text:
    The Union Bank of Louisiana v. Stoker, Executrix.
    Notice of protest addressed to an endorser at the post-office nearest to his residence, is sufficient under the commercial law, or under the 2d sect, of the stat. of 13th March, 1SS7. Nothing more is necessary, though the party notified do not live in the place where the post-office is situated. No other designation of “ the domicil or usual place of residence” of the endorser is necessaiy; nor is the omission of the name of the parish in which the post-office is situated material, where the address is sufficient to ensure the transmission of the notice to the proper office.
    APPEAL from the Court of Probates of Sabine, Speight, J.
    P. A. Morse and Roysdon, for the appellants.

      Chaplin, for the defendant.
    The statute of 13th March, 1827, s. 2, requires notice to an endorser to be addressed to him “ at his domicil or usual place of residence.” B. & C.’s Dig. 43. Duncan v. Sparrow, 3 Rob. 165.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought by the Union Bank against the executrix of Stoker, to recover the amount of a promissory note drawn by Thompson, to the order of, and endorsed by, Henry Stoker, dated at Natchitoches, and payable at the branch of the Union Bank in that place. At maturity it was protested, and the notary certifies that he mailed the notice to Stoker, addressed, to '■'■Henry Stoker, Cantonment Jessup, La.,” putting the same into the post-office at Natchitoches on the day of the protest. This certificate, with the protest, was offered in evidence; and it was also proved that there was a post-office at Fort or Cantonment Jessup, at the date of the protest; that Stoker's residence was within two miles of said post-office ; that his residence and the Fort Jessup post-office were both in the parish of Natchitoches; that Fort Jessup post-office was the nearest one to the residence of Stoker ; and that Natchi-toches post-office was more than twenty miles from Stoker’s residence.

In our opinion this was a sufficient notice under the commercial law, as well as under the act of 1827 ; and the certificate of the notary, under that act, was evidence of the giving of the notice. Fort or Cantonment Jessup was, according to the facts above stated, the proper place to which to address the letter; and the address and the certificate are both in compliance with the act of 1827, according to the fair legal intendment of the second section: “ A notice of such protest to each, drawer, acceptor, endorser, or others, addressed to them at their domicil or usual place of residence.” If the party to be notified does not jjve jn town or settlement where the post-office is, but in its neighborhood, addressing it thus is the proper mode to ensure its reaching the party; and we are unable to perceive by what other address, its transmission by mail, which the commercial law and the statute both authorize, could have been secured. As the proper transmission was abundantly effected by the address to ‘ Cantonment Jessup, La.,’ to have added the words “ parish of Natchitoches,” would have been quite superfluous. There was but one other post-office in the parish of Natchitoches, to wit, that in the town of Natchitoches ; and the defendant does not protend that it should have been so addressed as to remain in that office.

It is therefore decreed that the judgment of the court below be reversed ; and it is further decreed that the plaintiffs, the Union Bank of Louisiana, recover of the defendant, Nancy StoJcer, executrix of Iienry Stoker, deceased, the sum of $935, with interest thereon from the I6th day of November, 1841, till paid, at the rate of five per centum per annum, (subject, nevertheless, to a credit in favor of said defendant of $293, as paid January 5th, 1842,) and also the costs of the courts below, and of this appeal.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Thorn v. Beamon et al.
    In the absence of any decisions of the courts of Texas establishing the interpretation to be put upon the third paragraph of the tenth section of the general provisions of the constitution of the Republic of Texas, which declares certain acts of the legislature of Coahuila and Texas aud certain grants of land made under them, null and void, its operation camiot be extended, by implication, to other grants than those expressly described.
    APPEAL from the District Court of Rapides, Campbell, J.

      Hyams and Brent, for the plaintiff. Dunbar, Elgee, Prentiss, and Thomas, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit was brought in September, 1837, by the plaintiff, a citizen of the Republic of Texas, to recover a balance due on two promissory notes, drawn by the defendants, in favor of George Hancock, or order. They were given as part of the consideration of a sale made on the 15th of February, 1836, in New Orleans, by Hancock to the defendants, of three undivided eighths of twenty-two leagues of land in Texas, which are, in the act of sale, declared to be a part of the land acquired by the vendor from the plaintiff, on the 10th of February, 1836. The defendants plead a total want of consideration to support the notes; that Frost Thorn never had any title to the land, and that Hancock had been imposed upon by him; that Thorn warranted the title to Hancock, and Hancock to them; that the latter transferred to them his right of warranty against Thorn; that these notes were transferred to the plaintiff, in payment of the land; and that they have the same defence against him as they would have were he their vendor, under the warranty before recited. There was judgment for the plaintiff, and one of the defendants, Jones, has appealed.

The evidence relating to the transaction consists of the statement and answers to interrogatories of Hancock, offered by the defendants, and the answers of the plaintiff to interrogatories propounded by the defendants, which were offered by the plaintiff. There is no bill of exceptions to any part of the evidence, except to a portion of the answers of the plaintiff. It appears that Hancock who resided in Louisville, Kentucky, early in the winter of 1835, was under the impression that, the then province of Texas would be purchased by the United States from the government of Mexico, and that thereby great profits could be realized by the purchase of lands in that province. He accordingly determined to visit the country, and, before leaving Louisiana, he was applied to by several persons to act as their agent, or to become their partner, in the purchase of lands; among these persons was Carter Beamon, one of the defendants. He met Thom, the plaintiff, at Natchitoches, and the result of their acquaintance' was an agreement for the purchase of two tracts of land of eleven leagues each, situated between the Sabine and Lake Caddo, in Texas, which was. concluded between the parties, and signed on the 24th of Dec. 1835. The price was fifty cents per acre. A formal deed was to be passed in sixty days from the date in New Orleans, provided Hancock, on investigation, should be satisfied with the title and quality of the lands. The completion of tho sale was left optional during that period with Hancock, and in the event of Hancock’s desiring to confirm it, Thorn was to warrant that the lands had been acquired in conformity with the laws of Coahuila and Texas, and that there were no charges on them in favor of the government or of individuals, and that the titles were genuine, and made by a commissioner duly authorized to make the same. Thorn was not to guaranty against any invasion or revolution, but only that the titles were genuine, and made according to law. The tracts are described as being grants of eleven leagues made to John T. Mason, by the government of Coahuila and Texas, and the titles as passed to Thorn, upon the archives of Nacogdoches. Thorn was to retain no mortgage on the lands, and payment was to be made in four annual instalments, from the date of the execution of the act of sale in New Orleans.

