooriiies, J.

text:
    Thomas J. Goodman & Son v. Wm. Allen at al.—John Carroll v. T. J. Goodman & Son et al.—Lexington Life, Fire and Marine Insurance Company v. Wm. Allen et al.—John Carroll v. Lexington Life, Fire and Marine Insurance Company—Moses Greenwood, Surety and Intervenor.—Consolidated Cases.
    The validity of an attachment cannot be drawn in question collaterally, except in cases where there is an entire want of citation.
    APPEAL from the Fourth District Court of New Orleans,- Reynolds, J.

      Edwards and Bortford, for Greenwood, surety, intervenor and appellant. Mott & Fraser, for appellees.
   Vooriiies, J.

(Meericic, 0. J., absent.) This is the sequel of the consolidated cases decided in 6 and 8 An. 371 and 381.

The object of the present suit is to determino the question in relation to the ownership of the property in controversy between the plaintiffs and George W. Hynson, as curator of the succession of the late John Carroll.

The curator in his answer avers, in addition to his former averments, that the steamboat New Hampshire never came into his possession; that he does not know where she is, but believes that she has been lost, worn out or destroyed, and that he has no means of producing said boat.

Moses Greenwood intervened, and joined the curator in resisting the plaintiffs’ demand. He alleges that Carroll was the true owner of the boat, and that the attachments were wrongfully sued out against Allen et als., inasmuch as the same were based on claims for damages. To this the plaintiffs answered, that it was true Greenwood was interested in the event of the present suit, and that they had no objection to his intervention; but denied specially that Carroll ever was the owner of the steamer, and that whatever title he held was fictitious and fraudulent, and made for the purpose of cheating and defrauding the plaintiffs; and that the intervenor had no right to question the validity of their judgment against Allen et al.

The decision in Gibson v. Foster, 2 An., 507, is conclusive that the validity of an attachment cannot be drawn into question collaterally, except in cases where there is an entire want of citation. This view of the law we think is a sufficient answer to the intervenor’s objection to the Judge’s charge to the jury that the nullity or illegality of the attachment could not avail him in this case to defeat the plaintiffs’ recovery on the bond.

On the merits, the only question presented is one of fact. After a careful consideration of all the circumstances disclosed by the record, we are not prepared to say that there is any error in the verdict rendered by the jury, to whom the cause was submitted. Our conviction is, that the pretended judicial sale of the steamer to satisfy the pretended claims of Carroll and others, was a mere device for the purpose of screening the property from the pursuit of the creditors of the two Allens, the defendants in the original suits. It does not appear to have effected any change in the relation which had previously existed between all the parties, who continued to remain on the boat. The liability of Greenwood, as surety of Carroll's bond, clearly resulted from the fact that the plaintiffs had sought in vain the satisfaction of their judgment by execution against the two Allens, their debtors, and the failure of the curator of Carroll’s estate to surrender the steamer.

It is, therefore, ordered and decreed, that the judgment of the court below be affirmed, with costs.


text:
    David P. Williams v. Stephanie Chotard and Husband.
    The whole system of administration of minors’ estates in Louisiana is opposed to an anticipation of the means of the minor by purchasing property on credit for his account.
    Article 834 of the Code, which authorizes, under certain circumstances, the mortgage of a minor’s property, has reference to property which belongs to the minor at the time of the application of the tutor, and the convening of the family meeting; but a prospective mortgage of property which it is proposed to acquire, is not authorized by the Article.
    The tutor of the minor, defendant, had filed a petition, proposing an. investment of funds of his ward, to the amount of three thousand five hundred dollars cash, and the advice of the family meeting and judgment of the court followed that proposition. But the tutor only invested one thousand dollars in cash, and created a debt for the remainder. By the Qcmrt: This variance would release the defendant from the obligation of paying the price of this purchase, even were it such as would have been legally binding on her, if made in accordance with the terms fixed by the family meeting.
    Code 8413 843, 848.
    APPEAL from the District Court, Ninth District, Parish of Concordia, Cooley, J.

