text:
    B. Adle v. Melite Anty et al.
    A wife may receive a conveyance of property to her from her husband in payment of dotal and paraphernal funds for which he is liable to her. O. O. 2421.
    The wife when judicially attacked must be aided by her husband, or the proceedings are not obligatory upon her.

      Mortgages must be reinscribed within ten years, or parties who have in the me antimé acquired rights upon the property mortgaged will be protected against the mortgage; and the pendency of an hypothecary action to subject the property to the mortgage, does not exempt the mortgage from the necessity of reinscription.
    APPEAL from the District Court of Natchitoches. Olcott, J.

      J. B. Smith, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Adié obtained a judgment against August Metoyer, which was recorded as a judicial mortgage in the parish of Natchitoches on the 29th April, 1839. On the 4th December, 1843, and the 10th February, 1844, August Metoyer made conveyances of lands and slaves situate in that parish to his wife Melite Anty, in consideration of certain amounts of dotal and paraphernal monies of his wife received and used by him, and for which she had obtained judgment against her husband. In 1844, Adié brought the present hypothecary action, for the purpose of subjecting the property so conveyed' to the payment of his judicial mortgage. A citation was served upon Melite, and an answer was filed by her without the cooperation or authorization of her husband. There was judgment against her in 1844, adjudging the property to be subject to the judicial mortgage in favor of the plaintiff. Upon this judgment execution was issued, the property was seized and sold, and was bought by the plaintiff. Subsequently Melite took an appeal assisted by her husband, and the judgment was reversed upon the ground that the appearance of the wife in court was unauthorized. The cause being then remanded for a new trial, a new answer was filed, in which the defendant alleges her ownership of the property, denies the right of judicial mortgage asserted by the plaintiff, asserts the nullity of the sheriff’s sale made in 1844, and pleads other matters in defence. By a supplemental answer filed in 1849, she pleaded prescription and preemption, and asserted that the judicial mortgage had not been reinscribed before the lapse of ten years from the original inscription.

Upon the subject of inscription, the testimony adduced established that no reinscription of the judgment had been made in any book or books of the recorder’s office. There is in evidence a certified copy of the judgment, at foot of which is the following: “ Reinscribed on the 28th day of April, 1849, and recorded in book-of judicial mortgages, folio —. Signed, Thomas P. Jones Recorder.” But this certificate is incorrect, as is shown by the testimony of the recorder himself, and other witnesses. He testifies that on the 25th April, 1849, he left the town of Natchitoches to go to a distant part of the parish to take an inventory of a succession. That about six miles from the town he met the plaintiff’s agent, who inquired where he was going and when he would return. The recorder told him he could not say, as he was going to take an inventory; but that one Morrow had the key of his office, and he could have access to it. The agent told the recorder he had business at his office, but did not state its nature. The plaintiff’s agent then went to the recorder’s office, where he found Morrow, and stated he wished the judgment reinscribed, presenting a certified copy of it. Morrow, who it seems was not a deputy of the recorder, wrote on the back of the copy the certificate above mentioned as of 27th April, 1849. On the 28th, the plaintiff’s agent met the recorder on his way back to Natchitoches and exhibited the paper. The recorder changed the date from the 27th to the 28th, and signed it. He reached Natchitoches on Sunday, the 29th April, and on Monday deposited the paper in his office; but had never reinsci'ibed the judgment in his books down to the time of the trial.

Our first inquiry is, had Melite Anty once a legal title to the property upon which the plaintiff seeks to enforce the hypothecary action. From the evidence it satisfactorily appears, that when the conveyances of 4th December, 1843, and 10th February, 1844, were made to her by her husband she was his creditor for dotal and paraphernal monies received by him and appropriated to his own use. Under the article 2421 of our'eode, this indebtedness formed a lawful consideration for the conveyance, and authorized the wife thus to contract with her husband for its payment. She took, therefore, at those dates, a valid title to the property in question, subject, however, to the judicial mortgage then existing in favor of Adié, and the risk of his choosing at a future time to exercise his hypothecary recourse against it.

Has this title ever been lawfully divested, or is Melite Anty still the owner of that property? The only pretence of divestiture is found in the sheriff’s seizure and sale under fieri facias issued upon thé* judgment rendered against Melite in 1844, which judgment was set aside by the Supreme Court in 1846. It is said, that if a judgment be executed against a defendant by a sale of his property, and he subsequently obtains, upon devolutive appeal, a reversal of the judgment, the sale stands, and the defendant must follow its proceeds. That such is the ordinary rule is true. See Baillio v. Wilson, 5 N. S. 214. But the rule must be applied within its proper limits, and to those cases where the judgment is not essentially invalid, but involves merely some error of law. It is not proper to extend it to a case of a defendant who, not being sui juris, but affected by a legal incapacity, has not been duly represented or legally present in the proceedings which resulted in the judgment. The rule that the wife when judicially attacked must be aided by her husband, rests essentially upon the same basis as the principle of law which incapacitates the wife to contract without the authorization of her husband. If a wife cannot make a direct alienation of her property without the authorization of her husband, with what propriety can she be bound by a forced alienation effected by means of proceedings in which she was unaided by him ? If it had been proved, that in the progress of the execution or subsequently Melite had acted with the assistance of her husband in appointing an appraiser, bidding at the sale, or doing other acts which might perhaps be construed into a legal affirmance of it, a different question would have been presented. But as the case stands there is nothing to show that she has done any act legally conclusive of her rights.

Being therefore of opinion, that the title which she acquired has not been lawfully divested in the plaintiff’s favor, our next inquiry is, has the plaintiff a judicial mortgage upon the property thus owned by Melite. That such a mortgage once existed is conceded. Has it been extinguished and lost by lapse of time and the failure to reinscribe ?

The argument of the plaintiff is, that the want of reinscription cannot be attributed to the fault of the creditors. But in our opinion this argument is unsatisfactory. The judicial mortgage exists and has vitality only by inscription. It is this which gives the public notice, and establishes a lien against third persons. If there be no inscription, there is no judicial mortgage. It is not what the recorder ought to or might have done, but what he does, that we must look to in order to ascertain the lights of parties. If the public record is considered as the sole standard by which those rights are to be determined, the community-can always know with certainty what conventional or judicial mortgages exist on a man’s property, and can deal with him securely. But if instead of looking to the record, courts let jn proof of unsuccessful diligence of the creditor to ge£ his mortgage recorded, and the remissness or fault of the public officer, all the security and certainty contemplated by our registry system is gone, and a wide door is opened to injustice and frauds. The remedy of the creditor who loses his rights by want of proper inscription is against the officer, in damages. His fault or fraud is not to be visited upon the public. See Civil Code, 3313, 3333, 3357, &e. Succession of Talcour, 4 R. R. 5. 2d Ann. 800, 608.

We consider it also well settled, that the pendency of this suit for the enforcement of his hypothecary .lights, did not dispense the plaintiff from the necessity of reinscription. See Shepherd v. Orleans Cotton Press, 2d Ann. 100. McElrath v. Dupuy, Ib. 520. Hyde v. Bennett, Ib. 799

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the adjudication made to the said Adié on the 6th July, 1844, by the sheriff of the parish of Natchitoches under fieri facias in this cause, have no effect against the said Melite Anty; that the said Melite Anty be recognized as the lawful owner of the property described in the petition apd in the act of sale to her by August Metoyer, of 4th December, 1843, and 10th February, 1844, and be restored to, and quieted in, the possession thereof, free from any judicial mortgage in favor of said plaintiff. It is further decreed, that the claim of said Melite Anty for damages for the unlawful seizure and detention of said property by said plaintiff be reserved. It is further decreed, that the costs in both courts of this suit against said defendant be paid by the plaintiff.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    D. B. Cumming v. Police Jury of Rapides.
    The only cases of injunction which are to be tiled summarily are those in which no security is required. C. P. 739, 740, 741. In all other cases of injunction the parties are entitled to a trial by jury, if they comply with the legal requisites.
    APPEAL from the District Court of Rapides, Cushman, J.

      Hyams and Flint, for plaintiff.

      Thomas F. Scott, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff enjoined the sale of a tract of land, seized for the payment of a special tax, assessed against him under an ordinance of the police jury, and gave bond and security in the sum of seven hundred and fifty dollars, in compliance with the order of the judge ; he subsequently amended his petition after issue joined, and prayed for a trial by juiy upon this amended petition. The court decided that he was not entitled to atrial by juiy, on the ground that this is a case which the law requires to be tried summarily, without the intervention of a jury; and he was ruled to trial without a jury.

The point was reserved by a bill of exceptions which, in our opinion, was well taken. The only cases of injunction which are to be tried summarily are those in which no security is required to be given. C. P. 739, 740, 741. This not being such a case, the trial by jury is a legal right, of which the plaintiff could not be deprived. The case must, therefore, be remanded.

It is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings, with directions to the district judge to allow Íhe plaintiff a trial by jury. It is further ordered, that the defendants and .ppellees pay the costs of this appeal.


author: Preston, J.

text:
    William Brice v. Elkin T. Jones.
    The prescription which bars actions of damages against sheriffs for making wrongful seizures is two years.
    A sheriff is not responsible for damages which are the remote consequence of his making a wrongful seizure.
    APPEAL from the District Court of Claiborne, Taylor, J.

      T. Vaughan, for plaintiff.

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

Preston, J.