Hancock then proceeded to Texas from Natchitoches; employed counsel to examine the records and titles; and having satisfied himself in this respect, and as to the quality of the lands, returned to the United States with the determination to conclude the purchase, if he could find purchasers to unite with him. They were found, and the act of sale was passed before Cenas, a notary, in New Orleans, on the 15th of February, 1836, from the plaintiff to Hancock. Thorn having agreed to take the notes of the parties interested, with the endorsement of Hancock, acts of sale were passed from Hancock to them, and their notes transferred to the plaintiff in part payment of the price. Beamon appears to have been one of those who were in constant communication with Hancock in this transaction; but Jones, the appellant, became interested with Beamon just as the papers were being made out. The 10th of Feb. had been fixed to conclude the business; but one notary not being able to do the writing, another was resorted to. The acts are of different dates, but all had reference to the same transaction. The notes all bear date the 10th of February, though the act from Thorn, before Cenas, was not executed before the 15th, and none of them were transferred until all was completed.

On the 10th and 15th of February it was known among the parties, as well as by Thorn, who were to be interested. It was agreed among them that the sale should be made in Hancock’s name, and that he should be entrusted to sell. The proceeds of the first sale were to be applied to the payment of the purchase notes, and the surplus, being the profits, were to be divided between Hancock and tlie parties interested. A duplicate agreement of one of the parties is filed, dated the 10th Feb. 1836, and a similar Agreement was entered into by the other parties, and by the defendants themselves. Afterwards we find that Hancock sold a part of their joint interest, under their instructions, viz: five leagues of the land, for which $11,365 68 was received by Hancock, and applied by him to the payment of the notes of the defendants held by Thorn. This sale was made to Messrs. 1. J. & W Stuart, of Kentucky, and to J. Foreman.

The principal ground of defence relied u]Don as establishing a want of title in the plaintiff, is one of the general provisions of the constitution of Texas, adopted in the convention held at Washington, on the 17th of March, 1836. This provision is affirmed in the constitution of the State of Texas, adopted in August, 1845, by this section:

“ All claims, locations, surveys, grants and titles to land which are declared null and void by the convention of the republic of Texas, are, and the same shall remain forever, null and void.”

The constitution of the republic of Texas thus provides:

“ And whereas the protection of the public domain from unjust and fraudulent claims, and quieting the people in the enjoyment of their lands, is one of the great duties of this convention : And whereas the legislature of Coahuila and Texas having passed an act in the year 1834, in behalf of General John T. Mason of New York, and another on the 14th day of March, 1835, under which the enormous amount of eleven hundred leagues of land has been claimed by sundry individuals, some of whom reside in foreign countries, and are not citizens of the republic, which said acts are contrary to articles fourth, twelfth and fifteenth of the laws of 1824, of the general congress of Mexico, and one of said acts, for that cause has, by said general congress of Mexico, been declared null and void: It is hereby declared, that the said act of 1834, in favor oí John T. Mason, and of the 14th of March, 1835, of the said legislature of Coahuila and Texas, and each and every grant founded thereon, is, and was from the beginning, null and void; and all surveys made under pretence of authority derived from said acts, are hereby declared to be null and void; and all eleven league claims, located within twenty leagues of the boundary line between Texas and the United States of America, which have been located contrary to the laws of Mexico, are hereby declared to be null and void : And whereas many surveys and titles to lands had been made whilst most of the people of Texas were absent from home, serving in the campaign against Bexar, it is hereby declared that all the surveys and locations of land made since the act of the late consultation closing the land offices, and all titles to land made since that time, are, and shall be, null and void.”

In order to aid the defendants in the application of this act of high sovereignty to the present case, they have addressed interrogatories to the plaintiff concerning the title of the land and its location, as relative to what is commonly called the J. T. Mason grant. In answer, he says that, the titles were perfected by regularly authorized commissioners of the government; that the lands were purchased from General J. T. Mason, in 1834, or 1835, who was regularly authorized by the government of Coahuila and Texas to sell them. Mason was authorized to sell three hundred leagues, ninety-five of which were regularly located, and titles thereof were issued by the lawfully constituted authority; of these lands, those sold to Hancock formed a part. These ninety-five leagues form a part of the lands now generally designated as General John T■ Mason’s claims.

The provision of the convention of Texas purports to vacate two certain acts of the legislature of Coahuila and Texas, one of which is described to have been made in behalf of General John T. Mason ; the other has no reference to the present inquiry. It declares these acts to have been contrary to certain articles of the laws of 1824 of the general congress of Mexico, and one of them, for that cause, to have been declared null and void by said general congress, and that said acts, and each and every grant, and all surveys founded thereon, have been ah initio null and void.

Giving the full force and effect which the counsel for the defendants insist is to be attached to this provision, it cannot be held to operate on the title of the land sold by Thorn to Hancock, because there is no such act as that described in the provision shown ever to have been passed by the legislature of Coahuila and Texas, and the answers of the plaintiff show that the lands in question were held under no such title.

The convention of Texas undertook to declare null and void certain legislative acts, and the grants made under them. To extend this solemn act of supreme authority to other grants than those described, would be in violation of all principles of constitutional law, and all sound rules of judicial interpretation. Until such an operation be given to it by the courts of Texas, a foreign tribunal must limit it to the legal intendment of the provision.

All eleven league claims, located within twenty leagues of the boundary line between Texas and the United States, which have been located contrary to the laws of Mexico, are also declared to be null and void. The provision is for the future; the claims are not declared to have been null and void from the beginning, as is declared of the grants under the legislative acts. It does not attempt to strike at the past; and having been enacted subsequently to the sale from Thorn, were he a vendor under a full warranty of title, no responsibility could attach to him in consequence of it.

Without the assistance of judicial decisions, or of unquestioned official acts of the government, to guide us in our inquiries, we do not feel ourselves as possessing the means of determing on the invalidity of the titles of these lands, by reason of their being in violation of the laws of the republic of Mexico. The question involves that of the power of the state and general government over the public domain. The State exercised the power, though contested by the central government, and the revolution of 1836 prevented for ever a settlement of the question.

We therefore conclude that it is not shown that the titles and location of the lands were contrary to the laws of Mexico, and according to the answer of the plaintiff, which stands uncontradicted, we feel bound to hold that, the location was regularly made, and the titles issued from the lawfully constituted authority.

From what is said it necessarily follows that, there is nothing thus far before us which establishes the defence set up, of a failure of a consideration of the notes sued on. The defendants having put the plaintiff on his oath, and had the benefit of his answers in evidence, and, so far from relying on the naked stipulation of the acts of sale, having offered in evidence the full, well prepared, and candid statement of the transaction by Hancock, have put us in possession of the whole case, and we are satisfied that the verdict of the jury must stand. The affair was -a speculation throughout, of which the defendants have had the benefit. It is not pretended that they have suffered any real eviction from the lands; and no falsification, or breach, of the warranty given by Thorn, is proved, which was not an absolute warranty of property, hut that the titles were genuine, ancl made and perfected in compliance with the forms and usages of acquiring titles in Texas. We leave out of view the answer of Thorn as to the extent of his warranty, and form our opinion in relation to it from the acts of sale, and the evidence which the defendants have themselves connected with them. Judgment affirmed.

