text:
    Fisk v. Fisk et al., Executors.
    An order appointing a tutor provisionally, but reserving to the court the right of determining the legality of the appointment whenever the question may be brought before the court, can confer no authority. Provisional tutors are unknown to the law.
    An appointment by the court is necessary, even when the tutorship is applied for by the father. C. P. 949. He must be appointed like any other person1.
    Art. 946 of the Code of Practice, which provides that “where the father and mother of a minor reside out of the State, and are not represented in it, and the minor is also absent, ho may he provided with a tutor or curator by the judge of probates of the place where he has interests to assert or defend,” is an exception to the general rule prescribed by art. 944, that the appointment belongs to the judge of probates of the domicil or usual residence of the father or mother, if either be living. Theobject ofart. 946 was to authorize the appointment of a tutor ailbona, to take charge of the minor’s property in this State. A tutor appointed under its provisions cannot remove the minor’s property out of the State. A tutor so appointed holds aoivil office to endure as long as the minority lasts, or until he is legally superseded, and binds him to account to the domestic judge at the expiration of the tutorship'. C. C. 350.
    The statute of 1 April, 1843, recognizes as valid and binding upon the courts of this State, appointments of tutors or guardians of minors residing out of the State, made at the place of the minor’s domicil, if within the United States; and, under the second section of that act, any such foreign tutor or guardian may, at any time, on making a proper showing, compel a tutor ad bona appointed here to account to him, and may remove the minor's property out of this State, upon proof of his authority to do so under the laws of ¡he minor's domicil.
    Though by the laws of the State in which the minors reside, their father cannot become their tutor or guardian, and consequently cannot receive property belonging to them in this State, he may take all the stops necessary for its preservation; he may have any claims due to them liquidated, and the amount brought into court, and invested for their benefit. C. C348.
    APPEAL from the Second District Court of New Orleans, Canon, J. Stehlins FisTc, by his last will, bequeathed the sum of $100,000 to his brother Alijah Fisk, for his sole use and benefit, without any security whatever during his lifetime, and at his death to be divided and given equally between the children of Sereno Fisk, his youngest brother. Alijah Fisk, who resided in New Orleans, received the money, and used it during his life: upon his death, Sereno Fisk, who, with his children, resided in the territory of "Wisconsin, appeared in New Orleans, and applied for the tutorship of his children, under the laws of Louisiana: he prayed to be appointed natural tutor of three of his minor children, whose mother was dead, and that his right to administer the property of two of his children, whose mother was still living, might be recognised. Upon this petition, the judge of the Court of Probates made the following order:
    “ I understand that by the laws of Wisconsin, the father cannot obtain the administration of his minor children, without giving bond and security for his faithful administration. These laws of the domicil are personal statutes, and follow the petitioner wherever he goes. Yet, I will grant the application, reserving to myself the decision of the question which may hereafter be raised in relation to said appointment, whenever the subject is brought before the court; therefore let the prayer 6f the within petition be provisionally granted.” An under tutor was appointed, and Sereno Fisk was sworn and duly authorized, in conformity with our law, to act as the tutor of his minor children. Thus qualified, he demanded of the executors of Alijah Fisk, the legacy left to his children by Stehlins Fisk: upon their refusal to pay the amount, he instituted the present suit.

      This'action was excepted to by the defendants, upon various grounds: 1st. That ^10 ov^01' °*' ^10 Court of Probates appointing the plaintiff natural tutor of his children, is not valid in point of form, and therefore confers no power upon the plaintiff! 2d. That the plaintiff should have qualified as guardian of his children, at his place of domicil, iu the territory of Wisconsin, and that he could not legally qualify as tutor here. 3d. That as, by the laws of Wisconsin, the plaintiff could not become guardian of his children, without giving secruriiy for his administration, he cannot become their natural tutor in Louisiana, without giving such security here as tho laws of Wisconsin require guardians to give in that territory. These objections were sustained by the judge of the lower court, and the plaintiff appealed.

      Elmore and W. W. King, for the appellant.
    The order of the Probate Court was sufficient to authorize the plaintiff to act as tutor. The plaintiff was entitled to the tutorship, and the word “provisionally,” inserted in the order of appointment, should lie regrrded as mere surplusage. The Second District Court of New Orleans-had no authority to set aside an appointment made by the Court of Probates. Decide v. Fenner, 9 Rob. 189. The plaintiff could only qualify as tutor of his children here.
    All the rights of foreign administrators rest either upon some positive legislative provisions of the country, or upon the comity of nations. So far as these rights depend upon the comity of nations, Judge Story says, in his'Conilict of Laws, no. 499, that “ in America, in the States acting under the jurisprudence of the common law, the rights and powers of guardians are considered as strictly local, and not as entitling them to exercise any authority over the person or personal property of their wards in other States, upon the same general reasoning and policy which have circumscribed the rights and authorities of executors and administrators.’'’ Again, no. 504 : “No one has ever supposed that a guardD an appointed in any one State in this Union had any right to receive the profits, or to assume the possession, of the real estate of his ward in any other State, without having received pa due?;"appointment from the proper tribunals of the State where it is situate.” “The same rule is applied by the common law to moveable property, and has been fully recognised both in England and in America. No foreign guardian can, virtute officii, exercise any rights or powers, or functions, over the moveable property of his ward, which is situated in a different State, or countryTroni- that in which he has obtained his letters of guardianship ; but ho must obtain new letters of guardianship from the local tribunals authorised to grant the same, before he can exercise any rights, powers or func-tions over the same. Few decisions upon the point are to be found in English or American authorities, probably because the principle has ulways been tab on to be unquestionable, founded upon the close analogy of the case of foreign executors and administrators.” He refers to many authorities, and, in note to’ no. 513, to a great number of cases. The case of Morrell v. Dickey, 1 Johnson’s Ch. Rep. p. 153, was decided by Chancellor Kent, and is a case strictly in point. This State has gone farther than any other in the Union, in prescribing that property in this State shall be governed by our own peculiar laws, and' no distinction exists in this respect between moveables and immovables. C. C.arts. 9, 10, 483.
    To remedy the inconvenience of subjecting foreign guardians to the necessity of qualifying again in this State, the act of 1843 was passed, (Acts, p. 97,) by which it is declared, that a foreign guardian shall be entitled to sue for and recover property, &c. of minors in this State, “without being under the necessity of qualifying as tutor of said minor, according to the laws of Louisiana.” “ Provided, that nothing in this act shallauthorise any such tutor or guardian to take possession of, or remove from the State, the property of any minor or estate, unless satisfactory proof be furnished to the court that the debts of the succession are paid, or that nono exist in the State.” There is no doubt that foreign guardians may be recognised here under the above law; but it would be a perversion of the meaning and intention of the act, to say that, because this liberty is granted to foreign guardians, therefore, our own laws for the appointment of tutors are repealed, and that all persons residing out of the Slate must bo qualified as guardians where they reside, and cannot he
      qualified liere. The very language of the act takes it for granted that such persons could be qualified here, and the act was passed to dispense with that necessity. There are many provisions of our law which do not leave the plaintiff’s right to the tutorship of his children, as a mere matter of inference.
    The minors, in this case, reside out of the State; their property is here ; ex necessitate rei,, there must be some one to take care of their interests. Our Code says, art. 294 : “ Whenever a circumstance oecurs which makes the appointment of a tutor necessary, information thereof to the competent judge may be given by any one.” Succeeding articles provide for the appointment of a tutor. The Code of Practice provides, art. 946', “ If the father or mother resides out of the State, and are not represented in it, and the minor be also absent, he may be provided with a tutor, or curator, by the judge of probates of the place where he has interests to assert, or defend.” Art. 947, makes it the duty of all persons to give information of the necessity for the appointment of a tutor. Art. 948, directs the judge, when the information is given, to appoint a tutor. Art. 949, provides that, “If it be the father of the minor who presents tire potition, claiming his tutorship, the judge shall confer it on him, only requiring of him an oath to perform the duties well and faithfully.” In the case of Harman et al. v. McCawley, 9 La. 57Í, the court distinctly recognised the right of the Court of Probates to appoint tutors to administer the property of minors residing out of the State. In the case of Berluchaux v. Berluchaux, 7 La. 543, the court say: “ A mother, residing in a foreign State, or country, with her children, who inherit property in this, on coming here, and making application to the proper authority for that purpose, would be preferred to all others, in obtaining the administration of the property thus inherited.” The Civil Code, art. 326, provides that, “ No cause of exclusion or removal from the tutorship of his children, is applicable to the father, except that of unfaithfulness of his administration, and of notoriously bad conduct.” Art. 269, declares that, tutors by nature are not compelled to give security; and, by art. 268, fathers are entitled to be the natural tutors of their children. Art. 321 declares that, the father cannot excuse himself from the tutorship. These authorities show, not only the right of the Court of Probates to appoint a tutor here, but also the fight of the father to become the tutor, without giving any security.
    But the law goes even further. Arts. 275 and 237 of the Civil Code give the surviving father, or mother, the right of appointing a tutor to their minor children. If the father has the right of appointing another, certainly he has the right of acting himself. But it has been urged, on the other side, that the plaintiff cannot act as the tutor of his children, because he resides out of the State, and that, by art. 298 of the Code, absence from the State is made a cause for depriving a tutor of his office. We have seen that by art. 326 of the C. Code, no cause of exclusion applies to the father, except unfaithfulness in his administration, or notoriously bad conduct. To give the construction contended for, to article 298, would render it inconsistent with article 326. But the Supreme Court has repeatedly decided, that art. 298 does not apply to natural tutors of minors out of the State. We cannot better reply to the objection, than by quoting a paragraph of the decision in the case of Delacroix v. Boisblanc, 4 Mart. 716:
    “ The question, if it be one, may be reduced to this: Can the law appealed to by the applicant embrace cases where a parént, leaving the State, takes his children along with him ? That all men have the right to expatriate, at least When by such removal they cause no prejudice to the community of which they were members, is not questionable in a free country; that a natural tutor expatriating, has a right to take his children with him, is still less disputable. How, then, could the law providing for the nomination of another tutor, be carried into effect in such a case ? A tutor is appointed principally over the person of the minor, but here the minors are gone. He is to take care of them in the manner prescribed by oiir laws, but they are beyond the reach of those laws. It is clear the provision alluded to is made for cases where the tutor alone is going away, and where he can be prevented from taking his ward out of the State. This would take place, we presume, where any other tutor than a parent would be about absenting himself. Such a tutor being merely the creature of the law, would probably not be at liberty to carry his ward where the law does not extend. The nomination of another tutor is then obviously necessary. But when the ward himself is removed where our laws can no longer protect him, there must be an end to the interference of our courts in his behalf.” See, also, Robins v. Weeks, 5 Mart. N. S. 384.
    The doctrine we are combatting is directly opposed to the decision in the case of Berluchauxv. Berluchmix. The power of tho parent to remove from the State with his child results necessarily from tho parental authority.
    If his removal from tho State with his children, and their property, be no cause for tho destitution of his tutorship, there is no reason why his residence out of the State should debar him from the tutorship.
    Generally the interests and wants of minors residing out of the State require that their property should be transferred to the place of their domicil; it may be absolutely necessary for their support.' Our law does not forbid the removal of the property of minors, residing out of the Slate, to the place of their domicil. What objection then can it be to the appointment of a tutor, that he resides out of the State, with the minors 1 If the lather should leave the State permanently, with his minor children, leaving property of theirs behind, and no one to represent him, then art. 946 of the Code of Practice, gives the court a right to appoint a tutor; but in this case the plaintiff was here at the time of his appointmeut; non constat, that he will leave the State before the administration of his children’s property is closed. If he does,Tie has a right of appointing some one to represent him-, or of appointing a tutor. C. C. 275. If he should desire to remove the property of his children after he has gained posession of it, to their domicil, when it arrives there, he will be compelled by the courts of that country to qualify as guardian under their laws ; if he does not, he will be deprived of the property and his guardianship.
    As to the third exception that, admitting the plaintiff has the right of qualifying as tutor here, he cannot do so without giving such security as the Jaws of Wisconsin prescribe. If he has the right to apply here for the tutorship, it follows, as a necessary legal consequence, that he is to apply under our own law, and must comply with its requisitions. The plaintiff has complied with all the requisitions of our law, and is fully qualified to act as tutor. Natural tutors are not required to give security for their administration. C. C. arts. 263, 330. C. P. art. 949. The father is entitled to the administration of the property of his minor children, whose mother is still living. C. C. arts. 267, 239, 532.

