author: Slideul, J.

text:
      Mathilda M. Childers, wife of Patton, v. Johnson and Smith et al.
    A suit for a separation of property and the dissolution of the community, will be sustained where the pecuniary rights of the wife, whether springing from her dotal or paraphernal estate, are put in jeopardy by the embarrassed condition of the husband’s affairs.
    Where the wife has obtained a decree of separation, and has renounced the community, she becomes a debtor to the community for the value of the improvements put upon her separate property, when she chooses to keep those improvements as the owner of the soil. C. 0.2377.
    In estimating the value of the improvements made upon the wife’s separate property upon the dissolution of the community, the proper standard is their value at the time of the decree, and not the original cost.
    Where the wife, at the date of the marriage, owned female slaves, the children of those slaves born after, belong to the wife, and not to the community. C. 0.183, 480, 491, 492, 525, 536, 539. C. C. 537, 2371, 2375, 2376, 2363, 2351.
    The child of a paraphernal slave is paraphernal.
    The wife cannot be charged, as the debtor of the community, for the necessary expenses of slaves which were the paraphernal property of the wife. C. 0. 564.

    The wife is the debtor of the community for the payment out of the community funds of debts owed by her before the marriage. 0. C. 2372.
    from the District Court of Carroll, Snyder, J.

      Stacy and Sparrow, for plaintiff.

      H. Short, for defendants.

       This opinion was rendered April, 1850.

   The judgment of the court was pronounced by

Slideul, J.

The plaintiff claims a separation of property; renounces the community heretofore existing between herself and husband ; demands the administration of her paraphernal lands and slaves, and their increase; and a judgment against her husband for the amount of paraphernal monies received by him, &c.

Several creditors intervened and opposed the wife’s claims ; they are appellants from the judgment rendered by the district judge. The points presented by their counsel, will be considered in the order in which they were argued.

I. The intervenors contend, that the facts presented by the evidence did not warrant a judgment putting an end to the community, and granting the wife a separation of property.

The code declares, that the wife may, during the marriage, petition against the husband for a separation of property, whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise; or, when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims. Art. 2399, C. C. In the succeeding article, it is said, the neglect to reinvest the dotal effects of the wife, in cases where the law directs such reinvestment, is also sufficient cause for the wife to demand a sepa» ration of property.

These provisions of law are sufficiently broad to cover a case where the pecuniary rights of the wife, whether springing from her dotal or paraphernal estate, are put in jeopardy by the embarrassed condition of the husband’s affairs. The evidence before us presents such a case. The plaintiff, at the time of her marriage, was the owner of a large unencumbered estate, consisting of lands, slaves, and sums of money due. Her husband has collected monies thus due — has received the price of portions of her estate sold during the marriage, and is a debtor to third persons for a very large amount, much of which is in the form of judgments. His means, compared with his liabilities,' are so small, as fully to justify the declarations of witnesses, that ho is insolvent. It is said, that the existence of the community into which the wife entered by her marriage, and which enjoyed the revenues of her large estate, gave her husband, the head of that community, credit with the public, and debts were contracted on the faith of its continuance. This is partially true. But those who gave him credit, did so with a knowledge, that the wife, when she entered into the conjugal partnership, reserved to herself, under the laws regulating the marriage relation, the right of resuming the administration of her paraphernal estate, and of demanding a separation of property, if her husband’s affairs should at any time become embarrassed, and.her interests be put in jeopardy. They cannot, therefore, complain <of the exercise, on her part, of a legal right.

II. It is contended that injustice has been done to them in relation to the estimate of the improvements made upon her lands during the existence of the .community. The rule controlling this subject, is contained in the article of the ■C. C. 23 and 77. When the hereditary property of either the husband or the •wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expense, or industry; but there shall be no reward •due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade. Under the spirit of this rule, the wife, who resumes the administration of her separate property, obtains a decree of separation and renounces the community, becomes the debtor to the community for the amount in which the value of her estate, at the date of the dissolution, is enhanced, by reason of the improvements, when she chooses to keep those improvements as the owner of the soil. Waggaman v. Zacharie, 8 R. R. 187. Babin v. Nolan, 6 R. R. 513. With regard to the estimation of the enhanced value, there is a conflict in the opinions of the witnesses. The district judge appeal's to have acted upon an average of their estimates. Upon a review of the evidence, we are not able to say that his conclusion has not done substantia] justice between the parties. The improvements may have cost mor than the amount assessed by the judge. But that, as we said in Depas v. Rie is not the proper standard. They have depreciated by time and use, and 1 district judge was right in directing his attention to the fair enhancement of ¡sstate, by reaspn of the improvements, at the ¿ate of his decree.

III. It is said, injustice has been done to the creditors of the community, in giving the plaintiff, as owner, the children born, since the date of her marriage, from her female slaves. "Wo are not aware that this question,under the Code of 1825, as to the increase of paraphernal slaves, has been the subject of any reported judicial decisions by our predecessors or this court. We do not, however, consider the point as one of serious difficulty. In its solution, it is proper to notice all the articles of the code which have been cited, as bearing upon the question.

The article 183 declares, that children born of a mother, who is, at the time, a slave, follow the condition of their mother; they are consequently slaves, and belong to the owner of their mothér.

The second title of the second book of the code, is devoted in its first chapter to the enunciation of tho “General Principles” which control the subject of ownership. It is defined as the right by which a thing belongs to some one in particular, to the exclusion of all other persons. It is recognized as vested in him who has the domain direct, and not in him who has a mere beneficiary right in it, le domains utile. It is considered as a perfect ownership when it is perpetual, and when the thing, which is the subject of it, is unencumbered with any charges towards any other person than the owners, it is considered imperfect, when it is to.terminate at a certain time, or on a condition ; or if the thing, which is the subject of it, being an immovable, is charged with any real right in favor of a third person, as an usufruct, use, or service, 1he right of ownership necessarily supposes a person in whom this right exists, and'it is of its essence that it cannot exist in two persons for the whole of the same thing. The ownership and the possession of a thing are entirely distinct matters. The right of ownership subsists independently of the exercise of it. Civil Code, art. 480, el seq.

