text:
    Ells et al. v. Sims et al.
    'To entitle a vendor of lands to a privilege against third per,sons, not proved to have bad actual notice, the act of sale must be registered in tbe book of mortgages kept by tbe parish judge. A more extract from the act of sale, not designating the property sold, nor even its nature, whether lands, slaves or moveables, is insufficient; nor can such an imperfect registry bo aided by the fact that, the notarial sale was recorded in the book of conveyances kept by the parish judge. G. G. 3238, 3241, 3349, 3350, 3351, 3353, 3356.
    A conventional mortgage may be executed by an act under private signature. C. G. 3257, 3331.
    Where a promissory note recites that it was executed for a sum due for work done by the payee on lands therein described belonging to tbe maker, and that tbe latter consents that tbe former shall have " a privilege and mortgage for securing the payment of said sum,” the written acceptance of the mortgagee, subscribed to the instrument, is unnecessary. Per Curiam .* The acceptance of the note by tbe payee was an acceptance of tbe mortgage which it stipulated, and, by tbe delivery of tbe note, the entire contract became complete between the debtor and creditor.
    Itis not necessary, under art. 3331 of tbe Civil Code, that it should appear affirmatively upon the registry of mortgages, or be proved aliunde, that a private writing, presented to the register of mortgages for record, was presented by the creditor himself.
    Where lands subjected to mortgage are described as situated on a particular river, in a certain parish, mentioning the names of the proprietors of the adjoining lands, it is a sufficient statement of the nature and situation of the property. The omission to state the township, range and section, and the quantity of acres in the tract, is not material.
    The object of the registry of mortgages is to give public notice, with reasonable certainty; and a distinction may fairly be made, in the description of the thing mortgaged, between urban and rural estates, and greater minuteness and accuracy of detail be properly required in tbe former fcliau in the latter case.
    APPEAL from the Dista-ict; Court'of Concordia, Curry, J. The facts of this case are fully stated in the opinion of the court infra.

      Rowley, Frost and Sandei s, for the appellants.

      Stacy and Sparrow, for the defendants.
    1st. The mortgage of plaintiffs is void for uncertainty, because the notes do not state precisely the nature and situation of the lands intended to be mortgaged, mentioning neither the quantity, township, range nor section. Cjvil Code, arts. 3273, 3275. Neither do they state in favor of whom the mortgage was executed, except by inference. Civil Code, art. 3357. Neither does it appear, except by inference, that it was intended that the mortgage should be upon the land on which the work was done.
    Code, art. 3331. 2d. The mere execution of notes, with a stipulation in them of a right of mortgage, is not sufficient to give one. There should be a formal act of mortgage executed by the debtor, and accepted by the mortgagee. Civil Code, arts. 3257, 3272. The register of mortgages had no authority to record these notes on his register as mortgages, as they were not signed by both parties. Civil
    3d. The act containing the vendors privilege from Sims Sf Brown to the Preslers, was sufficiently recorded to give notice to the world. In the index to the mortgage book was the following íeference : “ Sims Sf Brown to Amelia Presler, mortgage clause, page 158,” and the clause referred to was recorded on that page of the mortgage record. This was enough to have put any person upon inquiry, which would have led to the necessary information.
    4th. The plaintiffs cannot avail themselves of the want of recording the act .of sale from the Preslers to Sims ¿y Brown, in which the vendor’s privilege was retained for the price, because : 1st, as between the parties, there can be no doubt that privilege existed; 2d, at the time the notes were executed, or previous thereto, plaintiffs had never applied to the parish judge to ascertain by his certificate what privileges or mortgages existed on the property; and 3d, had such application been made, the same certificate would have been given, as that furnished by him to the sheriff, and read at the sheriff’s sale. They would then have had actual knowledge of the fact, which is equivalent to registry. Planter's Bank of Georgia v. Allard, 8 Mart. N. S. p. 140. Bell v. How et al, Ibid. 246. They were bound to obtain this certificate before receiving their mortgage, (Civil Code, art. 3328,) and, not having done so, they relied alone on the good faith of the mortgagor, and their only remedy is an action against him for damages. Civil Code, art. 3329. The maxim of caveat emptor, applies. Sims pould only invest them with such rights as he held at the time; they failed to lake the legal means to ascertain what those rights were; and they received the mortgage, subject to all the previous encumbrances upon the property, as agaiDst him, in the same manner as if they had purchased from him a quit claim to the property; and qui non habit, ad alium non transferre potest.

   The judgment of the court was pronounced by

Slidell, J.

The heirs of Presler, defendants in this case, sold a tract of land to Sims Brown, for the supi of 3516,000, for which notes were taken. In the notarial act of sale no mortgage was stipulated, but the plaintiffs claim the legal privilege of the vendor. This act was duly recorded as a sale in the office of the parish judge, in the notarial book of conveyance kept by him ; but the only registry named in the mortgage books then kept, consists in the following .entries. In the index of this mortgage book was the following:

uSims Brown to Amelia Presler, mortgage clause, page 158.”

In the body of the mortgage bo.ok, at the .corresponding page, was made an .entry in the following words :

Siftis Brown to Amelia Presler et al., who declared .and said that, for the consideration of 3516,00.0, to theip secured to be paid by the three joint and several promissory notes of John C. Sims and Joseph Brown, th,e former of the said parish and State, and the latter residing in Wilkinson county, State aforesaid, the said three notes payable to the order of the said Amelia Presler and the said children of Simon Presler, deceased ; the first for the sum of five thousand three hundred and thirty-three dollars and thirty-three and one third .cents, of even date herewith, and payable on the first day of August, 1841; the second for the same amount and of the s.arne date, and payable on the first day ,of August, 1842; and the third and last of said notes for the same sum (555,333 ¡33 J), and of .the date aforesaid., payable ,on the first d.ay of .August, 1843; the said notes are made payable at the Merchants Bank, New Orleans, and are by me, the notary, paraphed ne varietur, in order to identify them with this act.

“ Recorded, 12 Feb’y., 1841.

“ Attest, James Dunlap,

“ Parish Judge,”

It is shown that a book exclusively for the record of mortgages was first opened in the parish judge’s office, in the year 1837. Sims became the purchaser of Brown’s moiety of the lands, at a probate sale of Brown’s succession, in the year, 1841. In April, 1843, Sims executed in favor of Ells, Manger, MeGloJjin and Sutherland, respectively, his notes at one day’s date, for §724 22, 731 72, §892 21, and §723 39. A statement of one will exhibit the character of the residue. That in favor of Sims is in these words :

“§724 22. State of Louisiana. Parish of Concordia. April 18th, 1843. One day after date, I promise to pay to E. Ells, or order, §724 22, being for work done on my land, situate on the Mississippi river, in said parish of Concordia, bounded by lands of E. P. King above and below, and back by lands of the United States, which land is improved by said levée. I hereby acknowledge, agree and consent, that the said has a privilege and mortgage, for the securing the payment of said sum of money. John C. Sims.”

Each of the notes was registered in full on the mortgage book in the parish of Concordia, in July, 1843, the parish judge having known and recognized the signature, of the maker. The defendants Presler, subsequently seized the moiety of the land originally purchased by Sims, upon proceedings instituted upon the notes given for the price. On the day of the sale, the plaintiffs’ gave warning of their mortgage rights, of the invalidity of the Presler mortgage, and of their intention to bring suit. Under this notice, the defendants Presler, purchased at the judicial sale, for the sum of §100.

We will first consider the objections raised by the plaintiffs to the vendor’s privilege, asserted by the defendants.

For the validity of the Presler claim of privilege as against the plaintiffs, .against whom actual notice is not proved, it was necessary that it should be registered in the mortgage book kept by the parish judge. The registry as there made was a mere extract from the act of sale, not designating in any manner the property sold, and from which not even the nature of the property, whether land, slaves, or moveables, could be ascertained. It was clearly insufficient, and is not aided by the faet that the notarial sale was recorded in the book of conveyances. See Civil Code, arts. 3349, 3350, 3351, 3353, 3356, 3238, 3241; and also the case Falconer, 4 Robinson, p. 5.

It is in vain to argue from the testimony of the parish judge, who states that, if the plaintiffs had applied to him for a certificate before they contracted with Sims, he would have certified the mortgage or privilege as existing onthe land in favor,of the vendors. The plaintiffs were not bound to obtain a previous certificate ; and although, if they had chosen to contract by notarial act, it would have been the duty of the notary to obtain a certificate, still the law permitted them to contract with Sims by an act under private signature. Civil Code, art- 3331.

It is contended by the appellees that the plhintiffs should have obtained a formal act of mortgage, and that the notes above recited do not constitute a contract of mortgage. A conventional mortgage is a contract by which a person binds the whole of his property, or a portion of it only, in favor of another, to secure the execution of some engagement, but without divesting himself of the possession. And such a contract may be made under private signature. Civil Code, arts. 3257, 3331. The formal written acceptance of the mortgagee subscribed to this instrument, was not necessary. The acceptance of the note by the payee was an acceptance of the mortgage which it stipulated, and by the delivery of the note the entire contract became complete between the debtor and the creditor.

' We do not consider it necessary, under article 3331, that it shall appear affinnatively upon the registry, or bo proved aliunde, that the creditor himself presented the private writing to the register.