On the 20th of December, 1847, the plaintiff filed his petition, claiming five hundred dollars damages from the defendant, as sheriff of the parish of Claiborne, for having seized and sold a tract of land belonging to him, situated in that parish, in the suit of George W. Peel against Richard Stiles. George W. Peet became the purchaser, and sold the land to one Martin Can-field, who brought a petitory action against the plaintiff for it, which caused him great trouble and expense in defending his title, before the District and Supreme Court, for which he brings this suit, and obtained a verdict and judgment for one hundred and fifly dollars damages; from which the plaintiff has appealed. ,

The defendant pleads that the damages claimed are barred by the prescription of one year. But the acts were done in the performance of duties within the scope of his authority, and the prescription is extended by the act of 1837, to two years.

He urges that they were done by his deputy, but he made the return and signed the deed himself; and indeed, is responsible for the errors of his deputy, while acting within the scope of his authority.

But the case presents a much more difficult question. "Were the acts of the defendant the immediate cause of the damages suffered by the plaintiff? We are not liable in damages for the remote consequences of our acts ; and it has always been difficult for courts to distinguish between those immediate damages for which defendants are responsible, and the consequential damages for which they are not liable.

In the present case, there is no evidence that the sheriff actually disturbed the possession of the plaintiff. The petitory action which caused him the trouble and expense, shows that the sheriff did not physically seize the land, turn the plaintiff out of possession, and deliver it to the vendee. He advertised on paper, and only gave a paper title. His functions and acts terminated there, and no damage was yet done to the plaintiff.

Even the sheriff’s vendee, Peel, did not sue the plaintiff, but sold the paper title to Canfield, without warranty of title or possession. He was at liberty to sue for the land or not, as he thought proper. Peet did not urge him to sue, much less the sheriff, who had not the slightest interest in the action with regard to the land.

Canfield brought the suit which caused the whole trouble and expense to the plaintiff. For it is to be observed, that the whole damage proved or allowed by the jury and district court was the counsel fee for defending this suit, which was the act of Canfield alone. These damages were most remotely consequential upon the acts of the sheriff. The acts of Peet, and the subsequent acts of Canfield, at distinct periods, were intermediate between him and the plaintiff.

In general, though there are exceptions, it must appear that the acts complained of could not have occurred without causing the damages. Now Peet, if he had thought of suing under the sheriff’s deed, might have examined the previous chain of title, and have been unwilling to embark in the folly of a suit. Canfield might have done the same thing and have been equally wise, and no damage would have been suffered by the plaintiff. As to the slander of plaintiffs title, it was clouded by the claim of Richard Stiles. The sheriff’s deed did not make it darker. If he had not sold at all, it is probable some one would have sued the plaintiff by virtue of the title of Stiles. It appeal's, by reading the opinion of the Supreme Court, that, as to the slander of the plaintiff’s title, circumstances seemed to have placed his land in such a situation that it had to pass through a trial independently of the sheriff’s sale. And for his trouble and expense in defending his title, the plaintiff has some consolation that, with the aid of able counsel, it has passed the fiery ordeal unscathed, and that he and his family may now repose upon it in quiet, with none to make them afraid.

"We are of opinion, that the judgment should be reversed; and decree, that there be judgment for the defendant, with costs in both courts.
      "Hon. George Eustis, C. J., was not present during this term.


text:
    Charles H. Morrison v. J. C. Whetstone, and Whetstone v. Morrison. (Consolidated.)
    The Government of the United States was bound by the treaty of cession of Louisiana from France, to protect the private property of the inhabitants. This obligation was recognized by various acts of Congress. A claim to land held under the grant to Bastrop was property which the United States, under the treaty and acts of Congress, could not disregard until the claim had been finally disproved of by Congress, and a purchaser from the United States could acquire no rights by his purchase.
    Where the defendant has acquiesced in a sale of his property for more than thirty years, it is not for others who do not set up his title, but repudiate it, to complain of the want of the legal formalities in the sheriff's sale.
    APPEAL from the District Court of Morehouse, Copley, J.

      Purvis, for plaintiff.

      Dubose, for defendant.
   The judgment of the court Was pronounced by

Preston, J.

This is a petitory action. The plaintiff claims a tract of land situated in the parish of Morehouse, containing two hundred arpents, more or less, and which he describes in his petition. He alleges that he, and those under whom he claims, possessed the land, as owners, for more than thirty years.

The defendant settled on the land in 1846, as belonging to the United States, with the intention of acquiring it by preemption. In 1847, the plaintiff brought a possessoiy action against him, and sequestred the land. Judgment in this suit was rendered in favor of the defendant in 1848. The defendant then commenced a suit for damages on the sequestration bond. That suit was consolidated with this, both were tried together by a juiy, who rendered a verdict for the plaintiff.

The documentary evidence offered by the plaintiff shows, that on the 9th of October, 1805, Abraham Morehouse sold to Samuel Buckner, four hundred acres of land in the concession of twelve leagues square made by the King of Spain to the Baron de Bastrop. On the 19th of March, 1806, Buckner sold one hundred acres of the land to George Hook, and on the 13th of September, 1809, sold the other three hundred acres back to Abraham Morehouse. On the 26th day of December, 1812, Morehouse sold the three hundred arpents of the land to Richard Williams, and on the 27th of October, 1812, Williams sold one hundred arpents to Needham Reynolds, retaining two hundred arpents of the tract for himself.

On the 22d of August, 1815, the sheriff of the parish of Ouchita, by virtue of an execution in the suit of John Blair against Richard Williams, sold a tract of land containing two hundred arpents, near the Mer Rouge, to D. B. Stowe, for $240, which was paid ; and on the 5th of November, 1846, Stowe sold the land to the plaintiff.

The survey made by the parish surveyor in 1849, by order of court in this suit, and the oral testimony, shows sufficiently that the land in controversy was the subject of these ancient conveyances.

The deeds we have recited show a civil possession by the plaintiff and those under whom he claims for thirty years before the defendant entered upon the land, and by titles translative of property. The titles and prescriptions of ten, twenty and thirty years, would therefore avail the plaintiff, if there be nothing peculiar to this case to take it out of the x’ules of prescription and property.

The defendant alleges, that the land in controversy belongs to the United States; that he has made a settlement upon it, with a view to acquire title by preemption, and that the plaintiff can have neither title nor prescription, by which to evict him of his possession even without title.

It is matter of public notoriety and has never been disputed by the Government of the United States, but, on the contrary, the government has made it notorious, by the publication of the documents in the volumes of their land laws, and papers relative to the public lands, that the Baron Carondelet, a Spanish Governor General of Louisiana, towards the close of the last contury, entered into a negotiation with the Baron de Bastrop, which resulted in a grant of twelve leagues square of land, located, by a survey, on the bayou Bartholemy, for the purpose of making an extensive settlement for the cultivation of wheat, and the manufacture and exportation of flour to Havana and elsewhere. The enjoyment of the banks of the bayou was granted to him to establish mills, and the lands to locate families. It was proposed to introduce five hundred families, and a gratuitous grant of four hundred arpents of land was to be made to each family. It is matter of history, that the plan was partially executed by the introduction and location of some families on the grant. It was suspended on account of the want of funds in the treasury of the province; — the governor having undertaken to bear a portion of the expenses, and probably on account of the embarrassments of the Baron de Bastrop — and was abandoned in consequence of the subsequent change of the government.

By the treaty of cession of Louisiana to the United States, the vacant lands not private property was ceded to the government; but the inhabitants were guaranteed in the enjoyment of their private property. That property necessarily embraced every thing or claim that was valuable to an individual; for a claim, however weak, is property, if value can be fairly obtained for it.

As early as March, 1805, Congress, with a view to separate the public domain, that is, the vacant land that was not private property, from the private claims to land in Louisiana, and to carry into effect the guarantee of the treaty, passed “ an act for ascertaining and adjusting the titles and claims to land within the Teritory of Orleans and District of Louisiana.” It opened land offices and, by the 4th section of the act, invited every person claiming land by virtue of a complete Spanish grant, to deliver to the recorder of land titles a notice in writing, stating the nature and extent of his claims, together with a plat of the tract claimed, and to deliver the grant for the purpose of being recorded.

The board of commissioners were directed to make a report of their decisions on claims, to be laid before Congress for their determination thereon. In 1806, the act was amended, and, among other things, it was provided that the lands embraced by the report should not be otherwise disposed of until a decision of Congress shall have been had thereupon. The act of 1805 was amended and extended in 1807.

Abraham Morehouse had acquired from the Baron de Bastrop a large interest in the grant, and about this time presented his claim to the board of commissioners established by the government, for record and confirmation. His claim was not confirmed, but rejected by the board of commissioners. The claim was, therefore, entitled to the benefit of the provision that the lands could not be disposed of until a decision of Congress upon it, which was reiterated in several subsequent acts of Congress. And, indeed, although claims founded upon incomplete titles might be subject to the decision and generosity of Congress, yet claims founded upon complete, grants could be subject only to the decision of the judiciary if contested by Congress or the executive officers of the government. And it is known that the United States are at this moment contesting before the judiciary department of the government, with claimants under Morehouse, the effect of the grant to Bastrop.

From these general views, which might be made much more forcible by entering into details and invoking authorities, it is manifest that Morehouse had a claim which the government has already and no doubt will continue to contest before the judiciary; but until the government does succesfully contest and have the claims under the grant declared invalid, it is bound By the treaty of cession, also by the act of 1806 and many subsequent acts of Congress not to regard and treat the claims as nullities. Therefore, no person under the authority of the United States can settle on the land with a view to acquire it by preemption, because the government induced Morehouse to file hiB claim and record his title, as well to separate the public domain from private claims, as in obedience to the treaty of cession ; and as an inducement, bound itself not to make any disposition of the land until a decision by Congress on the claim, and indeed cannot make any disposition of it, on principle, until a decision by the courts of the United States against the claim.

