text:
    Robert Fluker v. Benajah Doughty.
    A plat of survey made by a deputy surveyor under tlio Spanish Government, with his certificate that the survey was made by himself agreeably to the order of the Surveyor General of the two Floridas, is not evidence of a complete Spanish grant, but only of an-inchoate grant within the discretion of Congress after the acquisition of title by the United Statos, and subject to be entirely rejected.
    Such an incomplete grant js inferior to a title derived from the Government of the United States by virtue of a legislative act of confirmation.
    Until the patent issues, an inchoate grant remains within the discretion of the grantor.
    ■\Vhon there is a conflict between the certificate of confirmation by the United States of an inchoate Spanish grant and the orders of survey, the Act of confirmation must prevail and determine the nature and extent of the rights of the original claimant.
    APPEAL from the District Court of the Parish of East Feliciana, Haralson, J., presiding.

      Musa & Ilanlee, for plaintiff and appellant.
    J. B. & J. J. Smith and W. J. Kernan, for defendant.
   Land, J.

This is a petitory action, in which the plaintiff claims to be the owner of one thousand acres of land, more or less, situated in the angle or fork formed by the confluence, or junction of the Amite River and Beaver Creek, in the Parish of East Feliciana.

The plaintiff alleges that the land in controversy had been granted or donated by the Spanish Government to one Alexander Bookter, and had been separated from the public domain, by a survey under Spanish authority, prior to the acquisition of title by the United States Government, and that after the treaty of cession, the claim of Bookter was confirmed by an Act of Congress, and that he plaintiff acquired title to the land in dispute, by purchase from Bookter, the original claimant. lie further alleges that the defendant claiming to be the owner of some two hundred acres of the said tract of land, had entered upon the same, and committed acts of trespass to his damage, at least, of three hundred and fifty dollars.

The defendant in answer to the plaintiff’s petition, pleads the general denial, the prescription of ten, twenty and thirty years, and avers title in himself -from the General Government, by virtue of a confirmation to one Coonrod Andrews, and of a conveyance from him.

The only evidence offered by the plaintiff to establish the alleged Spanish grant or donation consists of a plat of survey by a deputy surveyor under the Spanish Government, who certified that the survey was made by himself on the ] 9th of February, 1199, agreeably to the order of the Surveyor General of the two Floridas, and that the land surveyed is justly represented in the plat of survey.

The laud claimed by the plaintiff is embraced within the boundaries of this Spanish survey, as shown by the plat; and if the plaintiff be entitled as he contends to all the land embraced within the survey, which is some two thousand acres, then he has a right to recover in this suit, and the judgment of the lower court, which is against his pretentions, must be reversed.

In order to make out a legal title to all the land within the lines of Spanish survey, the plaintiff was bound to show a perfect grant derived from the Spanish Government before the acquisition of title by the United States; or the plaintiff was bound to show a confirmation by Act of Congress, which gave to Boolcter the whole of said land.

As we have said, the only evidence of a Spanish grant offered by the plaintiff was the plat of survey above mentioned ; and if it be conceded that this plat is evidence of a prior order of survey, still the survey, in pursuance of the order, would not be evidence of a complete Spanish grant, but only of an inchoate grant within the discretion of Congress after the acquisition of title by the United States, as it had been before within the discretion of the Spanish Government, and as such subject to be entirely rejected.

In the case of Pontalba v. Copland, 3 An. 88; this court said : The Supreme Court of Louisiana were of opinion that the title passed under an inchoate grant. The Supreme Court of the United States hold that it remained in the sovereign until a complete grant issued ; and it is undeniable that the legislation of Congress, assumes that construction. We cannot differ from that high tribunal on questions involving the alienation of the public domain, and the interpretation of treaties and Acts of Congress. And afterwards in the cases of Lobdell v. Clark, 4 An. 99, and of Pervis v. Harmanson, ibid 422, in which the evidence of the plaintiff’s title or grant consisted of an order of survey, and a survey in pursuance of the order, this court acted upon the doctrine announced in the case of Pontalba v. Copland, and held that the evidence only established an incomplete grant, which was inferior to a title derived from the General Government, by virtue of a Legislative Act of confirmation. And in the case of Lobdell v. Clark, the court proceeded to say : It is further alleged that the right of the defendant to the land is secured by the treaty of cession, and could not have been taken away by an Act of Congress. This argument takes for granted that the title passed from the sovereign under an order of survey, even when there was no actual settlement and cultivation. But it has been settled by the highest judicial authority that such was not the effect of inchoate grants; that until the patent issued they remained within the discretion of the grantor; and that they were not changed in their character by the treaty by which Louisiana was acquired, that this treaty imposed upon the Government of the United States only a political obligation to perfect them, and that this obligation, sacred as it may be, cannot be enforced by any action of the judicial department of the Government.

It is clear upon the doctrine of those cases, that the plat of survey was only evidence of an inchoate grant, and did not pass the legal title to the whole or any part of the land embraced within the survey. The claim of Bookter. was, however, confirmed by the Act of Congress of the 3rd March, 1819, and it remains to be considered whether this act of confirmation passed the title to all the land within the survey, that is to say, to some two thousand acres, or only to one thousand acres of the same.

In support of his claim to all the land in the survey, the plaintiff offered in evidence a certificate of confirmation signed by the Register and Receiver of the Land Office, in pursuance of the 12th Section of the said Act of Congress of the 3rd of March, 1819, and also two orders of survey, the first issued by the Register and Receiver of the Land Office at St. Helena of date the 29th September, 1823, and the second order issued by the Register and Receiver of the Land Office at Greensburg of date the 12th of April, 1848.

The certificate of confirmation declares simply that the one thousand acres of land confirmed to Bookter, is claimed under the Spanish survey made on the 19th of February, 1799. The two orders of survey directed the old lines of the Spanish survey to be re-established as the boundaries of the Boolcter claim, which would, of course, if legal and executed, give to the plaintiff all the land within the original survey, including the land now in dispute.

This certificate of confirmation, and these orders of survey, considered as evidence of title, are inferior and subordinate to the: act of confirmation, and so far as there is any conflict between them, the act of confirmation must prevail, and determine the nature and extent of the rights of the original claimant. The plaintiff’s right tested by this rule, cannot extend to any greater quantity of land in the Spanish survey, than one thousand acres, because the act of confirmation, which was the only legal title of- Boolcter, to any part of the land, limited his claim to that quantity in pursuance of the report of the commissioner who recommended it to Congress for confirmation. And besides, his claim was reported as one of those founded on an order of survey, without “ cultivation and inhabitation, ” and the Act itself declares that such claims are confirmed as donations, and shall not embrace, in favor of any one person more than one thousand two hundred and eighty acres of land. So that, under the act of confirmation, the claim of Boolcter could not, under any circumstances, have covered the two thousand acres of land contained in the Spanish survey, and the plaintiff’s claim, by assignment from him, can have no greater extent than was given to it, by the report of the commissioner, and the act of confirmation.

Neither of the two orders of survey offered in evidence by the plaintiff was ever executed, but the claim has been surveyed in pursuance of the act of confirmation, and does not include any of the land in contestation in this suit. The plaintiff, consequently, has failed to show any title to the locus in quo, and the judgment of the lower court must be affirmed.

.For the reasons assigned, it is ordered, adjudged and decreed, that the judgment be affirmed with costs.

Meebick, O. J., having been consulted on the title in controversy, recused himself.


source: Caselaw Access Project

author: Vooeihes, J.

license: Public Domain

text:
    Thos. Moore v. R. M. Hopkins.
    Noithcr party to a contract can maintain an action for damages for its violation, without showing a readiness and ability to comply with his own engagements under the contract.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Singleton <ft Clack, for plaintiff.

      Clarke & Bayne, for defendant and appellant.
   Vooeihes, J.

The present controversy grows out of a contract to carry

freight, — a thousand bales of cotton, — at the rate of five dollars per bale, from the port of Rolland, Texas, to the city of New Orleans.-

The plaintiff, who commanded a steamboat, obligated himself to take the cotton on board of his boat, and, should the waters not permit, to construct two barges for that purpose. It was also agreed that, .should the cotton be carried on the barges, insurance should be effected, as if the same were carried on steamboat.

The plaintiff contends, that there was an active violation of this contract on the part of the defendant, and that, in consequence, the latter is bound absolutely for the amount stipulated for freight.

The answer sets up a reconventional demand for damages, averring that the contract was broken by the plaintiff. So far as this party is concerned, it is evident that he cannot recover, unless he shows that, on his part, he has complied with all his engagements as lay within his power. But this he has not done; for he could not procure insurance upon the freight to the extent stipulated. The insurance company would not insure, except for two-thirds of the risk, and the owner to be his own insurer for one-third; and, besides, the company limited to four hundred in all the number of bales to be carried on each barge. The plaintiff was not in readiness in two particulars : first, as regards the question of insurance, and secondly, as regards the quantity of cotton to be carried ; his action must, therefore, fail.

The defendant, on the other hand, did not suffer any damages resulting from the inability of the plaintiff to comply strictly with the terms of the contract. Lie shipped his cotton by the first opportunity of which he could avail himself, and even stated that Captain Moore should not thereby be a loser, for he (defendant) would provide him with' other cotton.