It is said that the property is not sufficiently described; that the quantity, range, township and section, should have been stated. The land is described as situate on the Mississippi river, in the parish of Concordia; boundaries are stated, and the expression “ my land,” especially in the absence of any evidence showing the ownership of other land by Sims, is fairly comprehensive of the entire tract. The object of registration is public notice, with reasonable certainty. A distinction may be fairly made between urban and rural estates, and greater minuteness and accuracy of detail might properly be required in the former than in the latter case. The question is whether, under the circumstances, any one contracting with Sims, or in any wise trusting him, or interested as a creditor, would have been misled or kept in the dark by the omission to state the township, range and section, and the quantity of acres in Sims’ tract. We think not; and are of opinion that in this case there has been a fair compliance with the requisition of law, that the mortgage and its registry shall “state precisely the nature and situation” of the property.

Upon the whole, we are of opinion that the mortgage of the plaintiffs should be enforced, and that the vendors’ privilege is ineffective against them; nor does this case present the hardship which sometimes results from the inattention of parties and of public officers, as the labor of the plaintiffs has been devoted to the improvement of the defendants’ land.

It is therefore decreed that the judgment of the court below, so far as it rejected the rights of mortgage claimed by the plaintiffs, be reversed ; and it is further decreed that the said plaintiffs are, and they are hereby, recognized as creditors, concurrently between themselves, by first mortgage upon the property in the petition described, for the sums following, to wit: the said Edward Ells, for the sum of $630 50; the said Daniel Manger, for the sum of $731 72 ; the said William McGlqffin, for the sum.of $692 21 ; and the said John Sutherland, for the sum of 723 39 ; with interest on said sums respectively from judicial demand, till paid; and that the said property be sold to pay concurrently, and by first privilege, said sums due to said plaintiffs, interest as aforesaid, one half of the costs heretofore incurred in the court below, also the costs of sale in execution of this decree, and the costs of this appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Jones et al v. Hunter et al.
    An amended answer, offered to bo filed by third persons, wbo had, ponding the suit, purchased, at a judicial sale made by order of another court, the title of the defendant to the property in contest in a petitory action, and who had been substituted in place of tlie original defendant, in which they set up the title so acquired by them, cannot be excluded as changing the character of the suit, by setting up a title under judicial proceedings, the validity of which cannot be tested in the suit in which their answer is offered.
    The testimony of a single witness that, he knew a person as a married woman for a few months before her death, in a neighborhood into which she had lately removed a stranger from another State, is insufficient to prove her marriage. Per Curiam: Her status cannot be proved by the generalreputation of that neighborhood; and we are not prepared to say that, where the proof of legitimacy is introduced for the purpose of acquiring property of great value, a single witness is sufficient to prove a marriage, by reputation.
    Aduly acknowledged natural child inherits the estate of her father, in default of legitimate relations or a surviving wife.
    Property claimed in an action cannot be alienated, ponding the action, to the prejudice of the party claiming it. C.C. 2428.
    One who has caused himself to be substituted in the place of the original defendant in a suit, who was his warrantor, debars himself of the right to obtain a judgment in warranty against the latter.
    Appeal from the District Court of Concordia, Curry, J.

      Thomas and J. Dunlap, for the plaintiffs. Stockton, Steele and Grymes, for the appellants. Stacy and Sparrow, for the intervenor, Susannah Jones.

   The judgment of the court was pronounced by

Rost, J.

This case has already been before the Supreme Court, and the facts, as far as they were then disclosed, are fully stated in the opinion of the court, in 6 Robinson, p. 235. The first appeal was taken from a judgment rendered in favor of Susannah Jones on the verdict of a jury. The court recognized her as the natural child, duly acknowledged, of John Jones, and observed that her right to recover as an irregular heir, adversely to the other claimants, depended upon the determination of facts peculiarly within the province of the jury, whose verdict, on such questions, should always be maintained, unless manifestly erroneous. The case was remanded on account of errors in the charge of the judge to the jury.

After the mandate of the Supreme Court was filed in the District Court, all Collier's interest in the property was sold under execution, and purchased by Amis and Featherston, who intervened in the suit. Subsequently, on their application, after suggesting to the court the bankruptcy of Collier, and the insolvency and death of Hunter and King, it was ordered that they, the said Amis and Featherston, be permitted to assume the position of those parties; and, the judge states that, being then in court, they did assume that position, and waive any citation or notice in relation thereto. Before the trial of the cause, these parties asked leave to file an amended answer, which was refused by the court, on the ground that the amended answer set up, in Amis and Featherston, a right ■acquired since the preceding term of the court, by virtue of a probate sale of the property in controversy, the validity of which proceedings could not be tested in this suit, and that said amendment changed the character of the suit.

We think the court erred in refusing to admit the amended answer, and as all the evidence in support of it is annexed to the bill of exceptions, we will consider both the answer and the evidence as being properly before us. We do not perceive that they change the character of the suit; and the facts of the case show, beyond the possibility of a doubt, the real nature of the proceedings had in the Court of Probates of the parish of Madison.

Amis and Featherston took other bills of exceptions, which the opinion we have formed makes it unnecessary to notice.

The case comes before us on the appeal of Featherston and Amis from the judgment rendered on the second verdict in favor of Susannah Jones, and, as the appeal was granted in open court, we consider that all the parties to the suit had notice of it, and are entitled to be heard.

After two unimpeached verdicts, rendered by men who knew the parties and witnesses, and whose partialities, if they had any, must have been in favor of the legitimacy, we concur with the former court, that any interference, on our part, would be ill-advised, unless the evidence should force upon us the conclusion that manifest injustice had been done.

Mrs. Overacre, the main witness of the defendants, has testified that she knew Hannuh Rhodes, the mother of John Jones and his sister; that the said Hannah was her sister, and Was lawfully married to Charles Jones, the father of John Jones and Mrs. Bass, under whom the defendants claim, near the north fork of the Holston river, in the State of Tennessee, previous to the year 1790; she swears that she was present at the marriage. Her evidence is positive; but two successive juries have refused to believe it; and, as there are in her deposition circumstances throwing reasonable doubts upon her veracity, we are not prepared to say that they have exceeded the discretion vested in them.

Henry Flower, whose testimony bears the stamp of truth, states that he had known John Jones and his sister, in the neighborhood of Natchez, in 1792 or 1793,■ at which time they were both small children. He also knew their father and mother, and lived after that time thirteen or fourteen years within a mile of the house of Charles Jones. The witness siates that Charles Jones and Hannah Rhodes treated each other as husband and wife ; that they were reputed to be such, and their children passed for legitimate, forced heirs; that Hannah Rhodes died in 1792. or 1793, after which event Charles Jones lived, at the same place, with the widow Smith, as man and wife, and had eight or nine children by her.

The survivors of those children are the plaintiffs in this suit.. There is no doubt as to their existence, and the cohabitation, whatever be its character, of their father and this widow. Yet Mrs. Overacre, residing in the-immediate neighborhood during that cohabitation and the birth of the children, when-interrogated in relation to this episode in the life of her pretended brother-in-law, is as positive in her denial of all knowledge of the widow Smith and of her children, as in-her affirmance of the marriage of her sister. That portion of her testimony can-not be true; she is an unfair and partial witness, whom the jury might well refuse-to believe.

Disregarding her evidence, the testimony of Flower extends over too short s period of time to establish the marriage by general reputation. He states that he knew the parties, in the neighborhood of Natchez, in 1792 or 1793, and that Hannah Rhodes died in 1792 or 1793. Fie knew her but a few months before her death ; and, as she had lately arrived from. Tennessee, a stranger to all but Mrs. Overacre, her status cannot be proved by the general reputation of that neighborhood. We are not prepared to say that where the proof of legitimacy is introduced for the purpose of acquiring, property of great value, we would con-sider one single witness sufficient to prove marriage by reputation.

Circumstances are proved militating for, and others against, the probability of' the marriage; but after a careful perusal of all the evidence, we cannot say that there is manifest error in the verdict of the juiy, so far as it affects the defendants.

The evidence adduced by the plaintiffs in proof of their legitimacy, is still-less satisfactory; it has produced no conviction on our minds; and supposing it to be true, it is very questionable whether the plaintiffs would have any rights,. the district of country where the marriage is said to have been performed by a baptist preacher, being under the dominion of Spain at the time.

The witness Leland, who swears that a marriage was celebrated by a baptist preacher between Charles Jonas and the widow Smith, in the year 1799, is evidently one sided, and has rendered himself obnoxious to the same charge as Mrs. Overacre; although, at the age of 86 his memory is precise, beyond belief, as to all facts which may be of advantage to the plaintiffs, he has never heard of Hannah Rhodes, and never heard the name of John Jones mentioned. In many of his answers, he evades the questions put to him, and does not answer at all the questions as to the time when Charles Jones and the widow Smithyvent to live together. The jury may have inferred from the testimony of Henry Flower that the cohabitation commenced soon after the death of Hannah Rhodes, so that, supposing the testimony of Leland to be true, the cohabitation had lasted five or six years at the time of the marriage, and it is not proved that the plaintiffs or their ancestors, were born after the year 1799.

The witness Sarah Cochran, does not swear to the fact of the marriage; but the reasons she gives to make it probable, that three priests were residing in Natchez at the time, and that they would not have permitted a man and woman to live together without being married, is untrue, and renders her testimony of no value. It is an historical fact that there were but four priests in the whole valley of the Mississippi at that time, and three of them never had their residence at Natchez, at the same time.

The testimony of Flower, instead of supporting the pretensions of the plaintiffs, renders, in our opinion, the marriage improbable.

We cannot say that the jury erred, in considering that no marriage had been proved between Charles Jones and either Hannah Rhodes or the widow Smith. They appear to have had sufficient reasons to give faith to the declarations of John Jones, made at a time not suspicious, to his friend Groves, that legitimacy was a relation unknown in his family. His own daughter is no exception to the rule; but, as he has acknowledged her, she is entitled to his inheritance in defaxilt of legitimate relations or a surviving wife, unless the intervenors, Amis and Featherston, can withhold it from her. A statement of some of the facts of the case is necessary to a proper undestanding of their claim.

