text:
    Samuel E. Dwyer v. M. D. C. Cane. Administrator.
    Cruelty to slaves, and immoral conduct towards female slaves, are sufficient causes for the dismissal of an overseer.
    from the District Court of Bossier, Olcott, J.

      A. Lawson, for plaintiff.

      R. M. Spofford, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues for his wages as overseer of the defendant, by whom he was dismissed before the expiration of the year for which he had been employed. There was judgment against him, and he appealed.

The case presents mere questions of fact. It is shown, that the plaintiff made a good crop of cotton, and, it may be conceded, that he was not guilty of such mismanagement of the plantation, as would have authorized his dismissal ; but evidence in the record, which the district judge appears to have believed, shows, that he inflicted cruel and unusual punishments upon the male slaves, and that his conduct with the women of the plantation was grossly and openly immoral. We do not feel authorized to reverse the judgment rendered against him, upon positive evidence of 'such facts as these. Cruelty to slaves is a sufficient cause of dismissal, and honeste vivere forms part of the duties of an overseer.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    George W. Dykes v. John Cockrell.
    An order of appeal must be in writing; but where, from some oversight, the clerk neglected to enter it on the minutes, it may be done at a subsequent term of the court, nunc pro tunc.

    The declarations of an agent, while acting as agent, are good evidence against the principal. So, an acknowledgment by an agent, that he had received a draft in part payment of a debt he was appointed to collect, is evidence of the fact. ■
    from the District Court 1 of Bossier, Olcott, J.

      B. L. Hodge, for plaintiff.

      Andrew Lawson, for defendant.
   The judgment of the court was pronounced by

Preston, J.

A motion was made at the last term of this court to dismiss this appeal: 1. Because the seal of the court was not affixed to the clerk’s certificate of the transcript; and 2. Because there was no order granting the appeal.

The first objection has been now removed, by a proper certificate of the clerk, under the seal of the court.

The disfrjdct court has also made this order: “ In this case, it appearing to the satisfaction of the court, that there was an order of appeal granted by the court from the judgment rendered in this cause, on motion of the defendant’s counsel, at the November term of this court, 1849, in open court, and that the same was made returnable to the Supreme Court of this State, to be holden at Monroe, on the first Monday of October, 1850. and that the amount of the bond wasfixed, by the judge, at one hundred and fifty dollars for a devolutive appeal, and that the same was not entered fully on the minutes of the court, by the clerk of said court; it is now ordered by the court, that the order of appeal granted at the said November term of this court, in the year 1849, be now corrected, and entered fully on the minutes of this court nunc pro tunc. Signed, Roland Jones, Judge Seventeenth District.”

The act of 1839 prescribes : “That hereafter no appeal to the Supreme Court shall be dismissed on account of any defect, error, or irregularity in the petition, or order of appeal, or in the certificate of the clerk or judge, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant, but in all such cases the court shall grant a reasonable time to correct such errors or irregularities.”

It appears by the above order of the district court, that an order of appeal was made in this case, in November, 1849, and this order amounts to its recognition by the court, and entry upon the minutes. Although the irregularities which this record presents are subjects of animadversion, yet the whole spirit of our legislation, with regard to appeals, requires the Supreme Court to arrive at the merits of cases, if possible, and give judgment according as the rights of the cause and matter in law shall appear unto them, without regarding any imperfections or want of form in the process or course of proceeding whatsoever. Acts of 1813, section 1*3. Bullard and Curry, 177. On the merits, the case presents questions of fact alone as to the plaintiff’s claim. The estimates of the weight of the cotton, which is the subject matter of controversy, seems high, but we are unable to say, from the evidence, that the district court erred.

A bill of exceptions, however, was taken by the defendant to the refusal of the court to receive the testimony of witnesses as to the declarations of the plaintiff’s agent, while acting as agent, as to a credit of seventy-five dollars, claimed in the answer. He was made agent to collect the debt for which this suit was instituted. His acknowledgment that he had received that amount in a draft on the commission merchants who sold the cotton, was binding upon the plaintiff.

The credit was expressly plead, and thus notice was given to the plaintiff that the defendant would establish it by proof. If the testimony to the agent’s acknowledgment was untrue, it might have been contradicted by examining the agent himself, or the amount of the credit itself might have been disproved by the commission merchants.

It is true, the agent himself was examined for the plaintiff upon interrogatories, and might have been interrogated as to this credit; but we cannot see how the neglect of the plaintiff to elicit the testimony from him, should preclude him from offering equally conclusive evidence of his acknowledgment. Proof of his acknowledgment while agent, being the acknowledgment of the plaintiff himself, is as conclusive as his own testimony would have been.

This legal point having been decided against the plaintiff, counsel have admitted the credit, rather than that the case should be remanded.

It is decreed, that the judgment of the district court be reversed, and that the plaintiff recover from the defendant the sum of one hundred and ninety-five dollars, with costs in the district court, and that he be condemned to pay the costs of the appeal.


text:
    Lewis Taylor v. Oliver Sutton.

    An attorney at law has no authority to accept service of petition; but where he has done so, his authority will he presumed, unless denied'by the oath of the party, and the testimony of a witness, showing that he was employed in the case, will be proof of the authority.
    A new trial should not be granted, unless substantial justice requires it; and an application for a new trial should show due diligence in preventing the causes which render a new trial necessary.
    from the District Court of Bienville, Bullard, J.

      T. Vaughn, for plaintiff.

      Gibson and Lawson, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This suit was instituted in the parish of Claiborne, in August, 1848. On the back of the petition the following endorsement was made: “ I hereby waive service of the within petition,and citation, and time. Claiborne, July 10, 1848. (Signed) D. L. Evans, attorney for defendant.”

At a term of the district court for the parish of Claiborne, in November, 184S, judgment by default was entered in the case. The record was transferred to the district court of the parish of Bienville, on its creation. On the 11th of June, 1850, F. M. Gibson, Esq., had his name stricken from the docket as defendant’s counsel. A few days afterwards, the judgment by default was confirmed and made final. The following motion was made for a new trial; the facts being sworn to by the defendant: “ Lewis Taylor v. Oliver Sutton. In the district court of the parish of Bienville. And now comes the defendant and represents to the court, that he has been informed that a judgment was rendered against him in the above entitled cause. He avers, that he never was cited in said cause; and that he never authorized David L. Evans, or any other attorney at law, to acknowledge service or waive citation in said cause; that he did not believe that the plaintiff could proceed to judgment in said cause, without having him cited; that he learned, some time since, that the suit had been filed, 'but did not believe the plaintiff could proceed against him, until he was cited; that, at the present term of the court, he employed an attorney at law to defend him, if the suit was tried; that he informed his attorney that he had not been cited to answer in said cause; that his attorney informed him, that the plaintiff could not proceed with said suit, until he was cited to answer the same. (Signed.,) Gibson and A. Lawson, for defendant.”

The Code of Practice provides, “ that the defendant may waive the service of the petition, provided the defendant, or his attorney, certify in writing, and under his signature on the back of the original delivered to the clerk, that he acknowledges that the petition has been duly delivered to him. The unauthorized acts of a licensed attorney, may be disavowed by him for whom he purports to act; but the disavowal will not prevail, if there be reason to believe that the acts were authorized. Mr. Vaughn swears, that D. L. Evans was employed as counsel by the defendant ; that the defendant told him he had employed Mr. Evans, before the suit was filed, in presence of Mr. Evans and himself; that Ik?r. Evans is an attorney at law, and examined the transcript on which the suit was brought. At the same time, he says, Mr. Evans has never appeared in court in the suit since it has been transferred to Bienville.

The improbability of the attorney accepting service of the petition, without being employed by the defendant, when fortified by this testimony, which is not substantially contradicted, leads us to believe that the act of the attorney in controversy was authorized, by his employment as attorney in the case. We think, too, immediate steps should have been taken to counteract the effects of his acts as soon as discovered, if unauthorized. The defendant heard of the pendency of the suit some time before the judgment was made final; employed another attorney, who, of course, examined the record, and might have had the waiver of service of petition and citation set aside as unauthorized. No such step was taken by the defendant, or Mr. Gibson, his attorney. Two years elapsed before the plaintiff availed himself of the acknowledgment of service of the petition. He would be injured if the disavowal of the authority of defendant’s attorney should be admitted on light grounds after such a lapse of time. The disavowal, too, should have some useful object. The defendant does not show, by his application for a new trial, or his affidavit, that he has a just defence against the suit. It is brought upon a judgment rendered in the State of Florida, in favor of the plaintiff against the defendant. He does not show, by his affidavit, that the judgment was not rendered against him, or that it has been satisfied. A new trial should be granted only when substantial justice requires it. This is the jurisprudence of the Code of Practice, and of the decisions on the subject; and the application should show due diligence in preventing the causes which render a new trial necessary.

The judgment of the district courtis affirmed, with costs.


author: Preston. J.

text:
    John E. Emswiler v. Thomas N. Burham, Sheriff.
    The chapter of the Civil Code regulating the revocatory action, is not applicable to cases of simulation. In cases of simulation the sheriff may seize, notwithstanding the apparent transfer of the property by the defendant in execution.
    .Fraud may always be proved in support of the allegation of simulation in the transfer of property.
    A sale of all of a person’s real and personal estate, is not a sale in the usual course of business. Where such a sale is made by a married man to an unmarried brother, who was his clerk and who lived with him, followed by no apparent change of possession, the onus of proving the reality of the transaction is thrown upon the vendee.
    APPEAL from the District Court of Morehouse, Copley, J.

