source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    John B. Chandler v. Mary Hough et al.
    Where the plaintiff alleged, in his petition, that he was of age, and the judge could not have acted on it, unless he was satisfied of the fact, the action of the judge creates a presump - tionof plaintiff’s majority, which can only he overthrown by clear proof of minority.
    Where witnesses speak positively and minutely of facts in which they were not interested, and which happened many years before, when the witnesses were children, their testimony will not he sufficient to form a ground of belief.

      APPEAL from the First District Court of New Orleans, Larue, J.

      R. II. Marr, for plaintiff.

      R. M. Carter, W S. Üpton, A. A. Frayser, P. S. Warfield, Armand Pitot, G. B. Duncan, H. D. Ogden, C. M. Emmerson, B. C. Elliot, and John Wintlirop, for defendants.
   By the court: (Slidell, J., absent.)

Rost, J.

The plaintiff, as sole heir of the testatrix, Rachel Bannister, seeks to avoid the orders of the court for the sale of the property of the succession of his mother, and the judgment of homologation rendered on the final account of the executor, on two grounds:

First: That he was a minor when the judgment and orders of sale were given, and that he Was not represented in them.

Second: That said orders and judgment were obtained by fraud and malpractices, in consequence of which the entire assets of the succession were wasted and dilapidated.

The defendants have denied the fraud and malpractices charged, and averred, that the plaintiff was of age and a party to all the proceedings; and that the orders and judgment of the court, in the premises, are binding upon him.

The district judge rejected the plea of minority, but reversed the judgment of homologation as far as related to three of the defendants, and gave judgment against them for the amount allowed them in the account, reserving their rights to prove such claims as they may have against the succession. The plaintiff alone has appealed.

The testament of Rachel Bannister, bears date the 8th of March, 1847. She states in it, that the plaintiff was nearly twenty-one years of age. On the 8th of June, 1847, the plaintiff himself filed a petition, praying to be recognized as heir of the testatrix, in which he averred, that he was then of age. The court being satisfied of that fact, and of his right as heir, ordered him to be recognized as such. In July, 1847, before the date of the orders and judgment complained of, he presented another petition, in which he still represented himself of age, and prayed to be put into possession of the succession.

The district judge considered these acts and declarations of the mother and son, as making aprima facia case against the plaintiff; and, being of opinion, that the evidence adduced to prove his minority was insufficient to destroy the effect of those acts and declarations, he rejected the plea of minority and maintained the orders of sale of the property.

Much weight is due to declarations made in testaments. The presumption of truth which the law attaches to them, is carried so far, that impossible conditions appended to the dispositions they contain, which, if found in a contract, would avoid it, on the ground, that the parties who stipulated them could not have been serious and truthful, when found in testaments, are considered as inserted inadvertently, andaré reputed not written.

The declaration of the mother was followed by the petition of the plaintiff, in which he stated, that he was of age. The judge could not have acted upon that petition, unless he was satisfied of that fact. And as he Ha act, the presumption of omnia rite acta, which attaches to judicial proceedings, should prevail against the plaintiff until his minority is clearly proved. It was urged in argument, that the attorney of the executor represented him in this proceeding, and that he falsely stated he was of age, in order to legalize, by his presence in court, the frauds in which they were both engaged to his prejudice. This objection loses its weight when it is considered, that before any of the proceedings complained of took place, he employed other counsel to cause himself to be put into possession of the succession, to whom he also represented that he was of age. He now states, that his mother and himself, wei’e in error in relation to the year of his birth; but he no where alleges in his pleadings, nor has he shown, when and in tvhat manner he discovered the error ; in the meantime, third parties have acted upon the state of facts, that he and his mother have created, and the decree of court resting upon the truth of those facts, and have paid out their money for the property of the succession, which they have purchased in good faith. We fully concur with the district judge, that the error alleged, should have been conclusively proved, and that unless it was, the plaintiff’s case was not made out. The testimony offered by him on this branch of the case, was taken under commission. We have perused it with great care, and are unable to say, that it has carried conviction to our minds, or that the district judge did not give it the credit to which it was entitled. The facts in relation to which the witnesses testify, occurred in 1826 or 1827, at which time the only two who swear positively, were twelve and thirteen years of age, and one of them was a girl. Their recollection of facts and dates, in a matter in which they have no interest, is positive and minute, far too much so, to form a sufficient ground of belief. The testimony of the other witnesses is mainly conjectural, and there is nothing in it which would authorize us to interfere with the judgment.

We conclude then, that the plaintiff was of age, when he was recognized as heir of his mother, and that the ox’ders of sale of the pi’opei'ty of the succession, are binding upon him. Bona fide pui’chasers have nothing to do with the question, whether the executor sold moi'e property than was required to. pay the debts of the succession. If he did, and the plaintiff was injured thereby, his only remedy is against the executor in a proper action. He has not, in this record, proved the injury so as to entitle him to damages on that ground.

The plaintiff’s counsel has expressly disclaimed any intention of charging fraud and ill practices against any of the defendants, except those against whom he has obtained a judgment annulling the decree of homologation, so far as they are concerned; and as fraud and ill practices are the only remaining grounds of the plaintiff, upon which the judgment of homologation can be annulled, it is clear, that we cannot interfere with it, so far as it settles the right of pai'ties against whom no fraixd or ill practices are alleged. As to the parties against whom judgment has been rendered, the judgment is manifestly right, and they have asked no change in it.

It is therefore ordered, that the judgment in this case be affirmed; and that the appellant pay the costs of the appeal.


text:
    Charles Gilloutet v. Paul Marcelin.
    Where the clerk’s certificate shows that the record does not contain all the evidence in the suit, the appeal Will he dismissed.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      C. Bufour, for plaintiff.

      M. M. Cohen, for defendant.
   By the court: (Slidell, 3., absent.)

Rost, J.

In this case the clerk has certified that, with the exception of the writ of injunction, issued on the 9th of August, 1850, which has not been returned, and the record of the suit of Octave Anfoux v. Charles Gilloutet and Wm. B. Converse, No. 4695 of the docket of the Second District Court of New Orleans, offered in evidence by the defendant, a transcript of which has not been furnished, the record contains a coi’rect transcript of the proceedings, as well as all the documents filed, and all the testimony adduced on the trial.

This certificate is clearly insufficient; and, as a diminution of the record was not suggested at the proper time, and it contains no bill of exceptions or statement of facts, and no assignment of errors has been filed, the appeal must be dismissed.

It is ordered, that the appeal be dismissed, with costs.


author: Preston, J. Rost, J.

text:
    J. N. DePuilly v. The Wardens of the Church of St. Louis, New Orleans.
    Defendants employed plaintiff as an architect, in the reconstruction of the cathedral; he was dismissed without cause. Held : That defendants are hound for the full amount of compensation agreed on.
    An employer has the right of dismissing a person whom he employs, at pleasure, and no damages can he recovered for the exercise of that right.
    APPEAL from the ThircbDistriet Court of New Orleans, Kennedy, J.

      A. Grailhe and C. Redmond, for plaintiff.

      Benjamin and Micou, for defendants.
   By the court: (Slidell, J., absent.)

Preston, J.