Having enunciated these general principles, the code then goes on to enumerate those rights which are incidental to the right of ownership, or flow as consequences from it. It declares, that fruits of the earth, whether spontaneous or cultivated, civil fruits; that is, the revenues yielded by property from the operation of law or by agreement; children of slaves and the young of animals, belong to the proprietor by right of accession. And in the next article, the rule is reiterated ; the children of slaves and the young of animals, belong to the proprietor of them by right of accession. Art. 491, 492.

In a subsequent title, the rules applicable to cases of imperfect ownership are given, and the first chapter is devoted to the subject of usufruct. Its provisions are particularly important in the present inquiry, in consequence of the great analogy between the relations of a usufructuary towards the owner, and the community towards the wife. This analogy cannot be disputed, when we bring the rights of the community and of the usufructuary, as defined in the code, into juxtaposition; and has been frequently recognized, See Duranton, vol. 14, p. 106. Delvincourt and Proudhon, cited by Toulliei-, vol. 12, p. 133. Bradish v. Johnson, 1836, unreported.

Usufruct, says the article 525, is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages (commodity) which it may produce, provided it be without altering the substance of the thing. It is of two kinds, perfect and imperfect; the former is of things which the usufructuary can enjoy without changing their substance, though their substance may be diminished or deteriorated naturally by time, or by the use to which they are applied ; as a house, a piece of land, slaves. Perfect usufruct does not transfer to the usufructuary the properly of things subject to the usufruct; the usufructuary is bound to use them, as a prudent administrator would do, to preserve them as much as possible. Having thus defined the general character of a usufruct, the code proceeds to state, in detail, the rights which belong to the usufructuary, and those which are reserved to the owners. All kinds of fruit, natural, cultivated or civil, produced during the existence of the usufruct, by the things subject to it, with the exception of the children of slaves, belong to the usufructuary. Art. 536. And again, the children of slaves subject to usufruct, who are born during its duration, bolong to the owner. The usufructuary has only the enjoyment of their labor and services. Art. 539.

This exception with regard to the increase, of slaves, is not a novelty originating with the framers of our codes. It was 'a rule of the Roman and of the Spanish laws. In pecudum fructfi etiam foetus est, siculi lac, pilus, et lana, itaque agni, hccdi, et vituli, et equuli, et suculi, statim naturali jure domiuii fructuarii sunt. Partus vero ancillas in fructú ñon est; itaque ad dominum proprietatis pertinet. Inst. lib. 2, tit. 1, § 37. See also Puffendorf Droit de la Nature et des Gens., book 4, chap. 8, p. 463. This author observes: “Les Lois Romaines exceptent pourtant les enfans d’une femme esclave; dont la raison est á mon avis, que i’usufruit des esclavos avait été établi en vue du profit que l’on retire de leur travail, et non pas pour celui qui revient des enfans qu’ils peuvent mettre au monde.” So the Partidas‘When aman has a right to the usufruct or labor of the slave of another, he will acquire all the slave gains by his manual labor, or by means of the funds belonging to the usufructuary. Butthe gains made by the slave, from what was given'or left him by will, belong exclusively to his master; unless the donation or legacy was made with the intention that they should belong to the usufructuary, or he who enjoyed the use of the slave, in which case they will acquire the property therein. We likewise say, that notwithstanding a child be born of a slave, of whom one had the usufruct, while the mother was in the power of the usufructuary, such child will belong to the master of the slave, unless he had expressly agreed that the usufructuary should have it.” Partida 3, tit. 31, law 23. It is true, that our code, in article 537, classes slaves among natural fruits, and in this respect differ from the Roman and the Spanish law; but the difference is rather one of terms than of substance, for they all agree in treating the issue of slaves as belonging to the owners, and not to the usufructuary.

Keeping in view the general principles thus clearly recognized by the code, we proceed to notice, briefly, those articles which treat specially of the community ; and which are relied upon by the intervenors, as constituting the increase of the wife’s slaves, the property of the conjugal partnership.

This partnership or community consists of the profits of all the effects (des fruits de ious les liens,) of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two, and not of both; because, in that case, the period of time when the purchase is made is alone attended to, and not the person who made the purchase. Art. 2371,

The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects (des fruits produites par les Mens,) which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by husband and wife conjointly; although, what has been thus brought in marriage- by either the husband or the wife, be more considerable than what has been brought by the other, or even, although one of the two did not bring any at all. 2375.

The fruits hanging by the roots on the hereditary or proper lands of either the husband or wife, at the time of the dissolution of the marriage, are equally divided between husband and wife, or their heirs. It is the same with respect to the young of cattle yet in gestation; but the fruits of the paraphernal effects, of which the wife reserved to herself the enjoyment, are excepted from the rule contained in this article. 2376.

In the article 2363, it is said, when the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, belong to the conjugal partnership, if there exist a community of gains. If there do not, each party enjoys, as he chooses, that which comes to his hands; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.

The argument deduced from these provisions by the inlervenors. was in substance this : Tho fruits produced by the separate property, are given to the community by these articles. By the article 537, the children of slaves are designated as fruits. Such children, therefore, belong to the community, and not to the owner of the mother.

The objection, however, to this argument is, that it brings the provisions concerning the community into conflict with the letter and spirit of other articles of the code, where slaves are mentioned. It conflicts with the general rule laid down in art. 183, that such children follow the condition of the mother, and belong to her owner. It conflicts with the same general rule, as reiterated in the article 491. It conflicts with the exceptions, expressly declared by article 536, upon the analogous subject of usufruct, and repeated in the article 539, It conflicts with the rules and principles of the Roman law, which is the basis of our jurisprudence. It conflicts with the rule expressed in article 2351, which, in case of dotal slaves, binds the husband to restore the living children which may have been born from such slaves.