In 1834, one Thomas Bernard sued the curator of John Jones, who suffered a judgment to go against him by default for the sum of 581,481 37, with eight per cent interest. Judgment was entered at the June term, 1837; but was only signed in June, 1843. In 1834, Mrs. Bass sold her hereditary rights to John Briscoe, and, in January, 1S35, Briscoe and others, who appeared to have acquired an interest in the purchase, sold to Woodhouse ¿y Hunter the plantation and slaves forming the whole property of the succession. In 1836, the curator having died, Thompson L. King was appointed in his place, and subsequently purchased the interest of Woodhouse in the plantation and slaves.

In 1844, Amis and Featherston, to make, as they supposed, assurance doubly sure, and divest plaintiffs, defendants, and intervenors of any title they might have in the property of the succession, purchased the judgment rendered in favor of Bernard, with thp view to cause the property of John Jones, then in their possession, to be sold under it; but as they could not aver in their own names that the property still belonged to the succession of Jones, because they had it in possession as their own, and had roceived the fruits of it for years, they resorted to a shallow disguise to accomplish their object. They transferred the judgment to William Amonett, one of their counsel: and. whilst three distinct sets of heirs were present or represented, all claiming the succession of John Jones, James Ira Amonett, another counsel of Amis cj' Featherston, falsely representing that succession as vacant, caused himself to be appointed curator during the recess of the District Court, and induced the Court of Probates to go through the solemn farce of appointing an attorney of absent heirs. The curator acknowledged as justly due, a claim about which he could have no knowledge, and, instead of proceeding to reduce to posession the property of the succession, and to administer it as, by law, he was bound to do, he suffered William Amonett to take a judgment against him, and to cause to be sold, en masse, under it, not the right, title and interest which the succession might still have in the property, but the land and slaves themselves, surrendered by Featherston Sf Amis, were sold as the property of the succession. Featherston Amis stood by during the sale, and, instead of protesting against it, they became the highest and last bidders, and the whole property was adjudicated to them. We do not perceive how, after the adjudication, they could be permitted to set up any other title than that which it conferred upon them; their surrender and subsequent purchase of the property, amounted to an acknowledgment that they were previously knavish possessors, and they wore properly made to account for the rent of the land and hire of the slaves during their possession.

Immediately after the purchase by Amis 8f Featherston, the two Amonetts appeared in court as their counsel of record, and moved to amend the pleadings, so as to let in the new title which they had enabled their clients to acquire. The court refused the application, and that refusal gave rise to the bill of exceptions which we have already noticed.

The strange idea seems to prevail in some. minds, that nothing else is necessary to defeat the just rights of plaintiffs in petitory actions and in actions of revendication, than to make, or procure, pending the action, a transfer of the title to the property claimed. Art. 2428 of the Civil Code expressly provides that, property thus situated cannot be alienated to the prejudice of the claimant’s right; and we are not left in doubt as to the meaning of that provision, for it is taken from the law 13th, tit. 7th, of the 3d Partida, which was itself taken from the dispositions of the roman law, found in the chapter De Litigiosis in the Justinian Code, lib. 8, tit. 37.

The rule laid down in our Code, is one of the fundamental principles of the civil law, and numerous commentators have defined the extent of its application. Any transfer of the thing in dispute, made either directly by the party from whom it is claimed, or indirectly procured through his agency, is null, agaist the claimant, with few exceptions not applicable to this controversy.

The Partidas conclude this subject by an admonition to the depositaries of power that, their most important concernment is to counteract and frustrate the fraudulent devices of the wicked. This éommand of the Spanish law stands unrepealed, and we feel, on this occasion, the necessity, as well as the obligation, of enforcing it.

The sale of the property was evidently procured by Amis &f Featherston, for the purpose of changing the title; the whole affair was a scheme of spoliation and fraud, under the forms of legality; the succession was not vacant, and the heirs should have been made parties to any proceedings had in relation to the property. James Ira Amonett was all the time the counsel of Amis Sf Featherston, not the curator of the succession of Jones; that succession was then in the possession of Ins clients, who claimed it in its entirety, as assignees of the only heir. If they acquired the rights of the heir, they also incurred her obligations, ono of which was to pay the'judgment in favor of Bernard ; but thoy purchased that claim, and it was extinguished by confusion; they could not revive it before they were evicted, and their attempt to do so can be productive of no result. Susannah Jones was not a party to the judgment of the Court of Probates ordering the sale, and she comes under the rule of law sententia inter alios lata aliis nonprejudicat. Neither she, nor the succession of Jones, were represented in that suit.

Amis 8f Fcatherston having, at their own request, taken the place of their immediate warrantor and of his warrantor, have debarred themselves of the right to obtain the judgment in warranty prayed for on the appeal.

The judgment appealed from has done justice between the parties.

Judgment affirmed.


text:
    Morris et al. v. Covington, Executor.
    An appeal will not bo dismissed on the ground that the appeal bond is not payable to the appellee, where the name of the persou in whose favor it was actually made was inserted through a clerical error. Such an error, will not discharge the surety.
    The heirs of the wife are entitled to ono half of property purchased by the husband during the existence of the community, though not paid for till after the death of the wife, subject to the payment of one half of the community debts.

      A having purchased at judicial sale property sold as belonging to the succession of B, assumed, as part of the price, the payment of a note, secured by mortgage on the property. Pending an action by the heirs of the surviving wife of B, claiming one half of the property, on the ground that the whole belonged to the community of acquets formerly existing between the spouses, an attorney at law, practising in the court in which the suit was pending, purchased the mortgage and note: Held, that the purchase, being by a public officer connected with the court, was a nullity, C. C. 3432.
    A sale made under a judgment rendered in an action in which there was no defendant, is a nullity. The nullity of such a sale, is not required to be pronounced judicially.
    Where the payee of a note, secured by mortgage, executed for a community debt, receives from the maker crops, made on the community property, more than sufficient to discharge the debt, but, instead of applying their proceeds to its payment, pays them over to the malrer, and gives him personally credit for tho amount of the note, it is a novation of the debt, and will discharge the community.
    Where a lot of ground purchased during the existence of the community of acquits is incorrectly described in the conveyance, but, after the dissolution of the community by the death of the wife, a new conveyance is executed to the husband for the property with a correct description, the title thus acquired will enure to the benefit of the community.
    A possessor in good faith ia entitled to be paid for useful improvements made by him on the property.
    Appeal from the District Court of Madison, Curry, J.

      Snyder, Stacy and Sparrow, for the appellants,
    cited 7 La. 222. I Rob. 149.

      Amonett, pro se. Thomas, on the same side. Pepper, for the intervenor Fisk. T. N. Pierce, for the intervenor White.

   The judgment of the court was pronounced by

Rost, J.

This case is a striking instance of the extent to which bad faith and ignorance can mystify truth, and involve in confusion and doubt the plainest questions of common right.

George Deahl and Ferriby Smith were married, in April, 1834. In October of the same year, Deahl purchased from James Graham a plantation and slaves, for the sum of $30,000, which the act of sale states was paid at the time of the sale. It is shown, however, that James Graham received in lieu of money three promissory notes of $10,000 each, drawn to the order of Charles S. Lee, and endorsed by him and other persons. Deahl, to secure the endorsers, executed in their favor a mortgage on the plantation and slaves, which was duly recorded. The wife of Deahldied in 1836, before any part of the purchase money had been paid. No inventory was made, and her succession never was administered upon. Deahl remained in possession of the whole property as before, received the proceeds of the crops, and paid the two first notes given to James Graham. In June, 1841, the whole property which he possessed was seized and sold by the marshal, under execution, and adjudicated to R. Slaughter, who assumed to pay the encumbrances existing upon it at the time, in part payment of his bid.

Those encumbrances appear to have been: first, a sum of $11,636 68 cents, a balance due on account of the purchase, and covered by the mortgage given to the endorsers of the notes; second, the sum of $6,000, being the amount of a special mortgage in favor of Burke, Watt S,- Co., consented to by Deahl in the year 1840.

Slaughter died, in October, 1841, leaving the original defendant, Covington, his testamentary executor. The plaintiffs have instituted this action against him, alleging that they are the heirs at law of Ferriby Smith; that they have accepted her succession under benefit of inventory ; and that they are entitled to recover one undivided half of the property, existing at the time of her death in community with her husband George Deahl, and now forming part of the succession of Slaughter, the said property consisting of four tracts of land and twenty-seven slaves. The executor, Covington, having been removed from office, William Amonett was appointed dative testamentary executor, and the suit was continued against him.

The defendant generally denies the allegations of the petition, avers title under the marshal’s sale; the existence of the mortgage for $30,000 on the property; and also that the community owes George Deahl over $31,000, one half of which the plaintiffs are bound to reimburse. He finally alleges that, in case of eviction, he is entitled to recover the value of his improvements, which he assesses at $10,000. There is also a call in warranty against George Deahl and Francis I. Thompson, the creditor at whose suit the property was sold by the marshal.

Alvarez Fisk, having become the assignee of the mortgage debt mentioned as belonging to Burke, Watt 8f Co., sued the dative executor of Slaughter in the Court of Probates, and obtained a judgment under which all the slaves in his possession as executor, but two, were adjudicated to him, the said Fisk, who removed them to the State of Mississippi. He subsequently intervened in this s«it for the preservation of his rights.