The plaintiff claims from the defendants a large sum for services rendered, and plans furnished to the defendants, as their ai'cliitect, in superintending the extensive alterations and repairs which they have lately made to the Church of St. Louis. Also, for damages for having been dismissed from their employment, in violation of a contract with them, without any cause.

The defendants allege, that they had paid him for all plans and specifications in relation to their contemplated improvements in the cathedral.

They admit that they employed him to inspect and superintend the works to be done on the cathedral, according to his plans and specifications, but at a compensation of three per cent upon the amount of the contract, for the execution of the works. And they aver, that he so negligently and carelessly performed the duties intrusted to him, that they were compelled to dispense with his services, and discharged him from their employ long before the work was finished, to which he made no objection.

We find, in the record, receipts from the plaintiff to the defendants, for five hundred dollars, for plans made in relation to the works in March and April, 1848; and, from his letter, asking payment, it is clear this sum was in full of plans made up to that period.

It was not until the 5th of December, 1848, that the defendants determined, by resolution, to make improvements and repairs to the church, and advertised for plans and estimates of the repairs. On the 13th of February following, they determined, by resolution, to employ the plaintiff as their inspector and superintendent of the works, agreeing to allow him for his compensation three per cent on the amount of the contract for the works, without any claim for plans.

Objection was made by the defendants to evidence, that he assented to this resolution ; but we find no other underwhich he was employed at all. We must presume that he acted under it, and with a knowledge of its contents. In fact, one large claim in his account is claimed under it, and it would be difficult to maintain the judgment of the district court, in his favor, without this resolution, and his acceptance of it.

The defendants, on the 12th of March, 1849, made a contract with J. P. Kirwan to make all the alterations, repairs and improvements of their cathedral, according to the plans and specifications furnished by the plaintiff, under his superintendence, as their architect, for the sum of twenty-seven thousand dollars. They determined afterwards to make other alterations and improvements, for which they made, on the 22d of June, 1849, a contract with the same contractor, to be executed under the superintendence of the plaintiff as their architect, for nineteen thousand dollars.

In the progress of the work, a vast tower, which the defendants were erecting, gave way, fell and crushed parts of the building and walls, with great loss and delay to them. It is unnecessary to examine the causes of the misfortune further than to pronounce, that il clearly appears from the evidence that it did not result from the fault, want of skill, or negligence of the architect. The misfortune, however, engendered that dissatisfaction which induced the defendants to dismiss the plaintiff- on the 2d of July, 1850, and employ another superintendent, who continued the works by his plans and specifications. Nothing was charged as to DePuilly, except that another mechanic than Kirwan was to execute his plans. The evidence establishes, that he was dismissed without any just cause, and is therefore legally entitled to the full amount of compensation proposed by the resolution under which he was employed. He, at least, falls within the equitable 'provision of article 2736 of the Code, and his damages amount to the compensation he was to receive.

The plaintiff contends, that he is entitled to receive the same per centage on the expense of rebuilding the tower. There is no evidence that the defendants employed him to superintend that work.

He claims further, a large amount of damages for injury to his character as an architect, caused by his being dismissed from the employment of the defendants, without cause. The defendants had the right to dismiss him at pleasure, and therefore no damages can be recovered for its exercise beside the loss of his wages. Besides, no damages are specifically proved.

We think the judgment of the district court meets the justice of the case.

It is affirmed, with costs.

Rost, J.

If this case was before us without the resolution adopted by the defendants, after the fall of the tower, to continue the plaintiff in his employment, as superintendent of the unfinished works of the cathedral, when they should again be prosecuted; the evidence in the record would probably lead me to the conclusion, that the commissions he claims should only be allowed upon the amount actually expended, on the work, at that time. But I do not feel at liberty to look behind the approval of his conduct, which that résolution implies; it was passed without reference to the contract between the defendants and Kirwan, and as nothing is shown, after its date, to justify the plaintiff’s dismissal, the defendants must submit to the rule ex ore two tejudico. For these reasons, I concur in the opinion of Mr. Justice Preston.


text:
    William E. Leverich v. Mrs. Clemence Toby.
    In a petitory action, where a mortgage creditor is not a party to the record, no judgment can be rendered in his favor which would be binding on the defendant in the suit.
    Property mortgaged, while held by a simulated sale, must be subject to the mortgages as to the true owners. Preston, J.
    The sheriff, on a mortgage debt against A, seized under execution the mortgage property which was in the possession of B, to which B claimed title, and for which a suit was then pending between A and B. Held: That the purchaser at the sheriff’s sale acquired, not the property, but the rights of A to it. The plaintiff should have proceeded against it by hypothecary action, and could only have had it sold after the demand and other proceedings necessary to render property, in the possession of, and claimed by a third person, liable for a mortgage given by another. Preston, J.
    APPEAL from the District Court of the Parish of Jefferson, Clarke, J.

      Benjamin and Micou, for plaintiff.

      Ogden and Duncan, for defendant.
   By the court: (Slidell, J., absent.)

Preston, J.

On the 2d of November, 1838, Henry Lockett purports to have purchased from William Me Cawley a portion of ground in the city of Lafayette.

On the 2d of March, 1842, he mortgaged it to the Merchants’ Insurance Company of New Orleans, for five thousand dollars.

They sued and obtained judgment against Lockett, for a portion of the loan. He paid the judgment with subrogation, and, on the 30th of January, 1850, issued a pluries jieri facias against the property, caused it to be sold, and Leverich became the purchaser. He found Mrs. Toby in possession of the property, and, on the 9th of May, 1850, brought this suit to recover it. The suit was dismissed on the peremptory exception, founded on law, of litis pendentes.

The exception was founded on the following facts. Notwithstanding the purchase in Lockett's name, Thomas Toby and family had always been in possession of the property, and greatly improved it by buildings, and gardens, and shrubbery. After Toby's death, Lockett attempted, by a suit before a justice of the peace, to disposses Mrs. Toby, his widow. She enjoined the proceedings for that purpose, adjudging the property to be hers.

It was then agreed between them, that an answer should be filed by Lockett, amounting to a petitory action for the property, it being admitted that Mrs. Toby was in possession. This agreement was made the 12th of January, 1850, and the answer, by Lockett, claiming title to the property, was filed the same day.

The purchase of, and suit by, Leverich, for the property, was under an execution subsequently issued.

As Leverich never was made a party to the suit between Mrs. Toby and Lockett, we thought he might have rights which did not belong to Lockett, and therefore, that the suit between the latter and Mrs. Toby could not be considered as a suit pending between her and Leverich.

We reversed the judgment sustaining the exception, and remanded the cause for further proceedings, on the whole merits. In doing so, we expressed the most decided opinion, that the properly was bound by the mortgage given by Lockett to the insurance company in 1842, unless a combination between Lockett and the company, or Leverich and Lockett, to defraud Mrs. Toby, could be shown. She has failed entirely to show any such combination. The knowledge of a deceased brother of Mr. Leverich, who was a director of the company, that the property was not Lockett's, is not the knowledge of the company. Besides, as suggested in our former opinion, we are not satisfied that Lockett had not authority to mortgage. Upon the whole, we find nothing in the evidence in this case sufficient to take it out of the uniform course of decisions by this court, that property, mortgaged while held by a simulated sale, must be subject to the mortgage as to the true owners.