From what has been said, it is clear to us that the vendees under Bastrop, in good faith, claimed the land in his grant by title. The claim is valuable to them, because the sales in this record show that the claimants have been able to sell the lands for money. That value is property guaranteed to the claimants by the trealy of cession. Congress has, by various acts, declared they will not make any disposition of the property until a decision against the claimants of the land. Therefore no person can, in any shape, interpose the United States to shield their possession against a claimant under Bastrop's grant.

It is, however, contended by the defendant, that the sheriff’s deed to Stowe is not supported by an execution, and is so defective as not even to convey the title Williams derived from Morehouse. Williams, the defendant in execution, might perhaps have required further proof than this deed affords of the forced alienation of his properly; but as he has been silent for more than thirty years, it is not for others who do not set up, but repudiate his title, to complain of the want of formality in selling his property. It is to be recollected, that the deed was made on the 22d of August, 1815, and therefore was governed by the act of 1805 then in force, regulating executions, and not by the Code of Practice. The 10th section of that act made the deed admissible in evidence. 2 Mart. Dig. 334. And an act approved in 1828, gave copies of the deed the same force as the copy of an authentic act'; so that this title, without the execution or sheriff’s return, has the force of an authentic act as to third persons.

This, with the preceding chain of title from 1805 and the civil possession at least after the sheriff’s deed, is a sufficient title upon which to maintain a petitory action against one who neither alleges nor attempts to prove any title in himself, except tortuous possession. For we concur fully in the decision of the Supreme Court in the case of Baillo v. Burney et al. 3 R. R. 319. See also the cases of Paten v. Blaise, 19 L. R. 396; and Bedford v. Urquhart.

We are not satisfied the defendant suffered, or should recover any damages in consequence of the sequestration of the land in the possessory action, or that he is entitled to any thing for improvements.

The judgment of the district court in favor of the plaintiff for the land described in his petition, and in the survey made by the parish surveyor by order of court in this suit is affirmed, with cost. And in the suit of J. C. Whetstone v. John Boyd et al. for damages on the sequestration bond, it is decreed that there be judgment for the defendants, with costs.

By SniDEim, J. I decline sitting in the decision of this cause; but the parties having requested me to sit, pro forma, to form a quorum. I have done so, and left the case with my bretheren, who concur in opinion. I wish, therefore, to be considered as expressing no opinion in the case.


text:
    John H. Hewitt v. C. S. Stephens.
    Although a deputy sheriff cannot buy property at a sale made by himself, there is no law which prohibits him from buying at a sale made by the sheriff.
    It is sufficient if a party claiming under a sheriff’s sale shows a substantial compliance with the requisites of the law in making the sale ; and what is necessarily or reasonably to be inferred from the sheriff’s return may be presumed until the contrary is shown.
    Where the defendant in execution points out property to be seized on execution, a notice of seizure is unnecessary, and the three days notice before advertising is waived.
    If a sheriff’s return shows that property was sold, “ after having the same appraised,” it will be presumed there was a legal appraisement, unless the contrary be proved.
    The act of 8th of March, 1841, directing sheriffs to advertise their sales in a newspaper, if any were published in the parish, superseded the acts requiring the advertisements to be posted at two other public places in the parish, besides at the court-house.
    The act of 10th of March, 1834, declares that the fact of the sale being made, is prima facie evidence that the sheriff made the required advertisements.
    APPEAL from the District Court of Franklin, Mayo, J.

      O. D. Stillman, for plaintiff.

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

Preston, J.

By virtue of an execution in a suit of Parker against John U. Hewitt, the plaintiff in this suit, a quarter section of land was sold by the sheriff of the parish of Ouachita, on the 15th of May, 1841, and the defendant became the purchaser for the sum of seventy-two dollars, payable in a bond at twelve months’ credit.

This suit is brought to annul the sale, on the ground that the formalities of law necessary to make a valid forced alienation of the properly were not complied with by the sheriff.

The plaintiff further alleges, that the defendant was the deputy sheriff, and made the sale to himself. If this allegation had been proved, the district court would no doubt have annulled the sale on that ground, as was done in the case of McCluskey against Webb, 4 R. R. 204, 205; and we would have approved of the decision. No proof, however, has been offered that the defendant made the sale, and although the deputy acts for the sheriff in selling, and cannot therefore buy himself, yet the sheriff in selling does not act for his deputy, and we know of no law or principle which prohibits the deputy from buying at a sale made by the sheriff himself.

The plaintiff alleges further, that there was fraud and collusion in the sale ; and it is stated ^that the deputy was the brother of the sheriff. There is no proof in support of these allegations. We regret, however, that such sales should take place, and become matter of litigation in court, as, however honestly made, they subject the acts of public officers to suspicion and remarks, as thrown out in this suit, which should always, if possible, be avoided.

The position of plaintiff’s counsel, that when a sheriff’s sale is attacked on the ground that the forms of law were not complied with, the onus is thrown on the party claiming under the sale to prove the requisite formalities must be qualified. If he shows by thq sheriff’s return a substantial compliance with the requisites of law, it is incumbent on the plaintiff who attacks the sale to show that the forms were not strictly observed. And further, what, is necessarily, or perhaps reasonably to be inferred from the sheriff’s return, may be presumed until the contrary is shown. 2 R. R. 468. 19 L. R. 309. 11 R. R. 322.

It is alleged, that no notice of seizure was given with a list of the property seized. The sheriff returns, that he demanded property from the defendant in the execution, and that he pointed out the land in controversy. Therefore, it was unnecessary to show a notice of seizure, with a list of the property seized.

It is alleged, that no notice was given to the defendant in execution to appoint an appraiser, and that no legal appraisement was made. The sheriff returns, that he offered the property for sale “after having the same appraised.” We are bound to presume it was a legal appraisement, as the contrary is not proved. The plaintiff contends that the property was not advertised for thirty days before being offered for cash, because seized on the 22d of March, and exposed for sale on the 24th of April following. As the defendant in execution pointed out the property to be sold, there was no reason why the sheriff should not immediately advertise it; and by so doing, he was able to advertise it fully thirty days between the 22d of March and the 24th of April fallowing. The three days notice of seizure before advertisement were waived by pointing out the property to be advertised.

The sale, at twelve months’ credit, was advertised at the court-house door, and in the newspaper called The Monroe Olive Branch. It is contended that it should have been advertised at two other public places in the parish.

The Code of Practice directed the advertisements to be made at the courthouse of the parish, and to be inserted in a newspaper, in parishes where public newspapers were printed. In 1829, the Legislature directed that it should no longer be the duty of the sheriff of Ouachita to cause to be inserted in a newspaper the advertisements of his sales, but that a publication of such sales affixed at the court-house door, and at least at two other public places of the parish, should be deemed sufficient. The publication at two public places other than the court-house was thus substituted for the advertisement in a newspaper. But in 1841, the law was again changed, and it was made the duly of the sheriff of any parish in the State in which a newspaper was published, to publish all his advertisements for sales in said paper. We think the Legislature intended to supersede, by the publication in a newspaper, the affixing the advertisement at two public places in the parishes, which had been substituted for it in 1829. The Legislature cannot reasonably be supposed to have intended to subject the debtor to the expense of publications in a newspaper in addition to that of advertising the> sale at three public places in the parish.

It is said, the advertisement did not set forth that the bond to be given by the purchaser was to bear interest from the day of adjudication, at the rate allowed by the judgment. The sheriff returns, that the purchaser gave bond with security according to law. The law expressly required that it should bear the same interest with the judgment. C. P. 681. It is to be presumed, therefore, that the bond bore the same interest, until the contrary is proved; and that this condition was advertised. The act of 1834 declares, that the fact of the sale being made is prima facie evidence that the required advertisements were regularly made; and no proof to the contrary has been offered.

The Legislature have passed many laws to cure the immaterial informalities by means of which defendants actually endeavor to set aside judicial sales after all the trouble, expense and delays by which plaintiffs enforce their rights; and we think it the duty of courts to yield to the evident inclination of Legislative wisdom on this subject, and, if possible, to render the proceedings of courts and their officers effectual and not nugatory.

This suit affords a striking example of the necessity of that course of jurisprudence. Parker commenced suit in 1839 on a due bill for $480 made in 1836. Pie employed able counsel, who prosecuted the claim with diligence, but only succeeded, in 1841, in getting a twelve months’ bond for $72, by the sale which the defendant now seeks to annul, and thereby subject the plaintiff to refund to the purchaser, in 1850, even that small sum, probably exhausted in costs. We could be induced to reverse a judgment and produce such results only by the imperative dictates of the law, but do not find ourselves obliged to do so in this case.

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


author: Slidell, J.

text:
    Rebecca Ferguson, Administratrix, v. Richard King, Curator.
    Where a single individual carries on business in the style of a commercial firm using after his name the words “ & Company,” and brings suit upon an obligation made payable to himself and company, he must allege and prove that he alonéis interested in the business, or he will be non-suited.
    APPEAL from the District Court of Caldwell. Barry, J.

      T. Phillips, for plaintiff.

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

Slidell, J.

In the year 1821, a suit was brought in the name of “ John Brown Sf Co., merchants of New Orleans,” against Craig, Haberling Sf Co., alleged to be composed’ of Charles Craig, Jacob Haberling, and Philip Caldwell, upon a promissory note drawm by Craig, Haberling Sf Co., to the order of Messrs. John Brown Sf Co. There was judgment “that the plaintiffs recover of the defendants the sum of —,” &c. In no portion of the record is it alleged or does it appear who composed the firm of John Brown Sf Co. No action appears to have been taken on this-judgment, after a return of fieri facias in 1823 down to the institution of this suit in 1846 — an interval of twenty-three years. In 1841, Rebecca Ferguson obtained letters as administratrix of one John Brown, and now sues, upou the judgment, the curator of the succession of Charles Craig. The petition alleges “that the company was composed of John Brown, late husband of petitioner, whose administratrix she is.” This allegation is obscure; but, giving it the construction most favorable to the plaintiff, we will assume, that by.it the petitioner meant to say, that the John Brown, of whose succession she is administratrix, did business alone, under the commercial style of John Brown Sf Co., and that there was in point of fact no company. The defendant answered by a general denial,- and- plea of prescription.