      Watts, for himself and his co-defendant.
    A non-resident father, of non-resident children, cannot.become tutor in Louisiana, and receive the property of his children, without having become guardian to those children at the place of his residence, where he would be required to give adequate security for its preservation and restoration.
    A non-resident, who would be placed under obligations and restrictions at tho place of his domicil, has no right to come to a foreign State, and demand advantages peculiar to that State, and which would be refused to him at home, especially when he does not place himself under the restrictions and vigilance of the foreign law, whose immmunities he invokes. A natural father in Louisiana is tutor to his children without giving security; but he is compelled to make an inventory, to be placed under the espionage, not only of the court, but, in particular, of an under-tutor. The relations and friends of the minor, who are usually the relations and friends of the testator, or relative through whom the property comes, are also the watchmen of his conduct, and his property is placed under a tacit mortgage.
    The naked question is presented to this court, whether it will permit a father, who resides in Wisconsin, where the minors also reside, to demand and receive the sum of $190,000, without having given security, according to the law of tho place of his and their domicil, and where neither the courts of Louisiana, nor any other power or person, can control him in the administration of his trust, when once he has received it ?
    The Civil Code is not to be construed as a statute. It contains many statutory provisions which are to be strictly observed, but much the larger portion of it is a body of general rules, subject to all the modifications which circumstances may require. I refer to arts. 2, 21, 958, 1959,1960, 2278, 283-7, 3077, for the extensive equity powers of particular courts in cases not coming strictly within its provisions. Surely, the non-residence of a father and minors constitutes a peculiar and important circumstance, which, in the language of art. 2, exempts the case from the operation of laws which relate to what passes in the ordinary course of affairs, and places it under the equity power of the court, which is to provide for solitary and singular cases. The Civil Code, art. 21, declares that, “ In civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.” These directions apply forcibly to the present case. This mode of reasoning enables me at once to put aside all the articles of the Code cited by the counsel for the plaintiff, as inapplicable to the present question. The cases cited by them are easily disposed of. In Berluchaux v. Berluchaux, 7 La. 543, the court says, that the natural tutor, who demanded the property, had come to Louisiana, but it is not said whether to reside, or only for the purpose of demanding the property. Admitting that she was not to reside, her domicil was under the dominion of the Spanish laws, where there existed an under tutor to watch her, a tacit mortgage upon her property, and relatives to guard the interests of the minor. The minor, therefore, had the same protection that he would have had in Louisiana; but this decision cannot be an authority in a case where, by the laws of the domicil of the party, security must be given, and where there is no under tutor, nor tacit mortgage, and no knowledge in the court that the minor had property. To the quotation from Delacroix v. Boisblanc, I answer that, however eloquent or rhetorical it may be, in twenty-seven States of the Union, the father would not be permitted to carry the property of his minor children out of the jurisdiction of the court, unless he had first shown that, at the place of his new domicil, he had applied for and obtained the apappointment of guardian of his children, made an inventory of their property, and given corresponding security according to the laws of the new domicil.
    The act of 1843, is a positive repeal of those rules of law which render local the office of guardian, and gives that office the same universality which that of an executor now has ; but, in such cases, where security is to be given by the guardian, it is incumbent on the court whieh is about to surrender the minors’ property to the foreign guardian, thorougly to investigate and ascertain that the security is corelative to, and is given in view of, the amount and value of .the property about to be surrendered. This is a full answer to the text quoted by the plaintiff's counsel from Story’s Conflict of Laws and cases cited. But, even in the case cited, (1 Johns, Ch. R. p. 153, Morrell v. Dickey,) if Mrs. Morrell had obtained her appointment in Pennsylvania, and given security in express relation to the New York bequest, she would have been entitled to receive it.
    If Sereno Fisk had applied to the proper court in Winconsin, had there suggested that his minor children were entitled to a legacy of $100,000 from one uncle, had stated that he wasdeshous of demanding this legacy from the executors of another uncle, had prayed that he might be permitted to give security adequate to the trust, and that he might thereupon be appointed guardian, and had all this been done in due form, lie would have come within the provisions of the act of 1843, and the defendants, after inquiry into the sufficiency of the security, might have felt bound to comply with the plaintiff’s demand. If Sereno Fisk had remained in Wisconsin, he could not have been tutor, and have received the property of the minors, except by strict compliance with the laws of Wisconsin: and his presence in Louisiana, for a day, week or month, cannot entitle him to the tutorship and possession of the money.

      Micou and Prentiss, on the same side.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who resides in the territory of Wisconsin, acting as tutor of three of his minor children, and by virtue of the paternal power in relation to two others, whose mother is living, seeks to recovor the sum of $100,000 dollars, alleged .to be due his children, by the succession which the defendants represent.

The defendants having excepted to his capacity to sue as tutor, he adduced, in support of it, the following appointment of the Court of Probates of this parish:

“ I understand that by the laws of the territory of Wisconsin, the father cannot obtain the administration.of the estate of his minor children. These laws of the domicil aro personal statutes, and follow the petitioner wherever he goes. Yet I will grant tlie application, reserving to myself the decision of the question which may hereafter be raised in relation to said appointment, whenever the subject is brought before the court: therefore, let the prayer of the within petitioner be provisionally granted.”

The judge of the court below disregarded the order, and was of opinion that the plaintiff must qualify as tutor or guardian at the place of his domicil. He maintained the exception, and the plaintiff appealed.

Provisional tutors, for the purpose intended in this case, are unknown to our laws; their powers and duties are nowhere defined, and the court did not err in disregarding such an appointment. Tutorship is an institution of public order, which has no existence unless it is established in strict conformity to law. If the governor were to .send to the Senate provisional nominations of judges, reserving the right to revoke them at pleasure, they would not be constitutional nominations. If, in adjudicating upon an action of debt, a courtwere to say: ‘U understand that in the territory of Wisconsin, where the debt accrued, the plaintiff has no right of action; the law of the contract ought to follow him wherever he goes: yet I will give him a judgment, reserving the decision of the question which may hereafter be raised as to its validity; let the prayer of the petitioner bo provisionally granted ” — such an order would have none of the requisites of a judgment, and would be an absolute nullity.

A receiver may in certain cases be appointed provisionally to take charge of property; but a legal function, the duration of which is fixed by law, never can be provisional.

It is said that no appointment is necessary, where the father applies for the the tutorship : but art. 949 of the Code of Practice expressly provides that, the judge shall confer the tutorship on the father. He must, therofore, be appointed like any other tutor. Berluchanx’s case, 7 La. 539.

The question whether the plaintiff is entitled to an appointment of tutor in our courts, for the purpose of receiving and carrying out of the State the sum he claims, remains to be examined.