      Newton, and McGuire and Ray, for plaintiff, contended :
    It is well settled by the decisions of this court, that when a person is in possession of immovables under a conveyance not void on its face, the question offraud cannot be inquired into collaterally by commencing with a seizure. Kirkland v. Gas Bank, 1st Ann. 300 ; Lindeman v. Theobald, 2d Ann. 913 ; Oglesby v. Brake. 3d Ann. 641; Morton v. Crosby, 14L. R. 426; Brummondv. ClintonandP.IT.Railroad; 7 R.R. 237. In this case the sale of the town lots was, by notarial act, duly recorded, and delivery given therein by the vendor, G. TV. Emswiler, to J. E. Emswiler, and by the latter acknowledged; and the seizing creditors, J. Burnside 8f Co., knew of the existence of the sale before the seizure, as they had previously instituted a suit to set it aside.

      In the case of Morton v. Crosby, 14 L. R., 424 to 427, under a state of facts almost exactly similar to the case before the court, it was expressly held, that when “ the sale is of slaves by authentic act and possession given by the deed itself, and knowledge of the existence of the contract brought home to the seizing creditor,” the sale could only be set aside by a direct revocatory action, and could not be inquired into collaterally by commencing with a seizure. This decision is referred to in the case of Kirkland, v. Gas Bank, 1st Ann. 300. At all events, the only question that can be inquired into in this suit, in regard to the transfer of the town lots from G. W. to J. K. Emswiler, is whether J. E. Emswiler, plaintiff, was in possession at the time of the seizure, as it is only in the absence of that event that it could be considered a simulated sale, and no question of fraud can be inquired into in such a proceeding as this. Plaintiff shows by the notarial deed to him, that he purchased the town lots for $2000 — $1300 in cash, and $700 payable in twelve months — and received possession of them on the 19th April, 1849; and by the witnesses to the deed, Sharp and Newton, he proved the payment of the $1300 in, cash, and the delivery of the note for $700, as stated in the deed. Newton, witness, in his-testimony, explains why the deed was passed at night and in the store of plaintiff; at the time this deed was passed, it does not appear that any suit had been brought against G. W. Emswiler, nor the firm in which he was a partner. The suits offered in evidence, inlcuding that of J. Burnside 8f Co., were instituted in the months of October and November, 1849, and the indictment for perjury against G. W. Emswiler, which caused him to leave the State, was filed the 22d November, 1849, and the proceeding-out of which it grew is alleged in the indictment to have taken place on the 29th October, 1849, all long subsequent to the sale; these facts are certainly no evidence of simulation, if they do not entirely preclude such an interference. J. Burnside Co. set up simulation in their answer — the onus of proving it, lies on them. Lindemanv. Theobald, 2d Ann.’913. Morton v. Crosby, 14 L. R. 426.
    The allegations in their answer, to show simulation, are: 1st. That there was never any delivery of the property to the vendee ; and 2d. That the consideration was never paid. The evidence is voluminous, but a careful examination of it will show that George W. Emsiviler (whom the witnesses call Dr. Emswiler) and John H. Emswiler, came to Morehouse parish and commenced merchandising under the firm of J. H. Emswiler Co., a year or two before the plaintiff, J. E. Emswiler, came; the plaintiff acted as clerk for them after his arrival. At the time of the sale, 19th April, 1849, G. W. Emswiler lived on the lots, and plaintiff, J. E. Emswiler, was living in the house with him; G. W. Emswiler had a family, and J. E. Emswiler was his nephew and a single man; G. W. Emswiler continued to reside in the house, and acted as the “head of the house” until he left, which was atthetime the indictment was found against him at the November term of court, 1849; his family remained in the house for some time after he left; they had left before the seizure. Plaintiff continued to live in the house until after G. W. Emswiler and his family left, then he went out to board. No improvements were made on the lots after the spring of 1849, the time the sale was made by G. W. Emswiler. The attention of the court is particularly called to the testimony of Boatner, who seems to have been more inlimatethan any one else with the Emswilers, in relation to the control of the property after the sale ; Henderson, it will be noticed, was not much about the Emswilers after the sale, on account of not being on speaking terms with G. W. Emswiler. The sale of the 19th April, 1849, was known to all the witnesses, and was generally known.
    All the evidence relied on to disprove possession in J. E. Emswiler, is of that negative kind that ought to have but little weight. The vendor and vendee residing together in the same house — the vendor with a family, the other a single man — it is quite natural that the former should seem to control the premises; an opposite course of conduct would have appeared unnatural, and have shown an intention to defraud. There was no attempt to deceive any one; all knew, and none better than J. Burnside Sf Co., that the sale had been made. It is in evidence, likewise, that J. E. Emswiler is a steady business man, whilst the others were not. It has been expressly held by this court, that when the vendor and vendee reside in the same house, that possession follows title. Wafre v. Pralt, 1 R. R. 41, 42. Richard v. Nolan, 3 N. S. 338. Lindeman v. Theobald, 2d Ann. 912.
    There is proof positive of the payment of the consideration for which the sale of the 19th April, 1849, was made, and there is certainly no evidence to cast a doubt or suspicion upon the genuineness of the payment. Under all the circumstances, (tlie sale being by notarial act duly recorded, which all were legally bound to take notice of, and which was not made a secret but generally known,) the consideration proved to have been paid, and the vendor and vendee residing in the same house, and no proof of an object fora simulated sale at the time it was made. The court, under the rule laid down in the decisions already quoted, will not permit plaintiff to be disturbed in his possession by a seizure under a fi. fa., as has been attempted in this case. The seizing creditors will, at all events, be required to attack the sale directly as a fraudulent one, before they can have the property seized and sold. The personal property seized under the fi.fa. in favor of J. Burnside Sf Co., claimed by plaintiff, was the stock of merchandise in the store-house, and some other personal property; all of which was sold at the sheriff’s sale for $721.
    It is not denied but that the question as to who is the true owner of the personal property may be inquired into in this suit. The first inquiry then, is, was J. E. Emswiler, plaintiff, in possession of the store and merchandise at the time of the seizure, as owner?- The whole of the parol evidence will have to be carefully examined and weighed to come to a correct conclusion, as though not contradictory, it is very diffuse, and much of it of a negative character. It would not assist the court for us to refer to the evidence in detail, but we would merely state that we rely much on the testimony of Pride, Sharp, Hendrix, Beacham, and Boatner; Johnson is important, and Jelks. This evidence is positive that J. E, Emswiler, plaintiff, was in possession at the time of the seizure ; if he was not, no one was. During the year 1849, all the business about the store was conducted in his name ; the accounts were made out in his name and collected by him ; he assumed the entire control of the store, and solicited custom for it in his own name. If plaintiff has shown that at the time of the seizure of the merchandise he was in possession as owner, then it devolves on defendant to show that he was not owner. He who alleges fraud must prove it, and it cannot be contended that the evidence in this case makes that even probable. All the evidence offered as to this point, is, as to the declarations and acts of Dr. G. W. Emsmler, and not in the presence of the plaintiff, J. E. Emswiler, which can amount to no more, at best, than proving fraud in Dr. Emsioiler, but not in J. E. Emswiler: this is well settled by this court. Graves v. Steel, 2d Ann. 482. 2 N.S. 13. 3N. S. 23.
    In regard to the twelve months’ bond of Chesley Johnson for $220, seized under the fi. fa, in favor of Taylor and Payne, although they set up a formidable defence in their answer, yet they did not offer any evidence to establish the fraud and simulation alleged. The pleadings admit that the twelve months’ bond was taken out of plaintiff’s possession by the sheriff, at the instance of Taylor and Payne, who gave the sheriff' an indemnifying bond. It was certainly the duty of the defendants to show the fraud and simulation they allege, after plaintiff’s possession was admitted; the bond was payable to plaintiff, but it being out of his possession, he could not produce it, and defendants failed to do so. Plaintiff is entitled to a judgment restoring him in his possession of said bond, or for judgment against defendant for the amouut, if it is not returned.