It is a sound rule of interpretation, in construing an article of the code, with reference to a subject matter, to take into view the general system of legislation upon the subject matter contained in the same work; and where a provision of the code is invoked in derogation of the common rule regulating the subject matter, the intentions so to derogate should be clear and beyond reasonable doubt. If an interpretation can be given to the particular article, which, without doing violence to its terms, will make it harmonize with the general rules and the other provisions of the code regulating the subject matter, such interpretation should be adopted. In the interpretation of contracts, it is an undisputed maxim: Ex antecedeniibus et consequentibus ft óptimas interpreiatio. The spirit of that rule may be considered fairly applicable to the interpretations of our codes.

When, therefore, in the articles 2363, 2371 and 2375 the Words fruits or profits are used, it seems proper to consider them tis applicable to fruits in the ordinary legal sense of that term, and as not comprehending the issue of slaves; which, as we have already stated, were not considered fruits in the Roman law, from which our jurisprudence is so largely derived; nor in the Spanish laws, by which we, were once governed : which were, it is true, in one article of the code classed as natural fruits, but in so many others are specially excepted from the legal consequences which would attach to them in that character. We see no impropriety, under all the circumstances, in narrowing and restraining this general expression used in the articles 2363, 2371 and 2375, any more than in narrowing and restraining a covenant made in large and general terms, where there hafe appeared something to connect it with a restrictive covenant in the same instrument.

Again, if the children of slaves, so repeatedly excepted from the operations of the rules applicable to fruits, are to be comprehended under the naked expression, fruits, in the articles 2371 and 2375, why is it, that things of an inferior dignity are the subject of special enumeration in article 2376 1 In this latter connection, it is proper also to bear in mind, the declared policy of our State, touching the separation of mother and child. The statute of 1806 has humanely enacted, that “every person is expressly prohibited from selling, separate from their mothers, the children who shall not have attained the full age of ten years.” Would we not violate the policy of this statute, by giving the mothers to the plaintiff, and the issue to the community 1 As we said in Boner v. Mahle, “ if the issue are to be treated as fruits, still, as the law forbids them to be separated from the mother until the age of ten years, wo cannot liken them to gathered fruits until they have attained that age.” 3d Ann. 608.

Our conclusions, therefore, after a diligent search for the true intention of the framers of the code is, that the child of a paraphernal female slave is paraphernal. In this conclusion, we are sustained by an opinion of our predecessors, prepared by Matthews, J. It is true, that opinion did not become final in the cause; there was an application for re-liearing, and the cause was not finally acted upon. But the opinion upon the point now’before us, is entitled to consideration.

The case of Gale v. Davis, 4 M. R. 650, has'been cited by the intervenors as deciding the reverse. That case seems to have originated prior to 1808; and it is to be observed, that no authorities are quoted in support of the opinions. In Ducrest’s Heirs v. Bijeau's Estate, 8 N. S., 198, the court said, “ the increase of slaves and animals, by the early laws of Spain, belonged to the spouse who brought them into marriage. By the latter statute, however, and the modern jurisprudence of that countiy, the produce of these things are considered to result, as much from the care and solicitude of the possessors, as from nature; and that, as such, they form a part of the gains which are to be divided between the husband and wife.” Iu support of this opinion, the court refers to Febrero, part 2, lib. 1, cap. 4, § 1, No. 24; ib. part 2, lib. 1, cap. 5, §5, No. 44.

It seems to us questionable, whether the Spanish law accords with the broad proposition laid down by the court. In the passage of Febrero, just cited in that case, we find the author justifying the rule by the consideration, that if the mother slave died, its price would be reimbursed by the community; and therefore the equitable rule would apply, qui sentet commodum sentiré debet et onus; or as Febrero expresses it: quien esta al provicho debe estar al daño. In the 20th law of the title 11, Partida 4, it is said: “ As it sometimes happens, that women give female slaves in dowry to their husbands, we shall therefore speak of them in this place; and we say, that if the wife give a female slave to her husband, appraising her value at the time, and the husband promises to give her the amount of the appraisement of such slave, when the marriage comes to be dissolved by death, or a judgment of the court, in that case, the profit or loss happening on account of the slave, will be for the husband. .And so, if the slave should have children, they will also belong to the husband; but if the husband take upon himself the risk of the decrease of value only of the slave, and not of her death, or the risk ofher death, and not of the decrease of the value, in that case, although the slave had been appraised, the child or children born of her, will not belong to the husband, but to the wife; and if the wife had not given the slave to her husband, with the appraisement of her value, then the profit or loss arising from such slave, will be for the wife, and not the husband.”

Again, in the 25th law of the same title, under the head, “what it is necessary for the husband to do, that he may acquire the fruits of the dowry of his wife,” we find the following: “Three things are necessary for the husband, in order that he may acquire the fruits of the dowry given him by his wife. The first is, that the marriage be contracted; the second, that he be put in possession of the dowry; the third, that he sustain the burden of the marriage, in supplying his own wants and those of his wife, children and the rest of the family. These three things concurring in favor of the husband, he ought to have the fruits of the dowry given to him by his wife, whether its value had been appraised or not, save what is said in the law, which spoke of the children of a slave which had been given in dowry, when it is said they ought not to belong to the husband, unless he had taken upon himself, the risk of the deterioration and death of the slave; nor ought the husband to have the gains acquired by that or any other slave given to him by his wife in dowry, if such gains arise from a donation made to the slave by any one, or from a legacy left to him by will; but whatever the slave may acquire by manual labor, or with the money of the husband, such gains as these will belong to the husband, and not to the wife; and what we here say of slaves, applies where the husband had not taken them with an appraisement of value, nor had taken upon himself the risk of their deterioration and death.” Moreau and Carleton’s Partidas, vol. 1, 527, 533. But, whatever may have been the rule under the late Spanish laws, we are not aware of any provision in our codes, either of 1808 or 1825, which would entitle the wife to be reimbursed by the community, the value of her paraphernal slave dying during its existence. See also Frederic v. Frederic, 10 M. R., 192.

