text:
    James A. Ranaldson v. H. Hamilton.
    An affidavit for the sequestration of a crop and certain slaves, stating that the “ plaintiff has reason to believe and fear that the defendant will sell or dispose of said crop, or cause to be removed said slaves from the State, during the pendency of the suit,” is defective, because the plaintiff does not swear to the ownership of the property, and also for uncertainty.
    No other evidence is admissible to establish the .simulation of a sale of immovables or slaves between the parties to the act of sale than a counter letter, or evidence in writing, equivalent to a counter-letter.
    APPEAL from the District Court of West Feliciana, Penn, J.

      Lyons, Brewer and Collins, for plaintiff.

      Ratliff and Cowgill, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff having died since this appeal was taken, his administrator has been made a party. This action was instituted by the deceased plaintiff to recover from the defendant a plantation and two slaves, which he alleges he purchased from the defendant and his wife, by authentic act, dated April 14th, 1840. He claims also rent for the land, and wages for the slaves since that time, with a privilege on the growing crop for the same. The crop and the slaves were seized under a writ of sequestration, which the defendant moved to set aside, on the ground of the insufficiency of the plaintiff’s affidavit. The motion failed in the district court, and we are called upon to review the decision. The affidavit states, that the plaintiff has reason to believe and fear that the defendant will sell or dispose of said crop, or cause to be removed said slaves from the State, during the pendency of the suit. The objection taken by the counsel for the defendant to the sufficiency of the affidavit is, that the plaintiff does not swear to the ownership of the land or slaves. It is evident, that without this asseveration, there is no cause for the sequestration, and that the plaintiff has not brought himself within the provision of tho 276th article of the Code of Practice, regulating the issuing of writs of sequestration. The affidavit is palpably defective also in point of certainty : it is not positive, but in the alternative. The district court therefore erred in maintaining the sequestration.

The answer of the defendant admits the execution of -the act of sale; but avers that it was made solely for the purpose of effecting a loan for his benefit, which the plaintiff represented he had influence to procure from the Bank of Louisiana; that the plaintiff failed to procure the loan, but did not re-transfer the property, as he was bound and promised to do. and that in not re-transferring the property, he, the plaintiff, acted in bad faith ; that no money was paid, and no consideration passed for the sale, and that plaintiff was notoriously poor and needy at the time, and utterly unable to pay the sum of $10,000, stated in the ac.t to be the price of the property, ,&c.; that no .change took place in the possession of said property, by reason of said sale, the said plaintiff never having disturbed the defendant, i,n the uninterrupted possession and ownership thereof.

Ther.e was a verdict for the plaintiff, giving him the land and slaves, and a certain sum for rent .and wages of the latter. From the judgment rendered on this v.erd.i.ct the plaintiff has appealed.

The defendant in his answer has made out a case of simulation, and nothing more. It is not alleged that -the act of sale was brought about by any fraud or mal-practice on the part of the plaintiff, or that his free eonsent was not given to it, as well as that of his wife, who joined in the act. The purpose of getting a loan from the bank, the parties both concurred in, and in this respect the good faith of the plaintiff does not appear to be questioned. The injury consists in the plaintiffs not having effected the loan, and, in that event not re-transferring the property back to the .owner; which is the injury of which the parties seeking relief always complain of in cases of simulation.

In relation to the proof of simulation, it has always been held in our courts, that no other evidence is admissible to establish it between the parties to the act than a counter letter, or evidence in writing, equivalent to a counter letter. Labadie v. Poydras, 3d Ann. 154, and cases there cited. Broussard v. Sudrique, 4 L. R. 351. Pothier on Obligations, § 765. 9 Toulier, § 184.

The bills of exception, taken by the counsel for the defendant, to the decision of the district court, refusing to receive the depositions of witnesses to establish the matters set up as a defence in the defendants answer, cannot therefore be sustained; the court having decided in conformity with the law, in excluding such testimony. It appears that the judge, on the trial of the cause, would not permit a certain letter from the plaintiff to the defendant, dated the 13th of March, 1842, to be read to the jury. The letter does not. of itself appear to be connected with, or to speak-of the sale of the land and slaves, which is the subject of this controversy, nor was it attempted to establish any such connection by legal evidence. We therefore consider the decision of the judge cdrrect.

The counsel for the defendant requested the court to charge the jury: that, as the testimony in relation to the possession of defendant, had been received, and the plaintiff’s bill of exceptions to its reception taken, and no motion made by plaintiff’s counsel, or order .of court to strike it out, that, notwithstanding the .charge of the court, not to regard the testimony so received, that the j.ury had a perfect right to examine said testimony and to weigh its contents and to decide upon it with the balance of the evidence, should they think proper to differ with the court in opinion on that subject.

If there had been any thing before the jury, which, taken in connection with the possession, would have been a legal defence to the plaintiff’s action, the judge ought so to have presented the matter to the jury; but the possession of itself presenting no obstacle to the plaintiffs recovery, under the act of sale from the defendant, the juiy were bound so to have considered it, and not to regard the testimony establishing it.

The judgment of the district court in the principal cause is therefore affirmed. That which maintains the sequestration of the slaves and crop is reversed, and said sequestration set aside, with the costs thereof, the appellee paying the costs of this appeal.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Alfred J. Lowry, Curator, v. James Erwin.
    Where a curator sues to set aside sales made by judicial authority, upon the ground of collusion and fraud in the sales, he ought to allege that the creditors have been injured by the sales; and if there be but one heir, and that one an universal legatee, who was also executor, who must have been a party to the collusion and fraud, and the estate not alleged to be insolvent, these circumstances will have great weight with the court in maintaining the validity of the sales.
    APPEAL from the District Court of Madison. Curry, J.

      Stacy and Sparrow, for plaintiff,
    contended: It is said by defendant, that there is no sufficient allegation of fraud and collusion in plaintiff’s petition. The language of the petition is, “that one James Erwin, who resides in the city of New Orleans, in this State, illegally, and by fraud and collusion, &o., took possession, &c. These are certainly not the averments which a lawyer would make in an ordinary petitory action. The law does not require any such averments. It is certainly too late now for defendant to say, the allegations of fraud are not sufficient. On the trial in the lower court evidence was offered and received in support of the allegations of fraud and collusion. Indeed, it was to that point most of the parol testimony was directed. It was then understood that was one of the issues in the case, by the parties and by the district court. The Supreme Court took the same view of it. The couit says: “We have stated the facts of the case fully; and from them we have strong grounds to believe that thei'e was collusion between the parties to the sale, under which the defendant claims.
    This much of the opinion of the Supreme Court of the State, stands unchangd, unreversed: the Supreme Court of the United States declaring, that it only passed upon the question of the jurisdiction of the Circuit Court and the formalities of the sale, &c.
    The United States Supreme Court, in the closing sentence of this opinion in the case, (no doubt from entertaining the same views of the fraud and collusion as the Supreme Court of the State,) seems to contemplate that the court would take the action we desire.
    But apart from this, it is shown that since' the defendant took his writ of error, he has executed the judgment of the Supreme Court of the State; that he has acquiesced in that decree, and has received from the curator $436 55, the balance due him upon a settlement of the price paid and the revenues received by him.
    The matter is not before this court in a situation to enable your Honors to secure us the return of this money; and if it is not done, the defendant takes the benefit of two adverse decisions. By the judgment of the United States Court he gets the property, (640 acres of land : 400 cleared, and 56 slaves,) for $16,000, and all the revenues thereof since the sale; and by the decree of the Supreme Court of this State, he gets $436 55 besides.