      Richardson and Todd, for defendant, contended:
    1st. Simulated sales are not contracts; they may be attacked by commencing with a seizure, without being subjected to the provisions of the code, for the annulment of fraudulent contracts by revocatory actions. C. C. 1754, 1772. 2 Zacharie 341, sec. 313 ; notes. 24 Pothier Pand. 432 — l,5tol7. Merlin verho Simulation. 13L.R.129. 9R.R.491. 2dAnn.323. lstAnn.132. Ib.262. 5th Ann. 1. It is difficult to draw the distinction between simulation and fraud. It is very evident that simulation cannot exist without fraud, both on the part of the vendor and vendee, and it is equally true that fraud may exist without simulation. To say, then, that fraud cannot be inquired into collaterally, would be to debar us from the proof of simulation: as fraud is the very basis of simulation, they are always co-existent and cannot be disconnected. We apprehend, therefore, that the doctrine advanced by the appellant, and the law quoted to sustain it, to wit: “ That fraud cannot be inquired into, collaterally, by commencing with a seizure,” applies solely to sales or contracts which are real, though fraudulent, and not to cases where simulation is alleged; for a simulation sale is no contract at all, as there is no reality about it, and affects neither the title nor possession of the original owner, so far as his creditors are concerned. Under this view of the case, evidence would be perfectly admissible to prove the motive for the simulation; that is, the large indebtedness of the vendor at the time and previous to the sale, and his object to defeat the claims of his creditors by this simulated transfer of his property; and this doctrine is fully recognized in many of the decisions abovó quoted, and particularly in 5th Ann. 1, in the case of JE noin v. Bank of Kentucky. And the appellant impliedly admits this doctrine, when he asserts “that there was no proof of an object for a simulated' sale at the time it was made,” though, in another place, he seeks to confine us to the question whether appellant was in possession at the time of the seizure. In further answer to appellants counsel on this point, that fraud cannot -be inquired into, collaterally, by commencing with a seizure, we would cite the court to the case of Fisher v. Moore, 12 R. R. 95, where it is held, that “ though a creditor cannot treat a convoyance of real estate, alleged to be fraudulent as null, and seize under a fi. fa. the property in the hands of his vendee ; yet, if the latter do not enjoin the proceedings, but permits the sheriff to seize and sell the property, as still belonging to his vendor, and afterwards sues the purchaser at the sheriff’s sale to annul the sale, and cause himself to be declared owner of the property, the creditor, cited in warranty, may plead by way of exception, whatever he might havo urged in a direct action to annul the first sale.” This is virtually such an action as above described, the plaintiff seeks “ to be declared owner of the property;” and although the purchasers of the property at the sheriff’s sale are not beforo this court, yet the counsel contend, that “ their title must abide the decision of this case;” and it follows, then, that from analogy to the above cited case, that it would be both legal and equitable, that the seizing creditors, who are before the court as warrantors, should be permitted to plead, by way of defence, in their own behalf and that of the purchasers, whatever they might have urged in direct action to annul the sale. As to the sale of the 19th of April, 1849, under which plaintiff sets up title, being simulated, we are confident that the record establishes the clearest case of simulation that has ever been presented to this court, and it is only necessary to give a brief history of the conduct and acts of the parties prior to, at the time of, and subsequent to the sale, to show this fact conclusively. The evidence shows that G. W. Emswiler,¿¡vhom witnesses call Dr. Emswiler, and J. H. Emswiler came to Bastrop in or about 1846, and established themselves in the mercantile business, — the Doctor also pursuing the practice of medicine; that after a year or two, plaintiff, J. E. Emswiler, arrived and became a clerk in the house, in which capacity, it is admtted, he acted up to the time of the sale in 1849. G. W. Emswiler was a man of family, and J. E. Emswiler a single man — a minor and apparently without means, and nephew of G. W. Emswiler. Dr. G, W. Emswiler took great interest in the improvement of his property up to and at the time of sale, and never signified any intention of removing from the place. That at this time, (time of sale,) G. W. Emswiler was largely indebted, so much so that he was hopelessly iusolvent. At this time, while so much involved, and when the property sold was levied on under execution, as shown by act of sale itself, G. W. Emswiler made a cessio omnium bonorum to plaintiff, if at that time he sold the goods and merchandise as alleged, but of which there is no proof. This act of sale, besides the property in controversy, includes three slaves, one of which acted as nurse for plaintiff’s aunt’s child, and another as cook for the family. The plaintiff, not being a man of family, it was such property as he had no earthly use for, while it was just such property as G. W. Emswiler needed, and with the use of which he would not voluntarily have dispensed.
    2d. The circumstances attending the passing of the act of sale, were sufficient to raise a strong presumption of simulation. The parties seemed desirous of cloaking the transaction from the public. They chose a late hour of night for the execution of the deed, one of the witnesses being called on when about retiring to bed. They sent for the notary before whom the act was passed, though his office was but a short distance off, some sixty dr seventy yards, a very unusual proceeding as stated in the testimony. The act was drawn up at the solicitation of G. W. Emswiler, the vendor, who seemed the only actor in the matter. The parties were very particular about counting out the money and having the payment made in presence of the witnesses, a circumstance that seldom or never takes place in a bond fide sale, as it is only in pretended or simulated transfers that parties are so scrupulous about mere formalities. Another circumstance attending the sale, to which we especially direct the attention of the court: The consideration of the sale purports to be the sum of two thousand dollars, one thousand throe hundred in cash, and the balance secured by note. By reference to the answer of J. E. Emswiler in the suit of Pinclcard and Henderson v. /. H. and G. W. Emswiler el al., which was an action to annul this very sale, it will be seen that he states that a short time before, G. W. Emswiler was indebted to him in the sum of three thousand dollars, which he does not pretend was ever paid; yet, according to the act of sale, the plaintiff, J. E. Emswiler, paid thirteen hundred dollars in cash to G. W. Emswiler, and executed his note for seven hundred, while, if the allegation of the plaintiff in his said answer be true, G. W Emswiler was indebted to him, at that time, three thousand dollars. It evidently shows that the parties, in their efforts to show the means of the vendee, have overreached themselves, which always happens with the best laid schemes of fraud.
    3d. The acts and conductof the parties subsequent to the sale, will expose more glaringly its entire simulation and falsity. No change takes place in the position of the parties. G. W. Emswiler still continued to reside on the lots, hold possession of the property, and exercise ownership over it as he had done hitherto ; all who testify in regard to it, state that they saw no change whatever. The slaves that were included in the act, still continued in the employment of vendor’s family, performing the same service as before. Dr. Emswiler still continued to manifest the same interest in the property ; he made contracts with and hired workmen to prepare the timbers and lumber for removing his storehouse and repairing his buildings, and had the timborshauled for the purpose of commencing the improvements. We would also refer the court to the strenuous efforts made by the vendor, G. W. Emswiler, to shield his property from his creditors, and the singular and fraudulent device resorted to for that purpose, of attempting to have judgment rendered against himself in the name of Smurr, so as to cover his property with the judgment. This was the state of things between tho parties to the sale, when G. W. Ernswiler was forced to leave the State and abandon possession of the property, as admitted by appellants counsel, to avoid an arrest under an indictment for perjury. This indictment was found against him on the 22d of November, 1849, many months after the sale. We see, then, that when he left he took with him the boy Henry, one of the slaves embraced in the act of sale, and that about the same time, or shortly after he left, the other negroes disappeared. Other witnesses concur in stating that they heard no complaint from the plaintiff whatever, of the doctor taking off his property. This fact, of itself, would fully demonstrate the entire falsity and simulation of the deed in regard to the slaves ; and the maxim would well apply, Ufalsus in uno,falsus in omnibus.” In regard to the vendee and plaintiff in this case, it is not contended that he exercised any ownership or control over the property embraced in the act of sale, he remained entirely passive; and it is admitted by appellant’s counsel, that the vendor seemed to control the premises. We find that the vendee only stayed upon the premises as long as the family of G. W. Emswiler remained there, and when they left he went out to board. Wo would ask, here, if the plaintiff really bought the property, why did he not continue on it, retain the servants and keep up tho establishment ? It will be seen, too, that after the vendee left, that a servant was hired to attend the family during the time they remained. These facts, of themselves, show most conclusively that plaintiff never had any ownership or possession of the property. Tho naked title was vested in him, nothing more. It will be seen from the evidence, that about the time the act of salo was passed, and it may be regarded as one transaction, G. W. Emswiler pretended to transfer also to the plaintiff, all the notes, accounts, rights, credits, &c., due to himself and the firm of which he was a member; that his mode of transferring them was by writing the transfer on tho back of the notes, judgments, &c., notin the presence of the plaintiff without making any calculation of the amount or list of the debts ; that after said transfer, he, G. W. Emswiler, took as much interest as before in the collection of the debts, and though plaintiff appeared on the face of them as owner, yethewould neither settle nor arrange them, except at the dictation and under the instructions of G. W. Emswiler. In connection with this, it will appear that in the suit of Dwight and Trowbridge v. J. H. and G. W. Emswiler, plaintiff was garnisheed in that case, and interrogatories were propounded to him, in which he was asked if he was not indebted to G. W. Emswiler; if he had not in his possesssion notes, accounts, &c., belonging to tho firm of J. H. Emswiler Sf Co., or either member of tho firm: personal service of the garnishment was mado upon him, yet rather than answer tho interrogatories, he permitted judgment to be rendered against him to the amount of seyera! hundred dollars.