It is provided by art. 946 of the Code of Practice, that if the father and mother of the minor reside out of the State, and are not represented in it, and the minor be also absent, he may be provided with a tutor by the judge of probates of the place where his principal property is situated, or where he has intérests to assert or defend. This is an exception to the general rule prescribed by art. 944 of the Civil Code, that tutors shall be appointed by the judge of the minor’s domicil, and its object cannot be misunderstood. Generally speaking, the first object of the tutorship is the care of the person of the minor; the second, the preservation of his property. When the minor is absent, the tutor appointed here exercises no control over his person. He is exclusively tutor ad bona; but so far as relates to the administration of the minor’s property, he is a domestic tutor; he holds under the laws of the State a civil office, which is to endure as long as the minority lasts, or until he is otherwise legally superseded. See Proudhon, Droit des Personnes, vol. 2. His appointment binds him to account to the domestic judge at the expiration of the tutorship. C- C. art. 350. Until the rendition of his account and the delivery of the vouchers in support of it, every agreement between him and the minor arrived at the age of majority, is null and void. C. C. 355.

It would be a mockery of justice as well as a flagrant violation of our laws, to appoint ft tutor under their stringent provisions, for the purpose of enabling him to remove the property of his wards beyond their jurisdiction. The appointment of an under tutor to watch over his administration, and the stern rules which prescribe his duties and secure his accountability, would, under such an hypothesis, be vain things. The law does nothing in vain. It does not confer the power to defeat its commands. No domestic tutor can, by virtue of his appointment, remove the property of his wards out of the State. To obviate in part that difficulty, the jxct of 1843 has recognized as valid and binding upon the courts of Louisiana, the appointment of tutors or guardians made at the place of the minor’s domicil, within the limits of the United States; and there is no doubt that, under the second section of that act, all such foreign tutors or guardians may, at any time, on making a proper showing, compel a tutor ad bona appointed here to account to them, and that they would be authorized to remove the property of .the minors out of the State, upon proof that they had authority to do so by the laws of their domicil.

In Wisconsin the rule is that moveables follow the person, and are subject to the laws of the domicil. The sum claimed in this case, is viewed there as if it were within the limits of the Territory, and under the jurisdiction of its laws. It is admitted in the record that, under those laws, guardians cannot receive sums of money due their wards til! they have given security to account for those sums. An appointment of guai'dian there, would consequently give no power to receive and cany away the sum claimed in this case, till it was shown that the security furnished was correlative to, and given in view of, that sum.

We will not assist the plaintiff in violating the laws which protect his .children, and surrender to him $100,000, without security, against their express inhibition.

In the case of Berluchaux, 7 La., 543, it does not appear that the property of the minor was to be removed out of the State, and we must presume that it was not. As observed by the court, in the case of Delacroix v. Boisblanci 4 Mart. p. 716, fathers have the right to expatriate themselves, and to take their children wherever they go; but when they do, the law presumes in them the intention to return, and, if their children have the property here, under the custody of our laws in consequence of the death of their mother, that property cannot be removed from the State till the father has been qualified as tutor or guardian at the place of his new domicil, and given there, with reference to that property, such securities as the law may require.

The plaintiff’s conusel allege that )t is not in his power to give security. The opposite counsel aver, on the other hand, that he has received a legacy of $70,000, and that he must be able to comply with the laws of Wisconsin, if he is trustworthy. However this may be, we must enforce our laws, as we understand them; his incapacity to receive the sum .claimed, may inure to the benefit of his children and can cause them no injury.

He can under the laws of Wisconsin as a prochain ami, and under those of Louisiana as a father, take all necessary steps for the preservation of such funds belonging to his children, as he is not authorized to receive. The claim may be liquidated, and the amount allowed be brought into court, on his application, and, if necessary, either lent upon mortgage, or invested in real estate for the benefit of the minors, under the equity powers of the court, and the reason and object of art. 348 of the Civil Code.

An analogous proceeding is usually resorted to for the benefit of usufructuaaries, who are unable to give the security required of them by law. C. C. art. 556.

The plaintiff may proceed in the present suit as the father and the friend of the minors, to liquidate their claim, and cause the amount of it to be brought into court; and, if he cannot ultimately give security, he may provoke the investment of it in real estate or the loan of it on mortgage, to be made by order offcourt, rendered on .the advice of a family meeting, held in presence of the under tutor.

It is therefore ordered that the judgment be reversed, and the case remanded to be proceeded in according to law, with leave to both parties to amend; the defendant and appellees paying the .costs of this appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    City of New Orleans v. Fisk et al., Executors.
    Where a posterior testament contains no disposition from which a change of intention in the testator, with regard to a legacy in a prior will, can he presumed, the legacy will not ho revoked. O. C. 1683,1684,1686.
    Appeal from the Second District Court of New Orleans, Canon, J.

      Morel for the plaintiffs. Prentiss, Finney, Benjamin and Micou, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The facts of this case are similar to those which gave rise to the controversy lately determined by this court between J. H. Lyons and the same defendants. I Ann. Rep. 444. The first will of Abijah Fisk contained the following disposition:

“ I give, devise, and bequeath to the City of New Orleans, my house at the corner of Custom-House and Bourbon streets, on condition that it shall be applied to the keeping of a library for the use and benefit of the citizens of the said city, to be used for no other purpose.”

The City of New Orleans accepted the legacy with its conditions, and this action was brought to compel the executors to deliver it. The defendants resisted the claim of the plaintiffs on the ground that, the will under which it is claimed was ijiso facto revoked by a posterior will of the testator, which they allege is alone valid. The court below gave judgment in favor of the plaintiffs, and the defendants appealed.

The judgment is in conformity with the opinion of the court in the case of Lyons, already adverted to. The will under which the plaintiffs claim was not revoked, and the posterior will contains no disposition, and shows no act of the testator, from which a change of intention, with regard to that legacy, can be presumed. Civil Code, arts. 1683, 1684, 1686.

Judgment affirmed.


author: lime-, J.

text:
    Marshall v. McCrea.
    Compensation must be pleaded specially. C. P.367.
    Tlie right granted by art. 2622 of the Civil Code, to a person against whom alitigious right lms been transferred, of releasinghimsolf by paying to the transferroe the real jn-ice of tho transfer, with interest from its date, can be exorcised only during the continuation of the litigation. When judgment has been rendered the litigation has ceased, and with it the defendant’s right.
    from the Fourth District Court of New Orleans, Straivbridge, L

      Stevens and Grymes, for the appellant. Eggleston, for the defendant and intervenor.
   The judgment of the court was pronounced by

lime-, J.

This action was instituted to recover from the defendant, McCrea, who resides out of the State, the amount of several promissory notes. The suit was commenced by an attachment, under which the plaintiff caused to be seized a judgment which had been rendered against him, and' in favor of McCrea. McMasters intervened in the suit, and claimed the judgment attached, under an assignment from Me Crea, made while the cause in which the judgment was rendered was yet pending on appeal. The plaintiff answered the intervenor’s demand by denying the transfer of the judgment, and alleging that, if it had been made, it was fraudulent and void. A judgment was rendered in the court below in favor of the plaintiff and against the defendant, for the amount of the notes, with five per cent interest from the date of protest, subject to two small credits admitted in the petition, and the intervenor was decreed to be the owner of the judgment attached. The plaintiff has appealed, and contends: 1st. That the judgment attached was extinguished by compensation, previous to the purchase by the intervenor. Sd. That it was a litigious right at the date of the assignment, and that he should be permitted to liberate himself from it, on paying to the intervenor $500, the price for which he purchased it. 3rd. That the court below should have allowed him eight per cent interest on the amount of the notes from their date, instead of five per cent from the date of their protest.

I. Compensation has not been pleaded either in this court or in the court below. The issue has not been made, and the plaintiff cannot avail himself of that ground of defence against the intervenor’s demand, without pleading it specially. C. P. art. 367. It may further be remarked that, this ground assumed by the plaintiff is inconsistent with the averments of his petition, where it is alleged that the judgment was the property of the defendant at the date of the attachment, subject to seizure. It could not have been a subsisting debt, subject to attachment, at a time when it had been extinguished by compensation, as it is now contended.

II. The demand purchased by the intervenor was unquestionably litigious at the date of the transfer, as it was the subject of a suit then pending between Marshall and Me Crea; that litigation, however, had ceased before the inception of the present suit, and with it had ceased Marshall’s right to claim a release from the judgment, on paying the amount for which it had been purchased by the intervenor. The demand had lost its litigious character by a judgment, which had finally determined the rights of the parties. The object of the law relating to the sale of such claims is to suppress litigation. That object no longer exists, when the controversy between the parties has been finally adjudicated upon. Marshall could only have exercised the right granted by art. 2622 of the Code, during the pendency of the suit between himself and Me Crea, while the demand retained its litigious character. He had then tlio alternative, upon being notified of the transfer, either to persist in defending the suit, or to be released from the demand by paying the price for which it liad been transferred. He chose the former. Duvergier, de la Vente, nos. 374, 375. Troplong, de la Vente, no. 987. Bulletin des Arréts de la Cour do Cass, 1 Jan., 1831, vol. 33, p. 55. The evidence shows that the judgment was assigned to the intervenor in good faith, of which the plaintiff was duly notified, long prior to the attachment.

III. There is a stipulation in the notes for the payment of eight per cent interest from their date. The judge below has allowed but five per cent from the date of protest. In this respect the judgment is erroneous, and must be corrected.