"When the case was last before us, however, we expressed our dissatisfaction with the proceedings of the sheriff, in selling, under an execution against Lockett, property in possession of Mrs. Toby, to which she claimed title, and for which a suit by Lockett, against her, was pending. He could not legally seize, take and deliver possession of the property to Leverich, as this suit shows, even if parol proof on the subject might be excluded; and, Leverich said, in purchasing, that he was buying a lawsuit. Under the circumstances, we are of opinion that Leverich acquired only the rights of Lockett to the property. The suit between him and Mrs. Toby was continued and decided in her favor. The judgment on appeal to this court, was affirmed and the property decreed to belong to Mrs. Toby. Leverich might have intervened, and prosecuted the suit more successfully ; but he did not. He therefore acquired nothing by the sale. The suit establishes, that the property belonged to her, and was in her possession at the time the execution was issued against Lockett, by virtue of which it was sold. It was, then, property subject to the mortgage given by Lockett, but in possession of a third person, who, bona-fide, claimed it as owner.

The plaintiff should therefore have proceeded against it by the hypothecary action, and could only have had it sold after the demand and other proceedings necessary to render property in the possession of and claimed by a third person, liable for a mortgage given by another.

There is a circumstance, alluded to in our former opinion, which has given us some difficulty. Mrs. Toby made herself a party to the execution by the insurance company against the property, and opposed it, on the ground that she was owner. The opposition was fixed for trial, and she failing to appear, a nonsuit was entered upon it. She took a rule, however, to set aside the non-suit, and have her opposition tried upon the merits; which, so far as the record shows, is still pending. On the whole, therefore, we think this matter should not prejudice her rights.

The judgment of the district court in this case is against Leverich, and in favor of Mrs. Toby. Upon strict principles of law, it might be affirmed, as he acquired no title to the property as to her. But we will settle this protracted and unfortunate litigation, like all which grow out of similar circumstances, as far as the record enables us.

It appears by the records before us, that two of the steps in a hypothecary action have been taken, as to the property in the possession of a third person, subject to a mortgage given by another person. Judgment has been rendered against the mortgagor; demand, even by execution, made of payment, more than thirty days: and the mortgage has not been satisfied. The next step is, to make demand of the possessor of the property, for ten days, and then to sell the property to satisfy the mortgage, if not satisfied in the meantime by the third possessor of the mortgaged property.

I think we should decree, that the properly is subject to the mortgage of Henry Lockett, in favor of the Merchants’ Insurance Company of New Orleans, to the amount of three thousand five hundred dollars, with eight per cent interest from the 17th of March, 1847, until paid, three dollars, costs of protest, .and costs of their suit; that demand has been made of Henry Lockett, the mortgagor, for more than thirty days, as appears by the returns of executions against him; that Mrs. Toby is bound to pay the debt or surrender the property, to be sold. I think, therefore, it should be decreed, that if Mrs. Toby does not pay the amount of her debt, with interest and costs, within ten days after notification of this decree, that the property mortgaged, to wit, eight lots of ground, with the buildings and improvements thereon, situated in the Fourth District of New Orleans, in the square designated No. 91, on a plan drawn by Benjamin Buisson, Surveyor,' dated the 5th of March, 1832, deposited in the office, then, of Felix Grima, notary public, measuring each 53 feet 6 inches on First street, by 182 feet 6 inches in depth, being in the square designated as 164 on the city plan, bounded by Prytania street, First and Plaquemines streets, and the boundary line of Livaudais, be sold by the sheriff, according to law, and the amount of the debt, interest and costs, be paid out of the proceeds.

Rost, J.

I agree with Mr. Justice Preston in relation to the facts of this case; but I do not see how we can do anything more than affirm the judgment. This is purely a petitory action. The defendant sets up title, and avers the nullity of the title of the plqintiff. The district judge determined, that she had made out her case, apd we all concur in that opinion. The judgment, therefore, must be affirmed.

The creditor, who holds the mortgage, is not a party to the record, and no judgment rendered in his favor would be binding upon the defendant. He has the right to proceed by the hypothecary action, for the amount stated in Mr. Justice Preston’s opinion; but we cannot give him a judgment before he demands it.

Judgment affirmed, with costs.

Eustis, C. J. 1 concur with Rost, J.


text:
    Alexander Grant v. John McDonogh.
    A proprietor who neglects to keep up the levees in front of his land, is hound to make indemnity for any damages resulting from the negligence.
    Even where the jury are justified in allowing exemplary damages, the damages allowed should bear some proportion to those sustained.
    APPEAL from the Second District Court of New Orleans. The case was tried by a jury before Lea, J.
    J. Q. Bradford,, for plaintiff.

      C. Roselius, for defendant.
   By the court:

Rost, J.

Plaintiff claims $31,000 damages, for the inundation of his plantation, during two successive years, alleged to halve been caused by the neglect of the defendant to make and keep in repair the levees in front of his lands, adjoining that of the plaintiff, above and below.

The case was tried before a jury, who found for the plaintiff $21,960 40. The executors of the defendant, who died after the institution of this suit, have appealed from the judgment rendered on the verdict.

It may be assumed, that the plaintiff’s petition sets forth a sufficient cause of action; that the defendant was bound to indemnify him for any damages arising from his, the defendant’s, negligence, in keeping up his levees in front of his lands. And, that under the facts of the case, the gross negligence of the defendant, after the repeated orders given to him, to repair his levees, was such a quasi offence, as left much discretion to the jury in the assessment of damages. Yet, there is a limit to that discretion, and we are of opinion that it has been far exceeded by the verdict.

Charrier, the plaintiff’s own witness, who seems to have had better opportunities of knowing the localities than other witnesses examined, has testified, that about the same time that the water entering through the openings in one of McDonogh’s levees, commenced flowing over the plaintiff’s land, there was a caving in of part of his other levee, and another, fourteen arpents wide, on the adjoining levee on the land of Rebise and Ouesnard; and that the water continued to flow over the plaintiff’s plantation during the entire season of high water of 1849.

Much is to be presumed against the defendant, by reason of his bad. faith; but crevasses fourteen arpents wide, on the banks of the Mississippi river, have never been stopped; and the possibility of closing two breaches in the levee, in this case, should have been shown, to authorize the presumption that they would have been closed, if there had been a substantial levee on the land of the defendant.

The probable estimate of the crops which the plaintiff would have made, if he had planted them, and if he had further put up the buildings and machinery necessary to manufacture the cane into sugar, are gi’eatly exaggerated, and would be, under any circumstances, most unsatisfactory evidence of the real damages sustained. Seaton v. Municipality No. Two, 3 Ann. 44.