IV. It is contended, that if the increase of the slaves be not community property, then Mrs. Patton is bound to pay the expense which they have been to the community. We find no express warrant for this in the code; and if we consult, by analogy, its provisions on the subject of usufruct, they are against the pretension. It is the duty of the usufructuary to keep (conserver) the things of which he has the usufruct, and to take the same care of them as a prudent owner does of what belongs to him; he is accordingly answerable for such losses as proceed from his fraud, default or neglect. Art.. 560. The usufructuary is liable to all the necessary expenses for the preservation and working of the estate, subject to the usufruct; and if slaves form a part of them, he must provide for their support and clothing, for their-medical attendance in sickness, and the just and necessary expenses of their children. Art. 564.

V. Two thousand dollars due by Mrs. Patton before marriage, and twenty-five hundred dollars due by Mr. Patton before his marriage, have been paid by the community. The judge below refused to charge the plaintiff with the item of two thousand dollars. In this, we think, there was error. It arises from not distinguishing the community, the conjugal partnership, from the persons who compose it. This partnership, the intervenors, who are creditors of the community, have a right to consider as a legal entity; like other partnerships, it must be contemplated as an ideal being, itre moral, distinct from the persons who compose it, having its rights and its obligations, its assets and its liabilities, its debtors and its creditors. Mrs. Patton is not the debtor of her husband for the $2000 expended for her benefit. She is the debtor of the community. She owed this debt before her marriage. The community derived no benefit from its creation. Instead of paying it with her own jnoney, it has been paid with money of the community. Eatenus locuplibior^ facta est, quatenus precunias propria} pepucit. Is she permitted thus to enrich herself, at the expense of the community, and of lond fide creditors of that community ? Clearly not. This results from that general principle applicable to all partnerships, which is, that a partner must account to the partnership for what he has drawn from it for his individual business and advantage. Pothier "Communauté, No. 206, 623. Such is also the spirit of art. 2372, C. C. The debts contracted during the marriage, enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects. See also Duranton, vol 14, 106, 454, et seq. Glenn v. Elam, 3d Ann., 615.

It is therefore decreed, that the judgment of the district court be so amended, as that, instead of the monied balance of $962 44 adjudged in said judgment in favor of said plaintiff, she be adjudged to be indebted to the said community in a monied balance of $1037 60, with interest from the date of this decree; said amendment being the result of charging the said plaintiff, in favor of the community, with the sum of $2000, paid by said community for the separate debt of said plaintiff; and that the said sum of $1037 60, and interest, be brought into court for the purpose of distribution among the said interveners, according to law, the rights of said intervenors, respectively, upon said fund of $1037 60, being left open for contestation between themselves and the said Thomas R. Patton. And it is further decreed, that the judgment of the district court, so amended, be affirmed, and the costs of this appeal to be paid by the said plaintiff.

      The followingis tlie case referred to ill the decision: L■ Bradish, Tutrix, &c. v. Johnson Under-Tutor of George Bradish, Appeal from the Court ofProbates of Plaquemines. This case originates in an opposition made by the rmder-tutor of George Bradish, to the homologation of an inventory made hv the tutrix, in which the offspring or young of certain slaves, admitted to have been the separate property of the decéased husband, &c., before marriage, was attempted to he held as community property. The decision of Iho court below was against the widow in community, and she appealed. The case presents a question of law, only. Both the Old and the New Codes are silent’as to the property in the increase of slaves, constituting the bienspropres of either husband or wife, produced during the existence of the marriage. This case presents the question, whether slaves, thus born, belong to the community of acquets and gains, or must be considered as constituting a part of the separate property of either husband or wife, according as the original stock may have been the separate property of one or the other; and, at the dissolution of the marriage, descend to the heirs of either, as the case may be. We have stated that our laws have not expressly provided for this case; but in relation to slaves held in usufruct (which is somewhat analogous to such as are held and used for the common benefit of the matrimonial partners,) our laws explicitly declare, that the increase belongs to the owner, and not to the usufructuary. See Old Civil Code, page 112, art. 12; and the New Code, art. S3!).

      The counsel for the appellant has stated, in his points, that according to the Old Civil Code, and the Spanish law, which govern this case, the increase of slaves, horn during marriage, constitute a part of the matrimonial acquets and gains; and that this court has so decided. According to our researches, we believe neither proposition to he true ; they are entirely gratuitous; unsupported by any citation from the cases heretofore adjudged, or from any Spanish authority. The only decision that we have discovered having any relation to the present question, may be found in 10 M. R. 188, el seq., and the doctrine there laid down, is directly contrary to that assumed on the part of the appellant. It will be seen, also, by reference to the Partida, 4, 11, 20, and the commentary of Gregorie Lopez, that the assertion of her counsel in respect to the laws of Spain, is without foundation, at least so far as we have been able to find out.
      It is therefore ordered, that the judgment of the court of probates be affirmed, with costs.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Thomas Kellar v. F. Belleandeau et al.
    Where a preemption lias been once claimed on a certain tract of land, the claim cannot be transferred to another tract of land.
    Settlers upon the public lands of the United States are not trespassers, the Government of the United States having, by the various preemption laws, encouraged the settlement of the public lands.
    APPEAL from the District Court of St. Landry, Cushman, J.

      E. L. Swayze, for plaintiff.

      B. F. Linton, for defendants.
   The judgment of the court was pronounced by

Preston, J.

Anthony Read in 1836 gave notice to the land office of the United States at Opelousas, of his intention to purchase by right of preemption, the quarter section of public land on which he resided, and complied with the requisitions of the act of Congress of 1834, under which he made the application to purchase. The land was not then surveyed; but he believed it to be, and so stated, the south west quarter of section No. 26, township No. 3, south of the thirty-first degree of north latitude of range No. 1, west of the basis meridian.

He shortly afterwards departed this life, and the probate judge, in pursuance of an order of the court, proceeded to his last residence in the Pine Prairie and sold “the preemption right to a quarter section of land on which the deceased last resided, lying in the Pine Prairie, it being explained that no payment had been made to government; it was sold to Thomas Kellar for ¡$311 50.”