William Amonett and one Benjamin Ft White purchased the unpaid note of $10,000, given by Deahl to Graham, and obtained from Miller, the first endorser on that note, a transfer of the mortgage given to secure tlio endorsement, and still affecting the property in the possession of Slaughter. Amonett and White obtained in the Court of Probates, a judgment against Amonett, as dative executor of Slaughter, on this note, with privilege and preference on the property in his hands. Under this judgment the land was sold at probale sale, in 1844, and adjudicated to Thomas W. Amonett, for little more than one fourth of its apprised value in the inventory of Slaughter. This purchaser intervened for the preservation of his rights.

We have only gone into the labyrinth of interventions, amend od petitions and answers, bills of exception, motions and agreements, which fill the record, so far as it was necessary to the view we have taken of the rights of the parties. The unnecessary confusion created by all this chicanery, is unprecedented. It became so intolerable in the court below that the judge, unable, as he supposed, to arrest the evil in any other manner, at last cried out in despair, to the incessant applicants for intervention : “ You cannot come in, the case is fulland, not recovering to the last his acknowledged powers of discrimination, gave judgment in favor of the defendant, and dismissed all the intervenors with costs.

The plaintiffs appealed, and the intervenors have asked that the judgment be amended in their favor. A motion to dismiss has been made on the ground that the appeal bond was made in favor of a person other than the defendant; the bond is in favor of the defendant and of the intervenors. The insertion of the name of Covington, for that of Slaughter, was a clerical error, which would not discharge the surety. The motion must be overruled.

The judgment appealed from is clearly wrong. The plaintiffs having proved that they are the heirs of Ferriby Smith, the title to one undivided half of the land and slaves purchased during the community, vested in them at her death. Slaughter only acquired by the marshal’s sale the right, title and interest of Deahl in the property, which was one undivided half of that portion of it which belonged to the community; the plaintiffs continued to be the owners of the other half, subject to the payment of one half of the community debts.

The purchase by Amonett Sy White of the note of $10,000, and of the mortgage by which it was secured, after these proceedings had been commenced, was the purchase of a law suit. Those claims were involved in this litigation; the extent of the liability of Slaughter under his assumption to pay the mortgage, depended upon the event of this suit; if the plaintiffs succeeded, his succession was only bound for one half of it, and the rights of the holders of the note and mortgage were, in relation to that succession, litigious rights. William Amonett, exercising his profession in the court under the jurisdiction of which those rights fell, could not purchase them, and acquired no title to them. Civil Code, art. 2422. The purchase took place before his appointment as dative executor; but he was executor when the judgment was rendered, and the facts that there was no defendant in the suit, and that he confessed a judgment in his own favor, when he had a valid defence to make for half of the claim, are conclusive against him. White, who joined with him in the perpetration of this fraud, is in no better situation. The probate sale to Thomas W'• Amonett is an absolute nullity, and the succession of Ferriby Smith is entitled to recover, as damages, from Amonett Sy White, one half of the rents and profits due since the adjudication, at the rate of $800 a year.

The claim of Fisk cannot be viewed as a community debt. Glcndy Burke, a partner of the firm of Burke, Watt & Co., testifies that, in 1840 and 1841, after the date of the notes held by Fisk, his firm received from Deahl crops of cotton more than sufficient to pay them; and the circumstance that, instead of applying their proceeds to the payment of the debt, they saw fit to pay them over to Deahl, and to give him personally credit for the notes, clearly amounts to a novation, by which the community would have been discharged, if if: was over liable, a fact not made certain.

It is proved that only fifteen of the slaves purchased by Fisk belong to the community. These he must return, in order that a partition may be effected between him and the plaintiffs. He must moreover account to the succession of Ferriby Smith, at the rate of $350 a year-, since the date of his purchase, for one half of the assessed value of the hire of said slaves.

The four lots of land sold by Graham to Deahl, in 1834, are described in the act of saleas being nos. 53, 54, 55, and 56, in township no. 15, of range no. 13 east. It appears that there was no lot bearing no. 56 on the plat of survey of that township, and that the lot intended to be conveyed was no. 52. After the death of Ferriby Smith, Graham,, by a notarial act passed between him and Deahl, recognized the error, and conveyed to the latter no. 52, in execution of the previous contract, and for the consideration therein stated. This act intended to give effect to the original sale by correcting an error in the description of the property sold, did not take lot no. 52 out of the community. The circumstance that Graham acquired a perfect title to that lot, after 1834, cannot affect theunghts of the succession of Ferriby Smith; the title when acquired, inured to its benefit.

Slaughter appears to have purchased the property in good faith, and is entitled to be paid for the useful improvements made by him. We will allow, as an ample compensation for those improvements, the crops of 1842 and 1843, received by his executor after the institution of this suit.

The succession of Ferriby Smith, is entitled to one undivided half of lots nos. 52, 53, 54 and 55, and of the two slaves, Doctor Gilbert and Hannah, in the possession of the succession of Slaughter. It is also entitled to one undivided half of fifteen of the slaves in the possession of Fisk, and to the damages due by Fisk, Amonett and White; but, as it is proved that the community which existed between Deahl and his wife is largely indebted, those assets must be sold to pay those debts; and, as the joint owners of the land and slaves have not asked a division in kind, the decree of the court will-be that the property be sold to effect the partition.

The plaintiffs allege themselves to be beneficiary heirs. On this allegation they are not entitled to the possession of the property, and, before their residuary rights can be ascertained, the succession of Ferriby Smith must be regularly administered.

For the reasons assigned it is ordered, that the judgment be reversed; that the succession of Ferriby Smith recover from William Amonett and Benjamin F. White, insólido, the sum of four hundred dollars a year, from the 3d of July, 1844, until paid, and from Alvarez Fisk, the sum of $350 ayear, from the 5th of August 1843, until paid. It is further ordered that William Amonett, dative testamentary executor of Robert Slaughter, surrender in execution to the sheriff, lots nos. 52, 53, 54 and 55, in township no. 15, of range no. 13 east, in the land district north of Red River, and that a writ of distringas issue if necessary against the executor personally to enforce this decree. It is further ordered that Alvarez Fisk surrender in execution to the sheriff, the fifteen slaves whose names follow: Peter, Albert, Julia, Catherine, Lucinda, Lucy, Abram, Fanny, Leach, Sally, Peter, an infant, Bob, little Maria and her child; and that a writ of distringas issue if necessary to enforce this decree. It is further ordered, that the sheriff proceed to advertise and sell the property surrendered, in the manner pointed out by law in casos of partition; that one half of the nettproceeds of the sale be paid over to the succession of Ferriby Smith; that one half of the nett proceeds of the property surrendered by the succession of Slaughter, be paid over to his executor ; and that one half of the nett proceeds of the slaves surrendered by Fisk, after deducting therefrom whatever he may owe the succession of Ferriby Smith under this decree, be paid over to him. It is further ordered, that the improvements made by Robert Slaughter on the land, be cornpensated with the crops of 1842 and 1843, received by his executor. It is further ordered, that the rights of the succession of Slaughter, against the succession of George Deahl, and also against Francis 1. Thompson, by reason of their warranty, be reserved. It is further ordered that, in order to carry this decree into effect, this case be remanded, withdirection to the District Court to appoint an administrator to the succession of Ferriby Smith according to law. It is further ordered, that the administrator thus appointed represent the succession in the execution of this decree ; and that, after payment in due course of administration of one half of the debts of the community, which existed be. tween George Deahl and Farriby Smith, he be made to account to the plaintiffs, in equal shares, for any balance in his hands.

It is further ordered, that the interventions of Thomas W. Amonett, and of Rogers, be dismissed at their costs; and that one half of the costs in both courts be paid, in solido, by William Amonett and Benjamin F. While, the other half to be paid in equal sharos by Alvarez Fisk, the succession of Slaughter, and the successions of Ferriby Smith. It is finally ordered, that the rights of the succession of Ferriby Smith to the slaves, Doctor Gilbert, and Hannah, be reserved.


text:
    Amonett et al. v. Fisk.
    A transferee of a mortgage executed to secure the endorsers of a note, cannot proceed against the mortgaged property in the hands of a third person, where there is no proof that the endorsers had paid any part of the note, nor that the succession of the mortgagor was insolvent.
    APPEAL from the District Court of Madison, Curry, J.

      Amonett for the appellants. Pepper, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This case originates in that of Morris v. Covington, just determined. The plaintiffs seek to compel the defendant to return the slaves which he received from the succession of Slaughter, in satisfaction of the claim transferred to him by Burke, Watt & Co., in order to make them liable to the mortgage given by Deahl to his endorsers. We have said in the former case, that Amonett had acquired no title to any portion of this mortgage. The claim as to the other plaintiff, is ¡¡remature. Nothing shows that the assets remaining in the hands of the executor of Slaughter, are not sufficient to pay this claim. The plaintiffs’ action was properly dismissed. Judgment affirmed.


author: SniDEim, J.

text:
    Richards et al. v. Presler.
    In tlio absence of any proof of the residence of the parties to a note, and of any specification of tho placo of payment, the legality of the rate of interest stipulated-in the note must be determined by the laws of the State in which it was dated.
    Eight percent a year is the highest rate of interest allowed by the laws of Mississippi, except in case of notes, or other written contracts, signed by the debtor, for the lona fide loan of money, when ten per cent may be stipulated; and in these cases, the note or writing must express that it is for money loaned. Stat. of Miss, of 25 June, 1822.
    By the laws of Mississippi, in case of an usurious contract, the principal only can be recovered. Stat. 25 Juno, 1822.
    By the stat. of 19Eeb’y, 1844, no stipulation for cor.ventionalinterest at a higher rate than eight per centa year canbe made, under the penalty of forfeiting the whole amount of interest.
    Appeal from the District Court of Concordia, Curry, J.