The plaintiff, in order to recover,- was bound to show that the ownership of the judgment was in her as administratrix of John Brown. To prove this she should have adduced evidence of the facts in her petition alleged, to wit, that the commercial firm of John Brown Sf Co., the judgment creditor was composed solely of John Brown, the deceased. See Greenleaf on Evidence, vol. 2, § 478.

It is therefore decreed, that the judgment of the district court be reversed.; and that there be judgment as in case of non-suit, the plaintiff paying costs in both courts.


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    V. J. Bird v. Succession of Mrs. Jones.
    Where one who is executor and also universal legatee under a will, takes possession of the estate as executor, he will not be regarded as having possession in his capacity of legatee, nor can he, without judicial authorization, change the nature of his possession.
    The action for separation of patrimony supposes the case of possession taken by the heir, and where the possession of the estate is in the hands of the executor, the prescription of three months against that action does not run.
    APPEAL from the District Court of Ouachita, Copley, J.

      R. W. Richardson, for executor.

      Garrett and Ludeling, for appellees.

      McGuire and Ray, and Baker and O. D. Stillman, for appellants.
   The judgment of the court was pronounced by

Slidell, J.

Eliza Foy, the wife of Burwell H. Jones, died in the parish of Ouachita, in October, 1849. A few days after her death, Jones presented a petition to the court in that parish stating the death of his wife, and that she had left no descendants, but ascendants, a surviving father and mother, absentees and residents of Texas. An order was granted for affixing seals, and a guardian of the effects, ad interim, was appointed. Soon after Jones presented a second petition, accompanied by a will of the deceased. He prayed that it might be probated ; that letters might be granted to him as testamentary executor; and that a person should be appointed to represent the absent heirs. An appointment was made; the clerk of the court proceeded to receive proof of the will, and the attorney appointed to represent .the absent heirs filed an opposition. The will was, nevertheless, admitted to probate, and letters testamentary were issued to Jones, who took the usual oath as executor. Under the statute of 1846, the appointment being made by the clerk was considered as provisional. In December, 1849, the opposition of the absent heirs came to trial before the district judge; and after hearing evidence, it was withdrawn, and a judgment was l'endered on the 14th December, 1849, sustaining the will, ordering its execution, and appointing Jones executor. Jones, in the meanwhile, in his capacity of executor, had caused an inventory to be made.

The will of Mrs. Jones is as follows : — -1. I desire that all of my just debts be paid, and if there be anything left, I desire it to be disposed of as follows : 2. I give and bequeath to Burwell Henderson Jones all the property which by law I have a right to dispose of, and make him my universal legatee. 3. I appoint Burwell Henderson Jones my executor, and dispense him from giving security therefor, and give him seizin of my estate; and request him to see that the intentions herein expressed be carried out.

On the 18th December, 1849, Jones, in his individual capacity, entered into a contract with the forced heirs of Mrs. Jones, her father and mother, by which he conveyed to them a number of slaves belonging to the estate, in satisfaction of their share, and they conveyed to him the residue of the estate.

In February, 1849, J. H. Gi'imes obtained a judgment against B. H. Jones, and recorded it. On the'31st December, 1849, he caused a fieri facias to be levied upon certain lands and slaves of the estate of the deceased Eliza Jones, which under the compromise the heirs had released to B. H. Jones. They were advertised for sale under this execution, when, on the eve of the sale, various creditors of the succession presented their petitions, opposing the seizure and sale on the ground that the property seized was the property of the success'oni and nol; °f Jones; was liable to the debts of the succession, and could not ]j0 appropriated to the payment of his creditors. Grimes and the testamentary executor were made parties defendants, as well as other creditors of B. Jijones. In his answer, as testamentary executor, Jones admits his appointment, that he had made an inventory, and taken possession as executor, and that he holds the property as such, with the intention of paying the debts of the succession; and well knowing that only the residue, after such payment, belongs to him. His answer concludes with a prayer for a judgment authorizing him to proceed with the settlement of the succession, and prohibiting the interference of his creditors. The matters pleaded in defence by Grimes, and the other creditors of B. H. Jones, will be noticed hereafter.

The consolidated causes were brought to trial under an agreement of parties, by which proof of the several claims of the creditors of Mrs. Jones was dispensed with, and they were admitted for the purpose of the trial of the contest between the creditors of her succession and those of her husband, “reserving to all the parties the right to contest said claims in the future proceedings in settling said succession ; the object of this trial being to ascertain how far the said creditors of Burwell H. Jones have a right to seize the property left by Eliza Foy at her decease, under the circumstances shown in this case.”

The decree of the district court was, that the seizures made by the various creditors of B. H. Jones, be set aside; that the property seized be restored to the possession of the testamentary executor as property of the succession ; that he proceed in the administration of the succession; and that its creditors be authorized to collect from said succession the amounts due to them, according to law.

From this decree, Grimes and others, the creditors of B. ü. Jones, have appealed.

The argument presented by the appellants is substantially as follows : They contend that by the transaction between B. H. Jpnes and the forced heirs, there was an acceptance of the succession by him as universal legatee. That from the date of the acceptance, the property in controversy became his, and must by a legal fiction be considered as having vested in him upon the death of the testatrix. That it consequently became subject to Grimes’s judicial mortgage, and liable to seizure by the legatee’s creditors. That only three months were allowed to the creditors of the testatrix, from the opening of her succession or the acceptance by the heir, to petition for a separation of patrimony, to record their claims, and preserve a privilege. That by permitting that period to elapse, they have consented to accept the forced heirs and the universal legatee as their debtors, by proportionate shares. In support of these propositions, they rely upon numerous articles of the Civil Code, more particularly the following : arts. 934, 935, 936, 938, 940, 981, 982, 988, 992, 993, 996, 1049, 1005, 1599, 1603, 3242, 1370, 1397, el seq.

These propositions it would be difficult to answer if Jones had, in fact, taken possession of the estate as legatee more than three months before the creditors of the succession acted. But the difficulty, in our opinion, ceases when we consider the nature and circumstances of his possession, and the situation of the disputed property of the succession ever since the death of Mrs. Jones.

It was in the capacity of executor that Jones obtained possession of the property belonging to the succession. By accepting that office he was clothed with a fiduciary capacity, and become the trustee of all persons interested in the sue-cession, according to the instructions of the will which he undertook to execute. In assuming the execution of the will, he undertook the trust of first paying all the debts of the succession. It was only the residuum after that payment, and subject to the rights of the forced heirs, which was bequeathed to Jones. The language of the will is unequivocal. “1. I desire that all of my debts be paid, and if there be anything left, I desire it to be disposed of as follows.” And the will closes with enjoining upon the executor to carry out the intentions expressed by the testatrix. To enable the executor to fulfil the trust, the seizin was expressly given him. Having, as executor, accepted the trust and seizin, it was not in his power to withdraw at his own discretion, and relieve himself from the obligations and duties which he had thus judicially assumed See Toullier, L. 3, t. 2, Nos. 576, 577.

It is obvious from the language of our code, and other legislation, that the actual seizin of an executor is something distinct from and paramount to the fictitious seizin, which, it is said, is vested in the heir immediately upon the death of the ancestor. When that seizin is conferred upon the executor by the will, is confirmed by judicial sanction, and actually assumed by his entering upon his functions, the heir can only take it from him afterwards upon the performance of certain conditions. One of these is, that the heir may be compelled to give security to the creditors, which clearly recognizes the tenure of the executor for their benefit. See C. C. 1652, 1753, 1663, 1664. Act of 1828, p. 156.

The executor in his answer disclaims the suggestion of having abandoned his seizin and trust as executor, and taken possession as heir; but whatever may have been his intention, he was incapable of charging proprio motu, and without judicial authorization the nature of his possession. C. C. 3480, 3404.

Possession is the basis of prescription ; and it would be a strange anomaly if the creditor of an heir or universal legatee, who is not in possession of the property of a deceased, should be permitted to prescribe against a creditor of the succession whose trastee is in possession.

The very term, separation of patrimony, supposes the case of possession taken by the heir. Its object is, in the language of the code, to prevent property out of which a particular class of creditors have a right to be paid from being confounded with other property, and by that means made liable to another class of creditors. But how can this confusion take place when the propriety of the succession is not yet in the possession of the heir, but of a trustee representing its creditors ? Lex neminem cogit ad vana.

The right of the creditors of a succession to be paid out of its assets in preference to the creditors of the heir, rests upon a clear principle of natural justice. In the hands of the deceased, her property was liable for her debts. Upon her death, it should pass to the heir with the same burden. The creditors of the heir ought not to have a greater right in it than the heir himself. As, however, an heir, when he comes into actual possession of the estate, acquires a credit thereby with the public, the law has thought proper to stimulate the vigilance of the creditors of the succession, by requiring them to act within a certain time, under penalty of the loss of their preference. But, until the heir does come into possession, the prescription, in our opinion, does not begin to run against the creditors of the succession. They are protected by the posssesion of the executor, who holds as trustee for them.

There is no equity in the attempt of Jones’ creditors to divert the property °f Mrs. Jones to the payment of his debts, at the expense of her creditors ; nor does (jje |aW) ¡n 0ur opinion, when reasonably interpreted, sanction such an injustice.