No crop had ever been made on the place, and it is not shown that the plaintiff would have made one, in 1849, if the levee of the defendant had been in good order. As the loss of the seed cane, of the corn, and of the cord-wood, and the filling up of the drains, were the result of the overflow of that year, and there is no evidence that seed might have been pi'ocux'ed to plant a crop of cane in 1850, the real damage sustained in consequence of the last overflow, was the loss of the labor of eighteen slaves dux-ing part of the year, the injury to the land and buildings, the loss of interest upon the capital, and the delay of one yearin establishing the place as a sugar plantation. Itis true, the jury were not restricted to the allowance of such damages as would merely indemnify the plaintiff for the injury actually proved, but we think, that under the discretion vested in them by the third paragraph of article 1928 of the code, the exemplary damages allowed should bear some proportion to the real damage sustained, and that the verdict should not have exceeded $5000 ; to this amount the judgment must therefore be reduced.

It is ordered, that the judgment in this case be reversed. It is further ordered, that there be judgment in favor of the plaintiff against the defendant’s, executors of John McDonogh, for the sum of five thousand dollars, payable in due course of administration. The costs of the district court to be paid by the defendants; those of this appeal by the plaintiff and appellee.

Application for re-hearing refused.


text:
    Robert Peale et al. v. T. P. White. State of Louisiana v. Judge of the Fifth District. T. P. White, Praying for a Writ of Mandamus.
    The hequest of the interest of a fund in perpetuity, when the naked property in the fund is given to no one else in express terms, is evidence of the intention of the testator to bequeath the fund itself; and the meaning of the words used, should be ascertained with reference to that intention.
    If the deceased was a resident of England, transiently passing through our country, the disposition of his personal property, according to the laws of England, would be valid; but if the deceased was domiciliated in Louisiana, his personal property was domiciliated here with him, consequently he was obliged to dispose of it according to the laws of this State.
    The executor is not bound to deposit in hank the government stocks, nor the bills receivable, of the succession which he administers.
    The money' of the succession was inconsiderable, being not more than enough to pay expenses. The failure of the executor under these circumstances to deposit it in bank, is not a sufficient ground for removing him.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Grymes, Winthrop and Josephs, for plaintiff.

      Roselius and Livingston, for defendant.
   By the court:

Preston, J.

John Peal died in this city in July, 1839. On the 7th of that month, he made a will before a notary public, which was duly proved and registered in the Fifth District Court of New Orleans, and the execution thereof was ordered.

By the will he gave to his wife, Isabella Wilson, one hundred pounds sterling, per annum, during her life.

He gave and donated to the general school fund of High Hesket, in Cumberland county, in England, the total amount of the interest of his estate, real, personal and mixed. And in the event of the death of his wife, he willed, that the hundred pounds sterling, bequeathed to her annually, should be merged in his estate, and the interest thereof be enjoyed by the general school fund of High Hesket.

He appointed Thomas P. White, of New Orleans, his executor, with seizin of his estate. He also appointed three executors residing in High Hesket, in England. They have not qualified in this State.

The father, brothers, except one, and sisters of the deceased, have established their relationship to him, and caused themselves to be recognized as his heirs. They have caused the executor here, to render an account; have had him dismissed, because he did not keep the funds of the estate in a bank paying interest on deposits, as required by the Act of 1837. They also attacked the validity of the will, for many reasons, and succeeded in having it annulled by the district court, for one which is thus stated : “ Because no definite and ultimate destination is made of the property of the testator, the interest thereof only being bequeathed.” The court came to the conclusion, that a perpetual trust was created by the will, for the benefit of a third person, which is illegal in a testamentary devise in Louisiana, where the will was made and the property is situated; and, at all events, that White was not the trustee. Moreover, that no disposition of the capital of the testator’s estate was made, but only of the interest.

It does not appear where the deceased resided. His property was entirely persona], consisting of government stocks, bills receivable, and a small sum of money. If the deceased was a resident of England, transiently passing through our country, the disposition of his personal property, according to the laws of England, would be valid. And the official knowledge we have of those laws, enables us to say, that the bequests in controversy, are in conformity to the laws of England.

But if, as the district court considers the case, and the executor has not proved the contrary, the deceased was domiciliated m Louisiana, and, consequently, his personal property was domiciliated here with him, he was obliged to dispose it according to our laws.

The father is a forced heir for one-fourth of the property, was entitled to an account, and to have the executor dismissed, under the Act of 1837, for failure to keep the money of the estate in bank, or even the court might dismiss him ex officio for that cause.

But the difficulty is, that it does not appear by the record before us, that the executor has any money in his hands. The succession consists mostly of government stocks and bills receivable. The executor was not obliged to deposit them in a bank paying interest on deposits, because the bank would not pay interest on them. Nor was the deposit indispensable even for safe keeping. The executor, for the first year of his administration, and his security, after the first year, being responsible for the safety of the stocks and bills. The money was inconsiderable, not more than necessary to pay expenses. The record does not, therefore, present a sufficient evidence to justify the dismissal of the executor, and his punishment under the Act of 1837.

The year of his executorship having expired, the court should require him to give security according to law; and, in default thereof, dismiss him and appoint a dative executor.

The testator disposed of his estate in favor of a wife in England, and a school at High Hesket, in Cumberland county, in that kingdom. This evidently shows, that he intended, that all his effects should be sent there, and he appointed executors there to receive them. If there is nothing illegal in this disposition of his estate, we think the court should, as far as depends upon it, carry the will into effect.

I am of opinion, that there was nothing illegal in the devise, especially as it was to be executed in England. The testator created a capital sufficient to yield his widow, in England, an income of 100 pounds a year. This was a lawful bequest in favor of one for whom he was bound to provide.

He directed the remainder of his estate, in effect, to be capitalized, and the interest to be paid to the general school fund of High Hesket forever. It is my opinion, that the devise of the interest of a fund perpetually, is a devise of the fund itself. It has been so held in England and Massachusetts. 6 Watts, 14. Garret v. Rex, 6 Mass. Rep. 37. It is a reasonable interpretation of a bequest, and the only one by which the general principle, that the intention of the testator must be ascertained, can be carried into effect. The bequest was also a most useful disposition. He appointed executors in England, evidently to receive his estates, and carry these laudable dispositions into effect. The executors could easily do so in England, and the administration of the high school, accept and receive the interest on the estate. If the school had been established in this State, the administrators could, under the 1536th article of our code, have accepted it, and received the interest of the capital, which the executors might constitute out of the estate. It is true, the article is placed under the section of the code, which treats of donations inter vivos; but the principle is equally applicable to the acceptance of testamentary dispositions. I know, that equally wise and liberal principles of law exist in England; and, as the devise was in favor of an institution for education, which, I am bound to presume, is intended, like all such institutions, to be perpetual, the means provided to aid in its support, might, in like manner, be of a perpetual character.

I think the case should be remanded, with directions to ascertain whether or not the testator was an Englishman transiently on our shores ; and, if so, to carry the will fully into effect. But if, on the other hand, the court finds that the deceased was a resident of Louisiana, having acquired residence either by a year’s residence or an intention manifested to reside here permanently, that in that event, he distribute one-fourth of the estate to the father of the deceased; and that the balance be held by an executor or deposited safely in a bank, subject to the order of the executors in England, when duly qualified.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and the case remanded for further proceedings; and in conformity to the views expressed in this opinion, the succession to pay the costs of the appeal.

Rost, J.