      Stacy and Sparrow, for the plaintiffs. T. P. Farrar, for the defendant,
    cited stat, of Miss, of 25 June, 1822, and Coxe v. Eowly, 12 Rob. 273.
   The judgment of the court was pronounced by

SniDEim, J.

This suit is brought upon three promissory notes drawn by the defendant and others, in solido, in favor of the plaintiffs, at twelve, twenty-four, and thirty-six months after date. They are dated at Fort Adams, in Mississippi, 11 February, 1841; no place of payment is specified, and they stipulate interest at ton per cent after maturity. The defence rests upon a plea of usury, under the statute of Mississippi.

At the trial of the cause, the notes were offered in evidence, and the Mississippi statute of 1822, regulating the subject of interest. It was admitted that Fort Adams was in the State of Mississippi, and that the defendant, at the institution of the suit, was living in Louisiana. But it is not pi’oved that, at the time of making the conti’act, either of the parties lived out of Mississippi, or that the place of performance was to be out of that State.

Under the statute of Mississippi, we consider the agreement to pay ton per cent, usurious ; and, we are of opinion that, under the state of facts above presented, the law of Mississippi must govern the contract, and determine its legal effect. Eight per cent per annum is the highest rate permitted by the statute, except in case of notes or other written contracts, signed by the debtor-, for the bond fide loan of money, in which case ten per cent may be agreed on. We have not been aided with authority from the decisions of that State, and the text of the statute is our only guide. As we understand its language, the note or writing-must, in such cases, express that it is for money loaned. The present contracts do not fall, therefore, within the exception. Under the statute, the principal only can be recovered, in case of a usurious contract.

But the plaintiffs contend that, having brought suit in a court of this State, they are entitled to interest from judicial demand according to the law of the forum; that such interestappertains to the remedy,and constitutes no part of the contract. We deem the question immaterial in this case, which law ought tobe applied; for both are against the plaintiffs. If we look to the statute of Mississippi, no interest whatever can be allowed; if we treat the matter as remedial, then the rule of the domestic forum, which allows interest on lawful contracts for the payment of money from judicial demand, cannot be extended to a contract tainted with usury, without violating the declared policy of our own statute. Upon usurious contracts made in our own State, the act of 1844, enacted before the institution of this suit, imposes the for feiture of theentire interest so contracted. An usurious foreign contract should not be more favorably .considered in our courts than a domestic one.

It is therefore decreed, that the judgment of the court, so far only as it allows interest from judicial demand, be reversed, and that, :in other respects, the said judgment be affirmed, the plaintiffs paying the costs of this appeal.


author: Kjkg, I.

text:
    Splane, Curator, v. Mitcheltree.
    One aware that another had purchased land from a third person, and that the purchaser was in possession, but bad failed to have bis title recorded in the parish in which the land was situated, from whatever source such knowledge may have been derived, can acquire no title to the property to the prejudice of the purchaser.
    Appeal from the District Court of St, Martin, Boyce, J.
    JR. N., and A. N. Ogden, for the appellant,
    contended that the judgment of the lower court was erroneous, plaintifis being clearly entitled to judgment for one-half of the land.

      Simon and Morphy, for the defendant.

      In cases of mortgages, it has been decided that, whatever might have been the effect of a want of registry of the contract, in pursuance of which the plaintiff proceeded to do the work undertaken by him, to defeat his claim of privilege, &e. the defendant cannot profit by the alleged defect of recording, where knowledge of the existence of the privilege had been brought home to 1he latter, from its being noticed in the act of sale from the vendors to him. Carker v. Walden, 6 Mart. N. S. 713. It is now a settled i'ule, that a purchaser, with a knowledge of an existing mortgage, cannot avail himself oj the xvanl of registry. Planters'1 Bank of Georgia v. Allard, 8 Malt. N. S. 136, and the authorities therein cited. See also 6 Robinson, 88, -case of Radial v. Normand, et al.

      In cases of sales: An actions sd<ng privé, accompanied by possession, has effect against third persons. Case of Ron Lin v. Saha tier etal., Syndics. 6 Mart. N. S. 429. Notice to a third party, who purchases ata sale, of prior title, is sufficient to hold the property, although the title ma/y not be regularly recorded-, if •such notice be given at or before the sale. Bell v. Horn et al., 8 Mart- N. S. 243. Purchasers of property, who collude xoiih the vendor in the sale of it, with the view to defraud the true owaer, cannot avail themselves of the omission to record the act of partnership under which the property is claimed. Millaudon v. Sylvester el al., 8 La. 262.
    This case appears, from the position taken on the appeal by the plaintiff’s counsel, to resolve itself into a question of costs in this court; but we respectfully submit whether, if the lower court has, through error, allowed the defendant more land than he has shown a title to, tohich title was specially pleaded in Ms answer, it was not the duty of the plaintiff to move for a new trial below, to correct the error, thus showing that lie did not persist in his original demand jfor the whole land. Code of Practice, arts. 546, 547,557,558.
   The judgment of the court was pronounced by

Kjkg, I.

This is a petitory action, instituted by the plaintiff, as curator of the succession of Maxwell, to recover a tract of land, to which lie alleges that the defendant asserts title. The defendant, in his answer, pleads the general issue, and .avers that he is the owner of the land in controversy, in virtue of a valid conveyance from W. D. Campbell, by act under private signature, duty registered, under which he took immediate possession, which he has held without interruption ever since. He further alleges that Maxwell, well knowing his ^6’ Abided with his vendor, Campbell, and procured a transfer from the latter to himself of the land in contest, with the view of cheating and defrauding the defendant. A judgment was rendered in favor of the defendant in the court below, and the plaintiff has appealed.

It is shown by the evidence, that Campbell, who was the owner of a quarter section of land situated in the parish of St. MartiD, by an act under private signature, conveyed the east half of the tract to 'the defendant, who, immediately after the purchase, took possession of the land thus acquired, which possession he has held without interruption since that time. The act of sale was not proved and recorded in the parish of St. Martin until the 31stof July, 1841. Maxwell, who was aware of the ownership and possession of the defendant, and that the title o'f the latter had not been duly registered, took a conveyance from Campbell, the defendant’s vendor, of the entire quarter section, by an authentic act, which he caused to be recorded in the parish of St. Martin, on the lGth of July, 1841, prior to the registry of the defendant’s title in that parish. About the time that this sale was made to him, he stated to one of the witnesses, that he had the advantage of the defendant; that the latter had neglected to have his sale recorded in the proper parish; and that he (Maxwell) would start the pext morning before day-light to St. Martin, to have the sale from Campbell to himself recorded. The testimony of this witness is corroborated by that of others, and leaves no doubt that Maxwell was, at the time of the conveyance to himself, fully informed of the defendant’s ownership and possession of one-half of the land in question. Possessing this knowledge, whether derived from the public records or from other sources, he could scquire no title to the prejudice of the defendant. But the bad faith of Maxwell affected his title only to that half of the quarter section of land which was"acquired by the defendant; for the remaining half, the conveyance to him was valid, and toThatjsxtenthe^wasientitled to^recover. The judgment of the lower court, rejecting the plaintiff’s claim for the west half of the quarter section of land in controversy, is erroneous.

Jt is therefore ordered that, the judgment of the District Court be avoided and reversed. It is further decreed that, the succession of William Maxwell, deceased, be the owner of the west half of the lot, or north-west quarter of the section numbered thirty-six, in township number eleven, south, of range number .eleven, east, and that .the defendant be quieted in his title and possession of the east half of said lot or quarter soction. It is further ordered that the defendant pay the costs of both courts.


text:
    Scott et al. v. Rusk.
    A party who resides out of the State may appeal at any time within two years from the date ' of the judgment
    A salo omnium bonorum is not a contract in the usual course of business, and, when it is as. . sailed, parties claiming under it are bound to establish its reality by proper evidence.
    Where a surviving wife takes possession of property of the matrimonial community, after the death of her husband, uses it as her own, and attempts to conceal and withhold it from the succession of her husband, she will render liersclfliablo thereby for one half of the debts of the community.

      APPEAL from tlie District Court of Madison, Curry. J.

      Pepper, for the appellants,
    to establish the responsibility of the wife for one half of the community debts, cited the Civil Code, art. 2382. Flood v. Shamlurg, 3 Mart. N. S. 622. Chapman v. Kimball, 6 Rob. 94. Lynch v. Benton, 12 Rob. 113.

      A. Pierse, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The motion to dismiss made in this case must be overruled; the plaintiffs reside out of the State, and appealed within two years from the date of the judgment.

The plaintiffs seek to render the defendant responsible for the amount of a written obligation given by her late husband for goods furnished to the community, on the ground that she has intermeddled in the affairs of the community, and taken possession of all the property thereto belonging, without having caused an inventory to be made. The answer is a general denial. The court below gave judgment in favor of the defendant, and the plaintiffs appealed.

It is in proof that James B. Rusk, on the 2d day of December, 1837, was the owner of two houses and lots, four slaves, a stock of goods, furniture and other personal property, all of which he, on that day, pretended to convey by public act to one Charles M. Burlancl, his brother-in-law, for the sum of $24,500, for which amount Burland gave to Rusk four promissory notes for $6,125 each, the first payable on the 1st day of January, 1842, and the others annually thereafter; to secure the payment of which notes a mortgage was retained on all of said property.

From the time this sale took place, Rusk and the defendant lived in the dwelling house, and controlled the property embraced in the act of sale, until the death of Rusk, which took place on the 1st April, 1839, and the defendant continued in posses sion afterwards.