        Thorn, in bis answers to interrogatories, alluding to the provision in the constitution of the republic of Texas says: “ He presumes it was intended to declare General J. T. Mason’s claim null and void; hut that declaration, were it even binding in law and equity, does not, in the opinion of this respondent, reach the lands sold by this respondent to HancocJc, as respondent believes and is well informed that, “ no act of the legislature of Coahuila and Texas, either of the year 1834, or of the 14 of March, 1835, was ever passed in favor of John T. Mason, or granting lands to him. This respondent farther knows and is wellinformed that, there was an act of the said legislature, authorizing the sale by the government of three hundred leagues of land, and that General John T. Mason was appointed agent of the government for their disposal, and that he did sell the same under that authority, and pay the government therefor, all which was confirmed by act of the legislature, and the titles of the land sold by this respondent to Hancock, formed apart of ninety-five leagues thereof, which was located, and the titles thereto extended and perfected, according to law, all which took place before the declaration of independence of the republic of Texas.”


author: Edstis, C. J.

text:
    Penny v. Parham et al.
    Where a note executed by the purchaser for the price of property, payable to the vendor, was signed, and endorsed by a third person, at the time of executing the act of sale, and subsequently endorsed by the payee, the first endorser will be bound as a surety. Amendments to pleadings should be allowed only in furtherance of justice.
    APPEAL from the District Court of Madison, Willson, J.
   The judgment of the court was pronounced by

Edstis, C. J.

This action is brought against the defendants, partners in trade, on endorsements made by them on two promissory notes, made at Clinton, in Mississippi, dated the 8th of February, 1837, and payable in May, 1841, and 1842, respectively, for $2600 each. They are signed by R. A. Taylor, and in favor of Belims & Cook, but are not endorsed by the payees. An endorsement of Behms Sf Cook follows that of the defendants. An answer was filed in which the defendants charge that the notes were endorsed by them in blank as accommodation endorsers, with the belief that the payees would first endorse them before they could be negotiated, and thus the payees be bound to them as first endorsers, should they be obliged to pay the notes. They allege fraud, &c. It appears that over the signature of Parham Gibson was written a guaranty of the payment of the notes to Benms fy Cook, or order; but as this was not written at the time of the endorsement, it is not material to notice it.

The endorsements sued on, and the defence, assimilate this case to that of McGuire v. Bosworth et al., ante, p. 248, in which we held that, by the uniform jurisprudence of this State, it was settled that, when aperson, not a party to aprom-issory note, puts his name on the back of it, he is presumed to bind himself as surety. It is contended that a different rule prevails in the State of Mississippi on this subject, and a manuscript case of Thomas v. Jennings Drone, decided by the High Court of Errors and Appeals, has been cited by the learned counsel for the defendants. We understand that tribunal simply as re-asserting the doctrine laid down in the cases of Dean v. Hall, (17 Wendell, 214) and Hall v. Newcomb, (3 Hill, 233) that, where a man writes his name on a negotiable note, he is prima, facie held only as endorser ; but that where another construction is necessary to be given to the contact in order to give it effect, he may be made responsible as an original maker, or guarantor, according to the nature of the transaction and the understanding of the parties. The liability of the party depends on the evidence explanatory of the transaction. The criterion by which to determine the obligation of the party was wanting, and the court of Mississippi determined that, in the absence of any proof, other than the note itself, the jury were bound to presume that the party who had put his name on a promissory note, not endorsed by the payee, was bound as endorser and not as maker.

In this case the notes formed part of the price of a house and lot, sold by Behms & Cook to Taylor. The notes were signed, and endorsed by the defendants, at the time the deeds of sale were executed. The whole transaction was simultaneous, and the object of the endorsement was that the defendant should be bound in some form to Behms &¡- Cook, for the amount of the notes. The proposition that they intended to bind themselves merely as endorsers, involves a palpable absurdity, under the evidence before us. The notes were filled up with the names of Behms & Cook, and to make them the first endorsers, according to the defence set up, would be to make them, the creditors, endorse for their own debtor, and for the benefit of the defendants, with whom they had no transaction before this whatever. We cannot notice an hypothesis which leads to such conclusions.

Under this evidence we conceive the defendants to be bound by their endorsements, as sureties. Story on Pi^mjjfesory Notes, § 133, 134, and notes. This construction is absolutely necessary in order to give any effect to the signature, and to carry into effect what is proved beyond contestation to be the true intent and meaning of the parties when the transaction, of which the notes formed a part, was completed. Idem, § 479. Under the authority of the same work, § 481, 484, and under the statute of Mississippi passed on the 25th of June, 1822, which is in evidence, we do not consider the objections to the assignment of this contract as tenable.

The answer in this case was filed on the 5th of May, 1843. On the 20th of May, 1844, the defendants made an application to the court for leave to file an amended answer, in whice it was charged that James M. Wall was to have been an endorser on the notes before Parham & Gibson, and which offered explanations of dn error, which their counsel was said to have fallen into, in stating his original grounds of defence. The judge refused to allow the amendment of the anwser, among other reasons, because the application came too late.

Amendments to pleadings are allowed, only with the leave of the court, for furtherance of justice ; and when a judge, under the conviction that a party has had ample time and opportunity to correct any error which counsel may have committed in the exercise of his legal discretion, under a thorough knowledge of all the attending circumstances, comes to the conclusion that it would be contrary to justice to allow it, a much stronger case must be presented to us than this, to induce us to reverse his decision. We therefore consider that the judge ^ not 61T’ *n r6®ls*I1S t0 aH°w the amended answer to be filed.

Slacy, Prentiss, and H. A. Bullard, for the appellant. A• Pierse and Mayes, 'for the defendants.

The defendants offered the deposition of Taylor, in part of which the allegation in the amended answer concerning the intended endorsement of Wall purports to be supported. The judge held this part of the deposition inadmissible under the pleadings, and refused to admit it in evidence. On examining the portion rejected by the judge, and giving it all the effect we are permitted to do, it does not alter our conclusions as to the facts under which this transaction was terminated. The want of precision as to time in the deposition of Taylor renders it inoperative, as to its effect on the facts deposed to by Faulk, at the time the endorsement was made and the notes delivered.