I concur in the decrees about to be made in these two cases, Nos. 2418 and 2699, for the following reasons. I am of opinion, that the bequest of the interest of a fund in perpetuity, when the naked property in it is given to no one in express terms, is evidence of the intention of the testator to bequeath the fund itself, and that the meaning of the words used, should be ascertained with reference to that intention. 1 Prudhom, p. 4, No. 8. Dalloz, Verio Usu-fruit. Rolland de Vilargues verbo Usufruit.

If the bequest of the interest in property, is to be considered in law as a bequest of the fund itself, there is no perpetuity created in any sense, and the only questions remaining, are those depending on the place of domicil of the testator, and the capacity of the Hesket school to take under the will, which is not proved to my satisfaction.

Taking into consideration the facts, that the money of the succession was not much more than sufficient to pay the expenses of administration, I am of opinion, that until the will is set aside, at least in part, the executor cannot be removed from office, at the suit of the plaintiffs, because they have no interest in the succession. The judgment dismissing the executor, must therefore be reversed, and the case remanded to abide by the decision on the main issue.


author: Eustis, C. J. Preston, J.

text:
    Joseph Fellows v. Richard High and W. and J. Lockett.
    In an action against the owners of a vessel for damages, resulting from the improper conduct of the master to a passenger, the owners cannot be brought into court by a service of the citation on the master, or on the consignees.

      APPEAL Rom the Fifth District Court of New Orleans. This case was tried by a jury before Buchanan, J.

      Edwards and Rand, and C. Roselius, for plaintiff.

      Hunton and Bradford, for defendants.
   Eustis, C. J.

A majority of the court is of opinion that the defendants, John and William, Lockett, who are appellants, were not legally cited by the service of the citation on the captain of the bark Acteon, or by the service of the citations on Holmes and Mills. And the said appellants not having made themselves parties to the record, by any appearance in person, or by an authorized attorney, the judgment against them is not valid.

It is therefore adjudged, that the judgment of the district court be reversed, and the plaintiff’s suit be dismissed, with costs in both courts.

Preston, J.

dissenting. The plaintiff obtained a verdict against the master and owners of the bark Acteon, for five thousand dollars damages, for the violation of their contract to convey his two daughters, as cabin passengers, on board their vessel from Liverpool to New Orleans. They were girls, sixteen and twelve years of age, just from school, and were placed under the care and protection of the master, who, instead of affording them the comfort and security implied in his contract, exercised towards them indignities which amounted to attrocious outrages, and almost drove those children to desperation. The evidence, believed by the jury, so fully justifies the verdict as to the master, that it is unnecessary to recapitulate it, especially as much of it is of a disgusting character.

The responsibility of the owners of vessels, as to passengers, is settled in the cases of Keene v. Lizardi & Co., Arroy v. Carrell, and St. Amand v. Lizardi & Co. 5 L. R. 433. 1 L. R. 537. 4 L. R. 244. They are responsible for all damages done by the master, while acting within the scope of his power, and even for his torts. When carrying passengers, for money, the owners of vessels are subject to the same responsibility for a breach of duty, by the master, towards the passengers, as for their misconduct in regard to merchandise.

The owners of this vessel are, therefore, liable for the gross violation of contract, by their master, to these passengers, if they are properly before the court.

They are residents of Great Britain, and were cited only through the master in this city. They contend, that the citation was a nullity as to them, because the process should have been served personally, or at the domicil of the defendants.

In the case of Gazzam v. Wright, it was said by the late Supreme Court, that “ in certain cases, when the owner resides out of the State where the suit is brought, he may be legally cited by service of process on the captain.” I am under the impression that the article 199 applies to a master of a vessel in his capacity of master, and not in his individual capacity. And that service is to be made upon him for ail contracts, negligence, or even malfeasance, in the line of his duty. I can conceive of no case where the service would be sufficient, except when the owner is responsible for the contract or conduct of the master, and if sufficient in any, it must be so in all such cases.

I yield to the opinion of the late Supreme Court. The owners and master are responsible in solido in such cases. The master is allowed to sue in a foreign port on behalf of the owners of his vessel, when, by his act or contract, a right accrues in their favor; vice versa. I can see no reason why he should not be sued on their behalf when a liability is incurred by them, from his acts within the scope of his employment as captain.

Counsel appeared in this suit to protect the interest of the owners. They were no doubt informed of the suit long before it was tried. Had the owners appeared, dismissed the master, disavowed allhis conduct, so far as by presumption of law it bound them, I should have thought the verdict against them should have been almost nominal. Instead of dismissing the master, and offering some atonement to a father for the injuries to his children, while protecting their interest, joined in a course of examination and cross-examination of witnesses not necessary to their protection, but calculated to aggravate his already deeply wounded feelings.

It is our duty to recommend moderation to juries, to administer justice in mercy, and to refuse vindictive damages wherever it is possible. And we would have approved of a distinction in this case, between the master and his employers ; but since the jury, having the whole case and its conduct before them, and especially the mass of unnecessary and aggravating testimony on behalf of the defendants, did not see proper to make a distinction, we do not feel authorized to interfere with their decision.

I think the judgment of the district court should be affirmed, with costs.


author: Preston, J.

text:
    Gardner, Sager & Co. v. O’Connell and Gould.
    The court will not grant a continuance on the ground that a commission has not been returned, where the application for the commission was not made in time.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Grymes and Lee, and Soselius, for plaintiffs.

      Hunton and Bradford, for defendants.
   By the court:

Preston, J.

The plaintiffs bring this suit against the defendants for the price and charges of a large lot of corn, purchased by their order, on their account, and consigned to them, at Liverpool, by the ship Edinburgh, in May, 1847.

The suit was instituted on the 4th of February, 1850. The defendant, Gould, after a judgment by default, filed for answer a’general denial, on the 27th of that month. The cause was tried on the 13th of January, 1851.

The defendant moved for a continuance, on the ground that he had not yet obtained his evidence. He made affidavit that he had, in September, obtained a commission to examine witnesses in Liverpool, which had not yet been returned, and complained that the commission had been delayed sometime for the want of plaintiffs’ cross-interrogatories. We find, in the record, no order for a commission, but suppose it issued; yet, as it must have issued, as appears by defendants showing, five or six months after the cause was at issue, the failure to obtain its return could not be a sufficient reason for a continuance of the cause. Besides, deducting the delay caused by plaintiffs’ counsel to cross the interrogatories, there was ample time, for the execution and return of the commission, before the cause was tried.

Under the circumstances presented, the absence of defendants’ counsel, when the cause was called for trial, was not a sufficient ground for its continuance. The defendant was assisted by counsel, and he had no evidence which should have produced a different result if his counsel had been present.

It was impossible for the district judge, without entirely disregarding the principles of law and rules of practice, so as to have subjected his court to whatever parties might in future demand, to have granted a continuance; and, as the same grounds, substantially, were presented in support of the application for a new trial, they are untenable.

And yet, from proceedings in the case, from papers spread upon the record, though not in such a manner as to have enabled the district court to have proceeded otherwise than it had done, we have reason to fear that the defendant, an unfortunate stranger, has been hardly dealt with in the whole business, and if the laws enabled us, consistently with the practice and precedents of courts, to afford relief, we would certainly endeavor todo it. We have no power, however, to reverse the judgment, as the case is presented by the record.