It is, therefore, ordered, that the judg’ment of the District Court be avoided and reversed ; and that the plaintiff’s demand, and the defendant’s claim in reconvention be rejected, the plaintiff paying costs in both courts.


author: Land, J.

text:
    A. E. Carter v. T. H. McManus et al.
    Where the object of a sale of succession property is the payment of debts, citation to the heir, and the advice of a family meeting are not required by law.
    Personal citation to the heirs is necessary to render the judgment homologating an administrator’s final account biuding as between, the heirs and the administrator ; hut as between the heirs and creditors of the succession, it has been held that the homologation is binding without personal citation or notice, when the notice has been given as required by Art. 1057 of the Civil Code.
    The law makes no distinction between the beneficiary heir who is a creditor (although he he the administrator,) and the other creditors ; and the judgment homologating an administrator’s account, when the administrator is both lieir and creditor, is biuding on the other heirs, without personal citation to them.
    An application made by the executor named in the will, to have the will probated, is not a judicial admission which would estop the executor from claiming as his own, property disposed of in the will.
    APPEAL from the, District Court of the Parish of East Feliciana, Ratliff, J.

      A. M. Bunn aud Hardesty & Hernán, for plaintiff and appellant.

      Benjamin, Bradford & Finney, for defendants.
   Land, J.

Samuel aud Sarah McManus had issue of their marriage James, Thomas H, and Rebecca McManus. Rebecca intermarried with Albert G. Carter, and died, leaving the plaintiff, Albert Eugene Carter, the sole issue of their marriage.

James McManus, after making his will, died without issue, in the year 1840. His will was declared null and void, and his father was appointed administrator of his succession. Samuel McManus proceeded to the settlement of the affairs of the succession of his son James, by causing all the property, land, slaves and movables, to be sold at a probate sale, for the payment of debts. Soon after the sale of the effects of the succession, Samuel McManus rendered a final account of his administration to the Probate Court, and prayed for its homologation after the legal delays. This final account, which showed the succession of James McManus to be insolvent, was homologated by the Judge after the legal advertisements and delays, and the administrator was discharged, and his bond canceled.

Samuel McManus died in the year 1857, and the plaintiff, who is one of his forced heirs, and also one of the legal heirs of James McManus, and who has recently attained the age of majority, instituted this suit against the executors of Samuel McManus for the twofold purpose, first, of setting aside and annulling the judgment of homologation, and of'annulling and avoiding the probate sale of the land, slaves and movable effects in the succession of James McManus, and secondly, of having certain slaves declared the property of the succession of James Mc-Manus, which were not included in the inventory by the administrator, but which were claimed by him as his own property.

The defendants, in their answer, plead the general denial, res judicata, and the prescription of five, ten and fifteen years.

The causes alleged for annulling the probate sale are : that the sale itself was unnecessary, because the succession was not indebted to any one; that the decree ordering the sale was ex parte, without citation ornotice to the plaintiff’s tutor, who was present in the parish; and that the sale was made without the previous advice of a family meeting, declaring its necessity, and fixing its terms.

The alleged non-existen.ce of debts due by the succession is not sustained by the evidence, but, on the contrary, is disproved, independently of the decree of the court, by the production of the promissory notes of James McManus, which were outstanding and not due at the time of his death. The other alleged causes are true in point of fact, but they are insufficient in law to avoid the probate sale of the property.

Where a succession is administered with the benefit of inventory, as was that of James McManus, the person appointed administrator, whether the heir or any other individual, is required to pi’oeeed to the sale of the property of the succession on the authorization of the Judge, aud after advertisement during the time and in the manner prescribed by law, for the purpose of a final settlement of its affairs. C. C. Arts. 1051, 1055. The law does not require the administrator, on his application for an order to sell the property of the succession, to pay debts, to cite the beneficiary heir to show cause why the decree of the sale should not be granted ; nor does the law require the administrator to cause the convocation of a family meeting to deliberate upon the necessity of the sale for the payment of debts, and to fix the terms of the same, before he can obtain an order for such a purpose from the Judge. When the object of the sale is the payment of debts, citation to the heir and the advice of a family meeting are not required by law, and the absence of them, consequently, cannot affect or impair the validity of the sale. ■

The causes alleged for annulling the judgment of homologation are, that it was rendered ex parte, without citation to the plaintiff’s tutor; that no debts were due by the succession, and that the judgment was a fraud upon the rights of the plaintiff, as heir to the estate of James McManus.

As to the first of these grounds, it appears, that when Samuel McManus filed his final account or tableau, he gave the notice required by Article 1057 of the Civil Code, which provides that the Judge, on the demand of the administrator, shall order that the creditors and legatees of the succession be notified to show cause, if any they have, within ten days, why they should not be paid conformably with the authorization solicited by the administrator, or according to the tableau of distribution by him presented. And that, after the advertisement and expiration of the Iggal delay, the Judge, in pursuance of the requirement of Article 1058 of the Code, homologated the account, and discharged the administrator, but without personal citation to the plaintiff, one of the heirs represented by his tutor.

It has been held, that, as between the heir and the executor, or administrator of an estate, the homologation of the final account is not binding on the heir, without citation or notice; but it has also been held that, as between the heir and creditors of the succession, the homologation of the final account is binding and conclusive on the heir, without personal citation or notice. This distinction is not made by Articles 1057 and 1058 of the Civil Code under the head “ Of the benefit of inventory and the delays for deliberating.” But conceding the distinction to be well founded, it cannot be made in this case, because the object of this suit is to destroy the rights of Samuel McManus, as a creditor of the succession, and not to make his executors liable in damages for his mal-administration. Samuel McManus was one of the beneficiary heirs, and as a creditor of the succession of James McManus, was placed on a footing of equality with the other creditors, and had a right to be paid, as any other creditor, all debts due him by the deceased. C. C. 1051. And as the law makes no distinction between the beneficiary heir, who is a creditor, (although he may be the administrator,) and the other creditors of the succession, the courts can make none, and the judgment of homologation must be held as conclusive in favor of Samuel McManus, considered as a creditor, as it is in favor of the other creditors of the succession, without personal citation to the heir.

From this view of the case, the plaintiff cannot avoid the judgment of homologation as to Samuel McManus, considered as a creditor before the opening of the succession, except on the ground of mistake, error or fraud. And this, the plaintiff seeks to do, by charging- his grand-father with fraud, and by specially averring that the debts recognized, in his favor, by the judgment of homologation, were not due from the succession, but were mere fictions or simulations. The burden of proof was on the plaintiff to establish these grave charges of fraud against his ancestor, in the administration of the succession of James McManus, but the evidence which he adduced fails to establish the truth of his allegations. On the contrary, the record shows an indebtedness from James to Samuel McManus, evidenced by the promissory notes of the former, to the amount of $2,500, which was the principal debt against his succession, and recognized by the judgment of homologation. The other items of indebtedness in favor of Samuel McManus consisted in matters of account which the Probate Judge believed to be correct, and which the father could legally charge against his son. If there were any legal objections to the allowance of these charges, or of the promissory notes, as debts against the succession, the plaintiff’s tutor should have filed an opposition to the homologation of the account, within the delay prescribed by law. And if the plaintiff has been injured by the negligent or bad administration of his tutor, he has his recourse against him for indemnity.

The second purpose of the plaintiff’s suit is to have certain slaves, which were not inventoried, declared the property of the succession of James McManus.

As slated above, James McManus died, leaving- a last will and testament. In bis will, he disposed of all his property to which his title is not denied, and also of the slaves now in controversy. He appointed his father, Samuel McManus, and his brother, Thomas 11. McManus, his executors, who presented his will to the court, and prayed, in their petition, for its probate. The plaintiff, through his tutor, was cited to show cause why the will should not be probated. His tutor opposed the application of the executors, and for the causes of nullity alleged by him, the will was declared null and void. Thereupon, Samuel McManus applied to bo appointed administrator of the succession, and, as we have said, was accordingly appointed. In causing an inventory of the property to be made, Samuel McManus refused to have included in the same seven of the slaves, which James McManus had disposed of iu his will as a legacy to his brother Thomas, and claimed the slaves to be his own property.

The plaintiff contends, that the application of the executors of James McManus to have his will probated, was a judicial admission of his title to the slaves disposed of by his will. And that such admission, without further proof of title in the succession, is sufficient evidence to sustain his action against the executors individually, for the recovery of the slaves, as the property of the succession of James McManus.

The petition for the probate of the will contains no express averment or declaration, that the slaves wore the property of James McManus, and if any such admission can bo implied from the mere application to probate the will, it would not be of that express and positive character required by Article 2270 of the Civil Code, to constitute the judicial-confession of the party, by the effect of which he is estopped from asserting and proving the oontrary. And besides, it has been considered by this court, that admissions made by an executor or administrator-in the course of judicial proceedings, are made for the benefit of the estate represented by him, and do not conclude his individual rights by way of estoppel.

It is, therefore, ordered, adjudged and decreed, that-the judgment of the lower court be reversed ; and it is now ordered, acjjudgcd and decreed, that there bo judgment in favor of defendants, with costs in both courts.