On the 15th of January, 1846, F. Belleandeau _/iZs,made application to the land office for the purchase, by preemption, of the quarter section of publiejand on which, he resided; immediately afterwards, Kellar brought a possessory action against him and others, for the land which they possessed, being the tract which Belleandeau was attempting to enter. A verdict and judgment was rendered in favor of the defendant in October, 1846.

In May, 1847^Kellar brought the present petitory action for the same land, against the defendants; he described it, however, as being “ the north east quarter of section 34, in township 3, south of range No. 1 west, or such other quarter section in said township, as may include the improvements of Anthony Read, deceased.”

The defendants answered, denying plaintiff's title, and alleging, that no title could be made by the United States until the lands were surveyed. The court, on the application, ordered a survey by the parish surveyor, which was executed in May, 1848; and it was found that the last dwelling-house of Anthony Read, and which there is no doubt he occupied at the time he made the application to purchase by preemption, was situated on the south west quarter of section 34, and that the dwelling-house of Belleandeau and other defendants, and their lime-kilns were on the south east quarter of the section. The first house occupied by Read, and some improvements, especially a lime kiln, were also on the south east quarter of the section.

A few days before the institution of the present suit, and no doubt in consequence of investigations growing out of the possessory action, the plaintiff applied to the land office, to change his location from that described in his application to purchase in 1836, to the quarter section of land in controversy. It appeal's that the land officers changed the location. The proceeding was ex parte as to the defendants, and based upon ex parte affidavits. It was not, therefore, binding upon them. It was based upon a provision in the act of 1834, under which the application of Read to purchase by preemption was made, which provision was limited to six months in its operation. The act of 1834 had itself expired ten years before the application to change the location under it. A law of 1819 was also invoked. We do not think it applied to the case; even if it did, the limitation in the act of 1834 superseded it.

The quarter section on which Read established his house and last residence, is the one which his application to purchase by preemption embraced. It is the one which was sold at the probate sale of his estate; and even admitting that sale to be valid, though it is doubtful under the decision of this court, in the case of Seaton v. Sharkey, 3d Ann., 332, still, the vendee never could change the location of the preemption, and therefore has no title whatsoever to the land in controversy. He cannot, therefore, maintain a petitory action for it. Even if he had some pretence of title, we cannot admit that the defendants are mere trespassers as contended, incapable of setting up their possession against an imperfect title. They are certainly not trespassers as to him, for they obtained judgment in their favor against his possessory action some years ago. Nor do we consider them trespassers as to the United States; for the government had, by laws, from its commencement to the present time, encouraged actual settlements upon the public lands, and have rewarded them with preemptions, thus devoting wild lands to the only objects to which they should be destined by a good government, not speculation; but actual settlement, improvement and cultivation.

This view of the subject renders it unnecessary to examine the bills of exceptions.

The judgment of the district court is affirmed, with costs.


author: Rost, J.

text:
    J. S. Darby v. John F. Miller et al.
    The defendant had constructed causeways across'his land, leaving the gullies and natural channels for the flow of water open, bridges having been constructed over them. The plaintiff, whose plantation was situated above, complained that the causeways interrupted the flow of the water. Held, that the article 656, C. C., must be construed in reference to the condition of the country, and that the natural channels and drains having been left open, the plaintiff’ could not have the causeways removed; but that the channels being filled up by fallen timber and other obstructions, he had aright to cause those obstructions to be removed. ,
    from the District Court of St. Martin, Voorhies, J.

      E. Simon, for plaintiff.

      Morse and Nichols. for defendant.
   The judgment of the court was pronounced by

Rost, J.

This suit is brought under article 656 of the Civil Code, which is in these words : “ It is a servitude due by the estate situated below, to receive the waters which run naturally from the estate situated above, provided, the industry of man has not been used to create thatservitude. The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.”

The plantation of the plaintiff is surrounded by low grounds which drain into the bayou Petite Anee, and into natural gullies which empty into said bayou. These low grounds form part of tracts of land, on .which the defendants have established plantations, and at divers times, during the last 18 years, the latter have found it necessary, in the cultivation of their land, to make extensive causeways over those low grounds, leaving open spaces for the passage of the waters from above, and throwing bridges over the bayous and natural gullies. The plaintiff, himself, has constructed two causeways of that kind, over the portion of the marsh which belongs to him, and it is shown that there are others above him, with which he is well satisfied; but he seeks to have all those below him, removed as nuisances, and claims heavy damages from the defendants for erecting them.

The defendants deny having erected any works, either on the bayou Petite Anee or elsewhere, of a nature to obstruct any natural drain, or to prevent the waters from flowing in their natural channel; and aver, that the works they have severally erected on their places, are not of a kind to affect, in any manner, the lands of the plaintiff. The openings in their different cause-ways being wider than the channel of the natural drains.

There was judgment that the demand of the plaintiff be rejected, at his costs, and he appealed.

The pretension of the plaintiff to drain over the entire surface of the defendant’s low lands, is totally inadmissable. If it was sustained, the millions of acres of wet lands in Louisiana could never be reclaimed and rendered useful to man. Article 656 of the code is taken from the code of France, where lands have all been occupied and cultivated for centuries, and are provided with suitable drains, either natural or artificial. There, it is understood, as simply imposing on the lower estate the servitude of suffering the waters falling on the upper estate, to pass through its drains, in the manner that will best conciliate the rights of the owner of the upper estate, with the interests of agriculture. That law cannot have a different meaning with us; large portions of our territory are yet unimproved, and in their natural state, drain the higher lands adjoining them. But this state of nature is temporary, and it cannot be presumed that the legislature intended to make it permanent, when they adopted the article of the code relied on.

There is no doubt, that iu any situation, sufficient openings and drains may be made on the lower estate, to carry off the waters above, as rapidly as if they were permitted to flow over the entire surface. Whenever this is done, the object of art. 656 is attained, and its application should never be extended so far as to inflict an injury without object, besides retarding materially the improvement of the country.