      W. Dunbar and J. Thomas contended, for defendant:
    The Supreme Court of the United States has disposed finally of the question of title, except so far as its validity may be questioned by the pleadings on other grounds than those arising under the proceedings by order of seizure and sale.
    There are none other. The general expressions of fraud and collusion, in the manner used in the petition, apply to the possession, and not to the title. But if to the latter, were insufficient to put the defendant on proof; no specific fraud being alleged, or name given, with whom there could have been collusion.
    The title settled in favor of the defendant, all the other questions of payment, improvements, and fruits and revenues follow in the wake, as a necessary consequence.
    I. The pleadings do not raise a question of fraud and collusion affecting the defendant’s title. The words used that he “illegally, and by fraud and collusion, took possession,” have reference to the possession alone; and were thrown in to prejudice the mind of the court, and not as constituting the cause of action; and are too general and indefinite to put the defendant on his defence. The charge in the petition would be insufficient to put the defendant on his defence in chancery Rules 27, 40. 1 Howard, 47, 53.
    II. If the pleadings are held to have raised an issue of fraud affecting the defendant’s title, it was competent for the Supreme Court of the United States to decide it; and it must be held to have done so, in decreeing “the force and effect 'of the legal proceeding” in his favor.
    III. The other matters, “if there be any,” to which the court had reference in remandingthe case, and of which it could not take cognisance, were the questions of payment, improvements, fruits and revenues and that part of the decree which withheld a writ of possession until the balance found in favor of the defendant had been paid or deposited.
    IV. If the pleadings raised an issue of fraud, and that issue has not been decided, there is no evidence in the record to sustain it; and the case will not now, after nearly ten years of litigation, be remanded, to enable the plaintiff to fish for it.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 6th August, 1841, Alfred J. Lowry, curator of the succession of Alex. McNeill, deceased, filed a petition in the late court of the ninth district sitting for the parish of Madison, in which he claims, as belonging to the succession, a certain plantation situated in said parish, together with certain slaves employed thereon, being forty-four in number. He alleges that since the death of the said McNeill, James Erwin illegally, and by fraud and collusion, and, without any legal title thereto, took possession of all said property and retained possession of the same. The object of the suit is to recover the above described property with the fruits and revenues thereon.

This case was at issue in May, 1842, and was tried in the district court in December, 1842; the judgment of the district court was in favor of the plaintiff. On an appeal taken from this judgment to the Supreme Court, the following decree was rendered by the late Supreme Court in 1843: “ The judgment of the district court, so fax as it decrees to the plaintiff the right to, and possession of the plantation and slaves described in the petition, is affirmed; also as to the non-suit in relation to the slaves Kitty Dixon and her children, and Little Henry or Henry Lee, and as to the fruits and revenues, and their application to the price and interest said to have been paid by the defendant; but as relates to the judgment of $436 55 with interest, as stated therein, against the succession of Alexander McNeill, deceased, the same is annulled and reversed; and we do order and decree, that no writ of possession issue in this case to put the plaintiff in possession of the plantation and slaves, until he pay the defendant, or deposite in the hands of the sheriff of the parish, to the credit of the defendant, the sum of $436 55, with interest thereon, at the rate of five per cent per annum, from the 18th day of March, in the year 1843, until the day of payment, or deposit: the appellee paying the costs of the appeal.”

A writ of error on this judgment was sued out by the defendant to the Supreme Court of the United States, on which, in 1849, the following judgmeut was rendered : “This case came on to be heard on the transcript of the record from the Supreme Court of the Western District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded to the said Supreme Court, with directions to proceed therein in conformity to the opinion of this court.”

The defendant Enoin claimed the plantation and slaves by virtue of a purchase made by him on the 6th July, 1840, at a public sale made by the Marshal of the United States, under process from the Circuit Court of the United States for the Eastern District of Louisiana. The district court, by its judgment, annulled the sale on two distinct grounds, to wit, the want of jurisdiction in the Circuit Court of the United States, and a deficiency in the notice of seizure. The Supreme Court of the State of Louisiana affirmed this portion of the judgment of the district court. The decree of the Supreme Court of the United States, in reversing the judgment of the Supreme Court, has closed the case against the plaintiff, so far as the court of the United States had exercised jurisdiction by virtue of the writ of error, to wit, as to the validity of the defendant’s title to the land and slaves which he acquired under the proceedings from the Circuit Court of the United States. That portion of the decree which remands the cause for further proceedings, brings up before this court the questions not covered by the decree, in which the Supreme Court of the United States did not assume to act.

The question concerning the fraud and collusion charged in the petition, is, therefore, by the reversal of the entire judgment of the Supreme Court, an open one for our decision.

The Supreme Court of the State in relation to this subject, uses the following language: “ We have stated the facts of the case fully, and from them we have strong grounds to believe, that there was collusion between the parties to the sale, under which the defendant claims.”

The opinion of the court contains so full an exposition of the facts and evidence, that we deem a reference to the report of the case all that is necessary. See the case of Lowry v. Erwin, 6 R. R. 192 to 216. The report of the Supreme Court of the United States is equally full in this respect. See 7 Howard, 385.

On a delibérale consideration of the whole evidence, we have come to the conclusion that the fraud and collusion charged in the petition was not proved, and that we should not be justified in setting aside the sale on that ground.

An application has been made to send the case back for the purpose of enabling the plaintiff to exhibit further evidence. The parties have had full opportunities for the exhibition of their testimony. The plaintiff has thought it for his interest to leave to conjecture what ought to have been established by evidence; his allegations were of the most indefinite and general character, and are not such as ought to form a basis of judicial proceedings in actions which have for their object, however that object may be disguised,- to set aside or annul sales made on the authority of courts of justice.

The plaintiff’s petition does not allege that the creditors of the succession have been defrauded, or are to be injured by the sale to Erwin; it merely alleges that he, by fraud and collusion, took, without any legal title, possession of the property. In what did the fraud consist? and with whom was the collusion? It is a matter which has great weight with us, that the only person with whom there could be any collusion was Hector McNeill, the executor, who was the universal legatee of the deceased, and he who had the greatest interest in protecting the interests of the succession, which has not been shown to have been insolvent. On the contrary, as far as we can judge from the documents before us, no creditor can be injured by the sale which the plaintiff attempts virtually to set aside.

It is said that since the defendant took out his writ of error, he has acquiesced in the judgment of the Supreme Court, by having received from the plaintiff, through the sheriff, the sum of $436 55, due said Erwin by said judgment. This matter was brought before the Supreme Court of the United States, os may be seen by a report of the case. That court determined that the receipt of the money by the plaintiff did not defeat the writ of error. We are relieved from the necessity of examining the consequences of the receipt of this money by Erwin, so far as it relates to the appeal as it now stands before this court, exclusively of matters in which the United States Court has not had cognisance ; inasmuch as we have no evidence of the fact of the receipt of the money.

The transcript of appeal from the Supreme Court of the United States was filed 7th June, 1849, and abundant time has been afforded for any proofs on which the action of this court could be based; it would be a precedent inadmissible in practice to allow any further delay. The case has been nearly nine years pending, and must be closed.

The judgment of the district court is therefore reversed, and judgment rendered for the defendant, with costs in both courts.


author: Rost, J.

text:
    Succession of Benjamin Story.
    Partitions between minors to be valid must be made in conformity to the order of courtj and in the manner advised by the family meeting.
    The heir who purchases property at a succession sale, has a right to keep it as a portion of the share coming to that heir; and it is legal in effecting a subsequent partition, to form a lot for that heir in which the indebtedness is included. O. C. 1265.
    In effecting partitions the law forbids the cantling of tenements, where it can be avoided. C. O. 1287.
    There is no exception to the rule, that in effecting a partition where there are more than one minor interested, and all represented by the same tutor, a special tutor must be appointed for each minor. C. 0.1201.
    A judge in ordering a partition, before referring the parties to a notary, should regulate it in the manner which shall appear to him most convenient and most advantageous to the interests of the co-heirs. C. G. 1259.

      The rule to be deduced, from the conflicting articles of the code for conducting partitions, is, that the lots should be drawn, so far as it is practicable, without depriving any of the heirs of their legal lights, or affecting injuriously the value of the property.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      Benjamin and Micou, for appellees,
    contended : 1st. A tutor can compromise respecting the rights of the minor, if authorised by the judge on the advice of a family meeting. C. C. 348. 2d. Heirs of age may make partition as they please. The article 1289 C. C., requiring lots to be drawn for by the heirs, is intended to secure the rights of minors. An agreement that the tutor of a minor shall choose a share before any of the heirs of age, if authorised by the judge and a family meeting, is for the advantage of the minor. Rights are thereby secured to him superior to those provided by law. It would be a perversion of the spirit of the law to interpret a provision made for the minor’s protection, in such a manner as to put the minor in duriori cam. 3. The French code contains articles similar to those in our code. Code Napoleon, arts. 466, 834. The interpretation of these articles by the French courts and jurists is the same as that for which we contend. Vaudreuil v. SaUonier Tamnay, 15 Sirey, 1,404. 12 Dalloz, Jurisprudence Genérale, 509. 4Toullier, No. 428. Vazeille, Successions, art. 834, No. 2, vol. 1, p. 305. Pousol Successions, art. 834, No. 3, Chabot Successions, vol. 3, p. 155.