The judgment is affirmed, with costs.


author: Eustis, C. J. SniDEim, J.,

text:
    Henry Buchanan v. H. R. Morgan et al.
    J sold lots to W, who recorded his deed. W resold to J, who did not record his deed. J, several years afterwards, sold the lots to H, who sold them to T, who sold them to plaintiff, who paid taxes upon them, and assumed in every respect, the responsibilities of possession and ownership. The titles of H, of T, and of plaintiff, were duly recorded. The defendant seized the lots to satisfy a judgment obtained against W, after tho plaintiff had acquired title. Plaintiff' enjoined the sale. Held: The failure of J to record the reconveyance to him, was cured by the subsequent conveyances and possession under them; and the plaintiff’s title was valid against the creditors of the original owner, W.

    APPEAL from the District Court of the parish of Jefferson, Clark, J.

      Wolfe and Singleton, for plaintiff.

      Durant and Ilorner, for defendants.
    By the act of March 25th, 1810, chapter 25th, section 7, it is “ provided that no notarial act concerning immovable property, shall have any effect against third parties, until the same shall have been recorded in the office of the judge of the parish in which such immovable property is situated.” Bullard’s Digest, p. 596. This law is not repealed.

      Carraby v. Desmarre and the Sheriff, 7 M. N. S. 661. Gravier v. Barron et al-, 4 L. R. 239.
    By the act of 1st June, 1846, (Session Acts, p. 71,) the parish recorder is register of conveyances, and exercises all the powers, and performs all the duties that appertain to public notaries in general, and to the parish judges when acting in the capacity of public notaries. Sections 1 and 3 of the act quoted.
    The law, then, being plain, clear, and indisputable, it follows, that as to I-Ienry R. Morgan and the sheriff, the defendants herein, the act of sale from Albert Wintercast, of the 19th June, 1844, has no effect, because it was not registered in the office of the register of conveyances, until long after the property had been seized by Morgan on his execution against Wintercast. See, also Hagan v. Williams, 2 L. R. 122. McManus v. Jewett, 6 L. R. 531. Mary v. Lampré, 6 R. R. 314. Crear v. Sowles, 2 Ann. 598. Tulane v. Levinson, 2 Ann. 787. Tate v. Williams, 2 Ann. 868. Stockton v. Craddick, 4 Ann. 286. Campbell v. Slidell, 5 Ann. 274.
   By the court: (Slidell, J., dissenting.)

Eustis, C. J.

The plaintiff obtained an injunction against the sale of two certain lots, situate in the former Nun’s faubourg, in the parish of Jefferson, which had been seized under an execution against Albert Wintercast.

The district court maintained the injunction, decreeing the lots to belong to the plaintiff, and not to be subject to the judgment against Wintercast. The defendant, who is the judgment creditor of Wintercast, has taken this appeal.

On the 3d of October, 1843, O. P. Jackson sold the lots to Wintercast, by public act, which was duly recorded. On the 19th of June, 1844, Wintercast reconveyed the lots to his vendor, Jackson, by public act, which was not recorded. On the 14th of December, 1848, Jackson conveyed the lots to Hyde. Hyde conveyed them to Thomas, and Thomas to the plaintiff. These three conveyances from Jackson to Hyde, Hyde to Thomas, and Thomas to the plaintiff, purport to be sales for a valuable consideration, and were by public act duly recorded in the parish of Jefferson.

The ground, on which it is contended the lots are subject to the judgment and execution against Wintercast, is, that the act of sale from Wintercast to Jackson, was never recorded as required .by law. The district judge was of opinion, that this defect was cured by the registy of the subsequent acts, and the possession under them; and on the authority of the case of Stockton v. Briscoe, 1 Ann. 249, held the plaintiff’s title to be valid against the creditors of the original owner, Wintercast.

The judgment under which it is attempted to affect the property in the hands of the plaintiff, was not rendered until April, 1851; the debt in which it was rendered, only originating in September previous, in the city of New York. By the act from Wintercast to Jackson, in 1844, Wintercast divested himself of possession of the lots in favor of Jackson, who acknowledged himself to be in possession thereof. In 1849, they were assessed in the tax roll as belonging to Hyde, and in the assessment of 1850, as the property of the plaintiff.

The law considers the tradition of real property, as accompanying the public act of sale, and every obstacle to the corporal possession interposed by the seller, is held to be a trespass. Code, 2455.

The vendors of the plaintiff, had not only the possession resulting from the sales, but stood upon the tax records of the State as owners of the property, and openly assumed the responsibilities and charges of possession and ownership. Under the principles recognized by this court, in the case of Poydras v. Laurans, 6 Ann. 771, and cases there cited, the decision of the district court is clearly right.

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

SniDEim, J.,

dissenting. By the act of March 25th, 1810, chapter 25th, section 7, it is “provided, that no notarial act concerning immovable property, shall have any effect against third parties, until the same shall have been recorded in the office of the judge of the parish, in which such immovable property be situated.

By the Act of 1846, p. 71, (the office of parish judge having been abolished,) the office of parish recorder was established.

My views on the subject of registry, in cases not characterised by fraud, have differed from those of my brethren. I stated them at some length, in Stockton v. Briscoe, 1 Ann. 249. They have undergone no such change in any particular, as would enable me to concur in the decree in the present case; but I do not conceive it suitable to state them again at length. I, therefore, refer to what I then said, and to the cases cited below.

The doctrine, that an omission to register, is cured by the registry of a subsequent title, accompanied by possession, has always seemed to me dangerous, particularly with regard to uncultivated lands, or vacant lots in towns or cities. I do not see how, under this theory, an individual can safely buy, or a bank or capitalist safely loan money, upon unimproved lots, or uncultivated lands. The common course of examination of title, by the attornies of banks and individuals, has been to trace the title down by a satisfactory chain of conveyances, to the person proposing to sell or mortgage, and obtain from the recorder or register, certificates of freedom, from sales or mortgages by him; and the more cautious, properly take like certificates as to the antecedent proprietors. But upon the theory of Stockton’s case, it would be necessary to have a general search, to see if any individual, other than the proposed vendor or mortgagor, had sold or mortgaged the property in question. A recording officer might, I think, lawfully l’efuse to give such a certificate. But if he were willing to undertake such a search, the labor of weeks would be required in New Orleans for one certificate, and the duties of the office would become impracticable. A strict construction of the registry laws, must undoubtedly result in cases, of individual hardship. But will not the opposite interpretation, lead to results equally, or even more dangerous 1 Under the former, the diligent are safe. Under the latter, the assurance of safety, is almost an impossibility. Aside, however, from the consideration of results, what is the legal meaning and effect of the very stringent language of the statute ? See Carraby v. Desmarre, 7 N. S. 661. Gravier v. Barron, 4 L. R. 239. Hagan v. Williams, 2 L. R. 122. Mary v. Lampré, 6 R. R. 314. Tulane v. Levinson, 2 Ann. 787. Crear v. Sowles, 2 Ann. 698.

I am not aware that our jurisprudence makes a distinction in this matter, (which the statute does not make) between a judicial mortgagee, and a conventional mortgagee, between a creditor who attaches, and a purchaser who buys from the vendee, who has already sold by a deed, which the previous buyer had neglected to record.