Whether the openings and drains, left by the defendants in this case, were sufficient to drain the plaintiff’s lands as rapidly as it would drain if the causeways were removed, was the main question submitted to the decision of the district court. A great deal of testimony was adduced on both sides, and, as always happens in controversies of this sort, it is contradictory. It appears to have been carefully examined and weighed by the district judge, who came to the conclusion, that the plaintiff had failed to make out his case. We are unable to say that he erred. It is shown, it is true, that the plaintiff’s land does not drain as- rapidly as it formerly did, and that, after heavy rains, the water is from half an inch to an inch and a half higher above the causeways than it is below them ; but it is also shown, that all the gullies and drains left open by the defendants, are partially filled up by fallen timber and the succession of time, and that they are so grown up with flags, that the water passes through them with great difficulty; the plaintiff has the right to cause those impediments to be removed, and the natural drains to be restored to their original depths; this is his proper remedy, and we will secure it to him.

The decree of the court, as already stated, is that the demand of the plaintiff be rejected, at his costs. We would, under all circumstances, be compelled to reverse it, and to subject the defendants to the costs of the appeal, because the language in which it is clothed, has no definite meaning in law.

It is ordered, that the judgment in this case be reversed; and proceeding to render such a judgment, as the district court should have rendered, it is further ordered, that there be judgment against the plaintiff, and in favor of the defendants, reserving to the plaintiff the right to cause the gullies and drains left open by the defendants, to bo cleared from all obstructions and restored to their original depths. It is further ordered, that the costs of the district court be paid by the plaintiff, and those of the appeal by the defendants.


author: Eusns, C. J.

text:
    Emile Birdsale v. Isaac M. Lakey.
    The plaintiff sued the defendant to annul a sale made to him by his father-in-law, about a month before the death of the latter, upon the grounds of the insolvency of the father-in-law at the time of the sale, and that the sale was fraudulent, having been made without consideration. The insolvency of the father-in-law was proved. Held: That the defendant was hound to prove the consideration, and having failed to do so, the sale was null.

      APPEAL from the District Court of St. Martin, Voorhies, J.

      J. C. Olivier, for plaintiff.
    U. Simon, for defendant.
   The judgment of the court was pronounced by

Eusns, C. J.

This suit is brought by the plaintiff, who is a creditor of the succession of the late David Bell, of the Parish of St. Martin, for the purpose of subjecting to the payment of the judgment obtained on her debt, certain slaves which belonged to said David Bell, and which the petition charges were sold and conveyed to the defendant. It charges, that the sale was made.to defraud the creditors of said David Bell; that no consideration was given for the slaves, and that the said Bell, at the time of the sale, was insolvent, and that the said sale was simulated, the defendant being then the son-in-law of the deceased.

The answer sets up ownership of the slaves in the defendant, avers that he acquired them for a valuable and legal consideration, which he will show if ruled by the court so to do, but denies that the plaintiff has any right to require from him such proof, and, also, all the allegations in the plaintiff’s petition. There was judgment that the plaintiff’s demand be rejected, with costs, and the plaintiff has appealed. As to the form of this judgment, we have had occasion to remark in the cases of Marsh and Compton v. Perry, and Darby v. Miller.

The administrator of Bell’s succession was,made a party to this suit, and it appears that the plaintiff is a creditor by judgment of said succession, for the sum of one thousand four hundred and twenty-four dollars and thirty-one cents, with costs and interest stated in said judgment, bearing date the 7th day of April, 1849. If a fraud has been practised upon the creditors, it is immaterial whether it be by an undue and illegal preference given to the defendant by the transfer of the slaves in the payment of a debt, or whether the sale was a mere simulation, without price, consideration or reality. The result to the defendant, in both cases, is the same.

The act of sale of the slaves from Bell to the defendant purports to have been passed at the Parish of St. Martin, on the 10th of May, 1848. The consideration purports to have been the sum of three thousand dollars to the vendor, paid in ready money, the receipt of which is acknowledged, and acquittance granted. The purchaser dispensed with the production- of a certificate of an hypothecation of the slaves, acknowledging the existence of a single mortgage for the sum of $1500, a debt due by the vendor to his son, Samuel R. Bell. David Bell died previous to the third of June, 1848, so that the act was within a month of the day of his death. Of the insolvency of Bell, at the time of the execution of this act, there can be no question, aqjr more than Of the insolvency of his succession. In January proceeding the sale, Bell removed from his plantation at Bayou Chéne to St. Martinsville. The defendant, his son-inlaw, took possession of, and managed the plantation on Bell’s removal, and his family made it their home.

Ho evidence whatever has been offered, by the defendant, of the consideration of the alleged sale of the slaves under which he claimed to hold them, although the absence of any consideration is charged in the petition, and the defendant’s readiness to establish a just and valuable consideration has been averred in his answer if he should be bound to prove it. The death of Bell must be considered as the time of his declared insolvency, and the act of sale was within a month previous. We think the burthen of proof was upon the defendant to show the reality and bond fides of the sale. Act of 1817, relating to insolvent debtors, section 24. Code, 1975, 1976 et seq.

The attending circumstances of this transaction between Bell and the defendant, force upon us the conviction, that the sale was a mere simulation for the purpose of effecting a fraud. The debt of $1500, secured by a mortgage to his son, is not without its weight in strengthening our convictions. Nor can we believe, from the relations existing between the parties, that the defendant was ignorant of the pecuniary situation of his father-in-law.

It is therefore decreed, that the judgment appealed from be reversed; that the act of the 10th of May, 1848, passed between David, Bell and the defendant, purporting-to contain a sale of slaves mentioned therein, be declared null and void, and of no effect; and that the slaves, Beniamin, Sandy, Dennis, Clañs, a female, and Fanny, a female, with her two children, Rose, a female, and Ben, a boy, be subjected to the plaintiff’s judgment, interest and costs, and that the defendant pay costs in both courts.


text:
    Susan Ackley v. Heirs of Michael Lyons.
    Where one of several joint obligors has removed out of the State, lie may be made a party to a suit against the obligors by the appointment of a curator ad hoc.