Meerick, C. J., having been of counsel at the rendition of the judgment sought to be annulled in this action, declined sitting in this case.


author: Duffel, J. Duffel, J.

text:
    Thomas Peniston v. J. A. Somers.
    An award or arbitrators, when acquiesced in by both partios, lias, as to thorn, llio otfoct of a filial judgment.
    A direct action of nullity is the 'only remedy to correct an orror in an award of arbitrators onoo acquiesced m by tbo parties.
    A judgment must be oonstruod with reference to the pleadings, and, when it admits of two constructions, that one will bo adopted which is consonant with the judgment which should have been ron derod on the facts and law of the case.
    ■Whore there is a rceonventional demand, and both parties to the suit arc cast, each must pay the costs of his own pleadings.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant <6 Hornor, for plaintiff and appellant.

      C. A. Taylor, for defendant.
   Duffel, J.

On the 1st of January, 1855, the plaintiff and defendant formed a partnership to carry on an apothecary and drug’ store in New Orleans, for a term of five years, with the understanding- that, in case of any disagreement between them, “ the matters in dispute ” should bo referred to arbitrators, whose decision shall be final.

The parties mutually admit that, in consequence of a disagreement betweeu them, all the transactions of their partnership were by them submitted to arbitrators lor a settlement, on the 1st of January, 1858 ; that the award was closed on the 5th of April, 1858, and concluded as follows : “ and as Mr. Somers is now in possession, and has devoted his time wholly to the concern, it shall be optional with him to retain the sa,id store, with all its rights, contents and privileges, upon his paying to the said Dr. Peniston the before mentioned sum of §2,1G5 32, or to give up to the said Peniston the store with all the rights, contents and privileges, upon receiving from said Peniston the before mentioned sum of §2,519 88. In either case, all transactions subsequent to the 1st of January, 1858, must be settled in conformity with the entries on the books of the concern.”

It is further admitted on both sides, that the defendant did pay to plaintiff the amount awarded to him, say §2,165 32. But the plaintiff, conceiving that he had, under the last clause of the award, the right to claim his share of the sales of the drugs from the 1st of January, to the 5th of April, 1858, instituted this action for a final settlement.

The defendant contends, on 1ns part, that the affairs of the firm were settled by the award, and that the partnership was thereby put at an end; he further alleges error in the award, to his prejudice, to the amount of §803 63, which he pleads in reconvention.

The District Judge re-opened the whole transactions between the partners, appointed auditors, and, on a rule to show cause, rendered judgment in accordance with the report of the experts, condemning the plaintiff to pay to the defendant the sum of §814 83.

The plaintiff appealed.

We will not note particularly the bills of exceptions taken by the plaintiff, nor the various grounds of opposition to the report of the experts.

The first award having been rendered, and acquiesced in by both parties, had, as to them, the effect of a final judgment. C. C. 3077, 3096, 3097 ; Cobb et at. v. Parham et id., 4 An. 148 ; 3 La. 487 ; C. P. 459, 567.

And it follows from the above, that the only remedy left to the defendant, if any, was by a direct action in nullity. C. P. 607 ; Norris v. Fristoe, 3 An. 646.

Having thus disposed of the reeonventional demand of the defendant, out of its regular and usual place in point of order, we will now proceed to inquire into the right of action of the plaintiff.

A judgment must be construed with reference to the pleadings, and when it admits of two constructions, that one will be adopted which the court should have rendered on the facts and law of the case. Trépagnier v. Williams, 4 La. 100 ; Rochelle v. Cox, 5 La. 287:

Now, the question arises, what construction is to be given to the clause “ In either case, all transactions subsequent to the 1st of January, 1858, must be settled in conformity with the entries on the books of the concern?” It cannot mean, that an account should be rendered of the sales of the drugs made after the 1st of January, 1858, nor of the claims of the partnership collected after the 1st of January, 1858 ; for the gross amount of the assets of the partnership, which formed the basis of the award, consisted, in part, of said stock and credits. The only sensible and plausible construction would seem to be, to impose on the plaintiff, should the defendant “ retain the said store, with all its rights, contents and privileges,” the obligation to account for any portion of the stock, credits, &c., received by him after the 1st of January, 1858, and that alike account should bo due by the defendant, did the plaintiff retain the store, &c., according to the terms of the award.

The defendant having paid the amount awarded to the plaintiff, became thereby the sole owner of all the partnership effects, and the partnership, as between the parties, ceased to have any existence.

It is, therefore, ordered, that the judgment of the District Court be reversed ; and it is now further ordered and decreed, that the • claims of both parties be rejected, the defendant and appellee paying the costs of the appeal, and the plaintiff and appellant those of the lower court.

Same Case — Ok a Re-hearing.

Duffel, J.

Our attention had not been called to the large amount of costs incurred in the lower court, and to the fact that those costs had been caused principally by the reconventional demand of the defendant. .

And, inasmuch as both parties have been cast, we think that justice requires that each party should pay his own costs. See the decree in Carroll v. Harper, 11 An. 214.

It is, therefore, ordered and decreed, that our former judgment herein be so far amended, as to condemn each party to pay the costs incurred in the lower court by his pleadings.


author: Voorhies, J.

text:
    R. R. Barrow v. Valery Landry.
    The proprietor of the upper estate has no right, in the exercise of the servitude of drain which exists in favor of his estate upon the lower, to divert the flow of waters from their natural course, upon the ground that it is beneficial to the lower estate : this is a matter which concerns only the proprietor of such lower estate. If he prefers that the servitude be exercised at a spot more or less injurious or beneficial to himself, it is his own look out; and the only question is, how the waters naturally flow.
    According to the provisions of Article 656 of the Civil Code, the proprietor of the upper estate is not prevented from cultivating his fields and facilitating their drainage on the lower estate; but the act of draining other land than that belonging to his estate, upon the lower estate, is a violation of this Article, which declares that “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome. ”

    The proprietor of the lower estate has no right to erect a dam or levee by which to prevont the exorcise of the servitute of drain duo the upper estate, although such servitude may have been aggravated. In such a case, the proper remedy is by injunction.
    APPEAL from the District Oourt of the Parish of Jefferson, Burthe, J.

      Durant & Hornor and Mills & Leblanc, for plaintiff.

      Johnson & Denis, for defendant and appellant.
   Voorhies, J.

The parties are proprietors, of adjacent plantations. The land of the plaintiff drains naturally over the rear portion (sec. 121) of the defendant’s. The present controversy has arisen from the fact that the defendant has erected a levee or dam on section 121, which has the effect of interrupting this natural flow of the waters. In answer to the petition, the object of which is to have these impediments removed and damages awarded, the defendant contends that the plaintiff has aggravated the natural servitude : hence a reconventional claim for damages, and a demand to have closed the works causing such aggravation.

It appears that, by a contract entered into between the plaintiff and the municipal authorities of the town of Donaldsonville, the former obligated himself to receive, by means of a ditch or canal through his lands, the waters running from the town ; and that this contract has been carried into execution. It is in proof that this body of water, at least from Claiborne Street to the Mississippi river, drains naturally in a different direction, that is in a line parallel to the river, and that there is a natural outlet across the defendant’s plantation at about ten arpents from the front line on the Mississippi, and thence across the plantation of the lower proprietor. But the canal or ditch, through which the plaintiff drains the town of Donaldsonville runs nearly at right singles with the above mentioned natural drain, and, after leaving the plaintiff’s plantation, at forty arpents from the bayou Lafourche, discharges its waters on section 121 of the defendant’s plantation.

In other words, not only do the waters flow naturally from the upper to the lower estate; but a body of waters is thereto added, which, being left to its natural course, would not have found its way to that locality. It is argued that this is a benefit to the lower estate, inasmuch as the aggravation of the servitude is felt at a low and marshy place ; whilst otherwise the waters would be thrown upon the arable lands.

Such may be the case; but this is a matter which concerns only the defendant. If he prefers that the servitude be exercised at a spot more or less injurious or beneficial to himself, it is his own look out; and the only question is how the waters naturally flow. Becknel v. Wendhall, 7 An. 291.

“ It is a servitude due by the estate situated below to receive the waters, which run naturally from the estate above, provided the industry of man has not been used to create that servitude.” C. C. 656. The plaintiff, under this provision of the law, would not be prevented from cultivating his fields and facilitating their drainage on the lower estate; but it is evident that the act of draining the town of Donaldsonville, according to the terms of his contract, is a violation of the text, which says : “ The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.” Same Article ; Pardessus, Serv., p. 130,$83 ; ibid, p. 149.

On the other hand, the defendant has invaded the rights of the plaintiff by the dam or levee erected along the back line of the latter’s plantation.” The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.” Same Article; Toullier, III, g509.

This cause was submitted to two juries : the first time in the parish of Ascension, where the estates are situated, and the second time in the parish of Jefferson, where the case had been subsequently removed by a change of venue. The former verdict was in favor of the defendant generally; whilst the latter ordered the demolition of the works erected by the defendant, but rejecting the plaintiff’s claim for damages.

In our opinion, the levee or dam should be demolished, and the canal back of Donaldsonville closed, so as to prevent the waters between Claiborne Street and the River from draining through the canal on the plaintiff’s plantation.