      L. Peirce for appellants,
    contended : The estate consists of many and valuable properties; it is of importance to all the heirs that the title to them should bo indisputable. In making the partition, it was desired by the tutrix of the three minor heirs that she should make choice of their lots, and that they should hold such in common, that is, that there should be but partial partition. The object to be obtained was a final partition, and it was doubted by the major heirs that this could be effected under our laws.
    It was, however, represented by the very able and experienced counsel of the minors, that it was in the power of the tutor, with the advice of counsel, to make a compromise or transaction; and as there was a claim for various sums of money urged by the minors against one of the major heirs, which, though dismissed by the inferior court, was subject to an appeal, that in consideration of abandonment of all claims against him, the family meeting could so authorise the allotment as to malee the partition final. It is certainly of advantage that this allotment should be allowed, and there is an authority in the reports of the court of cassation of the year 1815 that would seem to support it; but, as the question is something new in Louisiana, and appears also to be very rare in France, no other authority having been directly in point, it is respectfully submitted to the court, on the part of the opponents, that by article 1246, Civil Code, it is enacted, that if there be among the heirs, minors, or persons interdicted, the partition shall be made judicially and in the form hereafter prescribed.
    That article 1259 says, That the judge who decides on a suit for partition, and the mode of effecting it, has a right to regulate this mode, as may appear to him most convenient, and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions, &c., one of which, to be found in article 1286, is as follows : “ When the deductions have been made, and those to whom the collations were due have received them, the notary divides what remains into as many equal lots as there are heirs, or roots entitled to a share.”
    1289. The lots are formed by experts, chosen for that purpose, and sworn by the notary charged with the partition, and are afterwards drawn for by the co-heirs.
    1291. If there are several heirs having opposite interests in the partition, and who have the same tutor, there shall be appointed to each of them a special tutor, whose functions shall cease, as soon as the partition has terminated.
    1294. Partitions made agreeably to the above rules by tutors or curators of minors are definitive, but they are only provisional, if the rules have not been observed.
    1295. When the partition is only provisional, minors, &c., may, if they find themselves injured thereby, demand that another be made. A minor may institute this action, even before he attains the age of majority.

      1300. The form in which the notary is directed to make the partition, is not a matter of such strict law that nullity results from the act, in case of this officer making any change in the form ; provided lhat all the provisions of the law relating to the formation of the accounts between the parties, the deductions, the composition of the mass of the succession, the appointment and oath of experts, the making and drawing of lots, have been observed in the partition.
    These authorities are very stringent in terms, and as there is but little said in our law upon the powers and authority of family meetings, we must leave the matter to the discretion of the court, if they can exercise legal discretion where the law is so positive.
    The opponents find but one article that we think may authorise a decision against them, for they are desirous of an approbation of all that has been done: it is in article 1441, “ but after the partition, or the act operating the same effect, the action of rescisión can no longer be admitted against a compromise made to put an end to disputes arising in consequence of the first act, although there should be no suit .commenced on the subject.
   The judgment of the court (Slidell, J. dissenting) was pronounced by

Rost, J.

This is an appeal from a decree homologating the partition of the succession of the late Benjamin Story, It was made in conformity with a transaction entered ipto between the heirs, by the authorization of the judge given on the advice of a family meeting of the minors.

Henry Story, one of the heirs, being indebted to the succession in a sum exceeding his hereditary rights, elected to collate by taking less, and become a debtor of the site,cession for the difference ; five lots of equal yalne were formed out of the remainder of the succession by experts duly appointed and sworn: the tutrix of the three minor heirs selected three of these lots, with the understanding that they were to remain in common between them. Mrs. Maclcie, another of the heirs, who had purchased a large amount of property of the succession; took the lot in which the claim against her was included, and Sidney Story, the other heir, received the remaining lot. The partition was homologated as made, and Sidney and Henry have appealed.

The appellants allege, that under article 1289, C. C., the lots made by the experts should have been drawn by the heirs. That under article 1291, C. C., when there are minor heirs, having adverse interests in a partition, who have the same tutor, special tutors must be appointed to them, whose functions cease as soon as the partition is terminated. They urge that neither of these formalities have been fulfilled ; and that under article 1300 ot the code, the partition is illegal, and void, by reason of these omissions.

It has been attempted, in this case, to evade the formalities required in judicial proceedings to which minors are parties, by resorting to a transaction between the heirs, under article 348 of the code; and in support of this mode of proceeding, the appellees rely on the case of Vaudreuil v. Sallonier Tamnay, 15 Sirey, 1st part, 204, decided by the court of cassation, under dispositions of law similar to ours. If we were otherwise disposed to recognise the authority of that case, the appellee could not claim the benefit of it, because the partition has not been made in the manner advised by the family meeting, and authorised by the court.

“The tutrix was authorised to make’,choice for the minors out of the effects of the succession, to the amount coming to them according to the appraisement in the inventory, and to select the same in an undivided mass for their common benefit. She had the right to take all the best property of the succession.”

We are bound to presume, that all the lots formed were composed of equal portions of the various kinds of property found in the succession, and on that hypothesis the lots selected for the minors could not have been exclusively composed of the most desirable property.

The case of Vaudreuil is not at all analagous to the present; it involved the settlement and partition of several direct and collateral successions, and the separate enjoyment by the heirs, of some' of those successions, and of portions of others: rents due those successions had been reimbursed in depreciated paper money ; the heirs had moreover, a great number of litigious claims against each other. The settlement of their accounts, and the formation of lots in the manner prescribed for judicial partitions,- if at all practicable, would have led to endless litigation, and have been ruinous to them. Some of the heirs besides were in possession of separate portions of the property to be divided; the report of the case does not inform us under what title they possessed. They may have had the right of retaining the' property as a portion of their shares, and in that case the drawing of lots may not have been practicable without a cant-ling of the tenements, which the law forbids. C. C. 1287.

No such difficulties were presented by this case. There was but one succession to divide: one of the heirs had received his share; another heir, Mrs. Maclde, had purchased property of the succession, which, under article 1265 C. C., she had the right to keep as a portion of her share; and it was legal and proper to form a lot for her, in which her indebtedness to the succession was included. The other four heirs owed nothing to the succession; their rights and chances were, in all r-espect equal, and no motive 'can be assigned for not drawing their lots. So far as there were' differences between the heirs, as to their respective claims, the transaction entered into was proper, and is binding upon them ; but, there was no question between them as to the mode of selecting the lots of the minors, or the manner in which they should be represented in the partition, and, consequently, no ground for a compromise on those subjects; the course adopted by the tutrix Was unasked, uncalledfor, and injurious to all parties. It subjected the' minors to the vexation, delay, and expense of a second partition among themselves, and the heirs of age to warranties under that partition to which they could not be parties.

The warranty which the heirs are to give' each other in final partitions, makes it necessary that 'the share of each should be determined and fixed contradictorily with the others, and, accordingly, the rule is, that a partition made by roots, is not definitive, unless the share coming to each root, has been sub-divided among the parties to whom it has descended.

There is no exception to the rule, which, in a case like this, requires a special tutor to be appointed to each of the minors ; the common tutor cannot represent even one of them, unless he is especially authorised to do so. The mixing up of the shares of the three minors, after going through all the formalities and expenses of a partition, is an unheard of proceeding; the partition as made does not preclude the necessity of another; in the case of Vaudreuil, there was but one minor, and her tutrix had the undoubted right to represent her.

Henry Story was paid in full; under article 1265 of the code, Mrs. Maclde was entitled to take her indebtedness to the succession, in part payment of -her share, and as there was not a sufficient amount of money to give to each of her co-heirs a like sum, there was but two ways of determining her share : either the other heirs were each to receive in property a sum equal to her indebtedness, and the remainder of the property of the succession was to be formed into five lots and drawn, or one was to receive by attribution a lot of which her indebtedness should form a part, and the remaining lots were to be drawn among the 'other heirs. Either mode complies, as far as practicable, with the law; but, as a general rule, the second mode is to be preferred, as less liable to be attended with a cantling of the tenements.