What would be the effect of actual possession for a length of time sufficient under the code, to form the basis of a plea of prescription, is a question not presented in this cause.

The natural equity of this case, is against the defendants; but I think the law is in their favor.


author: Rost, J. Eustis, C. J.

text:
    A. T. Stewart v. W. M. and J. Lapsley.
    A debtor, in embarrassed circumstances, cannot lawfully place bis property out of the reach of bis creditors, nor is he justified in distinguishing between them, and leaving the debts arising from bis endorsements unsatisfied. And it makes no difference whether a sale, made to accomplish such illegal purposes, was advantageous or not to the creditors. Articles C. C. 1964 and 19, cited and applied.
    APPEAL from the Second District Court of New Orleans. This case was tried by a jury, before Lea, J.

      T. B. Hart, for plaintiff.

      C. Roselius, for defendant.
   By the court: (Slidell, J., dissenting.)

Rost, J.

We have reason, from the perusal of the record in this case, to be fully convinced, that the Lapsleys were insolvent when they sold their entire stock in trade to Turner, on long terms of credit, and without security ; that the object of the sale was certainly to delay, and probably to defeat, the plaintiffs, and others of their creditors, in the pursuit of their legal rights, and that Turner was apprised of their situation, and .of the object they had in view, when he purchased. The only question left doubtful by the evidence is, whether the sale was fraudulent or simulated. And, although it might be important to ascertain its true character, if Turner claimed, in kind, the goods taken by the sheriff in execution, that question is not material to the issue which the case presents.

The goods have been sold by the sheriff. Turner sued in affirmance of the sale, and claims damages, alleged to have been sustained by him in consequence of it. He must, as other litigants, come into court with clean hands; and it is enough to defeat his action, that he was a party to the fraud perpetrated by his vendors, and had notice of it.

The verdict would have done injustice to the plaintiffs, if the sale from Lapsley to Turner had been a fair and honest transaction, and can only be accounted for by the delusion, which seems to prevail among all classes, that when a debtor finds himself unable to meet his engagements, and is hard pressed by some of his creditors, he may lawfully place his property out of the reach of legal process, and constitute himself, as it were, his own syndic. Nay, the delusion does not stop there. Out of the proceeds of the property thus made away with, the debtor is considered justified in distinguishing between his creditors, and leaving the debts arising from endorsements, unsatisfied. The testimony of the defendant, Turner, was given under the influence of that delusion. His witnesses testify, that the course pursued by the Lapsleys, in selling their stock as they did, was to the best of the interests of their creditors ; and the jury evidently acted upon that testimony. In this the error of the verdict ¡consists; whether the sale was advantageous to the creditors generally, or the reverse, was not the question before them.

Every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and aught, as respects such creditor, to be avoided. C. C. 1964.

When, to prevent fraud, the law declares certain acts void, its provisions are not to be dispensed with, on the ground that the particular act in question has been proved not to be fraudulent. C. C. 19.

The avowed object of the sale being to delay the. plaintiffs in the pursuit of their legal rights, came within art. 1964; and the jury were precluded by art. 19 from inquiring whether or not the sale was fraudulent.

We differ with the jury as to the good faith of the Lapsleys. They had abundant means of protecting the rights of the other creditors if they had really intended to do so. If, as they wrote to them, they only wanted time, they should have applied for a respite. If, as we believe, they were hopelessly insolvent, it was their duty to have made a voluntary surrender of their property. Any act beyond these remedies, by which the rights of individual creditors on the property of their debtor are intentionally delayed, or in any manner interfered with, is illegal; and no claim in damages or action of any kind can be predicated upon it, by any party to that act having knowledge of the intention.

It is therefore ordered and decreed, that the judgment in this case be reversed, and that there be judgment in favor of the plaintiffs in the original suit, and against the defendant, Turner, with costs in both courts.

Same Case — On an Application for a Re-hearing.

By the court: ' (Slidell, J., absent.)

Eustis, C. J.

The counsel for the appellees has asked for a re-hearing in this case, on the ground that the sheriff had no right to make the seizure of the goods in the store, even if the sale was fraudulent; and that, consequently, nominal damages must be due for this illegal act.

Conceding this to be true, the damages, under our view of the case, would be strictly nominal, for a sum over which the court of the first instance would not have jurisdiction.

We therefore, according to the uniform usage, give a party nothing, where his right amounts only to so small an amount, of which the law scarcely can be said to take heed. Those demands can be recovered before justices of the peace; but the higher courts aught not to be occupied with them.

The re-hearing is therefore refused.


author: Rost, J. Rost, J. Eustis, C. J.

text:
    R. D. Shepherd v. Mark Phillips & Co.
    It will be presumed, unless the contrary appear, tliat all the parties to an agreement had knowledge of their legal rights ; where, therefore, there are ambiguities and conflicting stipulations in the agreement, and one party claims the waiver of a legal right by the others, in his favor, the ambiguity will be construed against the party claiming the benefit; for it was incumbent on him to have given such explanations, at the time of entering into the agreement, as would have prevented the doubt.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. K. Josephs, for plaintiff.

      E. Briggs, for defendant.
   By the court: (Slidell, J., absent.)

Rost, J.

On the 20th May, 1846, the following agreement was entered into by the parties to it:

“ It is hereby agreed between the undersigned, mortgage creditors of the Orleans Cotton Press Company, for the following sums, viz: R. D. Shepherd, four judgments in FifthDistrict Court, for about $205,000; J. Y. de Egana, one judgment in Criminal Court, for about $36,000; John Slidell, one judgment in Commercial Court, for about $15,000 ; Mark Phillips, one judgment in Commercial Court, for about $20,000; Sam’l Nicholson, one judgment in Commercial Court, for about $6,000, and that execution shall be issued on said judgments, and said R. D. Shepherd is hereby authorized and empowered to purchase at the sheriff’s sale, for the account of the undersigned, in his own name, all the mortgaged property described in the several acts, and which is bound for the payment of the above claims, to be held and disposed of by him for their account, and each of the undersigned is to be interested in said purchase in proportion to the amount of his claim; and, to the end aforesaid, the undersigned do further authorize and empower the said R. D. Shepherd to raise their several mortgages and judgment claims now due, so as to meet the cash payment required at the sale to be made as aforesaid; and in the event of a resale to a profit to said R. P. Shepherd, which resale, at profit, he is hereby authorized to make, such profit shall be ratably divided as aforesaid; and should any future difficulty arise between the parties as to the partition of said property or its proceeds, in relation to any priority of lien or mortgage, that may be claimed by one or more of them over the other, such difficulty shall be made the subject of an amicable suit, to be submitted, by consent, to the Supreme Court for decision. It is well understood, that the said R. P. Shepherd should not bid for the property, up to the whole amount of the claims of the undersigned; and if the property is bought in for less at the sale, yet, as between the undersigned, it is to be considered as having been purchased at the amount of the entire claims, so as to leave each one interested in proportion to his claim, and to avoid, as far as possible, between themselves, any question of priority of rank between them. In faith whereof, they have hereunto signed their names, this 20th day of May, 1846. This agreement, as soon as signed, to be deposited with H. £. Cenas, Esq., notary public, for safe keeping. Signed: R. D. Shepherd ; Mark Phillips by A. SfJ. Dennistoun Sp Co., agents; J. Y. de Egana; John Slidell, for H. C. Cammack; SamH Nicholson.”