It is therefore ordered and decreed that so much of the judgment appealed from as condemns the defendant to pay the plaintiff five per' cent interest on the sum of $1,200, from .the dates of the protests of the notes sued on, and decrees to the defendant a like rate of interest on the credits allowed in said judgment of $80 and $250, be avoided and reversed. It is further ordered that plaintiff have judgment against and recover from the defendant eight percent yearly interest on said sum of $1,200, from the 30th day of April, 1842, until paid, and that a like rate of interest be allowed on said credits of $80 and $250 from the dates when they were respectively paid. In other respects said judgment is affirmed, the defendant paying the costs of this appeal.


text:
    French et al. v. The New Orleans and Carrollton Railroad Company.
    By the laws of Spain servitudes were divided into the two classes, of wi'ban, or those which one house enjoys on another, and rustic, or those which one estate enjoys on another. Partida 3, tit. 31, law 1. The Servitude'of view is exclusively urban, such as a house only can acquire on another. Such a servitude could never "be acquired by unimproved lands on other lands. Partida 3, tit. 31, law 2.
    By the Spanish laws a servitude could he acquired in one of three ways only: first, hy an express grant for a valuable consideration; second, by last will;'or thirdly, by use and lapse of time.
    Where a proprietor of lands dedicates to public use two streets, reserving a strip of land between them, the use made by him of the land so reserved at the timo of the dedication,will not deprive him, or his assigns, of the right of appying it afterwards to other uses.
    APPEAL from the District Court of the First District, Buchanan, J. In the year 1788, Bertrand Gravier established on his plantation the faubourg St. Mary, now a part of the city of Hew Orleans. The faubourg extended back to St. Charles street. Poydras street was marked on it as having a width of seventy feet.- After the death of Bertrand Gravler, his brother, Jean, in the year 1797, became the proprietor of his estate, and he subsequently extended the faubourg beyond St. Charles street, first to Circus, then to St. Paul, and finally eight squares further. At the point where an extension of Baronne (then called Salcedo street) would have intersected Poydras street, a space of ground, one hundred and eighty feet square, was reserved by Jean Gravier, and on it, as marked on the plan of the first extension made by him, is written the word Basin. The upper line of Poydras street was prolonged as far as the faubourg extended, but the width of the street was reduced from seventy to forty feet. There was, at this line, a plantation ditch, running parallel to a continuation of the side lines of Poydras street, and included within them, which was used by Jean Gravier to drain his plantation and to transport timber from the swamp. Adjoining the lower line of the prolongation of Poydras street, J. Gravier reserved a slip of land thirty feet in breadth, through which the ditch ran. Adjoining the lower line of this slip, he dedicated to public'use another street, parallel to the continuation of Poj'dras street, forty feet in width, to which he gave the name of Canal street. The ground adjoining the lower line of Poydras street as far as the square of one hundred and eighty feet, and that adjoining the lower line of Canal street beyond that square, was divided into lots, and sold by J. Gravier, or by the sheriff under execution, as fronting upon those streets respectively. The city of New Orleans accepted the dedication of Canal street and of the continuation of Poydras street, Gravier reserving the basin and slip of land of thirty feet as his private properly.
    This action was commenced, in 1838, by an injunction. The plaintiffs prayed that the defendants might be restrained from erecting certain buildings on the space reserved for the canal and basin, and that they might be compelled to remove certain sheds, fences and other obstructions, already placed thereon; that they might be compelled to excavate said canal and basin, and to make it navigable to the bayou St. John, or that they be compelled to abate the nuisance occasioned by its unfinished condition, by filling it up. They also prayed for ten thousand dollars damages, and for general relief.
    The defendants-answered by a general denial; averred that they were the absolute and unconditional owners of the ground mentioned in the petition, and described as intended for the canal and basin, and that it never was public property; and that they are not bound to make any canal or basin thereon, but have a right to build thereon, or to sell the ground for building lots. They pray that the action may be dismissed. No further proceedings were had till 1844, when John McDonogh purchased some of the squares fronting upon Canal and Poydras streets, and intervened in the suit, praying for such a judgment as was asked for by the plaintiffs, and that it may be decreed that the defendants have no other right of property or ownership in the land in dispute than that of making a canal and basin thereon. There was a judgment for the defendants, from which the plaintiffs and intervenor appealed.

      Roselius, for the appellants.
    The only question presented for decision is, whether the defendants have a right to erect buildings on the space or strip of ground which, according to the original plans, made by the founder of the suburb, is covered by the canal and basin, without the consent of the front proprietors? The counsel for the defendants contend that this question was virtually decided in their favor, in the case of the Carrollton Railroad Company v. Municipality No. Two, 19 La. p. 62. This is a mistake. In that case it was decided that the locus in quo had not been dedicated to public uses. This decision rests principally on the ground that there was no acceptance shown ou behalf of the public. The court observes: “If any dedication was ever intended, it remained inchoate until some evidence of acceptance was exhibited. None has been shown.” But the question which arises in this case was expressly reserved. The court say: “The plaintiffs complain of the judgment of the Parish Court, because the judge declined deciding to what uses they ’ should apply the canal and basin, and ask Us to amend the judgment in that particular. This request we must decline, as wo do not think proper to give such , an opinion in the present state of the case.” p. 71.
    The next case on which the defendants rely, is that of Livaudais v. Municipality No. Two, 16 La. 509. It was contended by the defendants in that case that the plaintiff, who was the founder of the faubourg Annunciation, had dedicated a square of ground to the public, by writing the word “ Colysée ” over it, on the original plan. The court decided that this was not sufficient to support the alleged dedication. But the reasoning of the judge who delivered the opinion fully sustains the position taken by the plaintiffs and appellants. Judge Martin says, at p. 513:
    “There is no evidence of the dedication out of the plan in this case, and none in the plan out of the word ‘Coliseum.’ In this same plan, is marked a locus pubileus, called ‘la place Annunciation,’ in the middle of which is a spot designated as a place for a church. If the plaintiff did not by this designation contract the obligation of building a church, he certainly renounced the right of appropriating it to any other object. The erection of a church by him eould not be resisted by anybody.” In ihe concluding part of the same opinion, the judge remarks: “It is not for us now to say whether the purchaser of lots from the plaintiff, in reference to this plan, acquired rights or not on this square?- If they did, whether those rights were personal or real, in the nature of a servitude, and whether the lots were the creditor estates, and the square the debtor estate of the servitude ? The rights of the purchasers of lots, whatever they may be, cannot be acted on in a suit to which they are not parties, by themselves or their legal representatives. The Municipality is without authority to represent them.”
    Much importance seems to be attached to the fact that, one of the forks of Poydras street is called Canal street. It is submitted, however, that this circumstance cannot be considered as very material in the present enquiry. We do not insist that the defendants should be compelled to keep the canal open for navigation; but we contend that they have no right to raise buildings on the site of the canal and basin. They have succeeded to all the rights of Jean Gravier; and therefore can exeercise no other or greater rights than he might himself have done. Then the question recurs, can a person who has sold property, not only in conformity to a plan, but with reference to an existing state of things, afterwards arbitrarily make a material change, to the injury of those who have acquired their titles from him? The court perceives that this question, properly speaking, is neither one of dedication nor of servitude. It may perhaps be considered as partaking of both the one and the other. The question is of great importance, not only as regards the parties to this suit, but it will virtually decide another question of much more interest to the inhabitants of New Orleans, i. e. whether the navigation company can erect buildings in the centre of Canal street? The analogy between the two eases is so complete that it is impossible to discover the slightest difference between them.
    The following authorities, I believe, support the claims of the plaintiffs to the fullest extent. 1 Wendell, 262, In the Matter of the application of the Mayor &c. of the city of New York, relative to the opening of Seventeenth street in the twelfth, late ninth, ward of the city Wyman v. the Mayor Sfc. of New York, 11 Wend, 487. Barclay et al. v. Hoioell’s Lessee, 6 Peters, 498. City of Cincinnati v. Lessee of White, Ibid, 431. McJDonogh v. Calloway, 8 Rob. 92. Rex v. Lloyd, 1 Camp. 262. 2 Blaekstone, 36. 3 Mason, 250. 5 Saunton, 311.- 1 Saunders, 323.

      Carter, on the same side.