The rule to be deduced from the conflicting articles of the code on this subject is, that lots should be drawn when it is practicable, and as far as it is practicable to do so, without depriving any of the heirs of their legal rights, or affecting injuriously the value of the property, or the separate shares of the heirs. For instance, a father leaves four children, and bequeaths to one of them the disposable portion of one-third, he is entitled to one-half of the succession, and each of the other heirs to one-sixth; if it consists of property which can be conveniently divided into six lots, it must be so divided, and the preferred heir will draw three of them. 38 Sirey (I. 216.)

If six lots cannot be formed without injury to the property, or if the preferred heir should have a manifest interest that the property composing his share should be contiguous, and it can be so given to him, without injury to the others, ope-half of the property of the succession is to be formed into a lot, in the manner that lots are formed, and adjudged to him by attribution, and the other half is to be divided into three lots, which the other heirs will draw. The mode of making partitions varies with the facts of each case; and before referring the parties to the notary, the judge having cognizance of the succession, should regulate it, in the manner which shall appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity with the principles recognised in this opinion. He is expressly authorized to do so by article 1259 C. C.

For the reasons assigned, it is ordered, that the judgment homologating the partition in this case be reversed, and the partition set aside. It is further ordered, that the case be remanded for further proceedings, with directions to the district judge to cause to be appointed and sworn, a special tutor for each of the three minor heirs of the late Benjamin Story, and to refer the parties to Hilary Breton Cenas, notary public, to proceed in the partition of the succession, with directions to him to cause the experts he shall appoint to form and assign to Mrs. Maelcie, a lot equal in value to her share, and of which her indebtedness to the succession shall form a part; and to form with the remainder of the property four equal lots, which shall be drawn by the four remaining heirs. It is further ordered, that the share of Henry C. Story be compensated with an equal amount of his indebtedness to the succession. It is further ordered, that the partition be made on the basis of the compromise, entered into between the heirs, so far as it is not inconsistent with the decree. It is further ordered, that the costs of this appeal be paid by the appellees.


author: Slidell, J.

text:
    Helen Barbet v. Eloise Langlois and Husband.
    Under the Code of 1808, where the right to acquire property existed before a marriage although it maj' not have been acquired until after, the property does not enter into the community. But if paid for out of community funds,- the price must be re-imbursed to the community. O. C. C. p. 336,. art. 64.

      Under the Code of 1808, where the husband had a right to enter a back concession of land before his marriage, but did not do so until after, the land belongs to his individual estate and does not enter the community.
    APPEAL from the District Court of Iberville, Burk, J.

      J. J. Berry, for the plaintiff,
    contended: The land was purchased during the marriage, and is, consequently, a part of the community, unless the case forms an exception to the rule governing purchases made by either of the spouses during the existence of the marriage. The articles 2314 and 2371 of the Civil Code, and arts. 14, p. 324, and 64, p. 36, Old Code, declare what property shall enter into the community. Art. 2314 C. C. and art. 14 O. C. lays down in general terms that all property acquired during the marriage shall form part of the community, except in certain cases; and no mention is made in the exceptions stated, of any kind of property acquired in any manner by purchase as forming one of them. The language is positive, that all property acquired by either of the spouses, or by both, shall form a part of the community, except such as are therein excepted. In these exceptions we look in vain for property aequhed by purchase. Article 2371 C. C. and ait. 64 O. C. states explicitly that all property purchased during the marriage, whether in the name of one or both of the spouses, shall enter into the community. The Supreme Court has decided repeatedly, that when there is a purchase of property, even with the paraphernal funds of the wife, the purchase shall he held community property, and she only has her legal remedy against her husband, for the restitution of her paraphernal monies. In Brown and Wife v. Cobb et al., 10 L. R. 181, the court sanctioned the doctrine, that in all cases where there is a real sale of property, and a purchase by one of the spouses, the purchase shall be considered community, though the one purchasing be interested in the property, and it be sold to effect a partition. There appears to be but three exceptions to the rule recognised in our law, that all purchases shall inure to the benefit of the community: 1st. When dotal property is sold and the funds re-invested; for this there is a special provision made by law. 2d. When the wife retains the administration of her paraphernal property, and purchases with her own money. 3d. When there is a real giving in payment or exchange for obligations or goods of the wife. Stokes v. Shackleford et al., 12 L. R. 170. 1 L. R. 522. 18 L. R. 361. 19 L. R. 406.
    But this case does not fall under either of the foregoing exceptions. Here there was a real sale and a real purchase. There was not even a preexisting imperfect title in the husband. The ownership of the front tract did not invest him With any species of title to the back concession, but simply the right to acquire a title, in preference to other persons, if he was in a situation and choose to avail himself of this right. This right did not even exist at the time the marriage gave existence to the community, but was created subsequent thereto. If he did not, or could not purchase the land, as he could have done, had he the ability or the will, he lost the right by not availing himself of it in the manner prescribed by law. Whether willingly or not, it matters not. He, perhaps, might have acquired the land [for the sake of argument] had he purchased with his own funds; but he chose to purchase with the funds of the community, and the benefit of that purchase must result to the benefit of the community. The presumption is, that he intended to purchase for the benefit of the community; his right was exercised for the benefit of the community of which he was the head and master. Stacey v. Hammond.

    By our law, the husband is the head of the legal partnership, and is bound in law and conscience to administer it for the best interests of both parties. The wife, on the contrary, has no control over it, or interest in its administration, until after its dissolution. This circumstance would seem to impose on the husband, more strenuously than in the case of an ordinary partnership, the obligation of exercising the powers in him vested, for the mutual benefit of both parties. Now, between men dealing as commercial partners or otherwise, neither law nor conscience would sanction the conduct of one who would abstract a portion of the common fund for the purpose of embarking it in a private speculation. If such an act were done, the law would declare the purchase to be for the mutual benefit of both parties, if the article bought were one in which the parties dealt; if not, the other partner would have the option either to take his share in the speculation or not, as he might choose. Land is an objectwhich the husband, as head of the community, may buy and sell for its benefit, and such a transaction would-be perfectly legitimate.

      In this case the land was-not sold by the husband, as he certainly had the right to do, had he chose. But suppose he had done so, and realised a profit on the transaction, would he individually, or the community, be entitled to the profit? Is it just to allow one to use a common fund in trade for his individual benefit ? Suppose, for a moment, the land had been sold at a sacrifice; on whom would the loss have fallen ? On the community, certainly; for the wife has no power to call the husband to account for his transactions as administrator of the community. He may alienate, transfer, and even give away the property. ’Tis true, he cannot transfer the real property by a gratuitous title, but he can convert it into money, and dispose of that as he pleases. If the sole property of one of the spouses is improved, by the mutual industry or the funds of the community, such improvements and ameliorations as are made by such means, become community property. C. C. arts. 2376 and 2377. Code of 1818, p. 336 and 338, arts. 69 and 70. The back concession is an addition to the front tract, in the nature .of an improvement or amelioration, and within the meaning of the law. So by the rule it must be considered as belonging to the community.
    The laws of Spain are the source from whence is derived our jurisprudence on the subject of the legal community, and as such, must be looked to for light in cases of doubtful interpretation. By the Spanish law, not only all property purchased during the marriage, but also the young of cattle, and slaves brought in marriage, were held to belong to the community. The rule is, that all produce of the common industry and care was held in common; and the natural produce of these things was considered to proceed as much from the common industry and care as the wages of labor itself. 8 N. S. 197. 11 R. R. 526, and authorities cited.