With regard to the damages claimed by both parties, it is evident that they are entitled to none, as they have reciprocally violated the law in this very respect. Besides, no damages are specifically proven; and, under the circumstances, we do not feel disposed to interfere with the finding of both juries who sat in this cause.

We concur with the District Judge, in his charge to the jury, that, notwithstanding the fact of the aggravation of the servitude on the upper estate, the defendant had not the right to erect a dam or levee. Instead of taking the law in his own hands, he should have resorted to the'summary remedy by injunction.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by adjudging that the plaintiff, Robert R. Barrow, do cause or procure his canal or ditch to be closed at Claiborne Street, in the town of Donaldsonville, or, if he be unable so to do, that he cause the same to be filled at the point where it intersects his plantation back of said town ; that in other respects the judgment be affirmed ; and that the plaintiff pay the costs of appeal, and the defendant the costs of the District Court.

Duffel, J., recused himself.


author: Duffel, J.

text:
    John J. Blair v. James W. Collins.
    If a slave sold with fall warranty dies of a disease contracted from exposure while a runaway, the vendor will be liable to return the price, on proof that he had requested the vendee not to send the slave back, if caught, until at a specified timo, wheu he would either give another one in his place, or return the price.
    It is sufficient, in the execution of a commission to take testimony, if the caption and procos-verbal show that the witnesses were duly sworn, and whore, when and by what authority the commission was executed, and it is not necessary that it should appear by whom the deposition was written.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Clarice & Bayne, for plaintiff'.

      Collins <& Woolridge, for defendant and appellant.
   Duffel, J.

The plaintiff, a resident of the parish of DeSoto, obtained a judgment against the defendant, for the return of tile price of a slave, with costs and expenses.

The curator of the succession of the defendant, who died during the pendency of the suit, appealed.

The evidence shows that the defendant, who was a negro-trader in New Orleans, sold, on the 22d' December, 1857, under full warranty, to tbe plaintiff, a slave who had been imported into this State a month or two prior thereto ; that the slave proved to be a confirmed runaway; that in July or August following, the plaintiff wrote to the defendant that he was compelled to throw the negro back on his hands, as he had run away four or five times; but inasmuch as the slave was then at large, he desired to know if he should be sent to him when caught; that tbe defendant requested the factor of the plaintiff to write to the latter, asking him not to send the slave back before the fall, as the fever was then raging in New Orleans, and he might lose him, but that he would make it all right by giving him another negro, or returning the price; that the slave was arrested, and a few days after, Sfcli of November, 1858, lie died of a chronic peritonitis, brought on by exposure when out in the woods as a runaway; that the slave had been well treated, and had received, when sick, medical aid.

The evidence, unless excluded, fully justifies the judgment of the District Judge. Raca v. Slawson, 5 An. 708 ; Riggin v. Kendig, 12 An. 451; Buie v. Kendig, ante 440 ; C. C. 2510, 1906 ; Bowman v. Ware, 18 La. 597 ; Smith v. Taylor, 10 Rob. 133.

We are therefore required to take notice of two bills of exception taken by the defendant. One of them is to the reception of that part of the testimony which was introduced to prove a tender, and that the defendant having been regularly put in mora, the slave was at his risk.

The exception was properly overruled.

The other exception is to the effect, that it does not appear that the depositions taken under commission were written and signed by the witnesses in the presence of the magistrate, and that it does not appear who wrote the depositions? they not being in the handwriting of the magistrate.

The caption and proees-verbal show that the witnesses were duly sworn, and state where, when, and by what authority the commission was executed. This was held to be sufficient in the case of Ferriber v. Lotting, 9 An. 169.

Judgment affirmed, with costs.


author: Merricic, O. J.

text:
    Susan Girault v. James E. Zuntz.
    "Where a party has expressly recognized the title of another to property, and thus estopped himself from questioning the validity of such title, a party holding the same property under him as vendee must bo held to a recognition of that title, and must show that ho has acquired the same, or fail in maintaining his right to the property.
    If either the pleadings or evidence show that both parties trace their titles to the same source, neither will be permitted to attack the title of their common author.
    A party cannot controvert the title of one under whom ho claims.
    In order to prescribe for a slave in five years, by adding the possession of the vendor to that of the vendee, it is necessary that the vendor as well as vendee should have held under a just title as
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      J. D. Mayes, for plaintiff.

      Mott <6 Fraser, for defendant and appellant.
   Merricic, O. J.

“This is a petitory action against Zuntz, the defendant, who is in possession of the slave in controversy, claiming title by purchase from Wm. G. Kendall, 2d July, 1856.

“ The plaintiff represents, that in the year 1843, she, through her agent, Wm. G. Kendall, purchased at Sheriff’s sale, in the county of Tallahatchie, State of Mississippi, in the suit of Walter Hickey v. James A. Girault, her husband, a number of slaves, among which was a woman named Eliza, and her child Joe, the slave in controversy in this suit; that she, by virtue of said purchase, became vested with the title of the slave Joe. That on or about the 23d October, 1846,-Wm. G. ICendall obtained possession of her slave, Joe, from her husband, James A. Girault, who, at the time, received from said Kendall the sum of $300 ; and that said Kendall immediately removed said slave to New Orleans, or the Bay of .Biloxi, before she received any intelligence of the transaction ; and that she never did consent thereto, or make any contract with said Kendall, or receive, directly or otherwise, a cent for her slave. That said Kendall, at the time of receiving said slave from her husband, executed and delivered to liim the writing marked A, as follows :

' Tallahatchie Co., Miss., 23d Oct., 1846.
‘ I, Wm. G. Kendall, have this day advanced to Mrs. Susan Girault the sum of §300, upon a certain negro boy named Joe, five years old, and black complexion, and the son of Old Billy, formerly belonging to James A. Girault, which said sum of money, if returned at any time, with ten per cent., within five years, the said boy is to be delivered to the said Mrs. Susan Girault, or her agent. I also bind myself to clothe, feed and pay all doctor’s bills for said boy; also be responsible for the said delivery, to the said Mrs. Girault, of said boy.’
(Signed) • ‘ W. G. Kendall.’
It is contended, that the title of the plaintiff to the slave Joe is shown by the execution in the case of Hickey v. Girault; and also, that the above recited instrument made by Wm. G. Kendall, the vendor of defendant, Zuntz, contains an admission of the title of plaintiff, three years after said purchase at Sheriff’s sale, in 1843.
“ The answer denies generally, the allegations of the petition, and specially, that defendant owns or possesses any slave that belongs, or ever did belong, to plaintiff; but avers, ‘ that if the said plaintiff ever did have title to any slave in the possession of defendant, said title was so held by her in fraud of the rights of the creditors of her said husband, who was then insolvent; that, by the laws of Mississippi, where she and her said husband resided, and where she pretends to have acquired the slave Joe, she could not acquire property from her husband, either directly or indirectly ; and, that the agency of the said Kendall, if there ever was such agency, which is denied, was-for the purpose of defeating the provisions of the law, and to enable her, moreover, to acquire property in contravention thereof.’
“ And respondent further avers, that any sale or proceeding between James A. Girault and W. G. Kendall was legal and valid, and shows that said Girault was the real owner of the property sold — the said Girault having always been in possession of the said slave as owner ; that the loan of money set forth was a good and legal loan, and should be decreed to be returned, if the said slave Joe should be proved to be identical with said agreement, which is, however, denied.”

The defendant “ pleads prescription ” generally, without designating the particular prescription on which he relies. ,

Suit was brought in March, 1858.

The defendant and appellant contends in this court, that the judgment on which the execution was issued, under which the slaves of James A. Girault wove sold, had been extinguished by payment previously, and inasmuch as the plaintiff’s agent, W. G. Kendall, was aware of the fact, her pretended purchase was fraudulent and void. But it must be borne in mind, that the money made at said salo (as it appears by the return) was applied to other executions, except three dollars and fifty cents applied to the costs.

Again, W. G. Kendall, through whom defendant claims, has recognized plaintiff’s title in the act which he has signed. As W. G. Kendall, therefore, could not be permitted to question the plaintiff’s original title, so also his subsequent vendee must be held to a recognition of that title, and to show that he has acquired the same, or he must fail in his defence to the action ; for it is well set-tied, that if either the pleadings or evidence show that the parties trace their titles to the same source, neither will be permitted to attack the title of their common author, and that a party cannot controvert the title of one under whom he claims. Crane v. Marshall, 1 N. S. 577 ; Verret v. Candolle, 4 N. S. 402 ; 8 La. 237 ; Hughes v. Barrow, 4 An. 250 ; Kemp v. Womack, 1 Rob. 369 ; Cotton v. Stacker, 5 An. 677.

As it respects the question of prescription, it is also clear that W. G. Kendall had not acquired the property by prescription at the time he sold to the defendant. I-Ie could not be considered as holding under a just title as owner, and hence, his possession cannot be added to that of the defendant. C. C. 3450, 3451, 3456. See also Martin 289.

This case differs from Reynolds v. Batison, 11 An. 729, in this, that the defendant in the latter case had held as owner, under a title translative of property, and in good faith, for more than five years previous to the commencement of the suit. In the case before us, Kendall's title was not translative of property, and he did not, in fact, (as shown by the instrument signed by him,) possess as owner, but for another, and the defendant’s title and possession were acquired only about two years previous to the commencement of the suit.