We are satisfied from the full explanation of the whole transaction given by Faulk in his testimony, that no injustice has deen done to the defendants by the course pursued by the judge on the trial of the cause, and that the case is clearly with the plaintiff. It is therefore considered by the court that the judgment of the court below be reversed, and that the plaintiff recover from the defendants, in solido, the sum of $5,200, with interest on one-half, $2,600, from May, I9th, 1841, and on the other half, $2,600, from May 19th, 1842, at five per cent, until paid, with costs in both courts.


author: Eusns, C. J.

text:
    Erwin v. Lowry, Curator
    Courts of probate, under the late judiciary system, being of limited jurisdiction, could exercise no power but such as had been expressly given by statute, or was necessary to the exercise of their specified powers. Their jurisdiction could not be extended, by implication, to cases in which the ordinary tribunals afforded an adequate remedy, and which were not necessarily connected with the exercise of their acknowledged powers.
    Third persons cannot intervene in an action pending before a court of probates, against the curator of a succession, to enforce the payment of notes secured by mortgage on the property of the deceased, for the purpose of establishing their right to the notes and mortgage, and of causing the proceeds of the property to be applied to their claim. The court has no. jurisdiction of the question of the ownership of the claim; its determination not being necessary in order to ascertain the amount due by the succession.
    APPEAL from the Court of Probates of Madison, Downes, J.

      Amonett and Dunbar, for the plaintiff.
    The Court of Probates was without jurisdiction, of the matter presented by the petition of intervention. Code of Pract. arts. 924 § 13, 983, 984, 986, 392, 389. Gill v. Phillips, 6 Mart. N. S. 304. Lawson v. Ripley, 17 La. 284. Copley v. Faulk, 3 Rob. 100. The question, as one of fraud, should be tried by a jury, before a court of ordinary jurisdiction. Casanova v. Acosta, 1 La. 183. Lessassier v. Lessassier, 15, La. 55. Curtis v. Curtis, 3 La. 519.

      Shaw, for the intervenors.
    The intervention was properly brought before the court in which the principal action was pending. Code of Pract., art. 392. Succession of Goodrich, 3 Rob. 100.

      H. A. Bullard, on the same side.
    The jurisdiction of the Court of Probates in relation to the intervention, is unquestionable. It has exclusive power to decide on claims against estates administered under its authority. If two persons claim the same debt upon the tableau, the court must necessarily decide. It is not even necessary to resort to the incidental powers of that court; but if it were, numerous decisions establish it. The Probate Court may even try a question of title to land, when necessary to arrive at a just conclusion upon matters of which it has cognizance. Baillio v. Wilson, 5 Mart. N. S. 217. Gill v. Phillips, 6 Mart. N. S. 305. So the character of sales made for the benefit of persons incapable, may be enquired into. Me Caleb v. Me Caleb, 8 La. 466. 7 La. 878. 12 La. 214. See also Ripley's case, 17 La. 238. But the question of jurisdiction is no longer important, the Probate Court having been merged, by the new constitution, into a court of universal jurisdiction, to which, for any ulterior proceedings, this case must be remanded.

      Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Eusns, C. J.

The plaintiff, in 1842, instituted suit in the Court of Probates of the parish of Madison against the defendant, curator of the succession of McNeil, on-two notes, drawn by the deceased, and secured by mortgage on certain lands and slaves. The plaintiff was non-suited at the trial, and, on an appeal, the non-suit was set aside, and it was decreed that the notes sued on be set down and admitted as a valid and legal mortgage claim against the estate administered by the defendant, and that the same be paid in due course of administration. 6 Rob. 29.

Under the mandate of the Supreme Court, the plaintiff filed his petition, in which he prayed for the sale of the unsold part of the mortgaged property, and that, as a portion of it had been sold, the proceeds thereof be applied to the ex-tinguishment of the judgment. The defendant, in answer to this petition, alleged, as a defence, various matters touching the right of the plaintiff to the notes, and also others which the succession had a direct interest in establishing. In this stage of the proceedings, a petition of intervention was filed by the commissioners of the late Merchants’ Bank of New Orleans, in which they claim the notes, mortgage and judgment, as the sole property of the bank, adversely to the parties, Erwin and the curator, praying that it be so adjudged that they be recognized as creditors for-the amount, that the mortgaged property be sold, and the proceeds applied to the payment of the debt. The defendant, in answer to the petition of intervention, makes no issue thereon, but submits the matters in controversy to the decision of the court, on the evidence to be advanced by the respective parties to said suit. There was no concurso formed, nor was any tableau of distribution presented. There was judgment in favor of the interve-nors; the petition of the plaintiff was dismissed, and he has appealed. An appeal was also granted to the defendant.

Before the plaintiff answered to the merits of the petition of intervention, he filed a plea to the jurisdiction of the Court of Probates, which was overruled. This plea has been fully argued at bar, and must be disposed of before we are permitted to adjudicate on any of the subjects which this case presents. Under the former judiciary system, Courts of Probates had no jurisdiction, except in cases to which the statutes extended it. They had exclusive jurisdiction in certain cases; but, being courts of limited jurisdiction, they could exercise no power not expressly given them by statute. Henry v. Keys et ux, and cases cited, 12 La. 218, The only principle on which the jurisdiction has ever been held to be extended by implication, to cases other than those enumerated in the Code of Practice, is that the exercise of the power was necessary to carry into effect its special powers, and to enable the couxt to decide matters within its jurisdiction. Lawson et ux v. Ripley, 17 La. 249. By sect. 13, of art. 924 of the Code of Practice, Courts of Probates have exclusive jurisdiction over all claims for money against successions under administration, and to establish the order of privileges and the mode of payment. This jurisdiction cannot be extended by implication to cases in which the ordinary tribunals afford an adequate remedy, and which are not necessarily connected with the exercise of acknowledged specified powers of the court. Elkins v. Berry, 15 La. 359. Two cases are relied on to support the jurisdiction of the court. Copley v. Faulk, 3 Rob. 100, and Fleming v. Hiligsberg et al., 11 Rob. 77. These cases we do not consideras changing,'in any respect, the decisions of the Supreme Court since 1825. In the case of Copley, on the contrary, the principle which runs throughout the whole, and which we have noticed, is fully recognized. The case of Fleming involved a question of privilege on which the court had power to adjudicate.

It is not necessary, in order to adjudicate on the amount due by the succession on these notes, for a court to take cognizance of, or even to notice, the matters in litigation between the plaintiff and intervenors; on the contrary, to cumulate them in the same suit, before the same court, only tends to embarrass the succession in its proceedings, and protract its litigation. The Court of Probates had jurisdiction to determine all matters neccessarily connected with the existence of the debt itself, or which affect the claim, so far as the interest of the succession is concerned ; but as to matters between the parties relating to the ownership of the debt, in which the succession can have no concern, that court was without jurisdiction. The Court of Probates had jurisdiction over every matter of de-fence set up against the owner of the claim, but has no power to determine between the parties, on the matters in issue as to which of them it belongs: this appertains exclusively to the ordinary tribunals. Nor aught this fact to have authorized any delay in the liquidation of the succession. It is of every day occurrence, that dividends in insolvent estates are reserved to await the result of litigation.