      Zenon Labauve and A. Talbot, for the defendant,
    contended: The land in dispute is not community property, because it was purchased by the deceased André Langlois, in his own right, as front owner of a tract of land brought into marriage! Stroud et al. v. Humble et al. 2d Ann. 930, and the authorities therein quoted. This is in accordance With Pothier, Traité de la Communauté, vol. 1, art. 157. He says: “Les acquets de chacun des conjoins par marriage, ne sont conquéts que lorsque le titre ou la cause de leur acquisition, n’a pas précédé le temps de leur communauté; sinon ils sont propres de communauté.” See also Toullier, vol. 12, art. 180. Let us then test this case by the rule laid down by Pothier, and ask where was, in whom rested, the title or cause of the acquisition ? — (le titre ou la cause de 1’acquisition,) it was not in the plaintiff; it was not in the community; it was not in Langlois, as master and chief of the community ; but it was in Langlois in his own right as owner, and on account of his front tract brought into marriage.
    Reverse the case, and suppose that the plaintiff brought into marriage the front: tract, the purchase of the land in contest should have been made in her name, and it would have become her bien propre.

    To apply well the above rule of Pothier, it is only necessary to see and examine whether the purchase or acquisition, as prescribed in Louisiana Code, art. 2371, can be made indifferently and indistinctly, in the name of either of the two; if it can, the title or the cause of the acquisition would be in the community, but if it cannot, the title or cause of the acquisition would then be exclusively in one of the two,
    In the case before the court, it is clear that the plaintiff could not, under the law, purchase from the government any part, however small, of the land in contest, and that she cannot be benefitted by the purchase made by André Langlois.

   The judgment of the court was pronounced by

Slidell, J.

This is a petitory action instituted to recover the one undivided half of a certain tract of land, which was purchased by the plaintiff’s husband from the United States during their marriage, and the existence of the community of acquests, which was its consequence. The facts were all admitted in the court below; and the sole question presented is one of law. Does the land in dispute belong to the community, or is it the separate property of the heir of the deceased husband?

The plaintiff and André Langlois intermarried in the year 1818. At the time of their marriage he owned and possessed a tract of land fronting on the Bayou Plaqumine, under a title confirmed by the United States. In May, 1822, during the marriage, he purchased from.the United States, by virtue of his right of preference as front proprietor,the double concession, or lands lying in the rear of his estate.

By the; act of 1811, every person in. Louisiana who owned a tract of land bordering on a riyer, creek, bayou or water course, wás entitled to a preference in becoming the purchaser of the vacant land adjacent to and back of his own tract to a depth of forty arpents. Three years were given to file applications under the provisions of the act. This law was revived and continued in force for two years by the act of 11th May, 1830, and again for eighteen months by the act of 28th February, 1823. ' '

' This legislation was founded upon a just respect for the usage which existed under the'French and Spanish governments, of granting, on application of the proprietors of land fronting on a river or bayou, what was called a double concession, or forty arpents in depth in the rear of the original concession. It was not so much apure liberality on the part of the United States, as a just fulfilment of the reasonable expectation which the grantee under the ancient government had been encouraged to entertain, when he went forth to subdue the wilderness.

Considered in this light, the reviving act of 1820 was a relief from the consequences of an omission to exercise a right existing under the act of 1811, which right, although it derived its legal efficacy from that act, had its earlier moral source in the ancient usages of the former government.

For the ■ purposes, therefore, of our present enquiry, the cause of André Langlois’ being entitled to acquire the back concessions, must be considered as originating before his marriage.

Thé plaintiff relies upon a strict and liberal interpretation of an article of the Code of 1808, which was in force when Langlois purchased the land in dispute from the United States. It is found in the section which treats of the partnership or community of acquets or gains. “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment; of the produce of the reciprocal labor and industry of both husband and wife; and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even though the purchase be only in the name of one of the two, and not of both, because in that case the period of time when the purchase was made is alone attended to, and not the person who made the purchase.” Code of 1808, p. 336, art. 64.

Although no case expressly in point has been cited by counsel on either side, we are of opinion that a recurrence to principles and analogy afford á satisfactory solution of the present question.

Pothier, in his Treatise on Community, lays down the following rule: Les acquéts de chacun des conjoints par marriage ne sont 'conquéts que lorsque le titre ou- la cayse de leur acquisition n’a pas précédé le terns de leur communauté ;, sinon ils sont propres de la communauté. § 151. He gives numerous examples in illustration of this rule. A .person, says he, who died before my marriage, has left me by will an estate, upon a condition which is not accomplished until after my marriage. The estate is my separate property because the will is my title, and it preceded the marriage. So where I have bought an estate before marriage, at a sum below the half of its just value, and after marriage I give validity to the sale by paying my vendor the residue of the just price, the estate is my separate property. Car ce n’est pas le paiement que j’ai fait du supplément du juste prix, qui est mon titee d’acquisition; c’est la vente qui m’a été faite avant mon mariage. Toullier in treating of the same subject observes: Sous l’empire du code, la propriété est transferrée par le contrat de vente (1583); mais la promesse de vente vaut vente, dit Part 1589, c’est á dire que la promesse de vente oblige précisement celui qui l’a faite de passer le contrat de vente. Cependant la promesse de vente ne transiere point la propriété, comme le contrat. Ainsi, celui á qui á été faite la promesse, n’est point propriétaire avant le contrat; mais, comme son titre, pour conteaindre le promettant álui passer le contrat est antérieur au mariage, l’heritage n’entrera point en communauté, sauf recompense. Toullier, vol. 12, § 180. Pothier gives another illustration in the case of a sale avec faculté de réméré. Par la méme raison, si le parent á qui j’ai succédé, avait venduun héritage avec faculté de réméré, et que depuis sa mort j’ai, en qualité de son héritiér, exercé le réméré, je suis censé avoir cet héritage á titre de succession de mon parent; quoique je n’aiepas trouvé l’héritage méme dans la succession, il suffit que j’y aie trouvé le droit de réméré qui s’est realisé dans cet héritage que j’ai réméré; cet héritage n’est done propre, et en matiére de succession, et propre de communauté, sauf la recompense que je dois a la communauté de la somme que j’en ai tirée pour exercer le réméré. Pothier, Communauté, § 116.

The doctrine is a deduction from the maxim, is qui actionem habit, ipsam rem habere vidotur.

Now, although the illustrations we have cited are not identical with the'one at bar, they present a very strong analogy. It is true that the land was not purchased from the United States until after Langlois' marriage. But the “ cause” of the acquisitions may be fairly considered as having preceded the marriage. It was because he was the owner of the front land; an ownership acquired long before; that under the liberal legislation of Congress he was allowed a preference to enter, and that, too, at a low price, specific lands, which may perhaps have been worth much more.

We, therefore, think the land so acquired was his separate property. The only right of the communily was to a reimbursement of the money paid for it, if it was paid for out of the funds of the community.

J udgment affirmed, with costs.

       The word propre is not used here in its ordinary sense. Pothier explains this in § 105. On appelle propre tout ce qni n’estpas communs, tout oe qui n’est pas entré en eommunauté; un Kéritage est pn-opre de communauté, lorsqu’il appartient a l’un des conjoints sans faire partie des biens de la communauté qu’il a avec Rautre conjoint.


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    Oliver H. Courtney v. S. B. Perkins.
    The]|respective rights of parties claiming land under the preemption law of Congress of 4th of September, 1841, must be determined by the register and receiver of the U. S. land office, subject to an appeal to the treasurer of the United States.
    The possession of a party under a certificate that he had filed proof of his right to .preemption with the register and receiver of the U. S. land office, is not sufficient to maintain the possessory action against another person who holds a similar certificate of subsequent date, and who is in actual possession of the land.

      APPEAL from the District Court of West Baton Rouge, Penn, J.

      T. G. and P. H. Morgan, for plaintiff.

      G. S. Lacey, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a possessory action, instituted by the plaintiff to recover from the defendant a portion of a quarter section of land situate in West Baton Rouge, upon which the defendant has intruded. The possessory right of the plaintiff is based upon the alleged possession since the 22d of May, 1843, under a certificate of the register of the land office of that date, certifying that the proofs of Oliver H. Courtney for his preemption right to the quarter section were duly filed and recorded in the land office.

The. defendant claims to hold possession under a certificate of the register of the land office under date of the 22d of January, 1848 ;• that he, the defendant, has filed his-declaration of intention to claim the quarter section as a preemption right under the provisions of the act of Congress of date September 4th, 1841, relating to preemption rights on the public lands.

The case was submitted to a jury, who found a verdict for the defendant. The district judge, considering that the jury determined the case on the facts, . under an appreciation of the credibility of tlie witnesses, refused to set aside the verdict, and gave judgment accordingly. -The plaintiff has appealed.