    Michael Lyons left to his wife the usufruct of certain property. His heirs agreed to give her ten per cent on the value of the property in lieu of her rights of usufruct. A sale of the property was contemplated; but owing to the neglect of the heirs, a portion, viz, a dwelling-house was not sold. The house, was subsequently destroyed by fire, on which account the heirs claimed an exemption from the payment of the ten per cent. Held: That the heirs were not thereby exempted from the payment of the stipulated interest.
    APPEAL fromtlie Parish, of Vermillion, Voorhies, J.

      Aljoheus L. Tucker, for plaintiff.

      D. O. Bryan and Walker, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff, on the eve of her marriage with Michael Lyons, on the 1st of April, 1834, entered into a marriage contract with him, by which beside other donations, he gave to her, in case she survived him, the usufruct of the house in which he lived at the time, together with the plantation as it may then be situated, together with the household furniture, that may then exist, to be enjoyed as long as she continues a widow and provided it may suit her to live there; and in the event it may not suit her to remain there, it will return to his heirs.

He died in 1841; and his heirs, the defendants, on the 1st of May, 1841, made a compromise with the plaintiff, in which it is stated that the deceased gave her the usufruct of the plantation on which he lived, together with the buildings, fences and other improvements belonging to the plantation, and also of the household and kitchen furniture ; and in order that the lands belonging to the succession of the deceased should be free from any incumbrance whatever, they agreed to give her interest at the rate of ten per cent per annum on the net proceeds of the sale of the buildings, fences, and other improvements belonging to the plantation, and also of the household and kitchen furniture. The payment of the interest was to commence on the 27th of April, 1842, and to continue from year to year; in consideration of which, she abandoned to the heirs, all her claims of whatever kind upon the land belonging to the succession,

The plaintiff was compelled to sue for the interest of 1842, 1843 and 1844. The buildings had not been sold, although the compromise was evidently based upon the supposition, that they should be sold before 1842. They were admitted, for that suit alone, to be worth sixteen hundred dollars, and judgment was rendered for interest on that amount.

She was in like manner compelled to sue for the interest due to her for 1845, 1846 and 1847, and by the consent of the parties, recovered judgment for two hundred and twenty-five dollars per annum for those years.

In this suit, she has been necessitated to sue for the interest of the years 1848, 1849 and 1850. The defendants plead a general denial; but proved, on the trial, that the house had not been sold, but had been burnt two or three years after the sale of the other property of the succession in 1841, and that it could not be sold for the want of bidders.

On this state of facts, the defendants contend, that they are not liable to pay interest on the former value of the house, because it could not be reduced to cash, and was destroyed without their fault, and the defence appears to have prevailed with the district court.

The compromise appears to have resulted most unfavorably to the plaintiff. Her husband had made a comfortable provision for her, in possession, during life. She has been compelled to sue for the interest stipulated in her favor, for the abandonment of her usufruct from year to year, and to sue numerous heirs for their virile shares. Some reside in Texas,"and could not be brought into court by personal service, nor by attachment. The plaintiff caused a curator ad hoc to be appointed to them, who excepted that it was not a case in which the law authorized the appointment. The court sustained the exception, and the plaintiff was non-suited as to those heirs.

But they are obligors in a joint contract. Now, our code declares, that in every suit, on a joint contract, all the obligors must be made defendants. Having contracted a joint obligation in this State, which it has become necessary to prosecute in this State, and the prosecution of which renders it necessary that the non-residents should be made parties defendants, it is a proper case to cause them to be represented by a curator ad hoc, since personal service cannot be made, and the exceptions should have been overruled.

By the compromise, it was the manifest intention of the parties, that the property of which the plaintiff was entitled to the usufruct, should be sold before 1842, and converted into a capital, bearing ten per cent in interest, which interest was to be paid to the plaintiff annually in lieu of her usufruct. The very object of the compromise was, to enable the heirs to sell the whole property without encumbrance, promptly and advantageously. The lands, buildings and improvements, should have been sold together, and an equitable portion of the whole pi'ice, established as the capital upon which to calculate the interest to be paid annually to the plaintiff. Equity considers that done which ought to have been done. "We cannot imagine how the heirs could conceive they had a right to sell the land separately from the houses and improvements. It necessarily produced the result which has occurred: the improvements were unsalable or valueless ; and having been destroyed long after the sale should have been made, and the amount of the plaintiff’s annuity exactly fixed, is no reason why the amount of the annuity should not be ascertained by the best means in our power. We have no other data but the estimation of the property, to be converted into capital, as appraised in the inventory. In the two former suits, that appraisement was, by consent, established as the capital on which the annuity should be paid. Having been established, by judgments, as the capital for six yeai'S, we see no reason why it should not be so for the next three years. It is the value of the property to be sold, to fix the capital of the annuity according to an appraisement which the heirs themselves made and had homologated by the court, at the time when the capital should have been fixed, and has been consented to by the defendants in two suits against them. We know of no better ci'itei'ion to fix the value of the annuity. As there was no limitation of the admission of the value in the last suit, we are inclined to consider it res judicata in the present suit.

The position, that the defendants are discharged from the payment of interest, because the house has been destroyed by fire, is untenable. The parties had, by compromise, changed the usufruct of the house to interest on its value, to be ascertained by sale. The sale was to have been made by the defendants, which they neglected to make until accident rendered it impossible, and indeed, until, without the accident, it might not have been a just criterion of the value of the capital. The plaintiff did not surrender the usxxfruet of the house alone, but also of the land. The consideration of the surrender was not the value of the house in 1851, but of the house in 1841.

We are of opinion that the judgment of the district court should be reversed, and that the plaintiff should recover two hundred and twenty-five dollar's annually, or six hundred and seventy-five dollar's, with five per cent intei'est from the judicial demand, and costs of suit in both courts.