But it is urged, by the learned counsel for the intervenors, that this question of jurisdiction is no longer important, as the Court of Probates is merged by the constitution into a court of general jurisdiction. It is true that it belongs to the past, and we have considered it in reference to a course of decisions which can never operate upon cases which are hereafter to originate. The question is not the less important for that reason, for it involves the right of trial by jury in a case in which tho reputation of the plaintiff is deeply involved, of which the exercise of this 'jurisdiction by the Court of Probates has deprived him. The charge against him is that of fraud in obtaining the notes, on which, it has been well said, it is peculiarly the province of a jury to decide. We can scarcely conceive of a question of graver moment than this, which can come before a court, whether a citizen, in an accusation of this kind, shall have the judgment of a single judge, or that of a jury of his fellow citizens 1

Under the judicial system, as it is at present organized, we cannot anticipate any impediment to a just termination of this litigation, in which so much excitement has been called forth. We refrain from remarking on several matters which have occurred in the proceedings, which, in an ordinary case, we should certainly notice, because we desire to abstain from the expression of an opinion which may be considered as applying to any of the parties who have been connected with them, lest it should have an indirect bearing on the result of the cause which we may have to determine in the last resort'.

The judgment of the court below is therefore reversed and annulled, and the case remanded to the District Court of the tenth district, for further proceedings ; the appellees paying the costs in both courts.


author: Slidem,, J.

text:
    Cumming v. Archinard et al.
    A certifícate of the clerk that, the record contains “ a true and perfect transcript of the documents and proceedings in the case,” is sufficient, where the appeal is taken from an order of seizure and sale. Per Curiam: In proceedings by seizure and sale all the evidence being required to be in the form of authentic acts, the certificate is a substantial compliance with the requirements of art. 8D6 of the Code of Practice.
    The provision of sect. 11 of the stat. of 20 th March, 1839, that the cost of copies of notarial acts shall be paid by the party cast, applies to cases in which the proceedings are via executive, as well as to ordinary actions.
    Executory proceedings being ex parte, the seizing creditor must, at his peril, look[to the accuracy of his demand and of the decree. Where judgment is rendered for more than is due, however small the amount of the error, it must be reversed, and the plaintiff condemned to pay the costs of the appeal.
    APPEAL from the District Court of Rapides, King, J.
   The judgment of the court was pronounced by

Slidem,, J.

This is an appeal from a decree of seizure and sale. The first question to be considered is the alleged defectiveness of the clerk’s certificate, by reason of which the appellee contends that we cannot consider the merits. The certificate is in the words: “I hereby certify the foregoing to be a true and perfect transcript of the record, documents, and proceedings of the suit entitled Alonzo Cumming v. C. & F. Archinard, existing in this office. In testimony,” &c.

In proceedings by seizure and sale all the evidence must be in the form of authentic documents. The clerk’s certificate is, therefore, a substantial compliance with article 896 of the Code of Practice. In aid also of this certificate, if such aid be necessary, the decree contains this expression: “ By reason of the evidence annexed to the foregoing petition, and of the law, it is ordered,” &c. The petitioner recites the documents on which he bases his prayerfor a decree, and describes them seriatim as annexed to the petition. The transcript before us contains all these documents. There cannot, therefore, be a doubt that it contains all the evidence upon which the decree was rendered; and it is our duty to determine whether this evidence justified the decree.

The appellants contend that, the decree (and the writ issued thereon,) covers $6 50, costs of notarial copies; that, the act of 1839, allowing as costs, copies of notarial acts, applies only to costs in ordinary suits, and not to proceedings vid execuiivd. We cannot recognize so narrow an interpretation of the statute. Ai’ticle 63- of the Code of Practice give costs in executory proceedings, and though the statute is declared to be amendatory of article 562, we see nothing in that circumstance to exclude from its operation costs in all judicial proceedings ; that the judge himself has thought proper to tax this portion of the costs, can certainly form no ground of objection. He had the documents before him, and was certainly competent to assess the costs of procuring them, which costs are regulated by law, and it is not pretended that he had assessed them at an illegalrate. In this respect there is no error in the decree.

Hyman, for the plaintiff. M. Boyce, for the appellants.

The next objection of the appellants is that, the decree allows interest from the 1st March, 1841, instead of 4th March, 1841, making a difference of $3 56. This is a very trifling matter upon which to arrest [the collection of a debt of several thousand dollars, and suspend the rights of the plaintiff for more than two years. But being insisted upon by the appellants, we are obliged to notice it. Executory proceedings are ex parte, and the seizing creditor must, at his peril, •*ook to the accuracy of his demand and of the decree.

It is therefore decreed that, the judgment of the court below be reversed ; and it is further decreed that, an order of seizure and sale issue according to law, and that the mortgaged property in the plaintiff’s petition described be sold thereunder, to pay and satisfy the demand of the petitioner, to wit, the sum of $4769 84, with interest thereon at the rate of ten per centum per annum, from the eighth day of April,'1841, till paid, and the further sum of $6 50 costs of the notarial copies annexed to plaintiff’s petition, and costs of suit, except those of this appeal; and it is further decreed that the appellee pay the costs of this appeal.


author: Smdem., J.

text:
    Watt et al. v. Rice.
    Sect. 9 of the stat. of Mississippi of 9th June, 1822, authorizing the defendant in an action commenced by an assignee of certain written instruments, to set up any defence which he might have pleaded against the original payee or creditor, does not apply to bills of exchange.
    An advantage stipulated for a third person, is a sufficient consideration for a contract. C. G. 1884. O.P.35.
    The release of an endorser and accommodation acceptor of a bill of exchange, in order to use their testimony in an action against the drawer, willnot discharge the latter.
    Where the party against whom a verdict and judgment had been rendered, applies for a new trial, but, on the filing of a written consent thereto by the opposite party, requests the court to overrule his motion, stating that it was made proforma in order to obtain an appeal, he willnot thereby preclude himself from relief on the appeal, where the circumstances of the case show that his object was to prevent the delay which would result from anew trial, and to obtain, as soon as possible, a final decision by the court in the last resort.
    APPEAL from the District Court of Concordia, Curry, J.

      T. P. Farrar, for the appellants. Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Smdem., J.

This suit is brought against Mary Bice, widow in community, and natural tutrix and subsequently heir of the child, of William R. Haile, deceased, upon a bill of exchange of the following tenor:

Natchez, February 16, 1837.

Exchange for $8580.

Twelve months after date of this first of exchange, second of same tenor and date unpaid, pay to the order of Daniel G. Barlow $8580, payable at the Bank of Louisiana, New Orleans, value received, and charge the same to the account of

To Mr. Noah Barlow, "William R. Hailis. Natchez.

(Inscribed on the face of the note) Accepted.

Noah Barlow.

(Endorsed) Pay Warren Offutt, or order,

D. G. Barlow.

Pay Watt, Burke & Co., or order,

Warren Oeputt.