      L. Janin, for the defendants.
    The canal and basin were decided By ther Supreme Court to be the property of the plaintiffs, in the case of the Carroll-ton Railroad Company v. Municipality Number Tico. See 19 La. 63. The plaintiffs in that case are the defendants in this action. The question is thus again presented, whether the defendants can use this ground for building lots, or should be restricted to using it as a canal? The court in the case in 19th La. say, (p. 70): “All the evidence, both of plaintiffs and defendants, shows that Jean Gravier always considered the basin and canal as his own. He used them; he contracted with Goodwin and-others to enlarge and deepen the canal: he always asserted and maintained his possession until 1825, when the property was seized and sold under execution to Gordon, who purchased for the Orleans Navigation Company. They remained in undisturbed possession until 1833, when a sale was made to the plaintiffs. Immediately after the sale, the old corporation of the city recognized the rights of the Railroad Company, by receiving from them a grant of two pieces of ground, for the purpose of prolonging Baronne and Poydras streets, in consideration of which, they gave the company the use, during the existence of their charter, of a portion of the Place Gravier, to be used as turnouts for their roads, a shelter or depót for their cars, .and other purposes specified in the deed. In July, 1836, the defendants recognized the interest and right of the plaintiffs, by a resolution calling on them to fill up the canal: and in the month of September, in the same year, actually purchased from them all the space between Baronne and Circus streets, and -and have built a market house on.it, which was one of the conditions of the •.sale.”
    Again, at p. 71: “What constitutes a dedication to public use, has been so much discussed in this court lately, as not to need repetition now. There must 'be a plain and positive intention to give, and one equally plain to accept. The ■form is not material. We see nothing in the evidence to prove a dedication of .the basin and canal; on the contrary, such a purpose was always repudiated by Jean Gravier. Upon that point we see but .little difference between this case •and that of Livaudais v. The Second Municipality, 16 La. 509. If any dedication was ever intended, it remained inchoate, until some evidence of accept.anee was exhibited. None has been shown. The defendants or the public .never used the basin or canal in any manner, and it was in fact not susceptible ■of use, except by Gravier, and his agents or lessees, who used it to transport wood from the swamp, and to supply clay for making bricks. As the defendants have failed to prove a dedication, they have no legal title to the premises .in question.”
    It is contended by the intervenor that, as Gravier sold a number of lots as •“fronting on Canal street or on the canal,” this implied an undertaking on his part to make a canal on the reserved space, or at least to leave it open. It is itrue that Gravier sold, in 1805, to Boss, a square “facing the canal;” that, in a mortgage to the Orleans Insurance Company, he speaks of “ divers terrains situés sur le bord du canal.” But the plan annexed to this last mentioned act, and afterwards to an act of January 15, 1818, shows that these lots fronted on Canal street, a street of forty feet in width, which separated them from the •canal; and all the other lots on the same street were sold as fronting on “ Canal street.” This is a much weaker case than that of the front proprietors in faubourg St. Mary, who purchased “frente al rio,” or “frente á la levée,” and yet .did not take the batture. 8 Mart. N. S. 576. 9 Mart. 656. How could it be .pretended that the naming of a street after a neighboring object, a garden for •instance, or the sale of a lot as “facing the garden,” could impose upon the seller the obligation of keeping this ground forever as a garden?
    The dedication of ground to public use when town lots are laid out, is a .species of urban servitude. To be binding upon the grantor, it requires a distinct ••acceptance. The Supreme Court held, in 19 La. 71, that the facts of that, and .consequently of the present case, afforded no proof of an intention to dedicate, or of the acceptance of the pretended dedication. Much light is thrown upon ■this subject by the decision of the Supreme Court in the case of Livaudais v. Municipality Number Two, 16 La. 509. Livaudais laid out and sold .faubourg Annunciation, in 1807, according to a plan, on one of the squares of which was written “ colisée.” The Municipality having subsequently enclosed this square, .and claimed it as public property, Livaudais instituted a petitory action.
    The following extracts from the opinion of the court in that suit bear upon ■the present case:
    “Had the plaintiff designated on his plan places for a theatre, a ball room, a concert room, or a a tennis court, would this designation be considered as a dedication of those places to public use, divest him of his title, and place them out of commerce? If it did, what remedy would there be if these places were not applied according to the dedication? Who should be put in mora? And against whom should the process be directed for the purpose of setting the dedication aside.?”

      ' “As to the erection of this edifice, who has put him in mora ? If the building is not necessarily to be erected by him, who has offered to erect it? Who Jlas accepted the donation which results from the dedication?”
    “ rbhey (the Municipality) contend, that this property is their own, and all their efforts in this case have tended to show that the plaintiff has been divested of his title. The action being a petitory one, this would suffice to prevent, a recovery, but, as we have said, there was no dedication. Had there been one, it was incohate only, until the acceptance of the party for whose benefit the dedication was intended. Of the acceptance there is not the least tittle of evidence.”
    From this decision it may be collected: 1st. That a dedication to public use, inferred from a plan of division into town lots, must be confined to those parts which are necessary for the use of the public, and which from their nature can not remain private property, such as streets and squares.
    2nd. That if such a plan should contain indications that the proprietor intended to apply certain portions of ground to the construction of buildings, or other improvements, which, while they are not indispensable to the use of the Jots sold, may yet tend to the comfort and advantage of the public, and be a source of emolument to the proprietor, a hotel for instance, such indications will not imply a dedication of those portions of the ground to the public. Or if they could imply a qualified dedication, they would require, to be binding upon the proprietor, a separate and distinct acceptance by the public, and an express engagement on its part to make the contemplated improvement.
    The solid distinction recognized by the court rests on the difference between improvements, such as streets, squares, &c., without which the substantial intention of the parties, viz, the establishment of a suburb, could not be carried into effect, and those improvements, such as churches, places of public amusement, hotels, which are not essential to the execution of the main purpose. The former fall exclusively under the administration of tho public authorities, and have to be made at the public expense; the latter class of improvements are private undertakings or speculations.
    It is a proposition too clear for argument, that the founder of a suburb does not contract the obligation to build a church, a theatre, or an hotel, by merely writing those words on different portions of his plan; nor will it be pretended that, by simply approving his plan of division, the public authorities assume the obligation of constructing (hose improvements, if he should neglect to do so. Assuredly if the public could claim such property, it would be only for the purpose of making the proposed improvement, and this is entirely beyond the power and authority possessed by city administrations in the United States.
   The judgment of the court was pronounced by

Rost, J.

Bertrand Gravier established the present faubourg St. Mary, in 1788, as far back as St. Charles street. Poydras street was marked upon tho plan of it as being seventy feet wide. Bertrand Gravier died in 179G, and the following year his entire estate was adjudicated to his brother Jean Gravier, who, at various times during his ownership, extended the faubourg beyond St. Charles street. There was at that time on the land, in a direction parallel to the continuation of the side lines of Poydras street, and included within them, a plantation ditch, used by Gravier for the purposes of draining, and also to boat timber out of the swamp, for the use of his plantation and of a pottery he worked at the time. In the plan of the first extension of tlje faubourg made by him in 1802, the word Basin was written on a square lot situated at the upper end of the drain ; the upper line of Poydras street was prolonged as far as the faubourg extended, but below the square marked Basin, the width of that street was reduced from seventy to forty feet. Adjoining the lower line, Gravier reserved a breadth of thirty feet of land through which the drain passed, and adjoining that land below, he dedicated to public use, another street forty feet wide, to which he gave the name of ¿¡anal street.

All tlie adjoining lower lots of this and the subsequent extensions of the faubourg were sold, either by him or by the sheriff under execution, as fronting upon Poydras street above, and upon Canal street below, according to the plan of division of the faubourg. The city corporation accepted the dedication of Canal street, and of the continuation of Poydras street, for the public use; but did not, and could not accept the dedication of the space between them, Gravier having at all times expressly reserved the right of property to it. That strip of land and the basin were subsequently sold under execution as the property of Gravier, and the defendants hold them under a sale that binds them not to make a canal.

The question of dedication in relation to that property, came before the Supreme Court in the case of the Carrollton Railroad Company v. Municipality No. Two, and it was held that no dedication had ever taken place, and that the title was in the assignees of Gravier ; hut -after expressing this opinion, the court further said:

“ The plaintiffs complain of the judgment of the Parish Court, because the judge declines deciding to what uses they should apply the Canal and basin, and ask us to amend the judgment in that particular. This request we must decline, as we do not think it proper to give such an opinion in the present state of the case. The plaintiffs have a regular title from Jean Gravier, and are vested with all his rights; as to the manner in which they may choose to exercise them, we will not express an opinion in advance.”

This suit was instituted in 1838, by various purchasers of property fronting upon the aforesaid streets, for the purpose of obtaining the decision of the court on this single point. The plaintiffs allege that the site of the canal and basin can only be applied to the purposes for which they were intended by Gravier; that the defendants have no right to enclose the same, nor to erect sheds or buildings thereon, so as to interfere with the right of view of the petitioners ; they pray that the defendants be compelled either to dig out said canal and basin, so that the same may be navigable to the bayou St. John, or to abate the nuisance occasioned by its unfinished condition, and to fill it up in conformity with the police regulations of the city, and that they be enjoined from erecting buildings thereon. The defendants answered, alleging their perfect ownership of the property, and their right to use it as they may think proper, without hinderance from the plaintiffs. No further steps were taken in these proceedings till 1844, when John McDonogh, a purchaser at sheriff’s sale of some of the squares fronting upon Canal and Poydras streets, and situated beyond eight squares from the inhabited part of the faubourg, intervened. The original plaintiffs appeared to have abandoned the suit, and the contestation is now exclusively between the intervenor and the defendants. The court of the first instance gave judgment in favor of the defendants, and the intervenor appealed.

His counsel has argued that the question presented by the issue, is neither one of dedication nor of servitude, but he has failed to show how it can be any thing else; he admits that there was no divestiture of the title, and therefore no dedication. If it be true that, although the title has remained in the defendants, they can neither enclose their land nor erect buildings upon it, theirs is, in legal parlance, an imperfect ownership. The only imperfect ownnerships of immoveables recognized by our laws are those which result from the immovable being charged with an usufruct, a right of use or a servitude. Civil Code, arts. 482, 484.

^ *s not: Prel:ended that the immovable is charged in this case either with an usufruct or .a right o.f use; and if the intervenor has any right at all to control the use of it, that right must'be founded upon a servitus realis. His counsel, well awar.e of the necessities of his case, has alleged that he had acquired the right of view, by the disposition which Jean Gramer had made of the land in controversy in the plan of the faubourg, and that the erection of buildings upon that land or of enclosures placed around it, would abridge that right and render it imperfect. "We must therefore inquire whether a right of view is a servitude which unimproved lands can, in any case, -acquire upon other lands, and, if-so, how it was acquired to the lands of the intervenor?

The laws on servitudes in force at the time those faubourgs were created, are found in the Partidas. The law 1st, tit. 3lst, of the 3d Partida divides them into two classes. The first constitutes those which a house enjoys on another house; these are named urbana. The second, are those which an -estate enjoys on another estate; they are called rustica. The second law of the same title describes the right of -.view as feeing exclusively urban, and such as a house can acquire over another house.