The defendant has shown no transfer or subrogation to Kendall’s demand for #300 and interest, and therefore, he cannot demand a judgment for the same, even if it be conceded that the claim ever existed against the plaintiff.

Judgment affirmed.


author: Voorhtes, J. Yoortiies, J.

text:
    Elijah C. Baxter v. Sisters of Charity.
    Under the provisions of the Act of 1855, relative to the Mechanic’s Lien, it is necessary to submit an arbitration in writing, and if, in point of fact, there was not a written submission, the award is not binding.
    The statute above mentioned requires that the contractor should signify his assent or dissent to the owner, within ten days aftor being notified of the claim of his journeyman, or other person, for work performed; but this is a matter which concerns only the contractor and the owner. A payment made lo a claimant after the lapse of ten days, and before the contractor has notified his dissent to the owner, will be binding as between the two latter, the law presuming assent from the silence of the parties. This presumption, however, is not absolute, and, at any tune before payment, the contractor may object to the correctness of a demand.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant <& Hornor, for plaintiff.

      Collins & Wooldridge, for defendant and appellant,
   Voorhtes, J.

The plaintiff claims to have furnished materials for a building, owned by the defendants, who had contracted with one.D. Mulligan for its erection. The attested account having been served on the defendants, and these parties notified by the contractor not to pay, the matter was submitted to the arbitration of two persons, chosen by the plaintiff and the contractor. There being a difference of opinion between the arbitrators, an umpire was appointed by them. Subsequently an award was rendered in favor of the plaintiff; but the contractor’s arbitrator refused to sign the instrument.

This suit was brought, upon the defendants’ declining to pay the amount of the award, on account of the contractor’s notification that he had protested against the validity of the award and objected to the payment of the plaintiff’s claim.

The matter was submitted to the award of arbitrators'under the provisions of the third and fourth sections of the Act relative to Mechanics’ lien, 1855, p. 327, gg 3,4. The statute provides: “ that whenever any account of labor performed on a building erected under a contract as aforesaid, shall be placed in the hands of the owner or his authorized agent, it shall be his duty to furnish his contractor with a copy of such papers, in order that if there be anv disagreement between such contractor and his creditor, they may by amicable adjustment between themselves, or by arbitration, ascertain the 'true sum due."______“ That if any such contractor shall dispute the claim of his journeyman or other person for work or labor performed as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreement of both parties, to the arbitrament of three disinterested persons, one to be chosen by each of the parties, and one by the two thus chosen, and the decision, in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted.”

The question then arises, how is this submission to arbitration to be made ? “ A submission, ” says the Code, Art. 3067, “ must be reduced to writing. ” The power of arbitrators is limited to what is explained in the submission. ” Art. 3071.

There are no specific provisions to the contrary in the statute. When the lawgiver referred these matters to amicable compounders or to arbitration, without providing for the mode or manner of making the submission, he necessarily had in view the existing legislation upon the subject-matter. Any other construction would render inoperative the provisions of the statute, upon which the plaintiif bases his action. 7

The plaintiff’s claim has not been submitted in writing to arbitrators, and it appears that the contractor has brought an action to set aside the award, and has notified the defendants of this proceeding. It is said that the reason why the matter was not submitted in writing was the refusal of the contractor to sign the submission. Be this as it may; in point of fact there was not a written submission : consequently the award is not binding. C. C. Arts. 3096, 3097; C. P. Arts. 444, 445, 459, 460, It is advisable, however, merely to non-suit the plaintiff, inasmuch as he is now engaged in a litigation with the contractor upon the issues involved in this instance.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff’s demand be rejected, as in case of non-suit, with costs in both courts.

Land, J, absent.

Same Case — On -a Re-hearing.

Yoortiies, J.

In our former opinion we held that it was necessary to submit in writing an arbitration under the provisions' of the Act relative to Mechanic’s Lien.

The plaintiff, in his motion for a re-hearing, contends that, under the second section of this Act, he is entitled to relief, notwithstanding the nullity of the proceedings by arbitrament. He contends that the contractor did not, within tea days after notification, give the defendant written notice of his intention to dispute the plaintiff’s claim, and, consequently, that this was an assent to the demand, which the owner cannot now gainsay.

It appears from the evidence that the contractor, D. Mulligan, even after the failure to settle the controversy by arbitrament, notified the defendants not to pay the plaintiff’s demand, averring that suit had been instituted for the purpose of setting aside this award. "We are informed, by the plaintiff’s brief that a judgment of non-suit has been rendered in that cause; but this fact is not disclosed by the record. Be this as it may, the result stands unaffected. The statute requires, it is true, that the contractor should signify his assent or dissent to the owner, within ten days after being notified ; but this is a matter which concerns only the contractor and the owner. A payment made to the claimant, under those circumstances, would be binding as between the two former, the law presuming assent from the silence of the parties. This presumption, however, is not absolute ; and at any time before payment, can the contractor object to the correctness of the demand.

It is, therefore, ordered and decreed, that the judgment of this court remain undisturbed.


text:
    E. T. Parker, Sheriff, v. Union Insurance Company.
    Where the Sheriff of Orleans, having a steamboat in custody, insured, her “against harbor risks in the port of New Orleans,” and she sank in port — I-Ield: That in an action by the Sheriff to recover the amount of insurance, neither of the parties litigant being able to assign the specific cause of the disaster, the law will presume the nnseawortliiness of the boat, and the burden of proof is on the owner to show the contrary
    APPEAL from the Fifth District Court of New Orleans, Eggleston, 3.

      Hunt <& Denegre, for plaintiff.

      G. Leganleur, for defendant and appellant.
   Voorhies, J.

The steamboat Tennessee Belle being under seizure, the Sheriff' of the parish of Orleans had her insured “ against harbor risks in the port of New Orleans. ”

The boat sank in port; and, damages to the amount of $1,966 50 having ensued, the Sheriff instituted this suit against the Insurance Company for the recovery of this claim.

The defence is that the Tennessee Belle was, at the time, unseaworthy; and that the loss is attributable to the carelessness of those having her in charge.

The evidence shows conclusively that the boat was seaworthy; and that the plaintiff and his agents were vigilant in the taking care of this property. The accident took place at 2 o’clock' — past midnight; and neither of the parties litigant have been able to assign the specific cause of the disaster. Prom this state of facts the law presumes the unseaworthiness of the vessel, — a presumption which it is incumbent on the owner to rebut by proof to the contrary. But this, as we have already stated, has been done by the plaintiff. Marcy v. Sun Mutual Insurance Company, 11 An. p. 749, and 14 An. p. 264.

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


author: Buchanan, J.

text:
    A. W. Walker v. J. S. Cucullu.
    T!ic obligation contracted by tlio vendor, to cause a mortgage resting on the property sold to be erased within a speciiied time, is a condition precedent to the collection of a note given for the price, and it is not incumbent on the vendee to put the vendor in default by a formal demand on him to erase the mortgage.
    The existence of an incumbrance on property sold, for a loss amount than an installment of the price which has become due, justifies only tlio suspension of the payment to the extent of the encumbrance, to which extent the injunction should be limited.
    "Where previous to the obtaining of an order of seizure and sale for the price secured by mortgage on the property sold, the vendee had commenced an action of qumli minoría against the vendor, which ii successful would absorb the amount of the executory demand — Held: That an injunction against the order of seizuro and galo should be porpetuated without prejudice to the eventual rights of the defendant in injunction.
    APPEAL from the District Court of the Parish of St. Bernard, Foulhouze, J.

      F. A. Hueros, Jr., for plaintiff and appellant.

      P. Soulé, L. Charvet, Bonford, Singleton & Clack, and A. Beatty, for defendant
   Buchanan, J.

By notarial act dated 28th September, 1857, Joseph S. Cucullu sold to Augustus W. Walker a plantation and slaves in the parish of St. Bernard, for the sum of $135,000. The price was payable as follows : $25,000 in cash; $10,000 in two notes of $5,000 each, payable 31st January, 1858 ; $80,000 in six notes of $13,333,35, each payable respectively the 10th December, 1858, 1859,1860,1861,1862, and 1863 ; $20,000 in the assumption of two notes of vendor in favor of and held by Villavaso, due 1st February, 1858, and secured by special mortgage on the land sold. Total $135,000.

There was a certificate of mortgages annexed to the act of sale, showing (in addition to the mortgage in favor of Villavaso assumed by the vendee,) a mortgage in favor of the four minor children of vendor, to secure a sum of $1,615 65 inherited from their grandmother. The vendor declares that this mortgage had been released for the shave of one of his children, and engages himself to cause the whole mortgage to he entirely erased within twelve months from the date of Ihe sale.

On the 9th of April, 1859, a writ of seizure and sale was issued from the District Court of St. Bernard, on the petition of the vendor, against the vendee, alleging that there was then unpaid a balance of $4,366 66 on the installment of $13,333 35 which -was then matured, being the note payable 10th December, 1858. This petition for seizure and sale was filed in the name of vendor’s wife, acting under a power of attorney from her husband, who was alleged to be absent from the State. A certified copy of the power of attorney was annexed to the petition.