      Against this powerful array of facts, which go to establish simulation so conclusively, and particularly in regard to the continued possession and acts of the vendor subsequent to the sale, appellant’s counsel seek refuge behind the principle of law invoked by them, that when vendor and vendee reside in the same house, possession is presumed to follow title; this means nothing more than this, that as by public act, delivery passes by the act, ■ so when parties reside together delivery is presumed to follow title. But we apprehend that even if they do reside together, that this presumption will not arise where the vendor continues in possession and is suffered to act as owner, at least such a presumption will be entirely rebutted by the fact of such conduct on the part of the vendor, and such sufferance on the part of the vendee. And we are fully borne out in this opinion by articles 1915, 2456 C. C. Thibodeaux v. Tkomasson, 17 R. R. 353. Lindeman v. Theobalds, 2d Ann. 912. The last case cited, and which is also referred to by appellant’s counsel, so far from warranting the conclusions which they seek to deduce from the principle invoked, establishes .fully the doctrine for which we contend, “ that continued possession by a vendor, acting as owner, after a sale, creates the presumption of simulation, and imposes on the vendee, as to third persons, the burden of proving the reality of the sale.” This decision also fully explains the meaning of the principle invoked by appellant, it is therein stated that where the parties live in the same house, the fact of the vendor remaining on the premises, is not of itself a badge of fraud; but it is intimated also, that though such may be the position of the parties to the sale, that when the vendor continues in possession and acts as owner, then, the presumption of possession following title» ceases, and the presumption of simulation will arise, and it will impose upon the vendee the burden of proving the reality of the sale. It will follow from the above, that though the parties to this sale may have resided together on the premises after the sale, yet if the court is satisfied that the vendor continued to act as owner, which is admitted by counsel for appellant, then we have so far made out our case, that it throws upon, the other party the burden of proving the reality of the sale, which they have not attempted to do.
    In furthor reply to the argument of the counsel in regard to possession following title where the parties reside in the same house, we would state that the possession of the immovable property in controversy was not in the vendor, G. W. Emswiler, at the time of the sale of 19th April, 1849, but was in the sheriff, as the very deed itself shows that the property was under seizure by the sheriff. It has been frequently held, that though possession accompanies the public act which transfers the property, yet, if it is under seizure by the sheriff, that there exists a legal obstacle to its delivery. 3 L. R. 183. 6 R. R. 100. C. P. 656 to 662 and 762. And where the property is similarly situated, this legal obstacle to delivery equally exists, where vendor and vendee reside in the same house, as the law will not consider that as done which cannot be done.
    The court will observe in the record, an act of sale of a slave, Minty, purporting to be from Williams to J. E. Emswiler, plaintiff, dated just anterior to the other act. It is in proof that the slave was brought to Bastrop by G. W. Emswiler, was employed in his family, and taken away by him with the other negroes when he left the State ;^and though the title was in J. E. Emswiler, ho manifestly exercised no ownership over the slave. This transaction was a part of the scheme of fraud and simulation, devised by the parties to defraud the creditors of G. W. Emswiler. The counsel seem to rely greatly upon what they assert to be the fact, that J. E. Emswiler was sole possessor of the property at the time of the seizure; the evidence leaves this matter in doubt, as one, if not more, of the witnesses, states that the family of G. W. Emswiler had not left at the time of seizure, and also stated that when the family did leave, he, J. E. Emswiler, left also, and went out to board. But even admitting the fact, that he was on the premises at the time the seizure was made, still we have only to reply to that, that as it admitted that G. W. Emswiler continued in possession of the property, acting as owner, subsequent to the sale, and was then forced out of the possession and compelled to leave the State; then it follows that as vendor abandoning the possession was not voluntary, but forced, that the possession of plaintiff remained just such after G. W. Emswiler left, as before he left; in other words, the character of the possession was not changed.
    In regard to the personal property sued for, consisting of merchandise and household furniture, we have not intended our previous remarks to apply particularly to it, and we deem it scarcely necessary to say anything in regard to it, as there is no proof whatever that plaintiff ever purchased the goods from J. II.

      Emswiler Sf Co., nor lias he exhibited any title whatever either to the goods or furniture, but seems to rely entirely upon his possession of said property, such as it was at the time the seizure was made. What has been said in regard to the character of his possession in regal’d to the immovable property, will apply with equal force in regard to the personal. It is admitted that plaintiff was clerk in the establishment up to the time of the sale spoken of; the personal property is not embraced in the act of sale, nor is any sale of the goods alleged or proven to have been made to him at that or any other time. We have no evidence of any contract, price, or of any of the requisites of a sale. He was as much in possession of . the storehouse and goods before this sale of immovable property, when he was admitted to be but a clerk, as he ever was afterwards : for several of the witnesses concur in stating that he applied himself as closely to the business of the store before as after said act was passed, and they could see no change in his position, except, as one of the witnesses stated, he seemed to become better acquainted with the business. If it is true that G. W. Emswiler was less about the store than before, it can be easily accounted for, from the fact., that after these transactions referred to took place between the parties, the business greatly decreased, so much so, that one person could easily attend to the business. But it is expressly proven that after said act was passed, that plaintiff did not exercise sole control and management of the store, for in several instances we see that he would not make sales of goods on his own responsibility, but relied entirely on the instructions of G. W. Emswiler. And the testimony of Boatner, upon which appellant’s counsel greatly rely, shows that after G. %V. Emswiler left, the store was closed; and that prior to that time, G. W. Emswiler seemed to be attending to cotton speculations and making collections of debts that, it will be recollected, he had pretended to transfer to plaintiff. The claim of tho plaintiff to the household furniture, which make part of the personal property, is not supported by a particle of evidence, and is evidently unfounded; and it is not contended that he even had it in possession, until G. W. Emswiler was forced to abandon the dwelling in which it was.
    It will be seen that the property claimed by plaintiff in this suit, together with the other property mentioned in the act of sale, which G. W. Emswiler took off with him when he left, embraces all the property that G. W. Emswiler owned or possessed, or, in other words, it was a cessio omnium bonorum, and that plaintiff, by being so extravagant in his pretensions, has placed himself under tho necessity of proving the reality of the sale; as this court has expressly held that a sale omnium bonorum is not a contract in the usual course of business, and that, when attacked, parties claiming under it are bound to establish its reality. Scott el al v. Rusk, 2d Ann. 266.
   The judgment of the court was pronounced by

Preston. J.

Under executions in the suits of Taylor and Rayne, and J. Burnside & Co. v. John H. and G. W. Emswiler, the defendant seized four lots in the town of Bastrop, with the improvements thereon, consisting of a dwelling and storehouse, and other outhouses ; also, the furniture in the dwelling-house and a stock of merchandise in the storehouse; also, a twelve months’ bond on Chelsey Johnson, with security for upwards of two hundred and twenty dollars, as the property of the defendants. The seizure was made on the 12th of February, 1850.

On the 6th of March, 1850, John E. Emswiler brought this suit against the sheriff for all the property seized, alleging that he was owner of, and in the peaceable possession of the same, until seized by the sheriff. The sheriff called the plaintiffs in the executions in warranty. They answered substantially, that the property seized belonged to the defendants in the executions, and to G. W. Emswiler, ono of them; that a pretended sale from G. W. Emswiler to tho plaintiff, dated the 19th of April, 1849, was fictitious, simulated and fraudulent, and entered into for the purpose of defrauding the creditors of the defendants in execution, and particularly the plaintiffs in the executions; that G. W. Emswiler, the vendor, was, at the time of the sale, insolvent to the knowledge of the plaintiff; that there never was any delivery of the property purchased by the plaintiff from the defendants in execution, or any consideration paid for the same ; that all Ihe transactions between them and the plaintiff, by which he pretended to be owner of the property seized, were simulated, and that he held it for their debtors.

We adhere to the doctrine laid down in the case of Erwin v. The Bank of Kentucky, 5th Ann. 1, that the chapter of the code regulating the revocatory action, is not applicable to cases of simulation, and that in those cases the sheriff may seize, notwithstanding the apparent transfer of tho property seized by the defendant in execution. That an action is necessary to annul a real transfer of property, but for a fraudulent purpose simulation does not transfer the property at all, and it is not necessary to annul the mere paper pretence of title. Simulated transfers of property may be, for a lawful purpose, as to give credit to the vendee to enable him to raise money, or other purposes rendering tho property liable to third persons, whilst it is perfectly understood between the parties, perhaps even by a counter-letter, that it remains the property of the vendor. But simulation is generally used for an unlawful purpose, and most frequently to defraud the creditors of the vendor. Fraud may, therefore, always be proved in support of the allegation of the simulated transfer of property, by those interested to establish the simulation. -

We have perused, with care, the testimony in this voluminous record, and have come to the conclusion, that the property seized and sold by the sheriff, belonged to the defendants in the executions, and was held by the plaintiff, the greater part ofit, for G. W. Emsvnler, and partly for the firm.

The defendants in execution came to Bastrop in 1846, and established themselves as merchants. G. W. Emswiler, also practiced medicine, and appeared to have the principal means. He bought the lots in controversy, and purchased or made the improvements. He was a man of a family, lived in the dwelling-house, and owned the furniture, also three slaves, one of whom was his cook, and another a nurse. The plaintiff arrived in the country a year or two after-wards ; was a nephew of the doctor, a very young man, and was employed as a clerk in the store, and it is not shown that he had any means. On the 19th of April, 1849, George W. Emswiler sold to him, in the night time, and at his house, though a notary public and witnesses were called, the four lots of ground, his dwelling-house and kitchen, storehouse and "stable, and all other improvements, a female slave and a mortgage upon two other slaves for seven hundred and fifty dollars. The sale purported to be made for the consideration of two thousand dollars, thirteen hundred dollars of which were counted down in cash, and a note of the vendee for seven hundred dollars, payable in twelve months. The lots and houses were, at the time, under seizure at the suit of the State of Louisiana, for $750. The suit of Burnside Sf Co. was at issue, on a note for $1753, with eight per cent interest; that of Taylor and Bayne was pending; that of Dwight and Trowbridge for $1375, with interest at eight per cent from October, 1847; that of Pinckard and Henderson for $967 and interest. The lots, dwelling-house and improvements, the effects of the store and furniture were appraised at $3255. These facts alone, induce us to conclude that G. W. Emswiler was totally insolvent, as it is not shown that he owned any other property of consequence.

As tho plaintiff claims even his furniture, and bought his house servants, and as small claims bofore a justice of the peace were transferred to him, we take it for granted he bought everything he had. The sale of all his property, real and personal, when in a state of total insolvency, was a transfer out of the usual course of business, and when attacked, it became the vendee to establish its reality by-evidence. Scott and others v. Rush, 2d Ann. 266. The plaintiff has not satisfied us by ovidenco that tho salo was real. We do not believe that the $1300, used on the night of the sale of the real property, belonged to him. He had but recently arrived in the country; was very young; had been employed as a clork in a very small store of his insolvent uncle, and shows, satisfactorily, no other means of purchasing everything belonging to his uncle and the mercantile firm.