The intervenor is the owner of swamp lots; it is not pretended that there were any houses on them when he purchased them, nor that there are any now. If then the right of view presupposes the existence of a house at the time it is alleged to have been acquired, how can the intervenor avail himself of it under the state of facts disclosed by him. He was clearly entitled to a right of way from the lots to the inhabited parts of the city, and he obtained it by the dedication of Canal and Poydras streets; but a right of view was not in the contemplation of the parties at the time, and is not a servitude that attaches in favor of waste lands. If it did, it is not perceived how the inter-venor .ever acquired it.

“ Servitudes not established-by law could, at that time, be acquired in three ways only: 1st. By the grant of the owner to the persons who were to enjoy them, and for a valuable consideration. 2d. By his last will establishing the servitudes. 3d. By use and lapse of time. Law 9th, tit. 31st, Partida 3.

The intervenor claims under an implied grant from Jean Gravier; but the laws then in force did not recognize such an implication, and required the grant to be expressly made to the party who was to enjoy it, and a consideration of some kind to be given by that party. ¡í Non enimpersolampromissionem, acquiritur servitus, nisi realiter constituatur. Gregorio Lopez, on the law cited. Here there was no contract, no acceptance, no consideration. Jean Gravier never offered to dedicate the land in controversy to public use; but, on the contrary, retained it as his own, and subsequently tried to form a company to whom he might sell it for $100,000, on condition that part of the price should go to the construction of the canal. In this attempt he failed, and ,the land remained as if the old drain had never been upon it.

If a right of view could be implied from such -facts, the law in force at that time limited that right to the neighboring estate. The words neighboring estate had a technical meaning under the Roman law and the laws of Spain, which, on this subject, are the same. They meant the estate contiguous to that in favor of which the right was claimed. See Pardessus, Disser. p. 353, and authorities there cited. Domat, Legum, p. 31, tit. 2.

Now, in this case, Canal street and the continuation of Poydras street had been dedicated to public use, and were placed out of commerce by the acceptance of the dedication. They were the neighboring estates of the squares and lots fronting upon them, and if the right of view could attach at all, before houses were built, in favor of the purchasers of those lots and squares, that right would not extend beyond the breadth of those streets. The designation on the plan of the actual use of the strip of land situated between them, did not affect the right of property of Gravier, and left him at liberty to use it in any other lawful manner he saw fit. ■

To illustrate this position, let it be supposed that Gravier had extended the faubourg only on the lower side of Canal street, and that above the upper line of said street the words — ■plantation of Jean Gravier — had been inserted on the plan made of it. According to the argument of counsel, the intervenor would have acquired by that fact a right of view over the whole plantation, and Gravier and his representatives would have been forever debarred of the rights of extending the faubourg there, and of dividing the plantation into building lots. An argument that would lead to such consequences cannot be well founded in law, and the cases quoted in support of it are all based upon an entirely different state of facts. The analogy attempted to be established between the rights of the defendants, and those of the Navigation Company to the middle of old Canal street, entirely fails. That street was laid out as a single street, and the proprietors on both sides of it purchased their lots with reference to that previous destination. The authority given to the Navigation Company to extend their canal through the middle of it, was a change of destination of public property, not a divestiture of private ownership.

Here Gravier gave to the public, who accepted them, two distinct and separate streets, and reserved, as his own, a strip of land thirty feet wide between them. The dedication was accepted with that reservation; the city of New Orleans never attempted to interfere with his ownership; and the intervenor purchased the squares he owns, with full knowledge of those facts. The fact of his purchase did not impair the right of ownership of Jean Gravier to what he did not sell, nor was the subsequent use which he, or his assigns, were to make of it, fixed by the use to which it was applied at the time of the formation of the faubourg. They may now divide it into town lots, provided they dedicate to public use those portions of it included within the lines of the cross streets.

There is no error in the judgment appealed from.

Judgment affirmed.

       Tiio plaintiffs also appealed.


author: Eustis, C. J.

text:
    Gridley et al. v. Conner.
    Where a partner, pending a suit for the settlement and liquidation of the partnership, collects money belonging to it,, under an appointment from the court, he has no right to withhold from the court the money so collected, under any plea or pretence personal to himself. To retain funds so collected is a flagrant breach of trust, and the court may compel their immediate production,

      After the dissolution of a partnership and pending its liquidation, a partner is not permitted to do any act, still less to make use of the partnership funds in a manner inconsistent with the purpose of a just and proper settlement.
    It is not necessary that the creditors of a partnership should he made parties to an action between the partners for a settlement of the'partnership affairs.
    Commercial partners being bound in solido the debts due by them are indivisible, and no settlement of the partnership canbe effected without their payment.
    The creditors of a partnership have a privilege on the partnership property entitling them to be paid in preference to the creditorsof the individual partners; and any partner ultimately hound for the partnership debts, may maintain an action against his co-partner, to effect a proper application of the partnership property to the extinguishment of the partnership debts. C. C. 2794.
    Where in a suit for the settlement of a partnership the appointment of a receiver becomes necessary to effect the object of the suit, the court may appoint one. The power to do so belongs to the class of incidental powers. C. C. 21. C. P. 130.
    Partners are bound to pay interest on sums taken out of the partnership funds from the time they are so taken. C. G. 2829.
    Attorneys in fact are bound to pay interest on any sums belonging to their principals, which they have applied to their own use, and on any sam which they are in default in paying over. C. C. 2984.
    from the District Court of the First District, Buchanan, J.

      Roselius, ior the plaintiffs. Elmore and W. W- King, for the appellant.
   The opininion of the court was pronounced by

Eustis, C. J.

This suit was instituted on the second Junte, 1840, and was Before the late Supreme Court in May, 1843. The report of the proceedings had up to that period, is found in 4 Robinson’s Reports, p. 445 et seq. The protracted and useless litigation which has signalized this cause was noticed in a very appropriate manner by the court, without, however, producing any result as to the litigants. The case was remanded te be tried before a jury, unless the parties should submit the matters in dispute to arbitration. Conner had asked for a trial by jury on the whole case, and it was for the purpose of enabling him to exercise this right that the cause was remanded. A trial was accordingly had before a jury, who have rendered their verdict, so far as Conner is concerned, on three distinct issues, to wit: 1st. The responsibility of Conner to the partnex-ship of Conner, Gridley Company, under the allegations of the petition, of having withdrawn money from the partnership for his private use, made false entries in the books, and done other unlawful acts, for the pux-pose of defrauding his co-partners. 2d. His responsibility for debts due to the partnership, collected by him as receiver under the appointment of the court. 3d. The responsibility of one of the plaintiffs, Whitehead, growing out of his receivership, to which trust he had been also appointed by the coux't, and under which he is still acting: The responsibility of the plaintiffs was also involved in the first issue, which was made up by the answer of Conner to the original petition of the plaintiffs.

The verdict of the jury was that Conner re-imburse the partnership $9677 29, Gridley the sum of $5855 23, James R. Conner, as receiver, the sum of $4290 63, and Whitehead, for fees paid ‘ the clerk of the Supreme Court, the sum of $41 75; that the .amount so received, as well as the other assets to be collected, should be paid into court and distributed under its direction; and so was the judgment of the court. Gridley has not appealed; Whitehead asks that the judgment be confirmed; and Conner, in a very elaborate argument by his counsel, has scrutinized and drawn in question' both the legality of the proceedings, mid every matter of feet which was considered as having any bearing on the verdict.

For all the purposes of this enquiry we consider, that we have before us the action brought by two of the partners against the third partner, who is the defendant, for the liquidation and settlement of the partnership of Conner, Gridley Company, in which object both the plaintiffs and the defendant concur in their petition and answer, in which is now included the liability of the two parties, Whitehead and Conner, growing out of their several trusts as receivers of the partnership, which they at different times exercised under the authority of the court.

The question of the dissolution of the partnership has settled itself. The whole litigation has been thrown en masse before the jury, and if great confusion were to be the result of this anomalous mode of settling the complicated concerns of a partnership, Conner is the only party concerned who cannot complain of it. A party comes with a very bad grace to ask relief against the confusion which he has done so much to create, as the conduct of Conner proves that he has done in the course of this litigation. It is difficult to divest one’s self of the impression that, it was a matter of calculation with him in order to cover up his acts, and, in the midst of this confusion, to avoid meeting his’ just responsibilities to the co-partnership, or to hairass and wear out the patience of his adversaries by vexatious delays. But the verdict of the jury has systematized the subject, and, by classing each sum awarded under its proper head, has afforded us the means of reaching some of the grounds upon which it is founded.

Before we examine the verdict rendered on the different matters which have been cumulated and presented to the jury, lest it should be supposed that we approve what has been done, we deem it proper to state what we conceive to be the law in relation to the obligations of a partner, who, pending a suit for the settlement and liquidation of a partnership, collects money belonging to the partnership under an appointment from the court. A partner so receiving it, has no right to withhold it from the action and control of the court, under any plea or pretence personal to himself. He cannot be permitted to defeat the very object of his appointment, by violating or evading his trust. If receivers, partners or others, are thus permitted to retain the funds from creditors, and, as the cause progresses, involve them in new litigation, how can the partnership be settled in the presence of these hydra pretensions.

The retention of funds collected under the authority of the courtis a flagrant breach of trust, and the power to compel their immediate subjection to its control is unquestionable; and, without a vigilant and efficient exercise of this power on all proper occasions, the judicial settlement of the concerns of a partnership would become a mere farce.

After the dissolution of a partnership, and pending its liquidation, a partner is not permitted to do any act, still less make use of the partnership funds in a manner, inconsistent with the purpose of a just and proper settlement; and it has been held that, where a partner has collected partnership money under circumstances from which an agreement on his part not to receive it can be inferred, and where his receiving it was contrary to good faith, he may be held to pay the money into court. Collier on Partnership, p. 166. Gow on Partnership, p. 121.