We are under the impression, that the respective rights of the plaintiff and the defendant to this land, under the act of Congress under which both claim, must be determined by the register and réceiver of the land office, subject to an appeal to the secretary of the treasury of the United States. 5 U. S. Statutes at huge, 456, § 11. Nor are we satisfied, that-under the certificate alone under which the plaintiff holds, unaccompanied by any evidence of a compliance on his part with the act of Congress, he has such a right as owner, as will enable him to maintain a possessory action against the defendant, who is in possession under a recorded preemption claim received by the officer of the land office, for the same section of land. Code of Practice, 47. Milligan v. Hargrave, 6 N. S. 342. Heirs of Henry v. Welsh, 4 L. R. 549. Primot v. Thibodeau, 6 L. R. 12. Morancy v. Ford, 2d Ann. 299.

Under this view of the case, we find additional reasons, besides those given by the district judge, for not disturbing the verdict of the jury against the plaintiff.

The judgment appealed from is therefore affirmed, with costs.


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    Thomas Medley & Co. v. J. Wetzlar.
    There is no other mode provided for the service of interrogatorios apon a party not appearing in court by counsel, than the fictitious one of posting. If such service as is required on citations be relied upon, it must be shown that the service upon an absent party was made at the domicil of tlie absentee.
    In an ex parte proceeding wherein a judgment by default is sought to be confirmed, a decision of the court in tlie first instance, rejecting the evidence because the interrogatories were not properly served upon the defendant, will be sustained.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      J. Brunot, ex parte, for plaintiff.
   The judgment of the court was pronounced by

Slidell, J.

After judgment by default, the plaintiff proceeded to offer evidence for the purpose of obtaining final judgment. The sheriff's return of service of interrogatories was as follows: “ On the 20th December, 1848, I served a true copy of the within interrogatories on the defendant, fay delivering the same to Mrs. Emmeline Wetzlar, wife of the defendant, in person, in this parish.” The art. 427 C. P. requires the interrogatories to be notified to the opposite party, in order that he may propound cross-interrogatories. No article •of the code has been cited, designating how the actual service of interrogatories is to be made, where the parly has not appeared by counsel. There is a provision for fictitious service by posting, which is not shown nor relied upon in this case. The appellant’s counsel concedes the rule of service applicable here to be the same as is prescribed for citation in art. 201. Under that rule the return is defective; for it does not show that the service was made upon the person named in the return, at the domicil of the defendant. State v. Johnson, 550; Bullard v. Lee, 14 L. R. 213.

But it is said that the court could not raise the objection. In this view we do not concur. Here was an ex parte trial upon default. The judge had no evidence before him, that a proper opportunity had been afforded to the defendant to propound cross-interrogatories. This is a right secured to the defendant, even where “he suffers judgment by default to go against him.” C. P. 427. Cross-examination is a means of testing the truthfulness of the witness, and also of calling his attention to matters which an honest witness might overlook if not cross-examined, and which might materially qualify or even neutralise his statements on the direct examination. We therefore think a district judge has a right to refuse to acfcat an ex parte hearing upon testimony thus obtained. Whether he is, bound to refuse, it is not necessaiy now to decide. But we may observe, that the rule of the Roman law was very favorable to an absent party, and seems founded in wisdom and justice. Litigatoris absentia dei presentía repleatur. Cited by Donnat, book 4, tit. 11, § 8.

Judgment affirmed, with costs.


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    Montgomery Sloan v. J. Menard.
    If the sheriff's retara of personal service of citation upon the defendant be proved to be untrue, it is sufficient ground for sustaining an action of nullity against the judgment thus obtained.
    A public notice in the newspapers directing “'Any person having business with me during my absence will call on Mr. A. who is authorised to attend to my business during my absence,” does not authorise the agent to bring the principal into Gourt as defendant, and a judgment obtained by service of citation upon such agent may be annulled. The principal will not be considered as having acquiesced,, even if he neglects to appeal after being notified of the judgment, but may resort to the action of nullity. C. P. 608, 606, 604.
    The prescription of one year does not apply to an action of nullity of judgment founded upon the want of citation. C. P. 612, 613.
    APPEAL from the District Court of East Baton Rouge, BurTc, J.

      J. M. Elam, for plaintiff.

      A. M. Dunnr for defendant.
   The judgment of the court was pronounced by

Slidell, J.

This is an action to annul several judgments obtained against the plaintiff by the New Orleans and' Carrollton Railroad Company, whose assignee the defendant is.

The grounds of nullity alleged in the petition are, that in one of the suits the return made by the sheriff of personal service was false; and that in the others in which, the citations were returned, served on “ Samuel STcolfield, agent of Sloan,” the judgments are null, because STcolfield was not named as agent in the petition, nor was he in point of fact at the time the agent of Sloan for such a purpose.

It clearly results from the evidence, that in the suit first mentioned the return was untrue, and that if any service was made, it was upon STcolfield.

With regard to the other suits it is unnecessary to consider one of the grounds, to wit, the omission to name the agent in the petition. We will confine our enquiry to the authority of STcolfield to represent Sloan for the purposes of citations, and the consequences of the absence of such authority, if such absence there was.

The only proof of a constitution of agency is contained in an advertisement published by Sloan in a newspaper, and which is in these words: “ Any person having business with me during my absence from Baton Rouge, will call on Mr. Samuel Skolfield, who is authorised to attend to my business in my absence.

August 14th, 1841. (Signed,) M. Sloan.

It is clear, that the agency evidenced by this advertisement was not sufficient to authorise him to bring his principal into court as a defendant, and subject him to a judgment and its legal consequences. Upon this point we do not deem it necessary to do more than to refer to the articles of the code upon the subject of mandate, and the cases of Barnes v. Profilet, ante p. 117; Fuselier v. Robin, 4th Ann. 61.

It is not improper to add, that in the petition in these suits Sloan is described as a resident of Baton Rouge.

A' copy of one of these judgments was served upon Sloan by the sheriff; and it is said from his silence during several years and not appealing, an acquiescence is to be inferred. Sloan could have attacked the judgments by appeal. But he had also his remedy by action of nullity. C. P. 608, 606, 604. The prescription of one year pleaded by the defendant is inapplicable to this ease. C. P. 612, 613.

The verdict of the jury, and judgment thereon in favor of the defendant, were therefore erroneous.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the judgments in the petitions more particularly recited and rendered in the suits No. 3182, 3183, 3189, 3206 of the docket of the District Court in and for the parish of East Baton Rouge, be avoided and annulled, so far as they affect the said Montgomery Sloan ; and that the said defendant Menard pay the costs of this suit in both courts.


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    G. W. Christine v. B. D. Chaney.
    Where an endorser pays a note upon which judgment had been obtained against him, he acquires no greater right against prior parties to the note than the judgment creditor had; and if they be discharged by prescription, he cannot recover of them.
    Suit against one endorser does not interrupt prescription with regard to other parties to the note.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      G. S. Lacey and R. G. Brale, for plaintiff.

      Z. S. Lyons, for defendant.
   Tlie judgment of the court was pronounced by

Slidell, J.

The defendant is sued upon anote payable 1st February, 1839, made by Morgan to the order of Coolc, and endorsed by the payee, the defendant, the plaintiff, and others. It was protested at maturity, and notice to the defendant mailed: the regularity of which notice has been discussed at bar. This we do not, however, consider, as the case is with the defendant on the piea of prescription.

It appears from the evidence that, in December 1839, suit was brought upon the note by the Bank of Louisiana, then holder, against the maker Christine, and two other endorsers subsequent to the defendant; and in January, 1840, there was judgment for the plaintiff. In 1847, Christine paid the bank, and became the holder of the note. The defendant was cited in the present action in June, 1847. From the protest of the note, in 1839, down to June, 1847, there does not appear to have been any judicial or other resort to the defendant, nor is there evidence of any acknowledgment of liability by him during the interval.