It is true, that in the suit of Pinchará and Henderson, to set aside the sales, he filed his answer on the 22d of November, 1849, alleging, among other things, that when he came to the parish, a short time since, George W. Emswiler was indebted to him in the sum of about $3000, but he furnished no proof of tho fact, and if it had been so ho would have given him that debt for all his property, and not$1300 in money, and his note for $700, payable in twelve months. Tho evidence satisfies us that George W. Emswiler and his family, remained in possession of the dwelling house, servants and furniture after the pretended sale, just as before, and that the plaintiff boarded with them, and not they with tho plaintiff. George W. Emswiler exercised the same control over the store after as before the sale. He was about removing the store from its position from one to another of the lots, nnd ho continued to improve and beautify the premisos. He exercised the same control over the small debts he purported to have transferred before a justice of the peace, after as before their transfer. He was afterwards forced to abandon tho property and leave the State, on account of an indictment for perjury. The plaintiff then left the dwelling-house and went to board elsewhere. If everything had been his, he would probably have kept his house-servants, and lived at home, as before.

The fact that the vendor remained in possession of the property, and exercising control over it for six months after the sale, raised the presumption, as to third persons', that the sale was simulated, and rendered it necessary for the vendee to produce proof that they were acting in good faith, and to establish the reality of the sale. Code, article 2456. The fact that the vendor afterwards absconded from the country and left the property in the possession of the vendee, does not remove the presumption of law that the sale was simulated. It was still incumbent on the vendee to establish its reality. Even in abandoning the property, which he could not carry away from his creditors, two circumstances occurred which impeach the reality of the sale. He took with him, or caused to follow him, the servants, without any opposition from the plaintiff, who had bought one and, at least, had a mortgage upon two others to the amount of seven hundred and fifty dollars.

Another circumstance is proved to our satisfaction; that George W. Emswiler endeavored, after the pretended sales, and just before he absconded, to securo the property further to himself, by artfully and unknown to the attorney, who was deceived by a fictitious letter from abroad, causing a suit to be instituted against himself, on a fictitious note, in the name of a fictitious person, intending that a false judgment should be rendered and recorded against him, so as to bind the property.

All these things appear in the record, and others corroborating the charge of simulation in the transactions between the plaintiff and the principal defendant in execution. The proof of some of these things were opposed, particularly tho acts of G. W. Emswiler in removing the slaves from the State, and his declarations in regard to them. There is sufficient unexceptionable evidence to sustain the verdict, without considering this evidence, but we concur with the defendant’s counsel, that to prove simulation, which it is difficult to ferret out, great latitude must be allowed, and the party attacking the simulated sale, may show acts and conduct, of both vendor and vendee, in everything that can have the least bearing upon the sale, so as to arrive at the true intentions of the parties, and to lift the veil under which truth lies concealed.

These views, on the merits of the case, renders it unnecessary to examine the bill of exceptions to the charge of the judge, except to say, that we do not consider that, he alluded to the facts further than was necessary to explain, clearly, his views ns to the law. The case being against the plaintiff withouttheevidence, with regard to which there is a controversy,- it should not be remanded.

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


text:
    John J. Webster, Guardian v. Thomas M. Smith.
    The defendant had applied for the ouratorship of a deceased minor, alleging that the father and mother were dead, and that the child had property. Afterwards, when the legal heir of the minor child claimed the property, the defendant set up ownership in himself. It appeared from the evidence, that he had executed a deed of gift of the property in question to the mother of the deceased minor, before her marriage. This deed, he contended, did not transfer the property. Held: That the declarations in his petition for curatorship, and other subsequent proceedings, were judicial confessions of the right of property beingin the deceased minor, and that the effect of those confessions could not be obviated under the allegation that they were made in error of law. C. C., 2270, 2264,2266.
    APPEAL from the District Court of Union. Copley, J.

      Baker, for plaintiff, contended:
    1. If the court should be of opinion that the lower court could not go into the investigation of title, then, is it contended, that the property in controversy was the property of the minor, Thomas Smith Heard, and descended to George Franklin Heard, the plaintiff, as heir-at-law. Let us, then, consider the effect of this deed of Smith to Emily S. Traylor.

    This deed, at common law, would be tei'med an entail or fee tail, and its effect would have been, before the statute de donis, termed a base or qualified fee, and construed so as to vest a fee simple in Emily S. Traylor, for certain purposes, on the condition that she had the heirs described, 4 Kent, 10, 11, 12. 2 Blackstone, 110,111, 112, and note, Chitty’s ed., vol. 1, p. 87. Fearne on Remainders, p. 28 and note. See^ also, the rule in Shelly's case, 4 Kent, 214 to 232. But the statute de donis conditionalibus took away the power of alienation on the birth of issue, and the courts divided the estate into a particular estate in the donee, and a reversion in the donor, so that the donee, on the birth of issue, could not alien, so as to bar or charge his issue, or, for default of issue, the donor or his heirs. 4 Kent, 12 to 22 and notes. 1 Blackstone, 2d book, Chitty’s ed., p. 88, marginal page 112; so that, after the statute de donis, Emily S. Traylor took a life estate, and after issue of her body, that issue was vested with the fee simple; there was no longer a possibility of reversion to the donor. But this deed was executed in Alabama, a common law State ; there, negroes are personal property; personal property cannot be entailed. Emily S. Traylor, under this view, took an absolute title. On her marriage it vested in her husband, and, on his death, in his son, the plaintiff. Chitty’s Blackstone, 2d book, ji. 89, note 17, marginal page 113, etseq.

    2. Entails have not been favored in this country, and we find that so early as 1776, they were abolished in Virginia. '4 Kent, note ‘a,’ p. 14. The general policy of the country does not encourage restraints upon the alienation of property, because, among many other reasons, of the effect they have of encumbering property and tying it up out of the hands of commerce, and we accordingly find, that so early as 1812, the Territorial Legislature of Alabama enacted a statute which converted every conveyance of lands or negroes, which had boon, or might thereafter be, created an entail, into a fee simple, with the proviso alone that lands might be entailed to a succession of donees, then living; iu default thereof, to the right heirs of the donor. Alabama Statute, p. 157, ¶ 37. See, also, Porter’s Alabama Rep., vol. 3, p, 09, Simmons v. Augustine. The court will observe that the proviso is restricted to lands, and not negroes. The construction put upon a deed in Alabama, in which the proviso is not inserted, by the highest tribunal in that State, is that the first taker is vested with a feo simple if lands are the subject of the deed. Ergo, the proviso being silent as to negroes, if negroes are the subject of the deed, the first taker is vested with the absolute unfettered fee simple. 3 Porter’s Ala. Rep., 69. Again, as to consideration. It was executed in Alabama, the situs of the parties and property at the time, and where the common law prevails. At common law, love and affection are a good consideration. Money or marriage is a valuable consideration. 2 Blackstone, 295, 296. 4 Kent, 461, et seq. There is, then, in this deed, expressed both a good and a valuable consideration. If, then, the contract is to be governed by the lex loci, there cannot be a doubt but that tho courts in Alabama would give effect to this deed, and iu favor of the claim of tho plaintiff. 9 Wendall, 235. 20 Johnson, 87, and cases cited.
    3. But it was argued strenuously that this deed was void, because, it is urged, there was no livery of seizin. Now, it is worthy of observation that livery of seizin was part of the ancient ceremony of feudal investiture; in those early times every feoffment was accompanied with actual delivery of possession. The notoriety and solemnity of the livery were well adapted to the simplicity of unlettered ages. The actual livery was performed by the feoffor entering with the charter of feoffment, and. delivering a clod, turf, or twig, or latch of the door, in the name of seizin of all the lands contained in the deed. “ The charter itself was not requisite; the fee was capable of being conveyed by mere livery in the presence of the vicinage.” 4 Kent, 479, et seq.