In this case Conner was permitted to retain as a partner the money he has collected as receiver, and confound it with the partnership affairs,, We think think the money thus collected ought to have been paid into court, and that Conner had no more right over it than his co-partners had.

It is urged by the counsel for the defendant that the creditors of the partnership were not, and ought to have been, made parties to this suit. Conner could have made them parties, had he considered it his interest so to do. That they should involve themselves willingly in this labyrinth, which- he lias done everything in his power to prepare for them, was not to be expected. Nor is there any necessity for their intervention. They have a sufficient representative for all present purposes, in the present receiver, Whitehead, and the court will see that their interests are fully protected.

Objections have also been taken to the right of the plaintiffs to maintain this action, and also to the sufficiency and effect of the verdict.

A statement of our views of the law, in general terms, we consider will have some advantages over answers to each objection in detail.

The action and mode of proceeding in this case are as ancient as the law of partnership itself. They form the actions pro socio and communi dividendo of the Roman law combined. They exist under every system of jurisprudence, and are the means by which the rights of partners and creditors are mutually protected. Story on Partnership, 326, Our own Code makes provisions for cases of this kind. The rules concerning the partition of inheritances, the manner of making them, and the obligations which result between heirs, apply to partners. Civil Code, art. 2861.

The first step to be taken towards the completion of a partition, is the settlement of the amount which each of the heirs owes the succession, and of the amount which he is bound to collate; and where there is to be a final liquidation and settlement of a succession or partnership, it is obvious that the result cannot be effected without a payment of the debts, or, in a succession, by a division of the debts among the heirs.

The debts due by commercial partnerships are indivisible, as the partners are bound in solido; the debts must therefore be paid.

In this case there is a particular fund affected by privilege in favor of certain debts, and the present action has for one of its essential objects, the subjection and application of this fund to the payment of these debts.

The creditors of Conner, Qridley Sf Co. have on the partnership property a privilege and preference over the individual creditors of the partners, and it is competent for one of the partners, who is ultimately bound for the debts, to maintain an action against his unwilling or defaulting co-partner, for the purpose of effecting this just and proper application of the partnership property to the extinguishment of the partnership debts. Civil Code, art. 2794. Story on Partnership, § 326. In the case of the partition of an inheritance, it is always competent to an heir or legatee to demand a separation of patrimony, or the marshalling of assets. Civil Code, arts. 1402, 1403.

We consider the power of the court to appoint a receiver in a case of this kind, to be necessary for the purpose of effecting the object of this suit, which is the liquidation and settlement of a paatnership, and it falls within that class of incidental powers which courts have full authority to exercise. Stoiy on Partnership, § 333. Civil Code, art. 21.

Our courts are not organized with the proper machinery for tho settlement of complicated partnership concerns. They are still obliged to determine and conclude matters of this kind, and they have the powers necessary for the exercise of their jurisprudence, although such powers may not be expressly given them by law. Code of Practice, art. 130.

It is reaasonble that, where a partner insists on throwing the* whole partnership concerns before a jury, and the verdict is rendered on the books of the partnership, and the evidence of botlfparties is fully before the jury, the verdict ought not to be disturbed, and the party selecting this mode of settling the part, nersliip relieved from its effect, unless some rule of law has been violated, or manifest injustice has been done, .by the verdict. The verdict against the defendant under the issue between him and his partners, was for the sum of $9677 29. In the report of the auditors, Conner was charged with the deficiency in the cash, and the balance due by him on ¡that account, was fixed at $6007 96.

The defendant insists that there is no gi-ound whatever for obliging him to bring back any other sum than the latter amount, and that the verdict is wrong in exceeding it. We adopt the conclusions of the counsel for the plaintiffs in relation to this part of the case.

The jury -were bound to make the partners contribute equally to the mass. Their accounts could be adjusted on no other principle. We do not consider this part of the verdict in any manner contradictory to the report of the auditors, •but, on the contrary, as authorized by it. The amounts which Conner and Cridley are each bound to-contribute .by the verdict, place them on an equal footing with Whitehead, their co-partner, and -this is a right which Whitehead has .by the •verdict secured to him. The sums are not in strict accordance with this principle, but the difference is not material. The jury had all the partnership books before them in evidence; they were not regularly kept, and we have no means of ascertaining on what particular evidence the jury arrived .at the different conclusions which resulted in their verdict. But as to the correctness of the .principle on which the jury acted, we do not entertain a doubt. Whitehead had taken comparatively nothing out of the partnership, Conner had, on the contrary, .drawn a very large sum, and the intention of the jury evidently was .to put Whitehead on an equal footing with Conner, by compelling him to bring back what he had thus withdrawn, and furnish such an additional sum as would equalize his position as to the partnership with his co-partners.

In relation to the claim against Conner as receiver: The sum of $4844 54, was found due by him by the first judgment, rendered on the second of May, 1842; the present verdict against him is for $4290 63, and the court below has refused to open it for further investigation, and we concur in the correctness of that opinion.

We are satisfied -that no injustice has been done by the verdict for the aggregate sum found by the jury. Partners are bound to pay interest on sums taken out of the partnership fund, from the day they are received. Civil Code, art. 2829. Attorneys in fact are bound also to pay interest for the monies of their principal which they have applied to their own use, and, in all cases, for sums which they are in default in paying over. Civil Code, art. 2984.

.Conner is not charged with interest on either of these accounts, for both of which he is liable ; and were he held to pay interest on the deficiency of the cash, with which the auditors charge him in their report, which is homologated, and on the amounts he has most unjustifiably retained, which he collected under his authority as receiver, the judgment against him would have to be increased. Stoughton v. Lynch, 1 Johnson’s Ch. Rep. 467, et seq.

We find no sufficient ground for disturbing the verdict, so far as it relates to Whitehead.

For the amount of this judgment it is competent for Whitehead to issue execution. When the creditors shall have been paid, it will be his duty to divide the residue, if any remain," among the partners under the direction of the court, -n accordance with the articles of partnership, and their respective interests in the fund.

We believe that we have thus determined all the questions which have been raised in argument by the counsel who have argued this case, and we have done it under the hope that this will close the warfare which has so strongly characterized its proceedings, and that, for the little which remains to be done, the partners themsleves may co-operate to effect the object which they both avow in their pleadings they have in view — the liquidation and settlement of the partnership concerns.

It must rarely happen that in the settlement of a partnership by the verdict of a jury, full justice is done to the parties. The relations of partners are too intimate, too confidential, to be determined otherwise than by a spirit of truth and justice among themselves. They are the agents of each other, in many circumstances completely in each others power, and socium vero cavere qui possumus.

The ancient laws of this land declare, that great advantages arise from such an union, when it is formed between good and honest men, for then they mutually assist one another as if they were brothers. Partida 5, tit. 10, law 1. Recte igitur majores eum, qui socium fefellisset, in virorum bonorum numero non putarunt haberi oportet. Cicero piro Roseio. It is by the parties themselves, by arbitration, or the judgment of mutual friends, and not by an embittered litigation, that cases of this kind are best determined.

Judgment affirmed.


author: King, J.

text:
    Akin v. Drummond.
    Parol evidence is admissible to prove that an authentic act, attesting the cancelling of a lease and the payment of rent, was executed through error, caused by the fraud of one of the parties. Art. 2256 of the Civil Code, which forbids parol evidence to be received against or beyond what is contained in certain written acts, applies only to contracts relating to real estste. Other acts are subject to the general rules of evidence, which permit mistakes, or fraudulent omissions, to bo proved.
    A memorandum in writing, signed by a party, and left by him and the other party with a notary for the purpose of preparing an authentic instrument in conformity therewith, is as obligatory between the parties as the authentic act itself, aud if any of its covenants are not embodied in the latter, they will not, for that reason, become inoperative. The two in, struments aro parts of the same contract, and must be construed together.
    APPEAL Appeal by the plaintiff from a judgment of the District Court of the First District, Bucehanan, J., in favor of the defendant.

      Livingston, for the appellant,
    on the question of the admission of parol evidence to explain the authentic act, cited Civil Code, art. 2256. Goodloe v. Hart, 2 La. 449. Badonv. Badon, 4 La. 166. Henderson v. Stone, 1 Mart. N. S. 639. Clark v. Farrar, 0 Mart. 250. 2 Mart. 78. 11 Mart. 030. 13 Mart. 684. 2 Mart. N S, 361. 1 .Rob. 358.

      Brestan, on the same side.

      Frazer and Roselius, for the defendant.
    Where fraud is charged and error alleged, parol testimony is admissible to contradict even an authentic act. See Broussard v. Sudrique, 4 La. 347. Keys v. Powell, 9 La. 574. Badon v. Badon, 6 La. 255. Gale v. Kemper's Heirs, 10 La 209. Palangue v. Guesnon, 15 La, 311, and the authorities there cited. Also 2 Starkie on Evidence, pp. 555, 558. 1 Greenleaf on Evidence, §§ 296, 305. Morris v. Nixon et al., 1 Howard, 119. 2 Story on Equity, § 1531. A notarial or authentic act has no more force or .effect between the parties to it than an act under private signature. C. C. 2239.
    The prohibition contained in arts. 2255, 2256 of the Civil Code, has relation particularly to immovables, and is not applicable to other contracts; they are, governed by the general rules of evidence. C. C. art. 2257. Clamagaran v. Sacerdottee, 8 N. S. 541, 542. Bradford et al. v. Clark, 7 La. 147.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted this suit, claiming originally from Drummond, the defendant, $3,500, which he alleged to be due by the latter for rent; and two unaccepted drafts, given by the defendant on one Dwpuy, were annexed to the petition as evidences of the debt. The lessor’s privilege was claimed, and the property of the defendant on the premises leased was provisionally seized, to secure the payment of the debt. The plaintiff subsequently-amended his pleadings, increasing his demand to $5,040 73, which he alleged to be the full amount of rent due to the 1st of January, 1845.