Walker enjoins the sale of the property seized, on the following grounds :

1st. That the power of attorney from Cuculla to his wife does not contain a grant of authority to prosecute via executiva.

2. That there is no proof made that Cucullu has caused the mortgage in favor of his minor children to be erased, as he bound himself to do.

3. That the order to the Sheriff should have been, to sell for cash only to the extent of what was actually due.

4th. That Walker had instituted (previous to the issuing of this writ of seizure and sale.) against Cuculla, in the Fourth District Court of New Orleans, (the parish of Cucullu’s domicil,) an action in diminution of the price of sale in the sum of eleven thousand dollars for redhibitory vices and maladies of slaves sold, and also for misstatement of the ages of the slaves sold ; that this action quanti minoris is still pending and undetermined, and it cannot be known, until said action is decided, how much is really due by Walker to Cucullu. And the said action is pleaded by way of exception to the executory proceedings. But, should this exception of hs pendens be overruled, then petitioner reserves the right of pleading the same matters in defence to the present action.

I. The ground of want of authority in Mrs. Cucullu to bring the executory action, is waived in argument in this court.

II. It is admitted, in the answer to the petition for injunction, and in argument, that Cucullu has not caused the mortgage in favor of his minor children to be erased ; that it is still in force as to three out of the lour children. But it is contended, on behalf of defendant in injunction, that Walker was bound to put Cucullu in default, and not having done so, cannot maintain an injunction on this ground; or that ho can, at most, only enjoin the executory process for the amount of the said mortgage of Cucullu’s children, and not for the whole amount of his own debt for the price of the plantation.

Upon this branch of the case, we are of opinion that the erasure of the mortgage in favor of the minors Cucullu was a condition precedent to the collection of the note of Walker for the installment of the price of the plantation matured in December, 1858. The vendor expressly bound himself, as we have seen, to have said mortgage entirely erased within twelve months from the date of sale. It was not, therefore, incumbent-on the vendee to put the vendor in default by a formal demand to erase that mortgage. But the existence of an encumbrance of about thirteen hundred dollars, which the vendor was bound to have removed, did not justify the postponement or suspension of the payment of a balance of $4,366 due upon the matured installment of the price of sale. And we should limit the injunction accordingly, were this all that the record presented in opposition to the enforcement of the payment of the price by the summary proceeding which the vendor has chosen to adopt.

IV. But we find that, on the trial of the injunction, the plaintiff offered in evidence the record from the Fourth District Court of New Orleans from which it appears that Walker instituted his action quanti minoris against Cucullu in a court of competent jurisdiction, and that issue was joined in said action by the answer of Cucullu, before the institution of the executory action by the latter in another court. Tt may be admitted that Cucullu was not bound to plead a rcconvenlion in the first suit, and that he might institute a separate action for the enforcement of his mortgage in the parish where the land mortgaged was situated ; but it is nevertheless true, that the action quanti minoris went to the consideration of the mortgage note last sued upon, and to the partial rescission of the contract upon which that note was based. It is also true, that Walker will be entitled to be allowed any diminution of the price of sale which may be decreed in the action quanti minoris, in deduction of first installments of the price matured. Considering that it is impracticable to determine at this time, and in this proceeding, what the amount of such deduction may be; and considering that the diminution of price claimed, would much more than absorb the amount of the executory demand, we think it just to perpetuate the present injunction, without prejudice to the eventual rights of the defendant in injunction.

It is, therefore, adjudged and decreed, that the judgment of tho District Court be reversed ; that the injunction heroin issued be made perpetual, at the cost of defendant and appellee in both courts, without prejudice to the eventual rights of tho defendant in injunction, under tho contract mentioned in the petition.


text:
    Louis Janin v. Madame De Pontalba.
    A letter considered as the evidence of an obligation, must be construed according to the ordinary rules of interpretation prescribed (or contracts in general, and its contents determined by tho meaning of the words in which it is written.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.
    C. Roselhts and W. H. Hunt, for plaintiff.

      J. Magne and B. S. Tappan, for defendant and appellant.
   Land, J.

The plaintiff, an attorney-at-law, sues to recover a fee of ten thousand dollars, for professional services rendered.by him to tho defendant in the suit of The Heirs of General Lafayette v. Pontalba et als., in the Circuit Court of the United States for the Eastern District of Louisiana, and in the Supreme Court at Washington.

The evidence establishes, that the suit mentioned involved title to a large and valuable real estate situate in the rear of the city of New Orleans ; that its defence required an unusual degree of research and labor on the part of counsel; and further, that the suit was decided in favor of the defendant, and that the fee claimed by the plaintiff is a reasonable compensation for his professional services in that cause.

The employment of the plaintiff, and the rendition of services by him in defence of the suit, are admitted ; but the defendant contends, that the plaintiff had contracted with her an obligation to defend her rights in that litigation without fee or compensation. The evidence of that obligation, it is alleged, is contained in a letter which was written by the plaintiff to the defendant, and which is in the following words :

“ Nouvelle-Orléans, le 11 Décembre, 1848.
Madame la Baronne de Pontalba :
“ Madame : A votre demande, je vais retracer a la hate et bien brievement le sujet de la conversation que nous venons d’avoir.
“ Je vous ai dit que votre procos contre Evariste Bla7tc est sur le point d’étre flxé ; que je serai prét a le plaider le jour oú il sera fixé ; qu’á moins d’un empéchement que je ne puis pas prévoir, et qu’il n’est pas en mon pouvoir d’écarter, (tel que les affaires antérieurement iixées, qui occuperaient le temps désig'né pour cette cause, ou la maladic du juge Bullard, votre adversaire,) elle sera plaidée le jour pour lequel elle sera fixée; que s’il y a appel du jugement de la cour inférieure, l’appel pourra probablement étro plaidé dans trois mois depuis l’enregistrement du dossier.
“ Je vous ai dit aussi, queje ne connaissais pas de meilleur titre sur la terre en contestation entre vous, Messrs. Moore & Nicolet et Evariste Blanc, que votre titre et celui de Messrs. Moore 16 Nicolet réunis.
“Vous avez ensuite proposé de faire une transaction avec Messrs. Moore <& Nicolet, par laquelle vous partageriez également entre vous la torre en contestation, et qui est la memo terre que ees messieurs out achetée, en deux morceaux, de la Banque du Oanal et d’autres personnes, á la condition expresso quo vous n’auriez aucuns honoraires d’avocats, ou outres frais quelconques, á payer. Vous étes done convenue de signer la transaction preparée par Jules Mossy, notaire public, ou d’en signer une semblable. Jem’engage de mon cote <i plaider le proces contre E. Blanc sans compensation pour la part que vous en vetirerez. et de payer votre part des frais du proces, jusqu’au jugement final. Les frais de partage et de vente vous resteront seuls á charge.
“ Agreez, Madame, l’assurance de ma haute considération.
“Sigilé, Louis Janix.”

The words of this letter are clear and explicit, and refer exclusively to tho lawyer’s fees in the suit then pending against E. Blanc, and can by no reasonable construction be held to apply to fees in any other case. The letter, considered as the evidence of an obligation, must be construed according to the ordinary rules of interpretation prescribed for contracts in general, and its intent determined by the clear and explicit words in which it was written. The plaintiff, on his part, bound himself to prosecute the suit against E. Blanc, for tho defendant, without compensation, but for nothing more, so far as fees for his professional services were the subject-matter of his undertaking, and the letter must be held to express the full extent of his obligation.

The fact that the plaintiff received a liberal fee for his services in the suit against E. Blanc, is immaterial in this controversy. And the further facts, that the plaintiff defended the suits of Copland v. Pontalba, and of Arrcwsmith v. Durel, for the defendant, without compensation, are also immaterial in this case, because in those suits he acted f<5r the defendant in consideration of foes previously paid, and in pursuance of a special written agreement to that effect.

The fee demanded appears to be large, but its reasonableness is well sustained by the testimony of gentlemen who stand high in the legal profession, and who had peculiar means of knowledge touching the nature of the suit against the defendant, and the research and labor necessary to its proper defence.

The judgment of the lower court is in favor of the plaintiff for the amount claimed, and must be affirmed.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


text:
    J. H. Massey v. G. W. Helme.
    A devolutivo appeal was made returnable on the first Monday of November and a rule for an extont\on of time was ittod on tho 19th of the same month — Held; That where a party takes a devolutive» appeal, and fails to file the transcript by the return day, if it appears that no fault was imputable to him, bo is entitled to an extension of time.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant & Hornor, for plaintiff and appellant.

      H. M. Spofford, and ¡V. H. Hunt, for defendant
   Voorhies, J.

The plaintiff is, under the circumstances of this case, entitled to an extension of time for filing the transcript of appeal.

He has taken a devolutive appeal from the judgment rendered below in favor of tho defendant on the 1st day of March last. And although the transcript might have been procured in timo for tho return day, yet the failure to do so caunot be imputed to the party as a fault. Had it not been the desire to avoid encumbering tho record with useless matter, and subjecting the court to unnecessary labor and the parties to unnecessary costs, there would have been uo occasion for the application for an extension of time.