      Siacy & Sparrow, for plaintiff. Shaw, for defendants and appellants.
   Buchanan, J.

In order to determine what limits, if any, exist to the authority of a tutor of a minor to purchase real estate for his ward, we must take all the provisions of the Code into consideration in a connected view.

The Article 348 authorizes such purchase to be made by the tutor, upon an order of court, rendered on the advice of a family meeting. But the Article 343 requires the tutor not to encroach upon the capital of his ward, except in one case, which is, the insufficiency of the minor’s revenue to procure him subsistence. Again, the Article 341 requires the tutor to make investments for his ward in one case, namely, where the revenues of the minor exceed his expenses. Under the second paragraph of that Article, if the tutor make such investment in the form of a loan, secured by mortgage, it seems that he can do so, without consulting a family meeting, or obtaining an order of court. But if the tutor should judge it more advisable, in the interest of his ward, to invest in the form of a purchase of real estate, rather than in that of a loan upon mortgage, the subsequent Article 348 seems to authorize him to do so, but under restrictions, which are evidently intended as safeguards against an injudicious investment in this form. In one word, the whole system of administration of minor's estates in Louisiana, is opposed to an anticipation of the means of the minor by purchasing property on credit for his account. Hall v. Woods, 4 An. 86; Darce v. Leaumont, 5 Rob. 286.

The Article 334 of the Code prohibits the alienation or mortgage of the immovable estate of a minor, unless (on the representation of the tutor that it is for the interest of the minor that a sale or mortgage of that kind should be made) a meeting of the family, duly assembled, shall declare that the sale or mortgage is of absolute necessity, or of evident advantage to the minor. We hold that this Article has reference to the property which already belongs to the minor at the time of the application of the tutor and the convening of the family meeting, and that a prospective mortgage of property, which it is proposed to acquire for the minor, is not authorized by the Article.

In the case at bar, real estate has been purchased for minors on a credit, at a price which the evidence clearly demonstrates to have been exorbitant, or to say the least, speculative. A prospective mortgage has been created, in the contract of sale, for the security of the payment of the price. And in addition, what seems entirely without warrant of law, and is not sanctioned by the family meeting, the same contract makes the minors partners with a third party, their vendor, in the cultivation of a cotton plantation. The defendant, who was one of the minors in whose name this threefold contract of purchase, mortgage and partnership has been made, is not bound by it. Apart from its manifold illegalities, it was most evidently injurious as to her.

The evidence shows that the tutor of defendant had under his administration, for many years before this purchase, a cotton plantation, inherited by defendant from her father, which yielded an average crop of eight hundred bales of cotton annually, that her tutor has never rendered her any account. Under this evidence, the tutor should have had in hand, belonging to the defendant, at the time of this purchase, in 1848, a sum very largely exceeding the whole price of the undivided half of the plaintiff’s plantation thus purchased. It was the tutor’s duty to have invested this fund for defendant, instead of involving her in debt; and it was the duty of the under tutor, and of the family meeting, to have required him to do so.

Thus far we have examined the binding effect of this purchase upon the defendant, with reference to the general authority of the tutor and family meeting under Article 348 of the Civil Code. We have done so because of the importance, as precedents, of all decisions of this court upon the form and effect of acts done in the administration of minors’ estates. But in strictness we were not required to go into the general question upon this occasion. For the evidence shows the purchase of real estate, made by E. G. Howell, as tutor of defendant, from the plaintiff, on the 9th September, 1848, was not made upon the terms and conditions authorized by the Judge, on the advice of the family meeting.

In his petition presented to the District Court, and filed the 9th September, 1848, the tutor represents that his wards are in the receipt of a considerable sum of yearly income from their estates in the parish of Concordia; that David, P. Williams has a cotton plantation in said parish, of which he is willing to sell the undivided half, at the rate of thirty dollars per acre, upon the following terms: $3500 cash, of which $1000 to be paid to the vendor, and $2500 to be paid the Mechanics’ and Traders’ Bank, upon a mortgage held by said bank, etc. That petitioner believes it to be for the interest and evident advantage of the minor to purchase of Hr. Williams the half of his plantation on the terms specified, but as petitioner is not permitted to invest the funds of his wards without the advice of a family meeting, he prays that a family meeting be convened to give their advice, and that he be authorized to make said purchase in behalf of said minors, upon the terms and conditions herein set forth.