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


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    R. W. Richardson v. E. Weiner & Co. et al.
    A factor, under the act of 33d of March, 1843, amending C. C. 3184, has a privilege upon the crop of a planter for supplies furnished to him; and this privilege takes precedence of a seizure by a creditor on an execution.
    ünder the prayer for general relief a judgment may be rendered alio wing a privilege upon property which was claimed by the plaintiff' as owner, if evidence to establish the privilege has been introduced without objection.
    APPEAL from the District Court of Morehouse. Copley, J.

      Richardson, propria, persona.

      W. J. Q. Baker, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This case presents a controversy between a creditor who levied an execution upon certain bales of cotton raised upon the plantation of his debtor, and a factor who had made the planter advances.

When the cotton was seized the factor claimed it as owner under a written contract with the planter, which, he contends, was a contact of sale. The substance of the agreement was, that the planter should deliver the crop of the year to the factor, who had made advances, to be shipped by him and the proceeds accounted for. This was not a contract of sale; and there is also another objection to the factor’s claim as vendee, which is, that the proof of delivery before the levy is unsatisfactory.

But, while we are of opinion that the factor cannot be regarded as a vendee, there is another ground upon which the judgment of the court below in his favor can be maintained; and that is, his superior privilege for supplies furnished, as conferred by the act of 1843, p. 44, amendatory of the article 3184 of the code. The proceeds of this cotton are insufficent to cover the advances which the factor had made in the form of necessary supplies furnished to the plantation.” The only objection presented by the plaintiff to the enforcement of this privilege is, that the pleadings do not authorize its allowance. It is true, the defendants in their answer alleged, that supplies had been furnished to the planter upon the promise that the crop should be put into the factor’s hands and sold to him as part payment for said indebtedness ; and a decree of ownership was prayed for. But there was also a prayer for general relief; and under these pleadings, the crop being in the meanwhile sold, the factor, without any objection by the plaintiff, offered at the trial proof of the supplies furnished, and satisfactorily showed a right of superior privilege. There is no reason to suppose that the plaintiff was taken by surprise, nor that substantial justice had not been done by the judgment.

It is therefore decreed, that the judgment of the district court be affirmed, with costs.


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    Sarah Stone v. Sexton Seymour & Co.
    Where a married mom an bring» a suit and obtains a judgment without the authorization of her husband, and the defendant appeals, she cannot have the appeal dismissed because her husband was not cited with her to answer the appeal. In such a case, the cause will be remanded to enable the wife to obtain the authorization of her husband to institute the suit.
    APPEAL from the District Court of Catahoula, Barry, J

      Isaiah Garrett, for plaintiff.

      James G. Taliaferro, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The counsel for the plaintiff and appellee in this case has moved for the dismissal of the appeal, on the ground that the plaintiff is a married woman, not divorced nor separated in bed and board from her husband; that her husband has not been cited to assist her in the appeal, nor made a party thereto, and that she is not authorized to stand in judgment.

On an examination of the record, we find that the plaintiff has sued in her own name, without alleging that she was authorized by her husband or by the judge, and without showing any authorization; that notwithstanding her absolute incapacity, she has obtained a judgment; and that in order to defeat the appeal of her adversaries, her counsel now sets up his own omission and neglect in the management of the cause. We do not think the plaintiff entitled to a dismissal of the appeal. We are of opinion, that the want of authority to bring the suit vitiates the whole proceeding, and that, without inquiring into the merits, the case should be remanded for the purpose of enabling the parties to remove the disability of the plaintiff. This was the course pursued by our predecessors in the analogous case of Keys v. Nettles, 12 L. R. 382; and we believe it the most consonant with justice. Kent v. Monget, 4 R. R. 174.

It is ordered, that the judgment in this case be reversed, and the cause remanded for further proceedings, with directions to the district judge to dismiss the plaintiff’s petition, unless she causes herself to be authorized to stand in judgment. It is further ordered, that the costs of this appeal be paid by the plaintiff and appellee.


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    George W. Copley v. Thomas Edwards et al.
    Where an execution lias teen issued in one parish, directed to the sheriff of another, it may he enjoined in the courts of the latter parish.
    A judgment cannot be enjoined on an unliquidated claim for damages against the judgment creditor, -where this objection to the injunction is specially pleaded, and the judgment is for a specific amount.
    Where the evidence which has been improperly rejected by the lower court, comes before the Supreme Court annexed to a bill of exceptions, it may be received and considered by the Supreme Court.
    Where a party holds lands under a claim confirmed by act of Congress, he will be protected from a claim under a certificate of the receiver of the land oifice, showing an entry of a date subsequent to the original claim; and the party in possession under such a claim may plead prescription.
    The prescription applicable to costs of court is suspended by an appeal.
    The 12th section of the act of 26th of March, 1842, requiring the oath of the clerli, and the approval of the judge, before execution can issue against the plaintiff for costs, applies only to their collection every six months before the termination of the suit.
    Where there are various parties to a suit claiming costs for a sum less than three hundred dollars, the appellant cannot give the Supreme Court jurisdiction by urging an unfounded claim for damages for live thousand dollars.
    APPEAL from the District Court of Ouachita, Barry, J.

      G. W. Copley, propria.persona.

      Garrett and Ludeling, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff has enjoined an execution issued against him from the District Court of the parish of Concordia, for costs in the suit of Copley v. Routh. He alleges that some of the items of costs charged are not due; that other items are overcharged; that some are prescribed ; and pleads partial payments. He moreover claims from Edwards, one of the defendants in the injunction, as clerk of the parish of Concordia, five thousand dollars damages for his failure and neglect to make out and furnish the transcript of the record in the case of Copley v. Routh, in consequence of which an appeal regularly taken by him to the Supreme Court in that case was dismissed, and he suffered that amount of damages.

The defendants excepted, and plead that the District Court of the parish of Concordia was the only one which had jurisdiction of the matters and things set forth in the plaintiff’s petition. The execution was issued to the sheriff of the parish of Ouachito to be executed here, and therefore might be enjoined in this parish, as decided in the case of Lawes et al. v. Chinn, 4 N. S. 388. The plea to the jurisdiction of the court was properly overruled; and the defendants answered to the merits of the suit by filing a general denial.

On the day the cause was tried, the defendant, Thomas Edwards, prayed the court to strike out so much of the plaintiff’s petition as contains the allegations relative to the suit of George W. Copley v. John Routh, and on which the said Copley bases his claim in compensation and reconvention for five thousand dollars, the same being a claim for unliquidated damages in a matter not connected with the bill of costs included in the execution enjoined by the plaintiff, and cannot be set up in this court, nor in any injunction suit which the plaintiff is legally entitled to against the execution enjoined in this case ; and his motion was sustained.

Neither this motion nor the plea to the jurisdiction which was overruled contained a formal plea by Edwards, that his domicil was in the parish of Concordia, and that he could be sued for the damages only at the place of his domicil, and we are not, therefore, required to decide the question which that ¡dea would have presented.

At the late term of this court at Opelousas, we held, that execution on a judgment could not be enjoined on an unliquidated claim for damages. But the objection was specially and seasonably made, and the judgment too was for a precise amount. Here, no exception was filed, but issue was joined on the merits of the claim for damages, and the plaintiff was prepared for trial with all his evidence. The execution too was issued on a fee bill, the amount of which was not settled by judgment, and some of the items of which, as for copies of documents from the register of the land office of a township map from the office of the Surveyor General of the United States, the expense of taking depositions, &c. were not even precisely fixed by law.

The district court, having rejected the plaintiff’s claim for damages, refused to receive his evidence in support of the claim. But the whole evidence in support of the claim comes up with the record. If it was sufficient to support the plaintiff’s claim for damages, we might remand the cause to enable the defendant to rebut it by his evidence. But after a careful examination of the evidence, we are of opinion it does not justify a judgment for damages, and that it is our duty to terminate this litigation.

The whole record of the suit of Copley v. Routh is before us, in which judgment was rendered in favor of the defendant for the land for which the suit was brought. The plaintiff contends, that if he could have had a trial before the Supreme Court on the merits, the judgment would have been reversed, and he would have recovered the land. If so, the question would arise whether the dismissal of the appeal was owing to the failure and neglect of the clerk to furnish the transcript of the record in due time to have the case tried on its merits.

We think the judgment of the district court could not have been reversed if the Supreme Court had tried the case on its merits.

In 1841, Copley brought suit for the land by virtue of a receipt from the receiver of public monies for the land district north of Red River, dated the 18th of January, 1841. The Government of the United States, by an act of Congress approved the 27th of February, 1830, had confirmed the land to the heirs and legal representatives of Lewis Clarke. Vol. 8 Laws of the United States, chap. 225, p. 249. The approved township map and other documents from the land office leave no doubt that it was immediately surveyed, located and accepted by the confirmees. On the 31st of August, 1831, Elijah L. Clarke sold the exact quantity, 365 30-100 of an acre contained in sections 12 and 13, surveyed for the claim, and through mesne conveyances it was acquired by the defendant, Routh, on the 11th of October, 1832, who possessed it ever since. Indeed, it was settled by Lewis Clarke in 1803, who claimed its confirmation before the register of the land office in 1820, under acts of Congress for the adjustment of land titles in Louisiana, and was therefore never subject to public sale or private entry. The section No. 12 was, therefore, clearly entered in error by Copley, in 1841.

The plaintiff relied chiefly on defects in the proof of the chain or transmission of the title from the legal representatives of Lewis Clarke down to Routh. As he held under the United States, the chain of title was immaterial to him, as the United States had parted with all title before the en'oneous sale to him.