After some time had elapsed in fruitless endeavors, on the part of the appellant, (o have an agreement entered into for the purpose of dispensing with copying in the transcript, what might bo deemed useless-matter, it was ascertained that there would not. be time left to make out the transcript. We were informed by counsel, during the argument of the present motion', that tho transcript will contain over twelve hundred pages ; and that it will be necessary to copy in it a book containing the whole correspondence of one of the parties, the greater portion of which is stated to be foreign to the issues involved. This fact, we have not the means now to ascertain ; but if such be the ease, it is obvious that the agreement proposed by the appellant was useful to tho parties as it would have been convenient to the court.

The appellant is entitled.to relief, tho more so that, were the extension of time refused, he would yet bo entitled to move below.for another devolutive appeal.

It is, therefore, ordered, that time be extended to the appellant to tho second Monday in January, on which to bring up the appeal in this ease.


text:
    John W. Hereford v. William Lake et als.
    In a suit upon a duo bill, wlioro there mis a vai-iiini’c lictwron tho initials of the. name with which the bill was signocl, and tho allegation of tho petition to tho name of the person by whom the bill was drawn — : That a judgment of nonsuit should bo rendered, unless the plaintiff amend his pleadings or at least adduce proof of the fact that they were the same person
    APPEAL from tho Second District Court of New Orleans, Morgan. J.

      George L. Bright, for plaintiff.

      C. B. Singleton, curator ad hoc, for defendants and appellants.
   Duffel, J.

This is an appeal taken from a judgment confirming a default.

The petition charges in substance, that George Wilson, R. P. Crump and William Lake, owners of the steamboat Grenada, are, m solido, indebted to tho petitioner, in the sum of $1000, the amount of a due bill annexed to tho petition and signed by W. P. Crump master of said boat, who was by the owners authorized to sign such bills.

The default was confirmed without any other evidence than the due bill, and it is contended, in this court, by the appellee, thafthe signature to the bill is that of the appellant R. P. Crump.

The pleadings should have been amended, or tho appellee should, at least, have adduced proof of tho facts now disclosed. Having- failed to do either, ho must be non-suited.

The decision in the ease of Davis, adm’x. v. Davis, 8 An. 91, is not applicable to the one at bar.

It is, therefore, ordered, adjudged and decreed, that the judgment of tho District Court be reversed, and that ours be in favor of the appellants, as in case of non-suit, the plaintiff paying the costs of both courts.


text:
    John P. Heiss v. D. Corcoran and J. Davern.
    "Whoro a memorándum of objection to the a I mission of a document offered in evidence was found in tiio record — Held: That unless tlie grounds of objection are stated, such a memorandum cannot bo noticed by the Supreme Court as an exception to evidence.
    "Where a supplemental and amended answer 1ms been filed by order of court, the Judge who permitted its filing cannot,propri') nnlu, rule it out, as not filed in time.
    Where witnesses have been offered and cross-examined without objection, and written evidence offered and received without a proper and intelligible exception reserved, tho party against whom such parol and written evidence has been given ernnot be heard to object in this court to its admissibility.
    Whore, in protesting a note, tho notary declared that he presented it for payment through his deputy, and certified that he notified the endorser, by a letter to his address putin tho Post Office, after vain attempts made to find him or his domicil, and the evidence showed that' the endorser resided in tho same city with the Notary, and was a person well known, and that ho or his residence might have been found by tho Notary — Held: That in such a case, the endorser would not he liable, on account of the want of notice.
    APPEAL from tlic Third District Court of New Orleans, Duvigneaud, J.

      B. S. Tuppnn, for plaintiff.

      T. II. Howard and M. M. Reynolds, for defendants and appellants.
   Buchanan, J.

Plaintiff brought this suit in January, 1856, as holder, against defendants, as maker and endorser of a promissory note for five hundred dollars, protested at maturity, about a year previously (February, 1855,) for non-payment.

Issue was joined by both defendants within a month after suit brought.

Corcoran filed a peremptory exception that the note had been issued by him to Mr. John Slidell, and endorsed by Davern for his (Corcoran’s) accommodation ; that the same had been paid to Mr. Slidell, the holder, at maturity, by plaintiff, who was Corcorans partner in the Daily Delta newspaper, and for account of Corcoran, who was owner of one-fourth of Said paper; that such payment had extinguished the note ; and if plaintiff had any claim at all, if was a mere personal claim against Corcoran, in settlement of partnership account, for so much paid ; (hat he, Corcoran, had never been able to bring liis partner, the plaintiff, to account, although frequently demanded ; and that he had instituted a suit against him, No. 7174 of the docket of the Fifth District Court of New Orleans, for settlement of partnership, which suit was still ponding'; and pleaded the said suit in bar of tho present action.

Davern filed for answer, the plea of want of notice of protest of tho note sued on.

The cause remained untried, upon these pleadings, until May 30th, 1859, when, on motion of counsel of plaintiff, and on suggesting- the death of defendant, Corcoran, tho suit was discontinued as to said defendant.

On the same day, the cause was continued as to the other defendant, Davern, upon a written consent to submit the same, upon the testimony to be furnished by the parties, and taken in the clerk’s office by the 6th June, 1859.

On the same day, May 30th, 1859, after the entry of the order of continuance in the minutes, and after the agreement to submit was signed, but before any evidence was taken, defendant, Davern, filed a supplemental answer, with leave of court, signed by the Judge, in which he adopted the'defence pleaded by his co-defendant, Corcoran, in addition to the plea already filed by himself.

Much evidence, parol and documentary, was taken by the parties under their agreement, from the 3d to the 7th June, 1859, inclusive. All of this evidence was received without objection, if we except the record of the suit referred to in Corcoran’s peremptory exception, as to which we find the following memorandum : “ The defendant offering in evidence the transcript from the Fifth District Court entitled D. Corcoran v. J. P. Heiss & W. G. Kendall, the same is objected to on the part of plaintiff, who reserves his bill of exceptions if the same is received.” As no ground of objection is stated, however, this cannot, under the settled practice of this court, be noticed as an exception to evidence. The whole oí the depositions of witnesses, and documentary and record evidence thus taken, is copied in this transcript, and constituted the evidence upon which .the cause was submitted to the District Court.

Judgment was rendered in favor of plaintiff, and defendant, Davern, appeals.

It is proved that the note, at maturity, belonged to John Slidell, to whom it had been originally given for money lent by him to Corcoran; that Shdell was also creditor of Heiss, the plaintiff, in a note of the latter for six thousand dollars, secured by a bill of sale of the Delta newspaper ; that Heiss’s note fell due the next day after the note of Corcoran; that Heiss’s note was renewed by Mr. Slidell for the sum of $4000 in Heiss.and Kendall’s joint and several note, at Jleiss’s solicitation ; that in renewing said note, Heiss being a partner of Corcoran in the Della, Mr. Slidell insisted that Mr. Heiss should assume the payment of this note of Corcoran, which was then under protest; that accordingly, Heiss gave Slidell his individual note, payable the 1st of January, 1856, for the amount of Corcoran’s noto; that Slidell retained possession of the note now sued on, as collateral, until Heiss’s note aforesaid was paid ; when he delivered it to Heiss.

It is also proved, that Denis Corcoran sued John P. Heiss and Wm. G. Kendall for settlement of a partnership which his petition alleged to exist between himself and the said parties, in the newspaper and job offices of the New Orleans Daily Delta and the New Orleans Weekly Delta, in the proportion of one-half belonging to Heiss, one-fourtli to Kendall, and one-fourth to Corcoran. The petition sets forth that said partnership property and business is valuable and lucrative ; and that Heiss and Kendall have in their possession and control the books and accounts of the same, and refuse to pay over to petitioner his share of the profits, but have retained and appropriated the same to their own use. It concludes by a prayer for an account, &c.

The separate answer of Heiss to this petition admits that a partnership existed as alleged; and that, at the time of the institution of the suit, Corcoran owned one-fourth of the Delta; alleged various matters of defence, and prayed for auditors to examine and report on an account which Heiss annexes to his answer; which account shows a large balance to the credit of the partnership.

Kendall’s separate answer adopts the pleas of his co-defendant, Heiss, to whom he alleges he had sold out his own interest in the partnership, since the suit was instituted. Thus far, the transcript of the suit given in evidence; which would thus seem to have been still pending and undecided when the present action was tried.

The above constitutes the substance 'of the evidence given on the plea of payment and exception of partnership and litispendence filed by Corcoran and adopted by Davern. It is contended by counsel of plaintiff, in argument, that we should disregard it, lor the reason that the supplemental answer of Davern was filed too late; and of that opinion was the District Judge, as expressed in his reasons for judgment.

Upon this point of practice, we are of opinion, that where, as here, a supplemental and amended answer has been filed by order of court, the Judge who permitted its filing cannot, proprio motu, rule it out, as not filed in time; and that where, as here, witnesses have been offered and cross-examined without objection, and written evidence offered and received without a proper and intelligible exception reserved, the party against whom such parol and written evidence has been given, cannot bo heard to object in this court to its admissibility.