In the meantime, however, the defendant and C. M. Burland, her brother, made a conveyance of all the above mentioned real property and slaves, and one section of new land, which had been entered in the name of Burland after his purchase from Rusk, to one H. P. Morancy, in full consideration for which they acknowledged the receipt of $2,073. In this deed, they warranted the property free from all encumbrances, and afterwards Morancy re-conveyed to the defendant all said property, except the section of land which he retained, and one slave, who was conveyed to Burland.

In this re-transfer, it is stated that the sale to Morancy was intended to operate merely as a mortgage, to secure a debt due to him by James B. Rusk, for $1,573, and $500 more, which he had paid to raise a mortgage on the property. It is further recited in this act, “that C. M. Burland had previously made a deed of gift of all said property, including the section of land, to the defendant; but, in as much as Burland was always the rightful owner of this land," defendant relinquished to him the balance of the price to be paid by Morancy, which in all amounted to $3,500. It is also in proof that the notes given by Burland to Rusk had not been presented for payment at the time this case was tried in the court below, though some of them were due at that time.

A sale omnium bonorum is not a contract in the usual course of busiuess, and when it is assailed, parties claiming under it are bound to establish its reality by proper evidence. This has not been attempted in this case. On the contrary, the evidence shows that, after the sale, the defendant and her husband continued to enjoy the property as before, till he died, and that she has continued to enjoy it ever since. Burlamd, the brother, who, it is pretended, gave it to her, lived at her house, and had no means; and the fact that the property was transferred to her free from encumbrances, necessarily implies the destruction of the notes stated to have been given by Burland to Rusk, and not due at the time of the death of the latter.

We had hoped that the stern rebuke which transactions such as this uniformly receive from this court, would, ere this, have satisfied parties and their counsel, that they were not a profitable source of litigation. We deplore the ruin brought upon a woman in this case by her advisers, but we have not the means of saving.her; we believe the contracts adduced in evidence to be barefaced simulations, and it is our duty to say so. The property therein described has never ceased to form part of the acquits and gains, and the defendant, by retaining and using, it as her own, without having caused any inventory to be made, and by attempting to conceal it and withhold it from the succession of her husband, has made herself liable for one-half of the community debts. The claim of the plaintiffs for the other half, must be exercised against the heirs or legal representatives of the husband.

It is therefore ordered that the judgmeut be reversed, and that there be judgment in favor of the plaintiffs, against the defendant, for the sum of $432 21, with legal interest thereon from the 13th day of November, 1841, till paid, and costs in both courts. It is further ordered that the rights of the. plaintiffs against the heirs and legal representatives of James B. Rusk, for the remainder of their claim, be reserved.


author: Kino, J.

text:
    Succession of Briscoe.
    Where an illegitimate child, not acknowledged by either parent, dies without issue, his-estate will devolve upon his surviving wife, not separated from bed and board. C. C. 911, 918.
    In tbe appointment of an administrator, tbe beneficiary hem, of age, and present in tbe State, must be preferred to every other person. C. C. 1035. Whore there is but one beneficiary heir, this right of preference entitles him-to the exclusive administration of the succession.
    Appeal from the District Court of Madison, Selby, J.

      R. C. Downes, for the appellant,
    cited Civil Code, arts. 911, 918, to show the heirship op the appellant, and arts. 1035, 1114, to establish her exclusive right to the administration, as sole beneficiary heir.

      Pepper and Bemis, on the same side.

      Thomas, contrir.
   The judgment of the court was pronounced by

Kino, J.

Samuel Briscoe claimed the administration of the succession of John Briseoe, alleging that he was a half brother of the deceased. His application was opposed by Martha J. Briscoe, the surviving widow of the deceased, who asserted that she was the beneficiary heir of her husband, and, as such, entitled to the exclusive administration, which she claimed. The court below appointed both of the applicants jointly, and Martha J. Briscoe has appealed.

It appears from the evidence that John Briscoe was an illegitimate child; that he was legally married to the appellant, from whom he was not separated from-bed and board, and that he died without issue. There is no proof that he was-acknowledged by his father or mother. Samuel Briscoe, who is the legitimate son of the common father, is not the heir of his illegitimate brother, nor does he claim in his petition to stand in that relation to him. The succession of the deceased then devolved by law on his widow, who has accepted it with the benefit of inventory, and claimed to be put in possession. Civil Code, arts. 911, 918. In the appointment of administrators, the beneficiary heir of age and present in the State, is preferred, to every other person. Civil Code, art. 1035. The judge below appears to have considered that the appellant presented no superior claim, and that he was authorized to appoint two persons to the administration. We think he erred. The right conferred by law on the beneficiary heir is a preference, which, when claimed, excludes all others from paticipating in the administration. The appellant, as the sole beneficiary heir of the deceased, is entitled to the exclusive administration of his succession.

It is therefore ordered that so much of the judgment of the District Court as confers upon Samuel Briscoe the appointment of a joint administrator of the succession of the late John Briscoe deceased, be avoided and reversed. It is further ordered that so much of said judgment as confers upon Martha J. Briscoe the appointment of administratrix of said succession, be affirmed, and that she have the exclusive administration thereof; the appellee paying the costs of both courts.


text:
    Freeman v. Savage et al.
    Plaintiff sold property to defendant for a certain price, on credit, taking an endorsed note for the amount. A creditor of the' latter having seized the property under a fi- fa., plaintiff enjoined the proceedings, claiming to be the owner, under a deed from defendant to him by which the property was reconveyed for the amount of the note; but the injunction was dissolved, the reconveyance being considered as simulated. In an action by the plaintiff, against the endorsers on the original note: Held, that whether the reconveyance was executed in good faith, or was simulated to defeat the rights of the seizing creditor, plaintiff cannot be permitted to treat it as other than genuine, and that, considered as such, it extinguished the note.
    APPEAL from the District Court of Carroll, Wilson, J.

      T,J. Lacy and Bemiss, for the appellant.

      Selby, for the defendants. Thomas, on the same side,
    contended that the note sued on was extinguished by the plaintiff’s re-purchase of the property, for the price of which it was executed.
   The judgment of the court was pronounced by

SniDEim, J.

This suit is brought against the maker and endorsers of a promissory note for §2400, dated December 21st, 1840, and payable 1st February, 1842. Savage, the maker, was dismissed upon a plea to tire jurisdiction, and the suit was tried against the endorsers, who had judgment in their favor in the court below. The plaintiff has appealed.

This note was paraphed ne varietur, as is usual in case of mortgage notes, and it satisfactorily appears from the evidence before us that its consideration was a sale of certain slaves by Freeman to Savage. In the year 1843, a judgmouu v" Editor of Savage, one Wade, seized the slaves under execution, when Freeman arrested the judicial sale by injunction, alleging, under oath, that he was the lawful owner of the slaves. He prayed for a decree recognizing him as the lawful owner of tho slaves, and demanded their release from execution, and restoration to him. To sustain his claim as owner, thus alleged under oath, Freeman offered in evidence, at the trial of the injunction, a document executed by Savage in Freeman’s favor, purporting to bear date the 10th March, 1841, by which for and in consideration of $2400, the exact amount of the note upon which this suit is brought, certain slaves therein described are sold and declared to be delivered by Savage to Freeman.

Whether this instrument re-conveying the slaves was really executed in good faith, and at the time of its date, by Preeman to Savage, and a real delivery of the negroes was then made, as therein declared, or whether, on the other hand, the sworn petition in the injunction suit was false, and the document thus offered to sustain it, was a mere simulation, contrived and executed to defeat the rights of Wade, are questions which the plaintiff cannot be permitted to raise. We must therefore consider the document as true, and as exhibiting, what it purports to establish, a sale and delivery to Freeman of the negroes, the original sale of which was the consideration of the note upon which this suit was brought. Thus, according to the plaintiff’s own showing, there was a retro-cession extinguishing the note. We wish not to be understood as saying that we believe this instrument was really executed as it purports to be. We express no opinion on that question. We have considered it in the only light in which the plaintiff can be permitted to treat it, as genuine and true. That it was ineffectual in the suit against Wade, is no reason why the plaintiff in this cause should be permitted to question its genuineness or truth. What he has thus said and done, the policy of the law will not allow him to gainsay or deny.

Judgment affirmed.-


author: Slidell, J.

text:
    Scott v. Niblett.
    Decision in Spenser v. Knowland, ante p. 222, affirmed.
    Appeal from the District Court ef Madison, Selby, J.

      Thomas and Snyder, for the plaintiff,
    cited Spencer V. Knowland, ante p. 222, as decisive of this case.

      Garland and Pepper, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

An order of seizure and sale was obtained upon a judgment in favor of Niblett against Scott in the United States Court, in the State of Mississippi. The judgment did not express on its face that it bore interest, but the plaintiff, in the executory proceeding, exhibited with the record an authenticated copy of a statute of Mississippi, passsed several years before the rendition of the judgment, which allowed interest on judgments at eight per cent. This rate was accordingly allowed by the order of seizure and sale.

We think the order of seizure improperly issued in this respect. See the case of Spencer v. Knowland, ante p. 222. If the creditor had asked us to maintain the order of seizure and sale as to the capital sum, abandoning the interest, it might then have become necessary to examine the points made as to the character of the judgment, and the authentication of the transcript. There being no such application, we confirm the judgment of the court below rendering the injunction perpetual.

As some doubt might arise from the phraseology of the injunction thus rendered perpetual and the proceedings in the cause, as to the force and effect of the judgment appealed from, we think proper to say, in affirming it,.that we consider it simply as determining that the order of seizure and sale in question illegally issued, and that it does not form res judicata as to the force and effect of the judgment rendered in Mississippi. Judgment affirmed.


author: Eustis, C. J.

text:
    Devall v. Boatner.
    An intervenor is not entitled to make his warrantor a party to the action. C. P. 389, et seq.