    But the exigencies of commerce, and the necessities of a more extended civilization, and especially the great proclivity of courts and Legislatures of modern times, and in these United States, to favor the easy transmission of property by unfettering those restraints with which all landed property in England was burthened, has greatly relaxed the observance of the technical doctrine of livery, or rather give greater force to the charter or deed, its delivery to the vendee or doñeo, or record ofthe same. Hence we find the doctrine now well settled, that the delivery of the deed or record of it to be good as between the parties, without tho party claiming being required to prove livery of the property. McRae v. Pegues Administrator, 4 Ala. Rep., 159. Clay’s Ala. Digest, 254, title Fraud and FraudulentConveyances, sec.2. Ib. sec. 8. Pray v. Pierce, 7 Mass. Rep., 381. 13 L. R., 230. 2d Ann. 52. Smith’s Leading Cases, Law Library, 18, 4th series. Twyne’s case, pp. 33, 44, et seq. In all these cases, as between the parties, the deed is valid. See, also, Clay’s Alabama Dig., p.156, IT 33, 38.
    The delivery was sufficient in law, the deed was acknowledged and recorded in the proper office in Alabama, and the original given to Emily S. Traylor, it was produced and proven by the plaintiff on the trial of the cause.
    Again, if the court please, Emily S. Traylor is styled in the deed the adopted daughter of the donor, Smith. It is proved that Thomas M. Smith raised her; she was married at his house; she and her husband continued to reside there until her death, and, after her death, Smith acknowledged that he held the property for the child. In every case of mixed possession, the seizin is according to the title. Connerv. Winslow, 10 Mass. Rep., 146. Brimmerv. Long Wharf, "5 Pickering, 131. 3 N. S. 337. Wafer v. Pratt, 1 R. R., 42. The possession, even if in Smith, is consistent with the terms of the deed and the situation, of the parties. Vide Twyne’s case, above cited, p. 48, et seq. The property was, subsequently to the death of Emily S. Traylor, delivered to her son, Thomas Smith Heard, who died in possession.
    4. Should this court, however, decide that the property changed its character in coming into Louisiana, and that the courts of Louisiana will not take notice of the complicated system of entails, reversions and remainders with which the common law abounds, and throw entirely out of view this Alabama deed, then, we say, with equal confidence, the plaintiff must succeed, because, in July, 1844, defendant filed a petition in - the probate court of Union, stating that Thomas Smith Heard had property in the parish, provoked the appointment of a tutor, caused an inventory to be made, signed that inventory, and gave in this properly as that of the minor, Heard. The day the minor died (July 7th, 1845), wrote to Heard, the minor’s uncle, stating that the minor’s property consisted of twelve negroes, formerly given by him; applied for and procured the appointment of curator; made another inventory; gave bond ; acknowledged to J. C. Traylor and other witnesses, that he held the property for the minor. These acts, oft repeated, amount to a judicial confession, are full proof and cannot be revoked. C. C. 2270, 2264, 2266. Pothier, Evans’ ed., p. 407, Nos. 797, 798, 801, 806, et seq. Smith’s Leading Cases, vol. 1, Law Library, No. 19, 4th series, pp. 382, 531, 555.

      McGuire and Ray, for defendant, contended :
    The attempt, by plaintiff, is to show that this property was donated to Emily S. Traylor, by the defendant, in September, 1839, or that if he did not give it to her, he gave it to her child in Louisiana, for proof of which he relies upon the various probate proceedings in evidence, and a letter from defendant to F. C. Heard, dated July 7th, 1845, a brother of George Felix Heard, in which he says: “I have given to his child thirteemnegroes, and to himself,$10.00'or $1200.” This is no proof of a donation to Emily S. Traylor, and is not in form to make a donation to any one. C. C. 1523.
    This, then, amounts to an admission that the property once belonged to defendant, and it is proven by evidence of J. C. Traylor given upon the trial in 1849, and received on this trial under the agreement. He says he saw those negroes in the possession of defendant, in Alabama, for many years — fifteen or more — and he treated them as his own. Wm. Ham says defendant brought part, perhaps the whole of the property, here from Alabama in 1840. Then he held them for fifteen years before 1840, which is sufficient title in him. C. C. 3417, 3438, 3439, 3465.
    Slaves are personal property in Alabama. To make a gift thereof at common law, and we believe it is not changed by any statute of Alabama, there must be a delivery and acceptance. 2 Kent, 438. Noble v. Smith, 2 Johnson, 55. Pearson v. Pearson, 7 Johnson, 27. Fink v. .Cox, 18 Johnson, 148. Cook v. Hunter, 12 Johnson, 189. 2 Blackstone, 442. Sims v. Sims, 2 Ala. Rep. 118. Blakeley v. Blakeley, 9 Ala. Rep. 394. McRae v. Pegues, 4 Ala. Rep. 163.
    If, for argument, we admit the deed of gift, it would not pass the title without acceptance and delivery of deed. C. C.-1523, 1530, 1531. The recording of a deed does not amount to a delivery. Maynard v. Maynard, 10 Mass. 456. Harrison v. Trustees, 12 Mass. 460. Mills v. Gore, 20 Pickering, 33. Church v. Gelman, 15 Wendall, 658. 2 Blackstone, 307, Jackson v. Phipps, 12 Johnson, 421. Sheppards v. Touchstone, 5 Law Library, 117, 120, 122.
    ■ Natural affection is a good consideration for a gift to a blood relation, if executed by delivery and acceptance; but if without delivery and acceptance, the execution cannot be enforced, unless for a valid consideration. 2 Blackstone, 441, 442. 2 Kent, 438. 1 Cowan, 638. Jackson v. Caldwell, 16 Johnson. Jackson v. Seabring.

    Plaintiff, not having alleged title by donation to Emily S. Traylor, or to Thomas S. Heard, but only as heir to Thomas S. Heard, calculates that if he proves title in either, he must succeed. We think we have shown want of title in Emily. Now, in relation to title in Thomas S. Heard, he can have none, unless defendant gave it to him in Louisiana, where it could only be done by authentic act, (C.'C. 1523,) and accepted iu the same manner (C. C. 1527) by the donee (1530). If donee dies, his heirs cannot accept (1531), and nothing short of this form will render valid a donation. Packwood v. Horsey, 6 R. R., 330. Want of form cannot be cured by any other form. There is no evidence offered to show that Emily S. Traylor ever knew of the donation, or that she ever claimed the property: she died in Alabama in September, 1840. Now, we admit that Emily S. Traylor was sister to defendant’s wife, and that she lived with them from a child, and he was very fond of her, and that he intended to give her the property, and that after her death, he intended to give the property to her child; hence his acts in the different probate proceedings in evidence. But, we contend, that, fortunately for him, he never carried that intent into execution so far as to divest himself of title, and be compelled to give it up to an entire stranger; and we believe the reason why he did not vest the title in her child, Thomas S. Heard, was the fear it might die, and defeat his object; and the only reason for his applying for the curatorship, was to get the property in possession, as there was no person here contradictorily with whom he could decide the title, and it was necessary to relieve J. C. Traylor, the tutor, from responsibility.
   The judgment of the court was pronounced by

Preston, J.

The following facts appear by the records of the late probate court of the parish of Union:

On the 22d day of July, 1844, the defendant, Thomas M. Smith, presented a petition to that court, in which he stated that George Felix Heard and Emily S. Traylor, his wife, were both dead; that they left a minor child, named Thomas Smith Heard, then in that parish ; that the property which the minor owned was principally in that parish, and consisted of about ten negroes, which he had given to the mother of said minor. He asked that Josiah C. Traylor, the uncle of the minor, might be appointed his. tutor, and himself the under-tutor. He was appointed and sworn, as the under-tutor, and, after proper proceedings, Josiah C. Traylor was appointed and qualified the tutor of the minor.

The tutor, on the 31st of July, 1844, made an inventory and appraisement of the property of the minor, which consisted of thirteen slaves, appraised at $3700. The inventory was signed by the defendant, and, at the bottom, it was stated that the property was deeded by him, Thomas M. Smith, as would more fully appear by reference to a copy of the deed hereunto annexed. This copy of the deed was then recorded in the parish of Union, and is identified by the testimony of the late probate judge of that parish. It is dated on the 10th of September, 1839, in Perry county, in the State of Alabama, and declares, substantially, that Thomas M. Smith, in consideration of the love and affection which he entertains for his adopted child and daughter, Emily S. Traylor, he gives her ten slaves, naming them, for the term of her natural life, and, at her death, he gives and confirms the negroes, with the increase of the females, to the heirs of her body, to have and to hold the slaves to them, and the heirs of their bodies, forever.

Under the inventory, accompanied by this deed, Josiah C. Traylor, the tutor of the minor, was put in possession of the slaves by the defendant, as being the property of the minor, and held it for him until his death. The documents and evidence thus referred to, leave not a doubt that the property belonged to the minor, Thomas S. Heard. The deed of gift to his mother, during life, and to him, after her death, made in Alabama, was now, at least, executed, by the delivery of the slaves to his tutor, and the registry of the deed in the parish where he resided with the property. The probate proceedings, carried on by the defendant, amount to a judicial confession on his part, that the property belonged to the minor. Code, 2264, 2266, 2270. Even if we supposed, which we do not, that he was in error of law, as to the effect of his deed of gift, he could not revoke his judicial confession, and it affords the legal presumption that the slaves belonged to the minor. Art. 2264. We have no doubt the minor could have recovered the slaves from his tutor, had he arrived at the age of majority, notwithstanding any intervention or claim of the defendant, Smith.

But the minor died on the 7th of July, 1845, when the defendant applied for the curatorship of his vacant estate, alleging that he left a considerable estate of property, real and personal, situated in the parish of Union. He was appointed. Twelve slaves were inventoried, and appraised at the sum of $3675, but the curator made anote at the bottom of the inventory, that he claimed them by virtue of a deed of gift, of which a copy was filed in the probate judge’s office, on the 31st July, 1844. It is the same deed of gift, by which, as we have seen, he acknowledged that he' divested himself of the slaves in favor of the deceased, whose estate he was administering, and his mother. The pretence, therefore, that he applied for the curatorship of the succession, merely to get his own property into his possession, and relieve the late tutor of the minor from responsibility, is unfounded in law. He holds the property, as the curator of a vacant succession, for the real heir.

The question then arises, has the plaintiff established that he is the true and only heir of the deceased minor, Thomas S. HeardThe probate proceedings show that Emily S. Traylor, the mother of the minor, and wife of its father, George F. Heard, died without any other issue. It is alleged that George F. Heard, the surviving father, went to Texas, married Mary Ann Wehster in November, 1842; that George Franklin Heard, born in 1843, was the only issue of this marriage; that the lather died/in 1844, and that the plaintiff is the guardian of the minor child, who is the legal heir of his half-brother, who died in Union parish on the 7th of July, 1845.'