It is unnecessary, in this state of facts, to determine whether this appellant, an accomodation endorser, would not have been entitled, even without specially pleading it, to have availed himself of any legal defence to the action, which had been pleaded by his co-defendant.

Upon the other plea, want of notice, we think the case is with appellant. In protesting the note, the Notary declares that he presented it for payment to the maker, through his deputy, A. Commandeur ; and he certifies that he notified the endorser, James Davern, by a letter to his address put in the Post Office, after vain attempts made to find him or his domicil by the Notary’s deputies, Barrí/ and Swiler.

On the trial, the two deputies of the Notary, Barry and Swiler, were sworn for plaintiff, and proved inquiries made by them, as stated in the certificate. But a third clerk or deputy of the Notary, Commandeur, the same named in the protest as having made demand of payment of Corcoran, being- examined, also for plaintiff', says : “ that if he had had the notice of protest to serve on Davern, he would not have thought of putting it in the Post Office. He thinks he could have found him, or his residence, with very little trouble. Davern is generally known.”

In corroboration of Commandeur’s testimony, seven witnesses, examined for defendant, two of whom are Notaries Public, testify that Davern is a man generally known ; that he has been residing for twenty years past in the neighborhood of the New Basin ; that he has been a member of the City Council; that his residence must have been known to Mr. Turner, the agent of Mr. Slidell, the holder of the note at maturity, &c. On this last fact, which is peculiarly important, Mr. Slidell himself, who is one of those witnesses says : “ Witness is satisfied that Mr. Turner must have known the place of residence of Mr. Davern. Davern, the witness would suppose, was as well known as any person about town.” And John G. Burrows, another witness, who was employed in Turner’s office, says : “ Witness’s strong impression and conviction is, that Turner knew where Davern lived.” It must be observed, that Turner was dead when this cause was tried.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment against plaintiff; and in favor of James Davern, defendant, with costs in both courts.


text:
    Michael Gernon v. Edward Bestick, Tutor.
    The moro absence oí' the tutor and under-tutor at tlie talcing of an inventory of property bold in common between a minor and another party, for the purpose of effecting a partition by sale, after they have been duly notified to attend, or their refusal to sign tho procos-verbal, without a formal protest, can afford no ground upon which to annul the sale.
    Thirty days notice is requisite to the validity of a judicial sale of landed property and slaves.
    Where lots of ground have been separately appraised, the Sheriff should, unless otherwise directed by the judgment, sell them separately.
    Where a minor is interested, the Judge, if satisfied that the property cannot be divided in kind, should not only decree the sale of such property, but ghould likewise order the convocation of a family meeting to fix the terms of the sale as to the share of the minor.
    The Judge should require proof, that property cannot be divided in parts of equal value, without the cautling of tenements to an injurious extent, before ordering a partition by licitation.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      George L. Bright, for' plaintiff.

      Race & Foster, Brice <& Mitchell, and VJhittaker & Fellows, for defendant and appellant.
   Duffel, J.

The plaintiff, being the owner of the undivided half of two adjoining lots of ground situated in the city of New Orleans, instituted a suit in partition against the owner of the other undivided half, the minor James Besticic, represented by his father and tutor, Edward Bestick.

The tutor pleaded the general issue.

Experts were named and sworn, and made, on the 15th of November, 1858, a report, stating 11 that after a careful examination of said two lots of ground, they are of opinion that the same cannot be divided in kind, one of them being a corner lot, and more valuable than the other.”

Two days after, the same experts were named appraisers, and valued the corner lot at $300, and the adjoining one at $400.

The under-tutor of the minor, who was present at the taking of the inventory, refused to sign the proces-verbal, and the tutor, although notified, failed to attend.

The District Judge, on the above evidence, decreed, on the 30th of November, 1858, the sale of the property to effect a partition, without fixing the terms and conditions of the sale, or ordering the convocation of a family meeting for that purpose. The Sheriff, however, proceeded to the sale, and after an advertisement of ten days, adjudicated the two lots, in block, to the plaintiff, for $400 cash. This sale was made January 21st, 1859.

On the 26th of July, 1859, the plaintiff applied for, and obtained an ex parte order for a writ of possession, from which last order the tutor took a devolutive appeal. The petition of appeal states no special grounds.

The brief of the appellant states : “ There are only two questions for this court to decide : 1st. Whether the minor’s inventory was complete, it being unsigned and unassented to, by the tutor and under-tutor of the minor ? and, if declared to be a complete appraisement and inventory, 2d. Whether the rights of the minor in this property could be divested in this forcible manner, and for a less snm than the value of the property, or for the sum for which it was purchased in this case ? ”

Were we to be restricted to the two questions presented to this court in their apparent import, we would simply affirm the sale.

The mere absence of the tutor and under-tutor at the taking of the inventory, after they had been duly notified to attend, or their refusal to sign the procesverbal, without a formal protest, can afford no ground of nullity; and the ruling in the case of Haché v. Ayraud, 14 An. 178, is an answer to the second question, when taken in its most restricted sense.

But we are satisfied that the apparent defects and radical nullities which pervade the whole case are a sufficient warrant to take the second question, which is addressed to us, in its most enlarged meaning. Had we not arrived at this conclusion, a proper sense of duty would have-prompted us to make, in our judgment, such a reservation as would have relieved the minor from its effect.

We know of no law authorizing judicial sales of landed property and slaves to be made, in the first instance, before the expiration of the usual advertisements of thirty days — C. 0. 971, 1159,1261, 1304; and besides the Sheriff had no warrant to sell the two lots in block and for cash. The lots had been appraised separately, and should, unless otherwise directed by the judgment, have been sold separately. O. P. 676.

The Judge, if satisfied that the property could not be divided in kind, should, not only have decreed the sale, but likewise ordered the convocation of a family meeting to fix the terms of the sale as to the share of the minor. 0. C. 1261, 1263 ; Succession of Charles Morgan, Sr., 12 An. 153.

The evidence does not show that the property cannot be divided in two parts of equal value without the cantling of tenements to an injurious extent. 0. 0. 1262,1287. Proof to that effect should have been adduced before ordering the partition by licitation.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court and Sheriff’s sale under it, be annulled and set aside, and that the order for a writ of possession be also set aside, at the costs of the plaintiff in both couris.


text:
    A. V. Roberts, Administrator, et al. v. W. W. Brown et al.
    The possessor in good faith is entitled, in case of eviction, to be reimbursed the amount expended by him for improvements.
    from the District Court of the Parish of Natchitoches, Chaplin, J.

      J. B. Elam, for plaintiffs.

      John B. Smith, for defendants and appellants.
   Buchanan, J.

This cause was remanded at the August term 1859 “to enable the Jury to pass upon the question of good or bad faith in the defendants, and to settle the claims of the parties respectively for improvements and revenues.” 14 An. 598.

The Jury have found by their verdict, on the new trial, 1st, that defendants were possessors in good faith, 2nd, that defendants recover of plaintiffs six thousand and twenty dollars, the price paid by defendants for the land, and a further sum of eleven thousand nine hundred and eighty dollars, for improvements prior to March, 1855.”

From this verdict, and a judgment rendered in conformity thereto, the defendants have appealed ; and plaintiffs join in the appeal, by answer filed in this court.

A careful examination of the evidence has not satisfied us that either party has reason to complain of the verdict. The question of good faith was expressly submitted by our decision to the jury, and that tribunal has solved it in favor of defendants.

The possessor in good faith is entitled, in case of eviction, to be reimbursed the amount expended by him for improvements. C. C.-3416. The amount found by the jury, on this head, although considerably short of that claimed by defen • dants, seems to us to be supported by the evidence.

As to that portion of the verdict which decrees a restitution of the price paid for the land by defendants, it is admitted by plaintiffs to be correct.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. And it is further ordered, in confirmity to the agreement of counsel for plaintiffs and defendants, that the parties have thirty days, within which to file applications for re-hearing; and that as soon as this judgment shall become final, the record and opinion be forwarded to the clerk of the Supreme Court at Alexandria, who shall certify the decree to the District Court.


text:
    Succession of William Carney.—Opposition of John McKowen, Testamentary Executor, to the application of John McGuire for administration.
    The District Court of the place of opening a succession, according to law, is the proper court in which to institute a demand for administration.
    APPEAL from the District Court of the Parish of West Feliciana, Ratliff, J.

      Lacy & Ratliff, for McGuire.

      Bowman & Rowell, for McKowen, appellant.
   Buchanan, J.

John McGuire, who was partner in business of the deceased William Carney, applied to the District Court of the parish of West Feliciana, for letters of administration upon said Carney’s portion of the partnership effects.

John McKowen, executor of the last will of said Carney, probated in the District Court of East Feliciana, filed an opposition to this application, on the ground that Carney was domiciled, at the time of his death, in the parish of East Feliciana; and consequently that the application was coram non judice.

The question of Carney’s domicil was decided by us as having been in East Feliciana in a case between the same parties, growing out of these same proceedings, in the month of March last, not yet reported.

The place of the opening of this succession, according' to law, was the parish of East Feliciana. C. C. 929. The District Court of that parish was the proper court, therefore, in which to institute a demand for administration.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed ; that the opposition of appellant be maintained ; and that the application of the appellee for administration, be dismissed at his costs in both courts.