It is alleged in the petition that the note was drawn, endorsed, accepted and negotiated to the plaintiffs, at Natchez, in the State of Mississippi. The petition contains the usual allegations of demand at the place of payment, protest, notice, &c.; and by a supplemental petition it is alleged that, since the death of Haile, and previous to the marriage of his widow with Rice, she then being a femme sole, expressly undertook and assumed the payment of the bill to the plaintiffs.

I. The defendant alleges that the contract was void, by reason of the fact that the consideration of this bill was the sale in Mississippi of certain negroes, by Offutt, the second endorser, to Haile & Barlow, joint purchasers, in violation of the constitution of Mississippi, adopted in the year 1833, which contains the following provisions:

“ Section 1. The legislature shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, unless where the slave shall have rendered to the State some distinguished service, in which case the owner shall be paid a fall equivalent for the slave so emancipated. They shall have no power to prevent emigrants to this State from bringing with them such as are deemed slaves by the laws of any one of the United States, so long as any person of the same age or description shall be continued in slavery by the laws of this State: Provided that, such person or slave be the bona fide property of such emigrant: and provided also that, laws may be passed to prohibit the introduction into tlie State, of slaves whoh ave committed high crimes in other States. They shall have power to pass laws to permit the owner of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. They shall have full power to oblige the owner of slaves to treat them with humanity, to provide for them necessary clothing and provisions, to abstain from all injuries to life or limb, and, in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves sold for the benefit of the owner or owners.

Section 2. The introduction of slaves into this State as merchandize, or for sale, shall be prohibited from and after the first day of May, 1833, provided that the actual settler or settlers shall not be prohibited from purchasing slaves in any State in this Union, and bringing them into this State for their own individual use, until the year 1845.

“ Section 3. In the prosecution of slaves for crimes of which the punishment is not capital, no inquest by a grand jury shall be necessary; but the proceedings in all such cases shall be regulated by law.”

The defendant further contends that, by virtue of the laws of Mississippi, he has the same right to set up this illegal consideration against the plaintiffs, who, it is not contested, are bond fide holders, which they would have had if the suit were now brought by Offutt, the plaintiffs’ endorser. We observe, in passing, that there is no clause of express avoidance in the constitution of Mississippi ; and also that, there has even been a conflict between the decisions of the state tribunals and of the Supreme Court of the United States, whether the contract was invalid between the original parties. See 6th Rob. 116.

If it be assumed that the nature of the consideration would have furnished a good defence against Offutt, still we incline to the opinion that, the 9th section of the act of the legislature of Mississippi, passed 25th June, 1822, upon which the defendant relies, does not apply to the case before us. The suit here is upon a bill of exchange. If however there be a doubt as to the liability of the defendant upon the bill alone, under the constitution and statute of Mississippi, there are other circumstances in this case which sustain the plaintiffs, and which, under the authority of the case of Pease v. Ballard, recently decided by the chancellor of Mississippi, would incapacitate the defendant to invoke the alleged original illegality of the contract.

After the death of Rice, the slaves originally purchased having been brought to Louisiana by Haile and Barlow, and Haile having died, Barlow made a sale to Mrs. Rice of his half interest in these slaves, and of another slave, of which he was sole owner, and which had no connection with the original contract; also of the undivided half of all the stock, farming utensils, household furniture, &c., on the plantation which they had jointly cultivated in this State. The consideration of the entire sale was the assumption by Mrs. Rice of the payment of the whole amount of the draft in question, and of another joint debt of Haile and Barlow. She received the sole possession and ownership of these slaves, and has had them ever since.

To the natural obligation which bound her in foro conscientim, was superadded a new consideration, the acquisition of a new ownership of this and other property, disconnected with the original agreement; a consideration moving from a party who, being himself bound in conscience for the debt thus assumed, did not desire to repudiate it, but sought on the contrary to protect and secure it. We should not feel justified in refusing to a bona, fide holder the benefit of this stipulation, made in our own State, whose laws and policy have not been offended, when, under the opinion of the chancellor in the case referred to, we may conclude that a Mississippi tribunal would have enforced the present claim. See also Civil Code, art. 1884, and Code of Practice, art. 35.

II. The release of the endorser and of the acceptor did not afíbet the liability of the drawer. The endorser was a subsequent party, and the drawee was purely an acccommodation acceptor.

III. As to the liability of the wife by reason of her unqualified acceptance of the community, and of the child’s succession, and of her having appropriated the property of the succession to her own use as absolute owner, the facts are so clearly established that we have no hesitation in considering her as having bound herself unqualifiedly for Haile’s indebtedness to the plaintiffs. Civil Code, arts. 982,2378.

IV. As to the application made by the plaintiffs’ counsel for a new trial, and his declaration that it was made pro forma, and that he desired it to be overruled, we do not consider it, under the circumstances exhibited by the bill of exceptions, as barring him from relief in this court.

It is therefore decreed that the judgment of the court below be overruled; and it is further decreed that the plaintiffs recover of the defendant, Mary Rice, the sum of $8580, with interest thereon from the 19th day of February, 1838, till paid, and costs in both courts.

       Thcse parties were released by the plaintiffs in order to make them witnesses.

       The bill of exceptions, which was taken by the defendant, recites: " That after the plaintiffs’ counsel had filed their motion to set aside the verdict of the jury and grant them a new trial, defendant’s counsel immediately, in open court, and in the presence of plaintiffs’ counsel, consented that said new trial might he granted, and filed tlieir written consent thereto; whereupon, plaintiffs’ counsel requested the court to overrule their motion for a new trial, when the court, although requested by plaintiffs’, and assented to by defendant’s counsel, refused to set aside the verdict and judgment, to which defendant’s counsel excepted, &c. Plaintiffs’ counsel added: They stated to the court that the only object of the defendant’s counsel was to delay the case, well knowing the difficulty of getting a jury, owing to the sparse population of the parish; that plaintiffs’ motion for a new trial was pro forma, in order to pave the way to an appeal, that they might get a final determination of their case; that plaintiffs’ counsel stated to the court as their opinion that, if the court was satisfied that the case had been fairly and properly tried, it was the duty of the court to overrule the motion for a new trial; that plaintiffs’ counsel have no recollection of having requested the court to overrule their motion, hut they certainly did hope and expect that it would be overruled, for the reasons above stated.” •.


author: Slidell, 3.

text:
    Minor v. Stone.
    The execution of a judgment cannot be enjoined, on grounds which might have been urged as a defence to the original action.
    On the trial of an injunction obtained to arrest the execution of a judgment of the Supreme Court, the judgment itself forms apart of the record which thejudge is hound to notice. It is not necessary that it should be formally introduced in evidence.
    APPEAL from the District Court of Madison, Gurry, J.

      Bemiss and 1%o-> mas, for the appellant. Snyder, for the defendant.
   The judgment of the court was pronounced by

Slidell, 3.