On the same day, 9th September, 1848, the Clerk of the District Court orders a family meeting to be convened, touching the matters contained in the petition.

Op. the same day the family meeting is held before the Parish Recorder, and “having carefully deliberated upon the propositions contained in said petition, advise that said tutor make the purchase, as prayed for in his said petition.”

On the same day, the proceedings of the family meeting are homologated by the Clerk of the court, and the tutor authorized to make the purchase upon the terms and conditions set forth in the petition.

And finally, on the same day, 9th September, 1848, the plaintiff, by act passed before the Parish Recorder, sells to the minors, Stephanie Minor and Lucy Howell, represented by their tutor, the undivided half of his plantation, on the following terms and conditions: one thousand dollars in cash, six thousand five hundred and sixty-seven dollars and eleven cents in the assumption of a mortgage debt due by the vendor, to the Mechanics’ and Traders’ Bank, which the said Howell, tutor, binds himself to pay and discharge whenever thereto required by said Bank, etc.

From this recapitulation of the proceedings, it is very evident that the tutor’s petition to the court proposed an investment of funds of his wards in hand to the amount of three thousand five hundred dollars cash, and that the advice of the family meeting and the judgment of court followed that proposition. Yet the whole amount of funds of the minors invested was only one thousand dollars, and a debt was created for the remainder.

This variance would release the defendant from the obligation of paying the price of this purchase, even were it such as would have been legally binding upon her, if made in accordance with the terms fixed by the family meeting.

The evidence shows that four thousand one hundred and ninety-two dollars were paid by the minors, or for them, on account of the price of this illegal purchase; one-half of which by defendant. We are of opinion that her claim in reconvention for a restitution of this price from plaintiff is well founded.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, that there be judgment against plaintiff) annulling, so far as the defendant is concerned, the sale of real estate of the 9th September, 1848, by plaintiff to the minors Stephanie Minor and Lucy Howell, by act before A. G. Hunter, Recorder of the parish of Concordia; and that defendant recover of plaintiff two thousand and ninety-six dollars, with interest from the 1st May, 1854, until paid, and costs of both courts.


author: Lea, J.

text:
    W. E. & J. C. Delavigne v. F. A. Williamson.
    The digging of ditches for the purpose of draining water from an adjoining property, the felling of trees, and the occasional cutting of wood on uncultivated land, are acts which do not necessarily partake of the character of detention, or intended occupancy.
    The possession of a front tract of land held under a dififerent.title, as a distinct and separate property, cannot be considered as extending to a tract claimed under an alleged title from the ¡United States, and subject to a reservation in favor of a third person.
    APPEAL from the District Oourt, Fifth Judicial District, parish of Assumption, Cole, J.

      Roman., for plaintiffs. J. 0. & A. Beatty, for defendant and appellant.
   Lea, J.

These suits which have been consolidated as involving the same issue, are in the nature of possessory actions, accompanied by claims for damages for trespass.

Notwithstanding the verdicts .of two juries in favor of plaintiffs, we find the testimony in support of -the plaintiffs’ claims, assuming it to be true, wholly insufficient to support a possessory action. The acts of possession relied upon by the plaintiffs, cannot'be considered as amounting to .such .a corporeal detention .of ¡the property claimed, as might serve as a basis of a subsequent civil possession. The digging.of ditches for the purpose of draining the water from an adjoining property, the felling of frees, and the occasional cutting of wood on uncultivated'land, are acts which do not necessarily partake of the character of detention, or of intended occupation. The only acts of this character disclosed by the evidence, .are such as were exercised by the defendant himself, such as clearing a portion of the ground from which his employee appears to have been driven by acts which were sufficiently menacing to put him in bodily fear, and to effect, at least a temporary dispossession of the defendant. Moreover, the petitions do not allege, nor does the evidence disclose, the extent of the alleged usurpation by the defendant, so as to enable the court or jury to determine the limits of the property claimed by plaintiffs. As in the case of Kitridge v. Hebert, we think there was no actual ¡possession by the plaintiffs of the portion claimed as forming a part of the back concession, and that the possession of the front tract, held under a different title as a distinct and separate property, cannot be considered as “ extending to a tract claimed under an alleged title from the United States, and held subject to the reservation mi favor of Be Bema's claim.” See Civil Code, Article 3400. Kitridge v. Hebert, 9 An. 154. 5 An. 594. 12 Martin, 17.