That Mary Ann Wehster gave birth to the child, in 1843, while living with George F. Heard, as man and wife, and that lie died in 1844, is fully established by evidence. The only fact seriously contested, is their marriage, in 1842. A minister of the gospel swears, that he married them, in the Republic of Texas, in the fall of 1842, according to the laws and usages of the Republic, as far as he knows them, and that they lived together afterwards as man and wife, until the husband’s death, leaving one child, issue of the marriage. The marriage took place to the personal knowledge of Mary A. Saunders, and other witnesses corroborate the fact. A duly authenticated copy, of the marriage license, and return of its execution by the minister, is produced. It was issued by the deputy clerk of Harrison county; but then it is authenticated by the clerk and chief justice of the county court, as a record of the court; and the whole recognized by the Secretary of State of the State of Texas; and this record, in connection with the testimony of the minister, who must have had some knowledge of the laws and usages of Texas, as to the celebration of marriages, affords prima facie evidence that the marriage was legal, and that the parties were legally, as well as in good faith, man and wife. Their married state has never been impeached. The plaintiff shows, by a duly authenticated record, that he has been appointed guardian of the minor, in the Stale of Texas, and has given security in the sum of six thousand dollars, for his faithful administration. He is entitled, on complying with the requisitions of the act approved the 1st of April, 1843, to remove his ward’s property out of the State, and to the place of their residence. , "

We nre of opinion, therefore, that the minor, George Franklin Heard, should be recognized as the only heir of his decease_d half-brother, Thomas Smith Heard, and that the defendant, as curator of the vacant succession of the latter, is bound to render to the plaintiff his account, as curator, and deliver over to him the property of the succession, after paying the debts.

The judgment of the district court is reversed ; the minor, George Franklin Heard, is recognized as the legal heir of Thomas Smith Heard; and it is decreed, that the plaintiff, as his guardian, shall recover the estate of the deceased. The case is remanded for further proceedings according to law, and the defendant condemned to pay the costs of the appeal.


author: Rost, J.

text:
    Fellows, Johnson & Co. v. A. G. Reid.
    An attorney to represent ati absent defendant died, after putting in an answer praying for a jury. Another was appointed; but the minutes of the court were so defectively kept, that they did not show bis acceptance of the appointment, or that he was present at the trial. The case was tried without a jury. Held: That the record did not show that the prayer for a jury had ever been waived.
    Where a judge made an appointment of a curator ad hoc, and afterwards recused himself from trying the cause, on account of having been of counsel in the case. Held: That the appointment is not valid.
    APPEAL from the District Court of Caddo, Bullard, J.

      Roysdon and Spof ford, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit by attachment, in which the defendant was not personally cited, and did not voluntarily appear. R. A. Walker, an attorney at law, was appointed by the court curator ad hoc to represent him, and at the ensuing term filed an answer, in which he prayed for a trial by jury. Mr. Walker subsequently died, and Mr. Hodge appears to have been appointed in his place; but owing to the imperfect manner in which the minutes of the district court are kept, there is no satisfactory evidence before us that he accepted the appointment and attended to the case. The record only shows, that the plaintiff prosecuted his claim to judgment before the court. The defendant then appeared and took the present appeal.

Had the minutes of the court been properly kept, so as to show what counsel were present on the trial of the cause, no difficulty could have occurred. As the case is before us, we are constrained to say, that the trial by jury prayed for has never been waived by the defendant, or for him; and that he could not be deprived of it without his consent. Moreover, the judge who appointed Mr. Hodge curator ad hoc, afterwards recused himself, for a legal cause existing at the time of the appointment; and we incline to the opinion, that the appointment was not valid.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded to be tried before a jury; the plaintiffs and appellees paying the costs of this appeal.


text:
    Samuel B. Hough v. James J. Vickers.
    The plaintiff sued the defendant to recover back the price of a slave, upon the ground that he was addicted to running away. The defendant, in his answer, admitted the fact, but stated that he had so informed the plaintiff at the time of the sale. The plaintiff relied on the trial upon the admission in the defendant’s answer. Held: The admissions of a party, in an answer, cannot be separated; if one be received, so must the others. O. C. 2270.
    The sale of a slave cannot be annulled for the redhibitory vice of running away, where the vendor informed the purchaser of the vice at the time of the sale. O. C. 2498.
    APPEAL from the District Court of Bienville, Bullard, J.

      Morrison, for plaintiff.

      Roysdon and Spofford, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues to rescind the sale of a slave sold to him by the defendant, and for the recovery of the price, on the ground, that before and at the time of the sale, the slave was addicted to running away, to the knowledge of the vendor. The defendant answered that the plaintiff'had no cause of action; because, before and at the time of the sale, he declared to him that the slave had been a runaway, and would be likely to run away, under certain treatment; and that the plaintiff was fully aware of the character of the slave.

No evidence was introduced to show that the slave was in the habit of running away before the sale ; the plaintiff’s counsel relying upon the defendant’s admission of the fact in his answer, as proof of that fact. There was judgment for the defendant, and the plaintiff appealed.

The judicial admission made by the defendant, cannot be divided against him. C. C. 2270. The plaintiff having availed himself of it, as proof that the slave was an habitual runaway, it proves equally that the defendant declared that vice to him before the sale. The same fact also results from other evidence in the record. After proof of that declaration, the plaintiff’s action cannot be maintained. C. C. 2498.

The judgment is therefore affirmed, with costs.


author: Pees ton, J.

text:
    Henry W. and James Farley v. Hugh H. Farior.
    Where the 'affidavit for an attachment was made by the plaintiff’s attorney in fact, the Code of Practice does not require the affidavit should state the plaintiff was absent from the State; that fact being shown by the petition. C. P. 244.
    An affidavit for an attachment which states, that “ the defendant resides out of the State, having acquired no legal residence in the State,” is sufficient.
    APPEAL from the District Court of Caddo, Bullard, J .

      Crain and Nutl, for plaintiff.

      J. W. Jones, for defendant.
   The judgment of the court was pronounced by

Pees ton, J.

This suit was commenced by attachment on a promissory note. The affidavit was made by the attorney in fact of the plaintiffs. The defendant moved to dissolve the attachment; first, on the ground that the affidavit should have shown that the plaintiffs were absent from the parish. The Code of Practice does not require that this should be shown by the affidavit. C. P. art. 244. It was shown by the petition. The second ground was, that the affiant should have sworn that the debt was due. He did so expressly. As a third ground for dissolving the attachment, it was alleged, that the affiant should have sworn, positively, that the defendant resided out of the State of Louisiana, and should not have qualified his affidavit. The affidavit states, that said Farior resides out of the State of Louisiana, having acquired no legal residence in the State. The statement of the reason for considering the defendant a non-resident, does not vitiate the affidavit; but, on the contrary, being true, for it is not contradicted, makes the affidavit more satisfactory. The court, therefore, properly sustained the attachment.

The defendant plead that the note had been extinguished by the sale to the plaintiff, II. W. Farley, of real property in the State of Alabama; and that there was a balance of three hundred and fifty dollars in his favor, against the plaintiff, for which he sued by reconvention. He propounded interrogatories to the plaintiff, H. W. Farley, 'as to their transactions with regard to the real property alleged to have been sold to him. We have examined carefully the interrogatories and answers, and are of opinion with the district court, that the answers are responsive to the interrogatories, and do not go beyond them. The answers entirely exonerate the plaintiff from the claim in reconvention, and show that the note upon which the suit is brought, is credited with all that was justly due by the plaintiff to the defendant.

The judgment of the district court is affirmed, with costs; but without the damages claimed for a vexatious appeal.


text:
    Enos J. Look v. William Mays.
    The transcript of a record from a district court, containing a mandate from the Supreme Court, is legal evidence of the mandate.
    from the District Court of Caddo, Oleoii J.

      Thomas T. Land, for plaintiff.

      L.P. Crain, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This appeal is brought before us without evidence or statement of facts, as required by articles 601, 602 and 603 of the Code of Practice, and the appellant assigns for error, that there is no evidence in the record which justifies any judgment against the defendant, but the judgment informs us that it was rendered by reason of the law and evidence. We are bound, therefore, to believe that there was satisfactory evidence before the district court, for its rendition.

On the trial of the cause, the plaintiff’s counsel offered in evidence, a transcript of a record of the District Court of Red River County, in the State of Texas, to prove that the Supreme Court of the State of Texas had reversed the judgment of the district court in the case, and which reversal is the foundation of this action, to which the defendant’s counsel objected, on the ground that it was not the best evidence which, could have been procured, the mandate of the Supremo Court, as transcribed in the record, being the copy of a copy, and that the mandate to prove the fact for which it was offered ought to have come directly from the clerk of the Supreme Court. The court admitted the record in evidence and the defendant excepted.

A transcript of a record of one of our district courts, containing a mandate of our Supreme Court, duly certified, is legal evidence of that mandato, and has always been so received. We have nothing to show, that such atranscript would not be evidence of a mandate of the Supreme Court in the State of Texas. The transcript was therefore properly received in evidence.

The case presents no other question, and the judgment of the district court is therefore affirmed, with costs.


text:
    James B. Stewart v. Pruett and Williams.
    Where joint trespassers have been permitted to sever in their answers, and separate verdicts have been rendered against each, the court cannot enter up a judgment against them in solido. The judgment mustfollow the verdict. C. P.541.
    An objection that the jury did not write their verdict on the petition cannot be made in the Supreme Court. If important, the error should have been corrected in the district court. The assignment of a reason in writing out the verdict of a jury, does not vitiate the verdict. In an action of damages for a trespass, in which the plaintiff had sued out an injunction against the defendants, the violation of the injunction by continuing the trespass, is a just reason for increasing the damages.
    APPEAL from the District Court of Morehouse, Copley, J.