Routh, and those under whom he claimed title, had been in possession probably ten years before the commencement of plaintiff’s suit in June, 1841. For a letter of the register of the land office, dated the 7th of January, 1831, represents Elijah L. Clarke as entitled to the land if he chose to take it; and that he took it is proved by the fact that he sold it on the 31st of August, 1831. The jury might well, therefore, have presumed the prescription of ten years against the plaintiff, even if he had claimed under the heirs of Lewis Clarke. See the case of Goddard’s Heirs v. Urquhart.

The costs of the suit are not prescribed; because, by judgment signed the 4th of June, 1845, they were ordered to be taxed and paid by the plaintiff, and in consequence of his appeal, the judgment did not become final until February, 1848. The 12th section of an act approved the 26th of March 1842, requiring the oath of the clerk, and approval of the judge, before execution against the plaintiff for costs, applies only to their collection if demanded every six months before the termination of the suit, and not to their collection by fieri facias under the final judgment in the case.

The charge of the clerk for the transcript of the record for the appeal of $33, appears to be high, and the testimony of Messrs. Slociclon and Steele, renders it probable there was an overcharge. The copying of twenty-one thousand words, the number which it is probable the record contained, entitled the clerk to but $21. The certificate and seal to the record, the citations of appeal to the appellees, the appeal bond and other services, could not have exceeded five or six dollars, leaving five or six for which we cannot account. But the plaintiff should have required an explicit fee bill, and made the overcharge manifest. We do not know, certainly, that the district court erred in not allowing any part of this item as an offset to the execution.

We should have thought that the charges for writs of venire facias at every term of the court should not have been allowed, but only the fee for one writ. But the Legislature by providing, in 1845, that a charge for but one writ of venire facias should be made in each case, seems to have recognized the previous practice of charging for them at every term of the court.

The charge of $1 50 for searches under the law of 1844, is probably erroneously stated, as we have been unable to find any law in 1844 on the subject. It must have been for searches until 1844,' under the fee bill before the act of 1845. The objection to the charge is not pressed in plaintiff’s brief. The evidence does not show that Edwards should be charged with the $15 for the fee bills placed in his hands by the plaintiff for collection, and subsequently returned.

We have not examined the claims of other persons embraced in the execution, because they are all under the sum of $300, and the appellant could not, even by their consent, bring them before this court by a claim against Edwards alone for damages, for a sum giving this court jurisdiction.

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


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    Martin Mims v. J. M. and C. H. Morrison.
    Where a person buys a promissory note sold under execution, he acquires no greater rights than the judgment debtor possessed, and is subjected to every equitable defence which-the drawer of the note had against the judgment debtor.
    Where a credit has been placed on a note in the handwriting of the drawer, it will he presumed to have been placed there with the holder’s assent, unless the contrary be shown
    APPEAL from the District Court of Ouachita, Copley, J.

      McCuire and Ray, for plaintiff.

      C. H. Morrison, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff bought at a sheriff’s sale, for $53, a due bill for $355 55, made by the defendants in favor of Bulkley. At the time of the purchase, there was an endorsement upon the due bill in these words : “ Received on the within note $225 46, January 11, 1849.” And there is reason to believe, from the evidence, that the plaintiff knew before he bought that there were also offsets against the note.

We consider the plaintiff as standing in the shoes of Bullcley, and subjected to any equitable defence which the defendant could have set up against Bullcley were he plaintiff in the cause.

There was an attempt in the court below to resist the introduction of evidence to prove the claims pleaded by the defendants, upon the ground that they were unliquidated. But supposing, for the sake of argument, that they were so, the defendants would have had a right to protect themselves by reconvention, if Bullcley himself had been plaintiff, he having left the State. It is equitable that the plaintiff should be considered as standing in no better position, having taken the due bill subject to existing equities.

The defendants are, unquestionably, entitled to a credit for the payment endorsed on the note. It is proved that the endorsement is in the handwriting of one of the defendants; and a witness states that Bullcley being indebted in a sum of two hundz-ed dollars and upwards to one Scarborough, the defendants settled with Scarborough, and it was to be placed on the due bill as a credit. Besides, here was an instrument which is produced by the creditor, which the law supposes to have gone into the possession of him, or those under whom he claims, at its date, and to have remained in their or his possession and control. The presumption is, that the holder would not have permitted a receipt to be written on the instrument in his possession, unless a payment had been made. The burden is on him to resist this presumption, and show that the receipt came there by fraud or mistake. See Pothier on Obligations, No. 761. Norcross v. Thouer, 3 R. R. 375.

We consider it satisfactorily proved, that the credit endorsed upon the note did not include the items of the account for $94 87.

A review of the evidence has not satisfied us that the verdict of the jury has not done justice to the parties.

We may observe, that it may admit of question whether this court has jurisdiction of this case, considering the amount in dispute ; and if we had thought the judgment erroneous, we should have looked more closely to that question. As we see no reason to reverse the judgment, the question of the jurisdiction of this court is not material to the parties.

Judgment affirmed; plaintiff paying the costs of the appeal.


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    William Hanna v. H. M. Bry et al.
    The horse of a physician is liable to seizure on execution, and is not exempted by C. P. M4.
    The proper mode of seizing on an execution a debt existing in the form of a judgment is, by a notification of the seizure by the sheriff to the judgment debtor; and such notification is effected by the process of garnishment served upon the judgment debtors.
    A sheriff' has no right to seize and take into his possession the records in the custody of the clerk of the court.
    APPEAL from the District Court of Ouachita, Copley, J.

      O. D. Stillman, for plaintiff,
    contended : This action was instituted by an out by plaintiff, restraining the defendant Bry, and the sheriff, from proceeding in the sale of certain property seized under an execution issued in the case of Bry, Executor, v. William H. I-Ianna, to wit, a horse, saddle and bridle, and a judgment rendered in the Twelfth District Court of Ouachita, in favor of plaintiff Hanna and Abel T. Nonvood v. Bry and Wife.

      There was judgment perpetuating the injunction from which defendants have appealed.
    The case presents only two points for the consideration of this court: 1. Is the horse of a physician (the only one possessed by him) who practises medicine in the country, where a horse is indispensable for the exercise of the profession by which he gains a living, and without which his profession would be useless to him, subject to seizure and sale for an ordinary debt, as in this case ? 2. Can a judgment in the custody of the clerk of the court be seized and sold by the sheriff, without his taking actual possession of it?
    The horse seized was the only one owned or possessed by plaintiff, and the testimony clearly shows that his profession (the only one by which he gains a living) would be entirely useless to him without it. By article 644 of the C. P., the tools and instruments necessary for the exercise of the trade or profession by which the debtor gains a living, are exempted from seizure and sale.
    Now, what is intended to be understood by the words tools and instruments, in this article of the code ? Do they apply exclusively to inanimate objects, as has been contended by the counsel for the defence, or to all objects embraced under the names of tools and instruments necessary for the exercise of a profession, as understood by the general definition of these terms. Lexicographers define instruments to be the agent, by which work is performed or anything effected. Could the plaintiff possess a more effective agent or instrument in the exercise of his profession than his horse, particularly when it is shown that his profession would be worthless to him without it? The objects embraced under these terms, tools and instruments, are general; are not rendered specific by the article of the code, and are only restricted by the terms necessary for the exercise of the trade or profession. A horse may not be a necessary instrument in the profession of every physician, nor a jack-plane to every carpenter, but in this case, the horse is proved to be indispensably necessary, and its exemption from seizure is clearly within the letter, spirit and intention of the law. A mechanic may not have the tools of his trade released from seizure under this article, unless he proves that they are necessary to his livelihood. Parker v. Starkweather, 7 N. S. 337.
    Judge Morphy, in the case of Lambeth v. Milton, 2 R. R. 81, says, that this article of the code was dictated by public policy as well as humanity. While it encourages the exercise of all useful trades and professions, it enables the unfortunate debtor to sustain himself and family by honest industry; and at the same time holds out to the creditor a prospect of obtaining his debt by the future labor of his debtor, with these privileged tools and instruments. There are other authorities of this court which sustain this point. 1st Ann. 394.
    It is urged by the counsel for the defence, that a horse is not an instrument intended to be exempt from seizure by this article of the code, because it does not contribute to a physician’s medical knowledge. I do not see the force of this objection. It appears to me that a physician’s horse contributes as much to his medical knowledge as his spatula, his lancet, or his leeches; and I presume, the counsel will not contend that these instruments are liable to seizure under this article, or that they are unnecessary in the practice of medicine.
    With regard to the second point, it is established by the evidence that the sheriff made no legal seizure of the judgment, he not having taken it into actual possession, the same being in the possession and custody of the clerk of the court. The sheriff took the judgment from the office of the clerk, and soon after returned it at the request of the clerk, who was ordered to issue execution on it; he had no right to permit it to be taken from his office, and the sheriff never had any legal possession of it, such as would enable him to sell and make a delivery.
    It has been repeatedly held by this honorable court, that the sheriff cannot make a valid seizure of tangible property without taking it into actual possession. Daley v. Cunningham, 3d Ajm. 55. Fluker v. Bullard, 2d Ann. 338. Offut v. Monquit, 2d Ann. 785. Simpson v. Attain, 7 R. R. 504. Gobeau v. New Orleans and Nashville Railroad Company, 6 R. R. 348.

      McGuire and Ray, for defendants,
    contended : Plaintiff relies on the provision of article 644, C. P., which says, the sheriff cannot seize “ the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.”
    As a general rule, every species of property is liable to seizure to pay debts. All exceptions to this rule are made by express law, and are in derogation to the, general principle, and ought to be construed strictly.