It is ordered, that the judgments appealed from be reversed; and that in the Consolidated cases of W. E. Delavigne v. F. A. Williamson, and J. C. Delavigne v. F. A. Williamson, there be judgment for defendants; the plaintiffs and appellees paying costs in both courts.


text:
    City of New Orleans v. Mrs. A. Lesseps.
    Although the Act of the Legislature has not declared that the delivery of the tax roll should have the force and effect of a final judgment, yet a party who has not made an effort to have the errors corrected, in the manner indicated by the Act, and seeks to go behind the assessment roll, should show some valid reason why he did not make an attempt to have it corrected, while it was subject to correction; and, moreover, not only show that there has been an error made to his prejudice, but also show the precise amount he is entitled to have deducted on account of such error.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    .

      Seistand, S Levy, for plaintiffs. Seghers, for defendant and appellant.
   Merrick, C. J.

If it be admitted that a party who has made no objection to the assessment roll, previous to its homologation, can show gross error in it, when sued for his taxes, it by no means follows that the tax roll should not have the same force against him as any other obligation, and that when he alleges errors, he should be held to show those of a grave character, and establish them by conclusive proof.

In this case, there is no proof that the sixteen negroes which wore removed from the city, are the only ones belonging to the defendant; neither is there any testimony to show the amount that the assessment should be reduced, where the property is alleged to be rural. The assessment roll is, by law', delivered on the first Monday of October of each year, by the Board of Assessors, to the Recorder of the district in which the property is situated. Due publication is then made of this fact, and for thirty days thereafter any person aggrieved by the assessment may make an appeal in writing,, stating particularly the correction desired. The Recorder, Justice or Parish Recorder thereupon, has the power to correct any errors and reduce the amount of the assessment, upon notifying and conferring with the Assessor. Acts 1850, p. 136. Acts 1855, pp. 511, 510. After the expiration of the thirty days publication, the assessment roll is delivered, and it is no longer in the power of the tax payers to cause corrections to be made. Besides the privilege of giving in the property under oath, the Legislature has, therefore, provided for the tax payer, a ready and convenient mode for the correction of errors in the assessment of taxes, and if parties, who have property w'ithin the district where the assessment is made, do not choose to attend at the proper office, in order to have the errors corrected, they can hardly expect the courts to be more vigilant to protect their rights, than they have shown themselves.

Vigillantibus et non dormientibus jura subveniunt.

Although the Act of the Legislature has not declared that the delivery of the tax roll shall have the force and effect of a final judgment, yet, we think, that a party, who has not made an effort to have the errors, corrected before the Recorder, and w'ho would go behind the assessment roll, should show some valid reason why he did not make an attempt to have it corrected, while it was subject to correction; and, moreover, not only show' that there has been an error made to his prejudice, but also show the precise amount he is entitled to have deducted on account of such error. 'Where tax payers are unwilling and neglect to attend to the correction of the tax roll in the districts where they hold property in the city, the presumption is, that they are indifferent to the valuation of their property, as well as to the quantity which may be assessed in such district in their names. Prima facie, it is an assent to, and acquiescence in the tax roll as delivered.

The defendant, in this case, has failed to show that she made any effort through her husband, or otherwise to have the tax roll corrected; that she had not sixteen other negroes, besides those sent to Mr. Soulffs plantation, and has failed to prove the amount which should be deducted on account of the alleged rural property; she is, therefore, without defence to this action.

Judgment affirmed.