      D. Newton, for plaintiff.

      Robertson and Boatner, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sued the defendants for damages for trespass, in disturbing him in the possession of some lumber, in the town of Bastrop. He obtained an injunction againsttheir acts, and complained in a supplemental petition, that they were violating the injunction, and the fact appealed, especially as to Pruett, by the sheriff’s return.

The defendants severed in their answers, but each plead that the suit had been settled, with some other immaterial matters. They severed, also, in the trial of the case, and a verdict was rendered against Wilkins for twenty-five dollars, and against Pruett for fifty dollars damages, and for violation of the law, fifty dollars. The district court allowed the severance in the trial, and yet entered up a judgment in solido against the defendants, for one hundred and twenty-five dollars and costs.

This is assigned as error, and we think the assignment must prevail. The verdicts are general, and the Code of Practice expressly requires, that judgment should be given pursuant to the verdict. Article 541. The defendants were undoubtedly liable, in solido, for their joint trespass, but for some reason, which does not appear in the record, they obtained separate trials, and the juries, for some cause, fixed different liabilities for each, by separate verdicts. The rule of law, that the judgment must follow the verdicts, must prevail.

Many other errors have been assigned, which we have carefully examined, and think they cannot prevail in this court, as that the verdict against one of the defendants was not written on the petition. If important, it should have been corrected in the district court. So the jury gave a reason for part of their verdict against one of the defendants. It was unnecessary; but utile per inutile non vitiator. It is said, the reason given “for the. violation of law” is bad. On the contrary, the plaintiff having taken the legal and civil remedy of an injunction, to arrest the injuries which the defendants were causing him, the violation of the injunction, by continuing the trespass, was an aggravation of the injuries, and a just reason for increasing the damages.

Motions for new trials were made and overruled, no bills of exception were taken, the case comes up without evidence in writing, or statement of facts. We are thus unable to judge, whether the newly discovered evidence was a sufficient ground for anew trial or not. One of the defendants swears, that the jury did not believe his witness to material facts, and that he had discovered another witness to the same facts. The newly discovered testimony was therefore merely cumulative, and would not be a ground for a new trial, unless, perhaps, under very extraordinary circumstances.

The judgment of the district court is reversed, at the costs of the appellee, and it is decreed, that the plaintiff recover from Mitchell J. Wilkins, twenty-five dollars, and from Adam Pruett one hundred dollars, and that the defendants be condemned, in solido, to pay the costs of the district court.


text:
    John Frazer v. D. M. Pritchard, Sheriff, et al.
    The plaintiff had purchased a tract ofland in the name of his two minor children, reserving the usufruct for his wife during her life. A creditor, who had obtained judgment against him prior to the date of the purchase, caused the land to be seized on execution. There was no satisfactory evidence that the plaintiff was indebted to his children. Held: That the purchase of property, in the name of his children, was a simulation, which the creditor might disregard, and cause the property to be seized.
    from the District Court of Catahoula, Barry; J.

      McGuire and Iiay, for plaintiff.

      O. Mayo, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff in injunction, John Frazer, purchased a tract of land in the name of his two minor children, and inserted a stipulation in the act, that his second wife, the step-mother of the minors, should have the usufruct of it during her natural life. He paid part of the price cash, and gave for the remainder his promissory notes, which, we infer from the evidence, have been nearly paid in full by him. B. McFeely, who had obtained a judgment against Frazer before the date of this purchase, caused the land to be seized as his property, and Frazer enjoined the sale in the name of his children, on the ground that the land belonged to them. After hearing, the injunction was dissolved, with damages, and the seizing creditor ajlowed to proceed under his execution. The plaintiff has appealed.

There is no satisfactory evidence in the record that Frazer was indebted to his children, and the purchase does not purport to be made as an investment of their funds. If it had been, what right had the tutor to stipulate that their stepmother should retain the usufruct of the property. It was clearly a sale made to him, under which the minors acquired no right adversely to his creditors. So far as creditors are concerned, the case stands as if the sale had been made to any other person, and the price paid by the plaintiff. This is a simulation of a peculiar kind, but it is, nevertheless, simulation. As a general rule, any false designation of parties in a deed is a simulation, and any third person, having an interest may, at all times, and in all forms of action, show the truth which the simulation conceals, and avail himself of it.

The rights of the minors, if any they had, are sufficiently secured by the legal mortgage which the law gives them on the property seized.

Judgment is therefore affirmed, with costs.


text:
    Edward Dorsey & Co. v. D. M. Pritchard, Sheriff, et al.
    A lease of lands, houses or tenements, has no effect against creditors, unless the same has been recorded as required by law, in cases of sale of real property.
    from the District Court of Catahoula, Barry, J.

      O. Mayo, for plaintiffs.

      McGuire and Ray, for defendants.
   The judgment of the court 'was pronounced by

Rost, J.

This is a suit by injunction, in which the plaintiffs seek to prevent the sheriff from selling certain improvements upon a town lot which he seized under execution, at the suit of H. Pargoud v. Charles O'Reilly, and also the unexpired lease of said lot. It is in evidence, that some years ago, Mrs. O’Reilly, who is not shown to be separated in property from her husband, took a lease of the lot for ten years ; the consideration of which was, that she should erect upon it certain buildings, which were to remain to the lessee at the expiration of the lease. Those buildings were put up by O’Reilly himself, and, two years after, Mrs. O’Reilly transferred the lease to the plaintiffs,' with the consent of the owner of the lot; after this transfer, Pargoud caused the buildings and the unexpired term of the lease to be seized, and the plaintiffs enjoined the proceedings. After hearing, the injunction was perpetuated, and the defendants appealed.

Many questions have been raised in argument, which it is unnecessary to notice. Neither the lease, nor the transfer of it, were recorded as required by the act of the 20th of March, 1806. Bul. and Cur. 539. Those acts have therefore no existence against creditors; and, as it is conclusively shown that the buildings were put up by O'Reilly, and belong to him, they may be taken in execution for his debts. The effect of the sheriff’s sale will be to annul the lease, as if the land itself had been sold.

It is therefore ordered, that the judgment in this case be reversed and the injunction dissolved, so far as to allow the sheriff to proceed, under the execution in his hands, to sell the buildings and improvements seized by him. It is further ordered, that the judgment be affirmed, so far as it perpetually enjoins the sale of the unexpired term of the lease. It is further ordered, that the plaintiffs pay costs in both courts.


text:
    R. W. Prater et al. v. D. M. Pritchard, Sheriff et al.
    Whoever undertakes to shield the property of another from the pursuit of his creditors, is properly subjected to the rule “ omnia prcesumuntw contra spoliatores Where a party interrogated on facts and articles answers evasively, the interrogatories are to be taken as confessed against him; and where the object of the interrogatories is to ascertain the amount of a sum of money paid to him, the largest sum, about which inquiry is made, will he taken as the true amount.
    from the District Court of Catahoula, Barry, J.

      James Q* Taliaferro, for plaintiffs.

      Mayo and Hendry, for defendants.
   The judgment of the court was pronounced by

Rost, J.

Copley, as assignee of Jacobs, a judgment creditor of Robert H. Hanna, caused to bo seized, under execution, a tract of land, as the property of his debtor. The plaintiff, in his own right and as administrator of his brother’s estate, enjoined the sale, alleging that the land belonged to him, and to hie brother’s succession, jointly; the injunction was perpetuated by the district court, and the defendants appealed. The seizing creditor, in his answer, averred the ownership of the land to be in Hanna, and propounded interrogatories to the plaintiff to establish that fact; the plaintiff objected to answering, but was very properly ordered by the court to do so. It results from his answers, that he and his brother purchased the land from Seoit, and that, subsequently, they entered into a contract with Hanna, by which they gave him possession of the land, and agreed to make him a title as soon as he paid them $800. Under that agreement, Hanna occupied the land, and had been in possession four years at the time of the seizure. Many of the interrogatories annexed to the defendants answer, were propounded with a view to ascertain how much Hanna, or others for him, had paid upon the land; when and how it had been paid; but all the answers of the plaintiffs to those interrogatories are perversely evasive, and evidently shaped so as to shield Hanna's property from the pursuit of his creditors. Whoever assists in the work of spoliation, becomes properly under the rule omniapreesumuntur contra spoliatores. When to the interrogatory, whether Hanna, or any one for him, has paid as much as $550, or $500 ; or as much as $450, or $400; or as much as $350, or $750, the amount of the price agreed upon, less $50, he answers, “that he supposes he has; thathe does not know exactly how much has been paid; thinks $500, or thereabout.” It is our duty to take the interrogatory for confessed, to the amount of the largest sum, and to consider it proved that the price has been paid within $50.

The just rights of Hanna’s creditors cannot be defeated by an understanding between him and his vendors, that the small balance due shall remain unpaid. We are of opinion, that upon payment of that balance to the plaintiffs, Copley will acquire the right to subject the land in controversy to his execution.

It is therefore ordered, that the judgment in this case be reversed, and the injunction dissolved. It is further ordered, that upon the defendant, Copley, paying to the plaintiff the sum of $50, the sheriff be allowed and ordered to proceed in the sale of the land, seized under the execution in his hands. It is further ordered, that the plaintiffs pay costs in both courts.