Although it was necessary to trial and decision of the suit, that the heirs of Sarah Lyons should be made a party by a curator ad hoc, yet, as they cannot be' brought, by person or property, before the court, we have no power to render judgment against them. As to them, there must be a judgment of non-suit.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the plaintiff do recover from the defendants the sum of two hundred and twenty-five dollars annually, or six hundred and seventy-five dollars for the three years of1848,1849 and 1850, with five percent per annum interest thereon, from judicial demand on the defendants respectively, and costs of suit in both courts ; that the plaintiff recover from each of said defendants, his or her virile share of said sum, to wit: from Aborn Lyons, the sum of seventy-five dollars, with five percent interest thereon, from judicial demand; from Abel Lyons, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand; from Fanny Lyons, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand; fx-om Nancy Lyons, wife of Jacob Iiarman, and the said Harman, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand; from Martha Lyons, wife of Johnson Moss, and the said Moss, the sum of seventy-five dollars with five per cent interest thereon, from judicial demand; from Benjamin Lyons, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand; from Isaac Lyons, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand ; from Bosman Lyons, the sum of seventy-five dollars, with five per cent interest thereon, from judicial demand, and the further sum of ten dollars with like interest thereon; from Mary Ann Merryman, wife of J. W. Copper, and said Copper, the sum of fifteen dollars with five per cent interest thereon, from judicial demand; from Martha Merriman, widow of King Choate, the sum of fifteen dollars, with five per cent interest thereon, from judicial demand; from Mansel Merriman, the sum of fifteen dollars, with five per cent interest thereon, from judicial demand; from Aborn L. Merriman, the sum of fifteen dollars, with five per cent interest thereon, from judicial demand; from Augustus Merriman, the sum of fifteen dollars, with five per cent interest thereon, from judicial demand. It is further decreed, that the costs of suit in both courts be paid by the defendants in solido. And it is further decreed, that the plaintiff be non-suited as to Richard West, tutor of the heirs of Sarah Lyons, deceased, at her costs.


text:
    Michael Girard v. Abraham Hirsch et al.
    Where a person leaving the country gave a general power of attorney to his wife and to an attorney at law, authorizing them, amongst other things, to represent him in all suits, it will be presumed that his intention was to authorize the attorney to attend to suits in which he might be interested; and the appearance ,of the attorney, alone, will bind the absentee.
    An attorney at law has not the power of confessing a judgment against his client, but when the evidence shows that the plaintiff was entitled to a judgment, and the judge so states in his reasons for rendering it, the judgment ought not to be annulled.
    Where an entry was made on the minutes that execution was to be stayed for six months, but was not mentioned in the judgment, and execution was issued before the time had expired. Held: that the proper remedy was an injunction, which not having been obtained, the irregularity was not sufficient ground to annul a sale made under the execution.
    Purchasers at sheriff’s sales are presumed to take notice of the judgment on which property is sold, but are not bound to know the entiles on the minutes.
    APPEAL from the District Court of the Parish'of Lafayette, Overton, J.

      M. B. Girard, for plaintiff.

      E. Simon, for defendants.
   The judgment of the court was pronounced by

Preston, J.

This suit was instituted to annul a judgment and execution in the suit of the Union Bank against Michael Girard and others, and to recover the undivided half of a lot of ground, in the town of V ermillionville, with the buildings and improvements thereon, which was seized and sold under the execution.

The plaintiff is one of the heirs of Michael Girard. On the 25th of November, 1843, the judgment in favor of the Union Bank was rendered against Girard and others. The plaintiff alledges that he was not cited, that no issue was joined, and that judgment was rendered against him by consent, although he had authorized no one to confess judgment against him.

The defendant, Girard, was in France when the suit was instituted and judgment was rendered, but it is fully shown that he had an agent in the parish, who signed the note on which the suit was brought. The petition and citation was served upon the agent. This was insufficient, as it is not shown that he had power to appear in court for his principal.

The defendants in this suit have, by evidence, fully remedied this defect. The answer to the suit was filed by licensed attorneys, and one of them, it is shown, held a full power of attorney from Girard, to appear for him before all courts of jaw and equity, there to do and prosecute, or> defend, as occasion shall require. This power of attorney being-of the most general, as well as special character, although the wife of Girard was associated as co-attorney, cannot reasonably be construed otherwise than that in case of law suits; the attorney at law, and not the wife, should prosecute or defend them.

This power of attorney was given by an authentic act on the public records; and even if the private letters to an agent, subsequently appointed, should have been intended to revoke it, (though they rather confirm it, by directing the agent to employ the same attorney in suits,) the courts and suitors are not to be presumed to have known of that private revocation of the power, and were therefore perfectly justified in acting under the public power, which had not beem publicly revoked.

The attorneys filed a general denial, as the answer of the defendant; but, it appears by the record, consented to judgment. Even if they had no power t® consent to the judgment, the note on which the suit was instituted, was filed;-. also, its protest. The genera] denial superseded the necessity of proving the-signature of the drawer, and whatever other evidence was necessary, was, no-doubt, furnished; for the judge declares, in his judgment, that the law and evidence being in favor of the plaintiffs, he rendered judgment against the defendants. It cannot, therefore, be annulled.

There is an entry on the minutes of the court, though not embodied in the judgment, that a stay of execution for six months was granted. The execution) was issued five days before this term had'expired, and, it ¡surged, that the seizure-, and sale, under this premature execution, is null and void. We think not; the-redress was by injunction, or a suit for damages. By the first means, the offer of the property, by the sheriff, for sale for cash, would have been delayed but at few days. By the second, nothing would have been recovered, as the property was not sold until more than two months after the delay, for the execution had! expired, and then on twelve months credit.

The examination of these subjects, however, is unnecessary, as the agreement to stay execution was not embodied in the judgment; to which, alone, the purchaser was obliged to look for authority to execute and sell, and not to the record1 of understandings on the minutes of the court.

Moreover, the defendant having been informed by his agent, by letters, of the seizure and sale of the property, does not appear, during his life, to have made any objections to the proceedings. On the contrary, his agent appears to have ratified them, by giving the sheriff a receipt for the balance of the price of the property, beyond the amount of the execution.

For these reasons, it is decreed, that the judgment of the district court be reversed, and that there he judgment for the defendants, with costs- in both pourts,