      No decision of our court, we think, has gone the length contended for by-plaintiff. The farthest our court has gone is in the case of the Farmers and Mechanics’ Bank v. Franklin, 1st Ann. 394, where the commercial books, counting-house furniture-, and iron chests in fthe counting-house used to keep the books in, of a merchant, were held not liable to seizure.
    A practising lawyer’s books are saidnotto be liable to seizure, 2R. R. 81, and by a dictum of the court in 7 N. S. 337, it was intimated that under this article C. P. 644, a blacksmith could not retain more tools than were necessary to labor at his trade.
    These are the only decisions in our reports we have been able to find in explanation of this article.
    Plaintiff cannot benefit his case by showing that he had no other horse, or any other property, or that he was insolvent. These are immaterial questions. For if a horse used by a physician in the practice of his profession in the country is exempted, it is not material whether the physician has other horses or is able to purchase others or not.
    The words “tools and instruments necessary to the exercise of a trade or profession,” were intended, we think, to have a specific and limited application, and were not intended to be extended by implication as it is an exception to a general rule. The words tool and instrument, as applied to the exercise of a trade, such as that of blacksmith or carpenter, are very plain, and cannot well be misunderstood. Judge Porter says, in 7 N. S., 337, “The object of the law was to secui-e to citizens and others the means of laboring at their trade or profession and he intimated that more tools than was necessary could not be exempted under this article. These words tools and instruments, as applied to the exercise of the profession of physician, can only apply to his scientific instruments and medical books essentially necessary to the practice. A physician’s medicines, which he keeps for the use of his patients, although he may keep none for sale otherwise, we think would clearly not come under this article. And in the country it is known to the. court that such would be equally as essential to the practice of a physician as a horse, anything that is a mere incident and does not add to the knowledge of a physician or assist in the application of a remedy, does not come within the fair purport of the article. If the court extends this article by implication, as is contended for in this case, its operation would be partial. The practice of some physicians in the country requires the assistance of several horses to enable them to visit all their patients. If one would be exempt, all would certainly be. Besides, some physicians from choice or physical infirmity, would require a carriage in place of a saddle — the same principle that would exempt one would the other. Again, some physicians confine their practice to towns and cities where a horse is not necessary; in such a case such property would not be exempt. If the horse is exempt from seizure, the provender provided for his sustenance ought likewise to be exempt, and so the exemption might be strained to apply to almost every species of property owned by a physician. In the country, it is known to the court that lawyers in the practice of then-profession are compelled to travel from one parish to another, which they could not do without the assistance of a horse, and will it be seriously contended that his horse is exempt from seizure under this article.
    We cite these examples to show the legitimate'and extreme consequences the doctrine contended for by plaintiff would lead to.
    We think the rule laid down in the C.P. 644, is general, and must apply' alike to all cases, and that the words “tools and instruments” are to be used in a technical or restricted sense, as appliable to the exercise of a profession, and that by no fair construction can they be construed to apply to a horse used by a physician in his practice. Such expressions cannot fairly apply to animals used ip conveying a physician to see his patients.
    The seizure (or as plaintiff alleges “ pretended seizure ”) of the judgment of Hanna and Norwood v. T. H. Bry and Husband, No, 1728, constitutes no legal ground in favor of plaintiff for an injunction. If the proceedings of the plaintiff in execution, and of the sheriff, were illegal, plaintiff could not be effected in any way by it; and if they were legal, the proceeds of the seizure would go to pay his debt. The proceedings are neither injurious to him or impair any right which he claims. C. P. 296.
    This question was settled in the case of Calderwood v. Prevost, 9 R. R. 182, 183. The argument of the court in that case is conclusive. If the sheriff, as the plaintiff alleges, has not possession of the judgment, plaintiff is not actually disturbed ; and it is time enough for him to complain when actually disturbed.

      Injury to the plaintiff, or apprehension of it, can only authorize an injunction, mere irregularities in proceeding will not. 2 L. R. 66. 12 L. R. 123, 124.
    It does not appear, so far as we can find, that the failure to make an actual seizure has ever been set up successfully by a defendant in execution, as a good ground for an injunction.
    We think that, taking plaintiffs allegations as true, he is not on this point ertitled to an injunction. But should the court think plaintiff’s allegations, if true, authorize an injunction, we will proceed to examine this point on the merits.
    Under the execution enjoined of Henry M. Bry, Executor, v. Hanna and Norwood, the sheriff also seized and advertised for sale, a judgment in the case of Hanna and Norwood v. Thankful H. Bry and Husband, for $212, with five per cent interest from May, 22, 1849, No. 1728. Plaintiff alleges said seizure was illegal, because the suit or judgment was not in the possession of the sheriff. The court will observe, that plaintiff does not allege the sheriff did not take it into possession, but only that he did not then have it in possession.
    The evidence of Allen shows, that the sheriff did take actual possession of the suit and judgment when it was seized, and kept the possession of it for some time, and returned into the clerk’s office at Allen's request as clerk.
    According to the C. P. 647, the sheriff may seize the “lights and credits,” “ and all sums which may be due” to the debtor, “in whatsoever right.” This authorized the seizure of a judgment; and if taking actual possession of a judgment be necessary to constitute a seizure, it was done in this case ; although, at the request of the clerk, the sheriff had returned it to the clerk’s office. Yet the sale would have been good if the sheriff had delivered and transferred it to the purchaser at the sale ; at all events, if the plaintiff, Hanna, was fearful of being injured by the sheriff, not being able to make a good delivery and transfer of it, he could have obviated that by coming forward and ratifying the sheriff’s act. The only objection urged or set up by plaintiff is, that the sheriff was not in possession of the judgment.
    Judgments have been seized and sold. 4 R. R. 341. The objection in the case before the court was not raised in that case, but it shows that a judgment may be sold under execution. Judgments may be attached. 3d Ann. 55. This case intimates the legal requisites to constitute an attachment, and like requisites may be required to constitute a valid seizure.
    It is manifest, that the actual possession necessary to constitute a legal seizure of a note or other evidence of a debt not reduced to a judgment, does not apply to the seizure of judgments. But in this case it has been attempted to comply strictly with the law. Actual seizure has been made, as well as the most certain and effectual notice given to the debtors in the judgment seized, which seems to be what would be required to constitute a legal seizure or attachment according to the dictum of this court. 3d Ann. 55. The manner in which this notice was given to the debtors in the judgment seized, was by citing them as garnishees, according to the act of 20th March, 1839, section 13, p. 8, 9.
    Plaintiff sets up various objections to the proceedings in garnishment, but concludes by praying that Bry’s executor be held to his proceeding in garnishment. His objections are therefore waived. The legal effects of this proceeding is now to be considered.
    This proceeding was intended merely to perfect the seizure. The proceedings under the act of March 20, 1839, B. & C. Digest, 458, after a.fi. fa. has been applied for, are mainly the same with the proceedings against garnishees under the attachment laws. C. P. 262 to 265. From the time the interrogatories are served, according to the act of 1839, the property and money in the hands of the garnishee are levied upon. If the garnishee acknowledges he has property of defendant in execution in his hands, he is ordered to deliver it to the sheriff. If he does so, it is to be sold, and the proceeds applied to the execution. If he acknowledges he owes the defendant in execution, he is ordered to pay it over to the sheriff. If he does not, judgment is or may be ordered up against him ; but whether in favor of the sheriff or plaintiff in the execution, the law does not say.
    In the case before the court, we hold, that plaintiff in the execution enjoined had aright to use the act of 1839 to have a debt levied upon; and then, after the levy, he could notify the defendant in execution of such levy, and if the debt be not paid, he can proceed and sell the claim. But if he prefer it, he can proceed and carry out the act of 1839, and obtain judgment against the garnishee and execute it; and whatever amount he may make on it, to have it credited on the execution. It was the former of those proceedings that plaintiff in the execution enjoined was pursuing when stopped by this injunction.
    This view of the law will harmonize the right to seize a judgment, C. P. 647, with the provisions of the garnishment laws and the act of 1839. There are two modes of proceeding: one to have the debt owing by the garnishee to the defendant in execution sold ; and the other, to obtain judgment against the garnishee for the benefit of the plaintiff in execution.
    Plaintiff’s injunction ought to be dissolved, with ten per cent interest, and twenty per cent general damages on the amount enjoined, and $100 special damages for attorney’s fees.
   The judgment of the court was pronounced by

Slidell, J.

This is a case of injunction, obtained to restrain the sheriff from proceeding to the sale of certain property seized under fieri facias, in the suit of Bry, Executor, v. Hanna.

There was judgment in the court below perpetuating the injunction, and the defendants have appealed.

I. The fii’st question presented for our consideration is, the legality of the seizure of a horse belonging to Hanna. It is proved that Hanna is a physician, and that his practice is a country practice, in the exercise of which a horse is indispensable. The horse was the only one he had. Hanna contends that the horse is exempt from seizure under the article 644 of the Code of Practice.

At common law, from which we derived the writ of fieri facias, little mercy was extended to the debtor. Even his wearing apparel might be taken, provided in doing so the sheriff was not obliged to strip it from the debtor’s back. But our law, in a spirit of greater tenderness, has declared that “ the sheriff cannot seize the linen and clothes belonging to the debtor or his wife, nor his bed, nor those of his family, nor his arms and military accoutrements, nor the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.” In the French text the language is, “ ni les outils ou instruments indispensables á 1’exercise du metier ou de la profession dont il vit.”