Actions on bills of exchange, notes payable to order or bearer are prescribed by live years, reckoning from the day when these engagements were payable. The prescription runs against minors and interdicted persons, and persons residing out of the State. C. C. art. 3505, 3506. How the plaintiff can resist the prescription claimed under these provisions we are unable to perceive. The action is against an endorser upon his endorsement nakedly, and unaided by any subsequent act or circumstance on the endorser’s part; and eight years had elapsed from the maturity of the note before he is attacked. The action is therefore prescribed. It is said the plaintiff’s cause of action did not arise until 1847, when he paid the Bank of Louisiana; and until then, he having no right of action, could not act. But how did the matter stand at that date, as to the holder to whom he paid. Clearly, the bank could not at that date have recovered against Chaney ; and the plaintiff, when he paid the bill, took the place of the holder. It is time, that an endorser who pays a bill is equitably considered as paying so much money for the benefit of the prior endorser. And this equitable view of the relation of the parties was adopted to enable a subsequent endorser to recover from his prior endorser partial payments made on account of the bill or note still remaining in the hands of the holder, who is entitled to keep it, so as to have his recourse against all the parties, until he is fully paid. But how can the defendant be considered as having paid the bank a sum of money for Chaney, when at the time of payment Chaney had ceased to be liable to the bank 7

The maxim contra non valeniem would clearly be misapplied in this case. Christine, by paying the note when he was sued, or at any timo within five years after its maturity, would have become the holder of the‘note, and could have acted against Chaney. He says his poverty prevented him; but this is not a legal excuse.

Judgment affirmed, with costs.


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    Forrest and Crocker v. Caldwell and Hickey.
    Under article 2736 O. C. tlie proprietor has the right to cancel at pleasure the bargain he has made by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the ease may require. This authorises the allowance of the profits the undertaker might have made by completing the work.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      A. S. Herron, for plaintiffs.

      J. M. Brunot, for defendants.
   The judgment of the court ,was pronounced by

Slidell, J.

After consideration of the evidence in this cause, coupled with the verdict of the jury, we are of opinion, that the plaintiffs cannot be considered as having committed an active violation of the contract. It is true, there is reason to believe from the evidence, that the defendants expected the plaintiffs to begin the work a day earlier than they did. But there was no positive' stipulation to that effect in the contract, and there is nothing in the evidence to create a doubt as to the ability of the plaintiffs to complete the work before the period stipulated in the contract for such completion, which was some weeks distant. The plaintiffs told the defendants they would be ready to go to work the next day; and the evidence authorises us to believe they would have been so, and would have gone on with the work, if permitted to do so. Under all the circumstances, which were a very proper subject for the consideration of the jury, we think they were authorised to consider the plaintiffs as not in default, and that the defendants had no other authority for putting an end to the matter, than the arbitrary one which the law gives them in article 2736 of the Civil Code. It is in these words: “ The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.”

This article is taken from the Napoleon Code, but with a change. In that code the measure of damages was fixed by the lawgivers. The proprietor, in case of an arbitrary rescission of the contract, was bound to pay the contractor his expenses, the value of all his work done, and all the profits which he could have made, if permitted to perform the contract, de toutes ses dépenses, de tous ses travaux, et de tout ce qu’il auraitpu gagner dans cette entrépise. The framers of our code seem to have favored the rule as laid down by Pothier, and preferred to leave the damages to the sound discretion of the tribunal rather than to establish a positive and inflexible standard. . But it is obvious that the rule given by our code is sufficiently broad to cover the loss of profits.

The arbitrary power given to the proprietor to cancel the contract at pleasure, seems at first view anomalous and exhorbitant. But further reflection will show, that when properly guarded by a concomitant liability, it rests upon a sound policy. As suggested by the French commentators, the reason of the law is this: after making a contract, the proprietor may find that imperious considerations make it inexpedient to go on with it. Losses may have suddenly come upon him ; his fortunes may have become embarassed, and he may find that he cannot go on without exposing himself to the risk of not being able to pay the contractor; of making an investment unsuited to his means, or ruinous in its results. The law therefore, will not hold him to a specific performance, which may injure or ruin him. But at the same time the law extends the same equitable care to the contractor, and subjects the right of arbitrary cancellation to the condition of indemnifying him. Both parties are thus protected. See Pothier, Louage, No. 440. Troplong, Louage, § 1023 et seq. We find in the Roman law an equitable protection given to the laborer, although, it seems, in a more guarded form than under the Napoleon Code. Cum per te non statisse proponas, quo minus localus operas Antonio Aquike solveret, si eodem anno mercedes ab alio non accepisti, fidem contractus implevi oequum est. Cited by Donnat. book 1, tit. 4, sec. 9, par. 6, which see.

In the present case a witness, whose testimony was not excepted to, estimated the amount which would have been cleared by the plaintiffs, at $175. The price for doing the work, was fixed by the contract at $675. There was no opposing or conflicting testimony as to the amount of damages.

The jury went, we think, as far as they could legally go in this case; but we are not prepared to say, that they exceeded the large and equitable standard given by our code. It is proper, however, to add, that there is a circumstance which would have prevented us from disturbing this verdict, unless on conviction that it was excessive, was very clear. When one of the defendants ordered the plaintiffs to stop, the order was accompanied, says one of the witnesses, with highly abusive language, unprovoked by any indecorous demeanor on the part of the plaintiffs.

It is not improper also to observe that this contract for work was in the country, and the jury may have considered that it was not easy for the plaintiffs to get, among the planters, employment equally profitable.

Judgment affirmed, with costs.


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    John Perkins v. Bank of Louisiana.
    Where the cashier of a bank grants an extension of time to the principal debtor, upon the payment of a portion of the debt, and thereby discharges a surety, the bank, having received the money and the benefits of the acts of the agent, will be considered as having ratified them.
    A debtor upon a twelve months’ bond, taken at a sheriff’s sale, is not a judgment debtor. Recording a twelve months’ bond in the mortgage office does not create a judicial mortgage.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      C. Ratliff, for the plaintiff,
    contended : The twelve months’ bond contained a mortgage and confession of judgment. This bond was not recorded in the mortgage book until the 15th of March, 1844. Before the recording of this bond and mortgage, there were many judgments recorded against Leake. Now, we contend, that the bank had no greater rights in the bond than Dwell had; and, by failing to have the bond recorded, which contained a mortgage, before other judgments was recorded against the principal debtor, that they could not subrogate Perkins, the security of Leake, to the liens and privileges of the original creditor, as it existed at the time of his entering into the obligation. See payment with subrogation, C. C. 2155,2156, to 2158. Surety is discharged, when, by the act of the creditor, the subrogation to his rights, mortgages, and privileges can no longer be operated in favor of the surety. C. C. 3030, 3032. 3d Ann. 255. 2d Ann. 427. 2d Ann. 160. Pothier on Oblig., 744. 2d Ann. 254. 2d Ann. 192. How can the bank subrogate Perkins to the rights and privileges on the mortgage retained on the land sold and described in the twelve months’ bond, when it was not recorded until 1844, long after numerous judgments had been recorded against the principal debtor; and long after the land had gone out of the principal debtor’s hands, and into the possession of A. Ledoux Sf Co., by virtue of a seizure and sale.
    The second point we make is, that the Bank of Louisiana, having taken in advance nine per cent interest on the bond from the principal debtor, for one year at a time, had thereby agreed and bound themselves to wait the twelve months, before they could sue. This they done.repeatedly; and by the prolongation of the time of payment granted to the principal debtor, without the consent of the surety, operates a discharge of the’latter. C. C. 3032. 1st Ann. 428, 254, 162. Pothier on Obligations 744. See the credits endorsed on the bond, signed N. C. Hall, cashier, and J. N. Maynard, cashier. But, the counsel for the bank contends, that this prolongation of the term of payment by the bank, and the taking of usurious-interest for the same, was not authorized by the bank, and not binding on ber. We will reply to this by saying, that the transfer from Neville Dwell to the bank, was made, executed, and accepted by Mr. Hall, the bank cashier. The bank received the interest upon the bond in advance, at nine per cent.. She is presumed to know what her agents do, when their transactions are in writing. She pocketed the money, acquiesced in this act repeatedly, and then credits the bond with the money so paid at this usurious rate of interest, arid then sues out a fieri facias for the balance, and we think it is rather too late now for the bank to say the cashier was not authorised to extend the time of payment. She should have done so within a reasonable time. But, if the bank has not sanctioned the acts of Mr. Hall and Maynard, why did she sue for the balance of the bond according to their mode of receiving payment? Why did she not calculate .the interest according to the tenor of the bond, and give credit accordingly, and then issue a fi. fa. for the balance ? No one can doubt the sanction of the bank to this transaction. It is well known to your honors, that the rules of the banks are to have semi-annual statements from all their branches, which keeps them informed of the acts of their agents, and they also send a special agent, once or twice a year to inspect their accounts, &c., and this transaction could not have run on from .1836, to 1847, without the mother bank’s knowledge. It would be permitting the bank to practice a fraud upon the debtor, to take from him nine per cent interest on a bond calling for but five per cent. In consideration of the indulgence granted the debtor, deprive the surety of his legal remedy, and continue this process for more than ten years, and after the bank had pocketed nearly the whole amount of the original debt in this illegal interest, to come down upon the surety for the balance of the debt yet unpaid. This is precisely the case in this instance. Justice says, the bank must either sanction the whole of the acts of her cashiers, in this instance, or repudiate them. Surely the court will not permit her to adopt such as seems to her interest, and reject the balance. Either this money was paid by Leake on the bond, for the purpose and in the manner stated by Hall and Maynard, the cashiers, or it was not paid at all, for that was the condition on which it was paid. Leake surely cannot be presumed to have paid the money on any other conditions than those expressed in writing, in the receipts on the bond. Then, if these conditions are binding on the bank, Perkins is discharged by the granting of time to the principal debtor, without his consent. If they are not binding, then no money has been paid by Leake, legally speaking, for a fraud has been practised upon him ; and so, prescription runs against the bond, as more than ten years has elapsed since the maturity of the bond, before the issuing of the execution enjoined.
    The judgment of the lower court was in favor of Perkins perpetuating the injunction, and we think it is sustained by the law and the evidence, and should not be disturbed.