This appeal has been taken by the plaintiff from a judgment dissolving an injunction with interest upon the amount enjoined, and damages. The defendant held a judgment against Minor, rendered in the State of Mississippi, upon which he obtained an order of seizure and sale in this Stats. From this order Minor appealed, and the judgment was affirmed by the lata Supreme Court. 6 Rob. 29. While Minorwas proceeding to execute this judgment, the plaintiff obtained an injunction, alleging that the order of seizure and sale had been granted on a judgment rendered in the State of Mississippi by default; that the consideration of the note upon which the judgment was rendered in Mississippi, had failed; that, by the laws of that State, where the note was made and the judgment rendered, he was not concluded from still pleading against it all equities and failures of consideration ; and that he could also still avail himself of the same defences against the holder of the note, which he could have opposed to the payee, previous to notice of its transfer. The de-fondant moved to dissolve the injunction, with twenty per cent damages, ten percent interest on the amount enjoined, and $300 as special damages, on the ground, among others, that the matter in controversy had been already finally adjudicated upon, and formed res judicata between the parties.

The judge below dissolved the injunction, and condemned the plaintiff and his sureties, in solido, to pay $1,000, the amount of the injunction bond; and further decreed that, the defendant should recover from the plaintiffs such additional sum as would make twenty per cent damages, and eight per cent interest on the amount of the judgment enjoined. It is well settled, by a series of decisions, that defences of which the party could have availed himself in the suit, cannot subsequently form the ground of an injunction against the execution of the judgment. The plaintiff’s petition discloses the existence, before the rendition of the judgment, of all the matters which are alleged as defences against the claim of the plaintiff in the original action. It is not competent to the party to re-open the case, for'the purpose of opposing them a second time'. 8 La. 101; 271. 6 Rob. 165.

It is contended that, the mandate of this court in the case of Stone v. Minor, was not offered in evidence in the court below, and was only read on the trial as a matter of judicial history. It was not necessary that it should have been formally introduced. It was the judgment, the execution of which was the subject of complaint, and formed a part of the record which the judge was bound to notice. The injunction was, in our opinion, properly dissolved.

The act of 1831 authorises courts, upon the dissolution of injunctions, to condemn the plaintiff and his sureties, in solido, to pay ten per cent interest on the judgment enjoined, and not more than twenty percent damages, unless damages to a greater amount be proved. There was no proof offered upon the trial below of special damages sustained; and there is nothing in the circumstances which shows that the judge below exercised improperly the discretion vested in him by law, in assessing the general damages.

It is therefore ordered that the judgment of the District Court be affirmed, and that said defendant recover of the plaintiff and his sureties in the injunction bond, John H. Minor and Thomas C. Williams, in solido, $1,000, the amount of the injunction bond; and it is further decreed that the defendant recover of the plaintiff such further sum, as added to said $1,000, will make twenty per cent on the amount of the judgment enjoined, to wit, on the sum of $5013 97, and eight per cent interest on said judgment enjoined.


author: Rost, J.

text:
    Beaumon v. Thomas, Administrator.

      The sale of a thing belonging to another is null. C. C. 2427.
    APPEAL from the Court of Probates of Avoyelles, Baillio, J.

      Cushman, for the plaintiff. Taylor and Swayze, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

We consider the following facts as proved in this case : Edward YorJce, a commission merchant in the city of New Orleans, and, at the time the note sued on was given, the president of the Exchange and Banking Company, agreed to make advances in money to Daniel T. Orr, a planter, wlio entrusted him with the sale of his crops. To secure the payment of any balance on those advances, not covered by the proceeds of the crops, Daniel T. Orr subscribed to Yorke’s order, a note for the sum of $10,000, bearing date the 12th of April, 1839, payable in one year, and bearing ten per cent interest from date. The payment of that note was secured by a mortgage on land and slaves, ■which was not recorded in the parish where they are situated during the lifetime of the mortgagor.

Yorke made advances according to promise, and, on the 30th of March, 1840, the accounts rendered by him show a ¿alance in his favor of $11,237 95, after crediting Daniel T. Orr with the proceeds of the crop of the previous year. The note was then really due, and it was accordingly protested at maturity, at the request, and by the notary, of the Exchange and Banking Company. No entry appears to have been made of it in the books of the bank, nor was it ever entered in the books of Yorke, either to the debit of Jhe account of Daniel T. Orr, or to the credit thereof, for its nett proceeds, as having been discounted in bank by the holder. Yorke continued to make advances to Orr, and to sell his crops, and, in June, or July, 1842, the agent of Yorke called on Orr personally at his plantation, and presented him his account, which reduced the general balance against him to $7,370 40. Orr acknowledged that the account was correct, except as to the proceeds of the sale of ten bales of cotton, about $220,. which had not been credited. A short time before this occurrence, Orr had been garnisheed by a creditor of Yorke’s, and had stated in answer to the interrogatories put to him that the balance due by him to Yorke equalled the sum of $3,000. The sheriff had attached in his hands the balance due, whatever it might be.

Judgment was rendered in favor of the attaching creditor for the sum of $8,587 25, with legal interest; and, in part satisfaction of that judgment, the seizing creditor gave Daniel T. Orr the following receipt:

“ Received of Dr. Daniel T. Orr all dues and demands as attached in his hands at the suit of James M. Wells v. Edward, Yorke, being the full amount of the balance due by Daniel T. Orr to Edward Yorke at the time of the above mentioned attachment.”

Yorke absconded, in March, 1842, and the note sued on appears to have been found, with others, in the room of the president and cashier of the Exchange Bank. The name of Yorke is riot upon it. Nothing shows that it was ever discounted by the bank, and no written act of pledge in relation to it is found in the boolts of the institution. After the disappearance of Yorke, the assetts of the bank were sequestered, and an inventory was made. This note is described therein as one of the securities of the bank. Yorke owed the bank then about $200,000. The assets were subsequently delivered to the commissioners appointed to administer them, and James B. TJullin, one of them, who appears to have been more particularly charged with the administration, testifies in substance as follows:

During my administration I remember seeing this note among the papers of the bank. On an examination, at the time, I could not discover that the bank had any legal claim on it, by having discounted the same, by pledge, or otherwise. I caused the said note to be advertised at sheriff’s sale, under a judgment against Yorke, but withdrew it on the day of sale, because I had received information that James M. Wells had attached the amount due by Daniel T. Orr to Edward Yorke, and because, under the circumstances, I was unwilling to cause a seen-to S0^ a'30ut which there was so much doubt. I always understood that the bank had no right of property in the note; and I was the principal manager till April, 1843, when I resigned.

Subsequently this note was sold at auction, with the other assets of the bank, and adjudicated to the plaintiff. Daniel T. Orr, being dead at the time, the plaintiff has instituted this action against the administrator of his succession, to recover the amount of the note, and interest thereon at the rate of ten per cent per annum from its date. Judgment was rendered in his favor in the court below, and the defendant appealed.