The defendant, in his answer, denied that he was indebted to the plaintiff. He admitted the alleged lease, which commenced on the 28th day of February, 1839, and by its terms was to have expired on the 1st of October, 1849, but avers that, in consequence of a misunderstanding which arose between Akin and himself, in relation to the arrears of rent due, the former proposed that, if .defendant would pay him $3,500 in cash, he would give the defendant an acquittance for all rents due and to become due until the 1st of January, 1845, and cancel the lease, to take effect on that day, which offer was accepted; that the parties went before a notary, for tho purpose of causing the agreement to be .embodied in an authentic aet; but the notary being unable to prepare the .act •on that day, at the urgent solicitation of Akin, the stipulated sum of $3,500 was then paid, and a receipt given for that sum in full of all rents due and to become due up to the 1st of January, 1845, which was left with the notary, with instructions to prepare the act. He further alleges that, if the act prepared by the notary, and signed by the parties, be susceptible of any other interpretation than that of a receipt in full for all rents due and to become due up to the 1st day of January, 1845, that he signed it in error, which error was caused by the fraud and deceit of the plaintiff.

It appears from the evidence that, the plaintiff and defendant went before a notary public for the purpose of annulling the lease in question. The hour being late, the notary stated that the act could not be prepared on that day. The defendant, nevertheless, paid Akin $3,500; and the following memorandum in writing was prepared by Akin, signed by him, and left with the notary:

“Mr. Lewis T. Caire: Please cancel the lease granted by David Akin to J. Drummond, and witness the present payment by Drummond to Akin of $3,500, and embody the same in the act of annulment, as a receipt in full to the first of January next therefor.

(Signed) D. Akin.”

An act was prepared by the notary, which was signed by Drummond three days after its date, and two days later by Akin. It recites, that Akin, “ for and in consideration of the sum of $3,500, to him in hand paid, does resiliate, cancel and annul a certain lease, granted by the said Akin to the said Drummond, on tho 28th day of February, 1839. But it is well understood and agreed upon between the parties that said Drummond shall have the right of occupying and using the aforesaid described premises, as heretofore, until the 1st day of January, 1845. Now therefore, in consideration of the said sum paid as aforesaid, the said David Akin docs, by these presents, exonerate the said lessee from the obligations by him assumed in the aforesaid deed of lease, and does hereby consent that tho same be, from the first of January next, considered null and void.”

No reference is made in the act to rents due, or thereafter to accrue. The plaintiff contends that, the sum of $3,500 was paid, in consideration of his annulling an onerous lease, which had several years to run at a heavy annual rent. The defendant, on the contrary, insists that, by the agreement, the sum paid was in full of all rents due up to'the 1st of January, 1845, and for the annulment of the lease; .and, in support of that position, relies on the receipt, or memorandum, left with the notary. That memorandum was withdrawn by the plaintiff' a few days after the execution of the public act; a copy of it, however, was preserved by the notary. The plaintiff was ordered, on the usual showing, to produce the original .on tho trial, but declared his inability do do so, as it had been lost or destroyed. The defendant then offered to prove, by parol, its contents, as well as the agreement and intention of the parties. This evidence was objected to, on the ground that it was inadmissible to vary or contradict a written instrument. The objection was overruled, and the plaintiff excepted. We think that the court did not err. The defendant expressly avers that, if the act be susceptible of any other interpretation than that for which he contends, it was signed through error, which error was caused by the fraud of the plaintiff. Parol evidence to establish these allegations was admissible.

The plaintiff invokes in support of his objection the 2256th article of the Code, which forbids parol evidence to be admitted against or beyond what is contained in the written act. The prohibition of that article has been held to apply only to contracts in relation to real estate; other acts are subject to the general rules of evidence, which permit mistakes or fraudulent omissions to be proved. No writings are more frequently extended and explained by parol than receipts. 8 Mart. N. S. 541, and the authorities there cited. 4 Starkie on Evidence, 1015, 1016, 1018.

The original memorandum, prepared by Akin and left with the notary, contained the agreement of the parties, and is as obligatory between them as the authentic act. If any of its covenants were not embodied in the authentic act, the latter,was not the depository of the whole intentions of the parties. Tho omitted stipulations did not, for that reason, become inoperative. The two instruments are parts of the same contract, and must be taken and construed together. The contents of the memorandum have been proved, and show a receipt from the plaintiff “ in full to the 1st of January.” Those words appear to us clearly intended to include rents to the 1st January, at which date the lease was made to terminate.

If any doubt, however, remained, it would be removed by the testimony of the witnesses, who show the agreement of the parties to have been in strict conformity with the-meaning, which we think obviously attaches to the expressions used in the receipt.

Lusk, one of the witnesses, states that when Akin returned from the north, in November, 1844, he appeared to be uneasy in consequence of Drummond's failure to make certain payments on account of rents, which had been expected from him during the summer. That after some negociations, in which the witness acted as the intermediary between the parties, it was agreed, that Akin should take $3,500, for the back rent, and annul the lease, allowing the defendant to keep the premises, free of rent up to the first of January; and that it was, for the pur-pose of carrying this agreement into effect, that the parties appeared before the notary. This witness shows that the parties disagrees in relation to their accounts, the defendant contending that he owed only $3,538 17, while the plaintiff claimed $5000 to be due. After the execution of the act, the witness had several conversations with Akin, who seemed to be satisfied with the arrangement. He spoke of the matter as settled, and said that the deduction he had made was the only means by which he could have saved the sum that he had received.

Gothiel, another witness, states that Drummond offered, in December, Í844, to sell to him his foundry establishment, in consequence of which the witness applied to Akin, to know whether he had a privilege on the machinery and tools of the defendant, aud was answered that he had none. Akin offered to lease the premises to this witness, for about half the sum for which they had been rented to Drummond, and advised him to purchase Drummond's machinery and tools.

These and other witnesses detail circumstances connected with the drafts referred to in the petition, by no means creditable to the good faith of Drummond. It is shown that he gave them at a time when he held other accepted drafts for the same debt, and knew that those given to the plaintiff would not be accepted, that he resorted to misrepresentations to prevent those given to the plaintiff from being presented for acceptance, and finally, when about to be detected in the deception he was practicing, that he avowed that other drafts had been accepted, or notes had been given by Dupuy, for the debt, which he refused to'deliver to the plaintiff’s agent, assigning as a reason for withholding them, that he desired to be the plaintiff’s debtor, for the purpose of protecting his property from seizure by other creditors.

We think that the testimony of the witnesses shows, that Akin desired to be rid of a tenant with whom he could not agree, on whose punctuality he could not rely, and whose bad faith in a recent transaction gave him just reason to apprehend that he would be unable to collect his rents; that these considerations induced him to compromise his difficulties, and accept, in cash, a sum somewhat less than that actually due at the time, and to dissolve a lease which, under other circumstances, would have been much more advantageous than any he could then expect to make of the property. •

The judge below rejected the plaintiff’s demand, and we think that there is no error in the judgment. Judgment affirmed.


author: Suideli,, J.

text:
    Succession of Packwood.
    Where property of a succession, ordered, at the instance of the tutor of certain minor heirs, to he sold after being appraised, is adjudicated to a purchaser for a price loss Ilian one-half of its appraised value, the sale is null..
    APPEAL by one Peirce from a judgment of the Second District Court of New Orleans, Canon, J., dismissing a, rule taken by him on the executor of Packwood, to show cause why a title should not be made to him for certain property purchased by him at a sale of the effects of the succession.

      Race and Roseliws, for the appellant.

      Lockett and Micou, contrá.
    The order of the court under which the sale was made, required an appraisement. That order was the authority of the auctioneer, and he was bound to obey it. He could not disregard the appraisement, and any adjudication made under it was null. The question is not whether a sale might not have been ordered, without appraisement, if the creditors had so required, but whetherthe auctioneer could disregard the order as it was actually rendered.
   The judgment of the court was pronounced by

Suideli,, J.

In this case Peirce, a purchaser at a probate sale, took a rule on the executor, to show cause why a notarial title should not be made to him of the property adjudicated. The defendant in the rule answered by a general denial, and also pleaded specially that the property did not bring its appraised value.

It appears from the record that, on the application of a creditor, the court had ordered the executor to sell sufficient property of the succession to pay its debts. This order was vaguely expressed and did not specify what property should be sold, nor whether it should be sold for cash, or how otherwise.

After this order, no further action was taken by the creditor, nor does he appear in any of the subsequent proceedings. There was a subsequent decree, obtained at the instance of the executor, to sell certain specifred property for cash, and upon appraisement. After this, on the 20th April, 1846, there was still another decree, rendered upon a proceeding instituted by a tutor of certain minors interested in the succession against the executor, ordering the lots in question to be sold at a credit of one and two years; and, in consequence of a complaint by the tutor that the appraisement theretofore made was too low, the same decree contained an order for re-appraisement, which was made.

Under this state of facts we do not consider the question before us, whether the sale of the property of a succession may not be made for less than its appraised value, at the instance of a creditor. This sale was made under the decree of the 20th April, 1846, above stated. That decree was the auctioneer’s sole authority. It expressly ordered an appraisement, and contemplated a sale accordingly. The price at which the two lots in question were adjudicated, was $3,100; the appraisement was $6,500. The decree undef which the sale was made having been violated, the adjudication was illegal, and the rule taken by the purchaser was therefore properly dismissed. Judgment affirmed.