    APPEAL from the District Court of East Baton Rouge, Johnson, J. This was an action to recover from the defendant the amount of two notes, executed by her for the price of slaves sold to her by the plaintiff. The defence was the danger of eviction, from a claim to the slaves set up by a third person. The tutor of the minor heirs of Mary Peirce, late wife of one Constantine Peirce, .intervened, alleging that Mary Peirce inherited the slaves from one Sarah Rowel, her aunt; that she continued in possession of them until her possession was divested, by a sale made under an order of seizure and sale, obtained on a mortgage given to secure the amount of a bond executed in favor of the City Bank of New Orleans: that the bond and mortgage were null and void, having been executed by the said Mary Peirce, as surety for her husband, from fear of her husband, to the knowledge of the officers of the bank; that the slaves were purchased by one Reid, with a knowledge of the facts just stated; and that the plaintiff purchased the slaves at a sale made by the syndic of the creditors of Reid, also well knowing said facts, and afterwards sold them to the defendant. The intervention concludes with a prayer that the said sales may be declared null, and the slaves adjudged to be the property of the minors represented by the intervenor. The plaintiff, in answer to the intervention, alleged that the order of seizure and sale in favor of the City Bnak was res judicata, and had divested all the interest of Mary Peirce, and that the validity of the judgment cannot bo enquired into collaterally in this action. The defendant adopted the allegations of the intervenor, alleging their truth. The intervenor, by an amended petition, prayed that the City Bank of New Orleans might be made a party to the suit, in order that judgment might be rendered annulling the order of seizure and sale obtained by the bank. The judge refused to allow the amended petition to be filed, and, by consent, the case is brought up on appeal from that refusal.

      Elam, for the plaintiff.
    The intervenor had no right to call jn a third parly, to aid him to assert his rights against the original parties to the suit. Code of Practice, art. 389 to' 394. Nor for the purpose of obtaining judgment against such party. If this could be allowed to the intervenor, the City Bank could claim the same right, and thus the cause might be indefinitely delayed, when the law requires an intervenor to be always ready, because he has always his remedy by a separate action. . C. P. art. 391. If the mortgage of the City Bank was tainted with fraud, it was voidable, not void. Civil Code, art. 1875; and the obligation having been earned into effect by a judgment rendered by a court of competent jurisdiction, not appealed from and unreversed, a sale made in pursuance thereof vested a valid title in the purchaser. 5 Mart. N. S. 214. 14 La. 440. 1 Robinson, 94. The law under which the bond and mortgage was executed to the bank, removed every legal disability from Mary Pierce. Act of 1827, secs. 22, 23, page 114; act of 1831, sec. 8, page 36. The intervenor’s remedy, if any he has, is by a direct action against the bank; the question of fraud, between the bank and the intervenor, cannot be examined in this action. If examined and found true, the title to the slaves could not be effected ther'eby; the judgment under which they were sold is a conclusive bar against Mary Pierce and her heirs. 11 Mart. 6.07. 5 Mart. N. S. 664. 14 La. 233. 19 La. 328. 10 Peters, 4C9. *

      Lawson, Boatner, Merrick and Muse, for the appellants.
    The intervenor, having been allowed to appear in the suit, was entitled to all the rights of one of the original parties, and the amendment should have been allowed. An intervenor has a right to amend. Succession of Baum, 11 Rob. 323.
   The judgment of the court was pronounced by

Eustis, C. J.

It being agreed by counsel, that this court decide on the correctness of the order of the District Court, in refusing to grant leave to the intervenor to make the City Bank of New Orleans a party to this suit, by reason of the said consent given, and in virtue of articles 389 et seq. of the Code of Practice, it is considered by the court that the District Court did not err in refusing the prayer of the intervenors.

The judgment appealed from is therefore affirmed, the intervenors paying the costs of this appeal, and the the case is remanded for further proceedings.


text:
    Police Jury of East Feliciana v. Taylor et al.
    Defendants sued as principal and surety on a bond, by which they bound themselves to keep a bridge in repair for a certain time, moved the court for a new trial, on the ground that they had discovered, since the trial, a written compromise, which had been signed by the plaintiffs, and the principal in the bond, settling the matters in dispute between the parties : Held, that anew trial should notbe allowed, as the instrument could not have existed without the defendants’ knowledge, and should have been pleaded in their answer.
    Defendant, having built a bridge by contract, on the refusal of plaintiffs to receive it on the ground of its not having been erected in conformity to the agreement, executed a bond by which be bound himselfto keep it in a good condition for a certain time, before the expiration of which it was destroyed by a freshet. The witnesses examined on the trial, thought that the freshet was not an irresistible force: Held, that the bond was conclusive evidence that the bridge was defective, and that defendant had not complied with his contract, and that the loss ought to fall on the party in fault at the time the bridge was destroyed. C. C. 1927, § 4. ,
    APPEAL from the District Court of East Feliciana, Johnson, J. The material facts in the case, are stated in the opinion delivered by Rost, J., infra. Ajudgmenthaving been rendered against the defendants, theymoved the court for a new trial: “First, because the verdict was contrary to law and evidence: Secondly, because, since the trial, the defendant Taylor had discovered that, about the 15th of November, 1843, he had entered into a compromise or agreement with a committee of the Police Jury, acting by their authority in the matter, by which they agreed to pay him $400, as a compensation for building said bridge, and which was accepted by Taylor, and signed by the parties, and was annexed. The defendants further aver that, after accepting the propositions made to him, the defendant Taylor forwarded the same to the Police Jury, who supposed they had retained it, and refused to abide by their own proposition after it was accepted; that he continued under that impression until after the trial, when his attention was called to the matter by one of the police jury.” The statements in this motion wore sworn to by Taylor, who further deposed, that the agreement has been returned to him by one Pettiss, who stated to him that the Police Jury declined to abide by it. The compromise referred to is in these words: ■
    “ We the undersigned committee, appointed by tho Police Jury of the parish of East Feliciana, La., to make a final settlement with Isaac Taylor for building the (“Comite Bridge”) bridge across tho Comite by said Taylor, new John Carr's, do agree to allow said Taylor the sum offour hundred dollars, and that the same be, and is to be, a privilege claim upon said parish, for said amount; and I, the ssid Isaac Taylor, agree to said settlement, provided said sum be allowed me as aforesaid and considered a privilege claim.
    November 16th, 1843.
    I accept the proposal.
    Isaac Tatlor.”
    Wm. Sandel, Wh. Griffith,

      Committee*

    A new trial having been refused, tho defendants appealed.

      Z. S. Lyons, for the plaintiffs.
    The bond was not a warranty, but an obligation on tire part of Taylor, to repair the known and visible defects of the bridge, which had already condemned it, on condition that, it should be received in its then condition. C.C.arts. 1951, 1952. As aman binds himself so is he bound. The motion for a new trial was properly overruled. Under the pleadings, the paper alleged to have been found could not have been received in- evidence. 4 Mart. 512, 7 La. 84. 10 La. 155, 7 Rob. 56. The paper is nothing more than an imperfect agreement to compromise, in the possession of Taylor, and consequently his acceptance not commnicated to plaintiffs. Fraud on the part of plaintiffs is neither alleged nor proven. There is no error, either in fact or in law, to- invalidate tho transaction. A party who alleges an error must prove the error. 6 Mart. N. S. 206. Even error in law will not protect the obligee, if the contract entered into is to prevent litigation. C. C. art. 1840. no. 2. 5 La. 513.

      Lawson and Merrick, for the appellants.
    The resolution of the Police Jury and the bond should be construed only as warranty of the workmanship, and, at the most, against the ordinary stages of high water, and not against such a flood as that of 1843, which was unprecedented in its height. The contractor is bound to warrant only against the badness of the materials and workmanship. Civil Code, arts. 2730 to 2733. Fremont v. Harris, 9 Rob. 23. 1 Pothier, Obi. no. 163. Code Nap. art. 1792. Pothier, Contr. de Louage, nos. 425, 426. The lessee is not- bound for fortuitous events. C. C. art. 2687. But the Napoleon Code has a provision, that the lessee may charge himself with the'm by an express stipulation. The commentators say that this clause may be either against fortuitous events, or against fortuitous events, foreseen and unforeseen ; that where there is an express stipulation against fortuitous events, it covers those which may be foreseen. Where it is express against fortuitous events, foreseen or unforeseen, it then covers accidents of every kind. Troplong, Louage, nos. 755, 756. In the case under consideration, there is no express warranty against fortuitous events at all; and the fair intendment of the warranty is as to the workmanship and materials, and not against floods greater than were ever previously known, and which could not have been anticipated or foreseen. The motive of Taylor for executing the bond, was the belief that he was bound in warranty, when in fact he was not. Therefore, there was no valid consent given, and the bond is a mere nullity. La. Code, art. 1818. Berard’s Heirs v. Berard, 2 La. 1. Barrow v. Cazeux, 5 La. 72.
   The judgment of the court was pronounced by

Rost, J.

On the 12th day of September, 1840, the defendants gave their bond to the plaintiffs for tho sum of $900, conditioned as follows:

“Whereas the above bound Isaac Taylor, has this day received a draft on the parish treasurer of the aforesaid parish, for the sum of $600, which draft was given by order of the police jury of the aforesaid parish, for and in consideration of the said Isaac Taylor's having built a bridge over the Comite, near the plantation of John Carr, which bridge was reported unfavorably of by the bridge committee appointed for the purpose, which bridge the said Taylor agrees to warrant for the term of five years, from the 1st day of February, 1840.