      In the City of New Orleans v. Poutz, the same questions were involved and decided as in this case, in April, 1856.


author: Voorihes, J.

text:
    Charles H. Webb v. Temple S. Coons.
    Sale under fi. fa. set aside for want of valid writ and notice.
    It is where the purchaser is evicted on the ground that the thing adjudged to him belongs to ^another person than the party in whose hands it was taken, that he is left to his recourse for reimbursement against the seized debtor aud seizing creditor. But where the seized debtor himself seeks to rescind the sale on account of informality, equity requires that he should make the "bona fide purchaser whole before he evicts him.
    C. P. Til.
    APPEAL from the District Court, Tenth District, parish of Madison, Far-rar, J.

      Wallace, for plaintiff and appellant. Harrison and Dubose, for defendant.
   Voorihes, J.

'The defendant is appellant from a judgment setting aside as informal, the sale of 'a tract of land alleged to have been made to him by the Sheriff, under writs of fieri facias against the plaintiff.

The following facts are disclosed by the record: The firms of Feet & Sims and A. F. Dunbar & Co., recovered, respectively, judgments against Webb, the appellee, on which writs of fieri facias were issued on the 19th of January., 1849. The writs thus issued, were returned by the Sheriff on the l'6th of March, 1849, and on the next day, alias writs were issued. On the 23d of March, a notice of seizure, dated the 14th of the same month, was served by the Sheriff on the appellee. On the 28th of April following, Elina Jane Webb, the appellee’s wife, instituted an action against the seizing creditors to set aside the seizure, on the 'ground that the property belonged to her and not to the seized debtor; and also claimed the sum of $200 as damages. Thereupon, she prayed for judgment in her favor against them, and that the Sheriff should be notified of her demand. Although she did not pray for an injunction, and none was granted for aught that appears to the contrary, yet the execution of the writs, it would seem, was suspended until the final termination of her suit, which resulted in a judgment rendered by our predecessors, against her. See T An. 92. On the 8th of June, 1852, the Sheriff returned the writs. His return shows, that the property was advertised for sale by bim pursuant to a notice of seizure, which he certifies to have been given to the appellee by his predecessor, on the 23d of November, 1849. The only return on either of the writs, which may be ascribed to the former Sheriff, is as follows, viz: “Received on the 17th day of March, 1849.” The next sentence is in these words: “On the 24th of March, 1852, I advertised all of the property described in the within notice of seizure.” The property was adjudicated to the appellant on the first Saturday in June, 1852, at twelve months’ credit, for the price of $200.”

It is urged by the appellant, that the date of the notice of seizure is erroneously set forth in the Sheriff’s return ; that instead of the 23d of November, it should have been the 23d of March, 1849. We consider this objection inadmissible, inasmuch as it was competent for the Sheriff to amend his return, at any time, so as to make it conformable to truth. Had he been required by the appellant, we have no reason to doubt, that such an amendment would have been made by him. But, be this as it may, the amendment appears to ns to be immaterial, as the notice of seizure of the 23d of March, could only apply to the first writs which had been issued in those cases; so that it would seem there was was neither seizure, nor notice of seizure, under a valid writ. Eor this reason, we do not think the District Judge erred in setting aside the sale. Nor do we think he erred in requiring the plaintiff to repay the purchase money advanced by Coons, and which went to pay his debts. It is where the purchaser is evicted on the ground, that the thing adjudged to him belongs to another person than the party in whose hands it was taken, that he is left to his recourse for reimbursement against the seized debtor and the seized creditor. O. P. 711. Where the seized debtor himself seeks to rescind the sale on account of informality, equity requires that he should make the dona fide purchaser whole, before he evicts him. 6 An. 581. The judgment requires 'amendment in this respect.

It is therefore ordered and decreed, that the judgment of the District Court* be so amended, as that no writ of possession or execution shall issue in favor of the plaintiff, and the said judgment shall be without effect until the plaintiff shall tender to the defendant, or deposit in court for him, the sum of two hundred dollars, with five per cent, interest from the date of its payment by defendant. It is further ordered, that in other respects, the judgment be affirmed ; the costs of appeal to be paid by the plaintiff and appellee.