The mere statement of the case shows that the defendant is entitled to a reversal of the judgment. The note sued on was not an original obligation. It was given as security for advances to be made, and is a mere accessary to the subsequent obligation contracted by the maker towards Edward Yorke, in receiving those advances from him. That note could not belong to the bank, while the balance due on the account continued to belong to Yorke. The fact that the note was protested at the request of the bank, does not, under all the circumstances, raise even a presumption of ownership in its favor. The commissioners of the bank, in causing that note to be sold at auction, sold the thing of another. The sale is consequently void, and the plaintiff has acquired no right under it. Civil Code, art. 2427.

We express no opinion upon the question, whether the receipt given by James M. Wells to Daniel T. Orr, is a full dischai'ge of all the claims of Edward Yorke against him. If it should not be, the balance remaining due belongs to Yorke. The plaintiff cannot claim it under the adjudication.

It is therefore ordered that the. judgment be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


author: Slidell, J.

text:
    Richardson v. Hyams.
    Where the holder of the legal title to certain lands acknowledges in a letter of attorney, cxe« cuted before a notary and recorded in the office of the parish judge, in which he authorizes their sale, that the attorney is a joint and equal owner with him of the premises, and the share of the latter is sold under a fi. fa. and purchased by a third person, without notice of a private, unrecorded act, from which it appears that the attorney was still indebted to the principal for the original price of the land, the purchaser uuder the JÍ. fa will acquire a good title against the widow in community and the heirs of the principal. The latter cannot take advantage of any secret equities against one who purchased upon the faith of such a public written declaration.
    APPEAL from the District Court of Rapides, King, J.

      Brent and O. N. Ogden, foi: the appellant.
    The notarial act of 2d October, 1837, under which defendant holds, does not contain the essential requisites of a sale, or exchange, nor is it clothed with the indispensable formalities of a donation. No effect can be given to it, unless it be as raising a presumption of a previous transfer; it cannot, of itself, transfer a title. Civ. Code, arts. 2414, 2630, 1523. 12 La. 490. Any such presumption is rebutted by the written memorandum of 5th June, 1834, The position that Winn lost his rights by failing to record this memorandum, is without force, as he still held the legal title. It would have been otherwise if the act of October, 1837, had transferred a perfect title to Friend. The defendant has only an equitable title, and before he asks equity he must do equity. He has all the rights of Friend, but nothing more.

      Flint, for the defendant.
    Real estate may be acquired, though by an act not technically either a sale, exchange or donation. See Caldwell v. Hennen, 5 Rob. SO. Marsh v. Smith, Ibid. 518-34. 1 Story on Equity, 378-85. Thomas v. Scott, 3 Robinson, 256. The act of June, 1834, not having been recorded, can have no effect against defendant, who purchased for a valuable consideration, without notice, actual or constructive. Lonjear v. Hunt, 11 Rob. 284.
   The judgment of the court was pronounced by

Slidell, J.

This is an action of slander of title, brought by the widow and tutrix of the heirs of Winn, against the defendant, alleging that he claims title to a certain interest of one-half and one-third in certain lands, which are wholly owned by the plaintiff. The defendant sets up title under a sale by the marshal of the United States, under execution in the suit of The United States v. Joseph Friend, on the 24th August, 1844.

There is no dispute as to the acquisition of the lands by Winn, by purchase from the government of the United States; but it appears that, on the 2d October, 1837, Winn executed, in favor of Friend, an instrument in the words following:

“ Alexandria, 2d October, 1837.

Joseph Friend and myself are joint and equal owners of the following lands, which are held in common and undivided; and the said Friend, and John H. Overton and myself are owners of the following lands, which are held in common and undivided.” The lands are .then particularly described, and the instrument proceeds as follows:

“ Now, reposing special trust and confidence in said Friend, I do hereby nominate, constitute and appoint him, my true and lawful attorney in fact, to sell all or any portion of said lands, in conjunction with his own, to the extent of my interest in them; and this power is granted to him without limitation as to price or terms, leaving the whole disposition of the matter to his discretion and good judgment. And I do by these presents ratify and approve any sale, or sales, he may make of said lands, or any portion of them, in conjunction with his own, acknowledging myself fully bound by any act of his under this power of attorney. Given under my hand, at Alexandria, in the parish of Rapides, this 2d day of October, .1837.

Richakd Winn.”

This instrument was, on the 13th November, 1838, proven before a notary in the parish of Carroll, registered by him, and recorded on the same day in the parish judge’s office. In the execution of the judgment of the United States, the marshal seized and adjudicated to the defendant, Friend’s rights, title, and interest in the instrument above mentioned, a copy of which, with the certificate of registry and recording, is annexed to the return on the fieri facias.

The plaintiff offered in evidence another instrument signed by Winn, and which is admitted to be in the hand writing af Friend, relating to the same lands, in the following words :

“ Memorandum of Col. Joseph Friend, of Ouachita, Louisiana. He has made various entries of land in my name, in township eighteen (18) range thirteen (13) east, in the land district north of Red River, for which I have paid all the purchase money. The said Friend is an equal partner with me in these entries, and he is to pay me half the purcha'se money, with ten per cent per an-num interest, out of the sales of the lands, or otherwise, at his option, and I am at liberty to sell the whole or any part of the land. I make the same agreement respecting any entries the said Friend may hereafter make in my name. The said Friend has also made several entries in the same township in the name of Overton (John Holmes) and me, for which I have paid two-thirds of the purchase money. The said Friend is an equal partner with Overton and myseli in said entilesalso he is to pay me one-third of the purchase money, with ten per cent per annum interest, out of the sales of said entries, or otherwise, at his option. 5th June, 1834.

Richard Winn.”

On the back of this instrument is a schedule of the lands. It is not shown that this instrument was ever registered or recorded, or that the defendant had any notice of its existence. The lands, or the greater part of them, have been patented. There was a judgment for the defendant, recognizing his title, and the plaintiff has appealed.

We think the coui't below did not err. The document executed by Winn was a full and complete recognition of a title in Friend. Under that power and instrument, if Friend had made a conventional sale to Hyams, we could not refuse to sustain it; and we see no difference in the position of Hyams as a purchaser by a forced alienation. Winn’s heirs cannot claim the benefit of the secret equities existing between Winn and Friend, and which remained undisclosed, while the unqualified acknowledgment of Friend’s ownership was made public. The imprudence of Winn presented Friend’s rights in a false aspect to the world, and its consequences cannot be visited upon an innocent party, who has purchased upon the faith of Winn’s own, unequivocal, written declaration, patent on the public records, and exhibited at the sale. If Winn had, himself, stood by at the sale, and declared the property to be the property of Friend, he would have been estopped from afterwards contesting it. 1 Story’s Equity, 378. 3 Robinson, 518. We cannot attribute less force to a formal and recorded declaration thus exhibited. Judgment affirmed.