“Now the condition of the above bond is such that, should the said Taylor keep the aforesaid bridge in a good and safe condition, and the abutments thereto in a good condition, for the term of five years, and leave the same in a good and passable condition to the public use, then this obligation to be void, else to remain in full force and virtue.”

In 1842, the bridge was damaged by a freshet, and Taylor, having been put in default, partially repaired the damage. In 1843, another freshet carried away the bridge, and Taylor, having refused- to rebuild it, was again put in default, and the plaintiffs instituted this action on the bond, praying, at the sainé time, that the warrant of $600 given him on the parish treasurer, and still unpaid, might be returned and cancelled. The defendants answered by a general denial, averred that the bond had been given by them in error, that the bridge had been built according to contract, and that it was destroyed by irresistible force, against which they did not warrant. The cause was tried before. a jury, who gave a special verdict in favor of the plaintiffs for the amount of the warrant, and that the same be given up and cancelled. Judgment was rendered accordingly, and the defendants, having failed in their application for a new trial, took the present appeal.

The motion for a new trial was properly overruled. The contract, stated to have been found after the verdict was rendered, could not exist without the defondants’ knowledge, and should have been pleaded in the answer.

We cannot go into the enquiry whether the bond sued upon was given in error; there is no evidence of that fact in the record. As the defendants bound themselves, they must remain bound; and the bond is conclusive evidence that the bridge was defective, and that the defendant Taylor had not complied with his contract.

Whether the freshet, by which the bridge was carried away, was an irresistible force, is a matter of conjecture. The witnesses think that it was not, and that the bridge might have been built so as to withstand it. Freshets seem to be of frequent occurrence on that river, and the experience of the witnesses gives much weight to their testimony.

This is a hard case,, whichever way it may be decided. The jury appear to have considered that the loss ought to fall on the party in fault at the time the bridge was destroyed; and in this they made a correct application of the law to the facts before them. Civil Code, art. 1927, no. 4. Judgment affirmed.


text:
    Elam v. Carruth.
    Where the act of an agent, done without the authority of the principal, is ratified, the ratification cannot be divided, and applied to one partofthe act and excluded from the other. It is entire or nothing.
    Appeal from the District Court of St. Helena, Jones, J.

      Elam, plaintiff, fro se. A. Ilennen and T. O. Morgan, on the same side. Baylies, for the defendant. Merricls, for the intervenor and appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on a promissory note for 3P4'53 22, drawn by the defendant to the order of T. Q. Davidson, and by him endorsed in blank. The defence is that, the note was given to the plaintiff to satisfy a judgment which Berthoud held against him, the defendant; that the plaintiff, who was at the time Berthoud’s attorney at law, agreed to enter satisfaction on the judgment, which was not done, and that defendant has since paid said judgment. In this suit, Berthoud, the owner of the judgment against the defendant, in satisfaction of which the note is said to have been given, intervenes, and prays that he may have judgment, in the stead of Elam, for the amount of the note against the defendant.

The judge of the District Court considered that one-half the note belonged to the plaintiff in his own right, gave judgment to that effect, and the intervenor has appealed. The judge considered that the other half of the note belonged to the intervenor, and had been, by his agent, remitted to the defendant, who has not appealed, but appeared in this court.

It is obvious that, by claiming the note as belonging to him, Berthoud ratified its reception by his attorney, the present plaintiff. The discharge of the judgment given by Elam to the defendant, was, therefore, valid. When the act of an ■agent, done without the authority of the principal, is ratified, the ratification ■cannot be divided and applied to one part of the act and excluded from the other; it is entire or nothing.

It is equally clear that the offer of Bailey, Berthoud’s agent, for Elam’s compensation, did not relate exclusively to his professional services; nor did Elam agree to make his compensation dependent on the event of any suit, or to take any part of the property in litigation. Tho letter of Bailey was an offer on his part, and the district judge may well have considered it a safe guide for a compensation, ex esquo et hono, for a troublesome and complicated law suit, in which the ■labor and time of the plaintiff had been expended, and have allowed him the sum of 35226 61, and interest from the time of the termination of the litigation. The intervenor says this allowance is excessive. We do not understand that the fact of the services is drawn in question, and have no evidence before us of ¿he excess of the charge. On the contrary, a subsequent letter from the agent of the intervenor to the plaintiff, fortifies the justice of his claim, which we see n0 good reason to prevent him from recovering from the succession of Carruth, in the form of the present judgment, particularly as the defendant has made no plea ■or objection as to the division of the debt. We determine this case independently of the validity of any agreement which Elam is supposed to haye made for his fee, because no such agreement is proved.

The judgment of the District Court is therefore affirmed, so far as relates to the judgment in favor of the plaintiff against the defendant, the succession of J. J. Carruth; and it is further ordered that the intervenor, Nicholas Berthoud, recover from said succession tho .sum of two hundred and twenty-six dollars sixty-one cents, with live per cent interest per annum from the 26th of August, 184.1, with costs; and that the said succession pay the costs of this appeal.


text:
    Montgomery, Executor, v. Myers.
    Where in an action against a drawer of a bill of exchange endorsed in Manic, plaintiff sues as executor, proof of his being ox ecu, tor is unnecessary, though specially denied. Per Curiam: The bill being payable to bearer, whether the plaintiff chose to stylo himself executor, or to -sue in his own name, was immaterial. The only effect of the allegation would be to estop him from denying it, and to bind him by any defence which the drawer could set up against the succession he pretended to represent.
    Appeal from the District Court of East Feliciana, Johnson, J.

      Z. S. Lyons| for the appellant. Muse and Merrick, for the defendant.
   The judgr meat of the court was pronounced by

Slidell, J.

This suit is brought by Montgomery, styling himself executor of Nott, upon a bill of exchange drawn by the defendant to his own order, and ■by him endorsed in blank, upon, and accepted by Bullitt, Shipp Co., and duly •protested'at maturity for non-payment. The defendant, in his answer, denied specially the alleged capacity of Montgomery, as executor of Nott; the plaintiff did not prove such executorship ; and upon this ground he was non-suited in the court below.

'Wo think it-was not necessary to enable the plaintiff to recover, that ho should prove that allegation. If tho note had been specially endorsed .to Nott, such proof might have been necessary; but here the bill was endorsed in blank, and became thereby payable to bearer; and whether the bearer chose to style himself executor of Nott, or to sue in his own name, was immaterial. The only effect of this allegation was that, if the defendant could prove the existence of a valid defence as against Nott or his succession, the plaintiff would have been estopped by his own assertion that he represented Nott’s succession, and bound by such defence.

As to tho merits, the record presents a ease so confused and anomalous, that it is very difficult to apply to it the familiar principles which govern contracts of ■this nature. Each party claims a final judgment in his favor. The court is unanimous, that the defendant is pot entitled to judgment in his favor. Ee speaks vaguely in his answer and brief of ail equitable defence, growing out of a certain shipment of cotton to the drawees, but has utterly failed to establish any defence of that kind. He has rested his cause upon the omission of the plaintiff to answer certain interrogatories, which, being taken as confessed, show a state of facts which is partially contradicted by other evidence in tho cause.

There is a difference of opinion with the court as to the right of plaintiff to final judgment in his favor; and, under the circumstances, we have concluded to •remand the case for a .new trial, with leave to the plaintiff to answer the inte.iv •rogatories propounded.

It is therefore decreed that the judgment of the court below be reversed, and the order pro confesso be set aside, and that this cause be remanded for a newtrial and for further proceedings according to law, with leavo to the plaintiff to answer the interrogatories propounded by tho defendant; the costs of this appeal to be paid by tho defendants.


author: Slidei,!,, J.

text:
    Johnson v. Short.
    In an action for the settlement of a partnership, plaintiff cannot proceed by attachment, where, from the nature of the business, it is impossible that ho can swear with certainty -to the amount which will be found due to him on a final settloment.
    Appeal from the District Court of West Feliciana. Weems, Parish Judge, presiding.

      A. Walker, for the plaintiff,
    contended that an attachment cannot be dissolved after appeal, where no steps were taken to obtain a dissolution in the court of the fh’st instance. Code of Practice, art. 258.

      S. W. Batons, for the appellant.
    The attachment must bo dissolved. See Levy v. Levy, 11 La. 581. Brinegarv. Griffin, ante p. 154.
   The judgment of the court was pi-onounced by

Slidei,!,, J.

The plaintiff and defendant were formerly associated in a partnership for keeping a hotel at Pascagoula, in the State of Mississippi. This suit was brought for the liquidation and settlement of the partnership affairs. It-swas instituted by attachment, upon affidavit of an indebtedness of ‘-‘upwai’ds of $10,000.” There was no personal citation. The cause was tried contradictorily with a curator ad hoe, for whose appointment no order of court appears iu the record. There was judgment for the plaintiff for $2015, as the balance due to him by the defendant upon the final settlement of the partnership accounts. After judgment became final and was signed, the defendant made a personal appearance by petition for appoal.

Of the various exTox-s upon the face of the record assigned by the defendant, -it is only necessax-y to notice one. He contends that a suit for the settlement and liquidation of this partnership could not be instituted .and prosecuted by attachment. This subject was considered in the recent case of Brinegar v. Griffin, ante p. 154, .and our opinion was there expx-essed. The attachment .was illegally issued, and as it formed the only basis for the jurisdiction of the court, there being no personal citation, the whole proceedings were void.

It is therefore decreed that the judgment of the court below be reversed ; and it is further decreed that the suit be dismissed, the plaintiff paying costs ¿n both courts.