It is argued, that a doctor’s horse is fairly to be comprehended under the denomination of tools and instruments necessaiy for the exercise of his profession. But this seems to us straining the expression beyond its natural and fair import. His surgical instruments, those for the preparation of medicines usually employed by country practitioners, and possibly under the dictum in Milton’s case, 2 R. R. 81, his medical library, are protected by the code. But we cannot go further, and treat as tools and instruments of his profession all other things that contribute to its convenient exercise. For the convenient practice of his profession, a physician requires an office where he may be found or consulted by his patrons, a servant to groom his horse, food to nourish him, and a stable to shelter him ; yet, it would be unreasonable on that account to consider the office, the slave, the provender, or the stable protected from his creditors. The general rule under our system is, that every species of property is liable for the payment of debts. C. C. 3149. All exceptions to this general rule are the creatures of express legislation, and being in derogation of a general principle ought not to receive a latitudinarian construction.

In Wallace v. Collins, 5 Pike, 41, it was held, that a horse used by a tanner was not an implement of his trade exempt from execution. U. S. Dig., Sup., Execution, No. 358. We have not been able to examine the report of the case; but it was probably shown there, as here, that the horse was employed in the .debtor’s business, and was necessary for its prosecution. We have met with no case in our own reports, or elewhere, were the legislative exemption was enlarged by construction to the extent claimed at bar.

II. It is said, that the sheriff made no legal seizure of the judgment obtained by Hanna and Norwood v. Bry and Wife, “ he not having taken it into actual possession, the same being in the possession and custody of the clerk of the court.” — We cite the language of the plaintiff’s brief.

We understand the proper mode of seizing a debt existing in the form of a judgment is, a notification of seizure by the sheriff to the judgment debtor ; and such notification, we think, was effected in the present case by the process of garnishment served upon the judgment debtors. The sheriff had no right to seize the record of judgment, and disturb the possession of the clerk, its lawful custodian. See Daley v. Cunningham, 3rd Ann. 55. The ease of a judgment is improperly assimilated by the plaintiff’s counsel to that of a promissory note or a bond, which we have held should be taken into possession by the sheriff in order to effect a valid seizure.

It is therefore decreed, that the judgment of the district court be reversed ; that the injunction bo dissolved; and that the said H. M. Bry, executor, recover from the said William Ii. Hanna and Shepherd Wood, his security, in solido, the sum of forty dollars damages; and that the said Hanna pay costs in both courts.


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    James H. Stephens v. Harvey Chamberlin.
    Where the parties to a sale of land have agreed in writing upon the price and terms of sale and the description of the land sold, it will be regarded not as an agreement to sell, but as a sale, although there may he a stipulation that the vendor is to make a formal title. If the vendee desires a formal title he must demand it, and until he does so, cannot object to the payment of the price upon the ground that the vendor has not tendered him a formal title. C. C. 2131, 2437.
    APPEAL from the District Court of Catahoula, Barry, J.

      McGuire and Ray, for plaintiff.

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

Preston, J.

In December, 1848, the parties to this suit entered into the following contract: “It is understood and agreed between James H. Stephens and Harvey Chamberlin, as follows: J. H. Stephens sells to said Chamberlin certain lands, (decribing them) containing in all 706 83-100 acres more or less, and to make title to him, or in the name of such person as he may designate; for which said Chamberlin is to pay him two thousand seven hundred dollars. Nine hundred dollars of which is to be paid by an accepted draft, on or before the 15th of February next; nine hundred dollars by note payable the 15th of February, 1850; and like sum on the 15th February, 1851, with eight per cent interest from date until paid. For said notes, the land is to remain mortgaged. In testimony whereof, we hereunto sign our names, this 7th day of December, 1848, in duplicate; one to be held by each of us.

“ J. H. Stephens. Harvey Chamberlin.”

This suit is brought to enforce the payment of the second installment, with the privilege of vendor on the land, and the plaintiff asks that the land be sold to satisfy this and the last installment of the price.

The plaintiff alleged that he had offered to make title according to his contract, and that the defendant refused to name any person to receive it.

The defendant filed an exception that the suit was premature, because the plaintiff had never executed the conveyance referred to in his petition, and that no contract of sale had been entered into, as there can be no sale without a vendor and vendee. He further excepted that the plaintiff could not maintain his action, because he had never legally put the defendant in default by tendering him a title to the property; for which reasons he asked that the suit should be dismissed.

For the purpose of trying the exception at least, it was admitted that the plaintiff had made no tender of the conveyance contemplated in the agreement to the defendant. And thereupon the district court rendered judgment, that the case be dismissed at the plaintiff’s cost, he having instituted his suit without putting the defendant in default.

The contract on which the suit is instituted is in terms a sale, and not an agreement to sell; but if considered, as in the argument, a mere agreement to sell, our Civil Code declares that the “sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and the price thereof.” Art. 2431. And that even “a promise to sell amounts to a sale, when there exists a reciprocal consent of both parties as to the thing and the price thereof.” Art. 2437. In this case, the agreement was clothed with the formality required by article 2415, for the sale of real property. The Supreme Court have often held that such an agreement as was reduced to writing and signed in the present case, is a sale, and constitutes a complete title to the vendee. Joseph v. Moreno, 2 L. R. 460. Barrett v. His Creditors, 12 R. R. 478. Crocker v. Neely, 3 N. S. 583. Pignatil v. Drouet, 6 N. S. 432.

The formal conveyance, which the plaintiff undertook in the agreement to make, was not essential, but only incidental to the defendant’s title. The defendant could demand it at any time, and if not made, could enjoin the payment of the price and recover damages.

The art. 1907 of the code is applicable only to the performance of those things which are of the essence of commutative contracts, not to those which are mere incidents, as the execution of an authentic title before a notary, which the vendee must demand if he wants it. Thus, a promise in the sale to survey and point out the boundaries of the land is an incident to the sale, the performance of which the vendee must demand, and cannot refuse payment of the price because the vendor has not tendered to do it. Snow v. Trotter et al. 3d Ann. 269.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed; that the exception of the defendant be overruled ; that the cause be remanded for further proceedings according to law, and that the appellee pay the costs of this appeal.


text:
    Harrison Fristoe v. Glendy Burke.
    under the act of 28th March, 1840, an administratrix may purchase at the sale of the effects of the deceased whose estate she represents, when she is the surviving partner in community, or an heir, or legatee of the deceased.

      APPEAL from the District Court of Catahoula. Barry, J.

      O. Mayo, for plaintiff.

      Morris and Purvis, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This is an hypothecary action, in which the plaintiff seeks to enforce a conventional mortgage upon property owned by the defendant.

Sarah E. Stone, administratrix of the estate of Robert Fristoe, caused the mortgage note to be sold at a probate sale of his succession, in order, as expressed in her petition, to settle the estate. John W. Stone, her husband by a second marriage, became the purchaser, and through him the plaintiffs derive title to the note.

The counsel of the defendant contends, that the sale by the administratrix to her husband was an absolute nullity, of which he may avail himself. The case presents precisely the question decided by the late Supreme Court in the case of Scott’s Executrix v. Gorton, favorable to his views. But probably in consequence of that decision, made in 1839, the Legislature provided, by an act passed in 1840, that an administratrix might purchase at the sale of the effects of the deceased whose estate she represents, when she is the surviving partner in community, or an heir, or legatee of the deceased. "We are bound to presume, that the administratrix in the case of Fristoe's Succession possessed one or all of these qualities, and, therefore, that she, and, a fortiori, her husband might purchase at the sale of the effects of the estate she administered.

All the other defects alleged against the plaintiff’s title, as the want of description, the merely nominal price and frauds suggested, are relative nullities, for which the sale might have been attacked by creditors, heirs, or other persons interested in the succession, but of which a third person having- no interest in the estate cannot avail himself. If the note is due and bears a mortgage upon the defendant’s property, it is immaterial to him to whom it is paid. And this view of the case disposes of several of the bills of exception filed by the defendant.

A doubt has been suggested, whether the note sued upon is the same sold by the administratrix of R■ Fristoe’s Succession. In the schedule of notes belonging to the succession to be sold, and referred to in the petition for the sale, is put down, “W. H. Dosson$3333 33J.” Itis not pretended there was any other note of the estate sold of this exact amount in principal. It was adjudicated to Stone, who certifies that he has no interest in it,-having transferred it to Harrison Fristoe who brought the suit.

The bill of sale from Robert Fristoe to W. H. Dosson, dated the 296h of December, 1836, and the note payable the 1st January 1840, for $2333 33J, given in part payment of the price, and secured by special mortgage on the property sold, compared with the note now sued upon, leaves no doubt they are the same. And these views of written evidence renders it unnecessary to express an opinion on the bills of exception to parol testimony.

The note is not prescribed, because the administratrix of Robert Fristoe brought suit upon it, and obtained judgment on the 26th of November, 1840, recognizing the right of mortgage and making it executory against the mortgaged property.

John J. Stone bought the claim on the 2d of May, 1846. On the 1st of October, 1841, a judgment was rendered against him in favor of W. H. Dosson for $800, with ten per cent interest from the 4th of February, 1841, and on the 24th of March, 1841, a judgment was rendered against him and one Phelps in solido, in favor of Dosson, for $201 46, with ten per cent interest from the 4th of February, 1840.

By the mutual indebtedness of Dosson and Slone when the latter purchased the note and mortgage, it was extinguished to the amount of these judgments. Compensation is plead; they were given in evidence, and there is no proof they were satisfied. The note and mortgage on which this action is brought should therefore be credited with $1550 57 on the 2d of May, 1846.

It is therefore decreed, that the judgment of the district court be reversed; that the note and mortgage on which this action is brought, be credited with $1550 57 on the 2d of May, 1846; that the mortgaged property described in the petition and act of mortgage be seized and sold according to law, to satisfy the balance, and costs in the .district court; and that the appellee pay the costs of the appeal.