      J. A. Patterson and Brewer and Collins, for defendant,
    contended: We know of no law requiring a twelve months’ bond to be recorded, or giving to such bond, when recorded, the force and effect of a mortgage, though, in all other respects, the bond is as fully operative against the parties as a final judgment.
    This bond was given to secure the payment of the price of property sold at judicial sale. In all judicial sales, after the adjudication has been made, the sheriff is required by law, to pass an act of sale to the purchaser of the property. C. P. 691, 692, 693, 694. This act of sale, not the bond, must be recorded. C. P. 695, 696, and the sheriff is required by law, to cause such record to be made before returning the act to the clerk of the court. C. P. 696. After having been thus recorded, it is the duty of the sheriff to return the act of sale to the clerk, who is required to make a record of the same, C. P. 695, 697. The plaintiff in injunction has taxed himself with the labor of showing that the bond was not recorded, but has neither alleged nor proved that^the act of sale is in a like category. The allegations of the petitions for an injunction may be true ; and yet the act of transfer may be recorded in the proper office, arid proper book. Prom such a state of facts the presumption arises, that the sheriff performed his duty, and that all the requisitions of law have been complied with. Dunlap v. Sims, 2d Ann. 239.

      Further than this, the burden of proof is on the plaintiff in injunction. He is claiming his release from an obligation deliberately entered into, and it is incumbent on him to prove such release. In any event, the defendant is not required to prove that the act of transfer made by the sheriff'has been recorded; no issue having been made by the pleadings, rendering such proof necessary. The plaintiff has merely alleged, that the bond was not recorded ; he has made no such allegation, in relation to the act of transfer. If, however, the court should be of opinion, that a twelve months’ bond is operative as a mortgage, and that the recording of such a bond would give it force and effect against third persons, and should also be satisfied that the bond in this case has not been recorded, even then, we think that Perkins has not been released from liability. The holder of the bond might have been satisfied with the personal security; and if Perkins, as surety, wished for any further rights of recourse against his principal than those possessed by the creditor, he had it in his power to obtain them by recording the bond. Again, the holder of the bond had no right given him by the bond to follow the mortgaged property into the hands of third persons. He could only acquire such a right by causing the bond to be recorded. Now, we are not cognisant of any law that requires the creditor to acquire lights for the benefit of the surety. If the surety should desire them, he must acquire them for himself. •
    The powers of a cashier are purely administrative, and, without a special authorisation, he has no power to release a debtor from liability to the bank. Union Bank v. Bayley, 10 R. R. 43; Commissioners of the Clinton and Port Hudson Railroad Company v. Reman, 10 R. R., 174 ; re-hearing of same case, 10 R. R. 176. In the latter case the court held, “that the release of a debtor is an act of ownership, which a cashier is not authorised to perform under his general administrative powers.” The cashier being without power to grant such release directly, he cannot do it indirectly, by prolonging the term of payment. If he is without power to grant such a release, a change in the means used will not render the act legal. But, admitting that time was granted to the principal on the bond, and that the act of the cashier was within the scope of his powers, yet the surety has not been released thereby.
    In the case of Bynum v. Jackson, 10 M. R. 424, the court held that “ the appellee,” a surety on a twelve months’ bond, was “liable as upon a final judgment.” An agreement with the principal debtor to grant an extension of time, will not affect the liability of a surety, if such agreement is made after the liability of the parties has been fixed by a final judgment. Louisiana Stale Bank v. Haralson et al., 2d Ann. 456. In the case lust cited, the court considered that tlie endorser was bound, notwithstanding an extension of time had been granted to the principal debtor. The principles settled in that case are applicable to the one now before the court. In that case, the party was not discharged by the indulgence granted to the principal, because such indulgence was granted after the liability of the parties had been fixed by a final judgment. In this case, according to an authority already cited, (10 M. R. 424,) the obligors on the twelve months’ bond became liable, as on a final judgment. Their liability then being the same as that of the defendants in the suit of the Louisiana Stale Ban'/c v. Haralson et al., the defence, which could not avail the defondants in that suit, cannot avail the appellee in this.
    From the principles settled in the case of the Louisiana Slate Bank v. Haralson et al„ we think it fairly deducible, that if the judgment creditor had failed to acquire a right of following the property of his debtor into the hands of third persons, by neglecting to have his judgment recorded, and such failure had been set up by the defendants as a neglect that released them from liability on the judgment, the decision of the court would have overruled the defence. We recur, then, to the second point made in our brief, and applying these principles, contend, that the failure on the part of the creditor to record his bond, and thereby acquire the right of following the property of his debtor into the hands of third persons, is not such laches as will discharge the liability of the surety on the bond ; that liability being the same as if fixed by a final judgment.
   The judgment of the court was pronounced by

Slidell, J.

Perkins was the surety of Hurell, in a twelve months’ bond, executed by the latter, dated in 1835, and bearing five per cent interest, from date. This bond was soon afterwards transferred by the obligee to the Bank of Louisiana. When it matured, an extension of one year was given by the cashier of the branch of the bank, upon payment of a part of the capital, of the interest accrued, and one year’s interest in advance on the balance, at nine per cent. Similar extensions were granted from time to time on similar terms, during a period of several years; and, at length, in 1847, the bank issued execution for the balance of capital due on the bond, and interest from January, 1847, until paid. No assent of the surety to the extension is proved. The surety contends that he has been discharged by these acts of the creditor. There was judgment in his favor in the court below.

It is said, on the part of the bank* that the cashier had no authority to grant the indulgences, and thus impair the rights of the corporation. It is unnecessary to consider the question of original authority. The bank has received the amounts of principal, and nine per cent interest, paid from time to time, and given credit for them. It has taken the benefit of the acts of the agent; and, in so doing has ratified them.

It is said, that where there is a judgment against the surety, the giving time after such judgment to the principal does not discharge the surety. And, assuming this to be the rule, the bank next assumes that Perkins is a judgment debtor, beeause he is a debtor upon a twelve months’ bond. Whether the first proposition is correct, we need not enquire; for the second is not, in our opinion, tenable. A debtor upon a twelve months’ bond is not a judgment debtor. It is true, that upon a twelve months’ bond the creditor may have execution against the purchaser and his surety “in the same manner as on a final judgment.” C. P. 719. But the professions of a single quality of a judgment does not clothe the instrument with all the qualities of a judgment, and superinduce all the legal consequences which pertain to a judgment. For example, it could not be pretended that the recording of a twelve months’ bond in the mortgage office would create a judicial mortgage.

Judgment affirmed, with costs.