Under this agreement R. P. Shepherd purchased, in his own name, the property to which it refers, for the price of $270,000, which, after deducting costs and arrears of taxes, left the sum of $266,744 55, subject, according to the sheriff’s return, to such distribution as the court might make between the creditors of the company. The plaintiff has since had the management of the property, and has purchased the claim of Phelps, Podge 8p Co., the party represented in the agreement by SamH Nicholson, for the common benefit of the other parties to that agreement. He has now in his hands, for distribution among the shareholders, a sum of $15,541 27, proceeding from the rents of the property.

He has made a distribution of it among the shareholders, on which the dividends are in proportion to the amount of their respective claims, without regard to the priority which some of those claims have over others, but as his construction of the agreement is at variance with that of the other parties, he has instituted this proceeding for the purpose of ascertaining the proper division of the property and its revenues among the shareholders.

The latter have appeared, and oppose the distribution made, on the following grounds: That the stipulation in the agreement, that the price should be considered as between themselves, the amount of their claims had necessarily reference to those claims as recognized and settled in the form provided in the agreement itself. That by a decree of the Supreme Court, rendered on a rule to which all the parties hereto were also parties, these several claims were finally liquidated, and it was decreed, that the holders of the bonds of the first series were entitled to be paid in preference to the holders of the second series, whose mortgage had never been reinscribed. That under the judgment in that case, the holders of the bonds of the second series were entitled to a dividend of 29| per cent on the sum of $23,902 24, the balance of the purchase money after paying the claims to be declared to be of higher privilege; that of the amount claimed by the plaintiff, $56,657 63 is claimed for bonds of the second series, and, for which, under the decree, he is only entitled to the sum of $16,855 44. That the decree df the Supreme Court finally settled the interest of the parties, and forms res judicata.

They pray that their shares in the property and its rents, be fixed according to the principles of that decree.

The case was submitted to the district judge, without .argument, and the judgment rendered was in conformity with the prayer of the petition. The defendants have appealed.

The different stipulations of the agreement, cited on both sides, seem to be in direct conflict with each other; and if, in endeavoring to construe it, we should fail to reach the common intent of the parties, they alone will be to blame for having created a state of things to which rules of law cannot be applied with any degree of certainty.

The stipulations upon which the plaintiff relies, seem to imply a waiver of any right of priority by the purchasers. But if a waiver was intended, why was it not expressed in the act. So far from this being the case, it is stipulated, that should any difficulty arise between the parties, in relation to any priority of lien or mortgage that may be claimed by one or more of them over the others, such difficulty shall be made the subject of an amicable suit, &c.; and, further, the purchase shall be considered as having been made for the whole amount of the claims of the purchasers, to avoid, as far as possible between themselves, any question as to priority of rank. This expressly reserves the question of priority, which the other stipulations seem to waive, and hence the difficulty which the case presents.

It is not pretended that the agreement was entered into under the influence of any error of law or fact, by any of the parties to it. I must, therefore, take it for granted, that they were all apprised of their legal rights, and that the plaintiff had knowledge that the claims of the defendants were entitled to the preference over so much of his own, as rested upon bonds of the second series. He now insists, that the agreement is a waiver of the right of priority, made by the other parties, for his benefit. Under those circumstances, I am of opinion that it was incumbent upon him to have given such explanations, at the time, as would have prevented doubt or ambiguity; and, as he failed to do so under the express provision of article 1953 of the Civil Code, the construction most favorable to the defendants should be adopted.

The purchase was made on the 29th June, 1846. On the 3d of July following, the counsel of plaintiff, on informing the court of that fact, and suggesting that the certificate of the recorder of mortgages shows a large number of bonds, secured by mortgage, on the property sold, besides those sued upon by the said Shepherd, the plaintiff in the suit, and, in order to determine among all the bondholders and mortgage creditors, their respective claims for priority fully and finally, as well as to obtain the erasure of said mortgages, took a rule on all the mortgage creditors of the company, except the defendants in this suit, to show cause why their mortgages and privileges should not be erased, on the ground of the priority of the mortgages of himself and the defendants. He did not ask that the defendants should be cited, buthe prayed for citation against Phelps, Dodge Sf Co., one of the parties to the agreement, and entitled under it to the same rights as the plaintiff, although not a judgment creditor.

The defendants, though not cited, appeared, as well as Phelps, Dodge 8f Co., by separate counsel, and each litigated his claim against all the other creditors, the plaintiff among the rest. Upon the separate issues thus formed, and having all the essential characteristics of a proceeding in concurso, a judgment was rendered by the district court, recognizing the right of the plaintiff to be paid by preference, the amount of his judgment on bonds of the second series, rejecting the claim of Phelps, Dodge &? Co., and ordering their mortgage to be erased upon the books of the recorder. Phelps, Podge Sf Co. and other creditors appealed, and an agreement in relation to the manner of bringing up the record, was signed by the counsel of each creditor.

On the appeal, the contestation was renewed in this court; the judgment giving a preference to the plaintiff, over Phelps, Podge &f Co. and other holders of bonds of the second series, was reversed. His reinscription was adjudged not to be valid, and his claim ordered to share pro rata with those of the other holders of the same series of bonds. 2 Ann. 100.

This judgment was in a suit instituted by the plaintiff himself. All the parties to the agreement were parties to it, and as it is res judicata as to Phelps, Podge Sf Co., who have the same rights as the plaintiff under the agreement, and it is conceded that they have only received for their claim the dividend which that judgment allows them, it is extremely difficult to avoid the conclusion, that the judgment has also finally determined the question of priority against the plaintiff, and in favor of the defendants.

The rule did not give the court to understand, that the question of priority was not open’between the purchasers of the property, or that it had been waived by them. It was expressly taken in order to determine, among all the mortgage creditors, their respective claims for priority fully and finally, and represented the question as open in relation to the claim of Phelps, Podge Sf Co. If open as to them, it must have been equally so as to all other parties to the agreement, and the judgment should have the same effect as to all.

If the plea of the thing adjudged could not, on 'technical grounds, be maintained, yet, as showing the interpretation put by the plaintiff, upon the agreement, the proceedings on the rule would be sufficient to bind him. He made no reservation of any rights he might have under that agreement, and, in my opinion, waived those rights by testing the claim of Phelps, Podge 8f Co., in all respects similar to his own, and suffering a judgment to be entered against him, in favor of his co-purchasers, on the question of priority.

I am of opinion, however, that, under the agreement, two hundred and eighty-two thousand dollars should be considered the price of the adjudication of the cotton press, and that the rights of the parties in this suit should be settled on that valuation.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that the rights of the parties to the agreement which forms the subject of this litigation, in the property of the press, be settled and established on the following basis: The press was purchased at$282,000. From this amount is to be deducted, 1st. The daifas preferred to those of the parties, consisting of charges and privileged claims, as per tableau of distribution, $25,387 43. 2d. Those of the holders of the first series, paid in accordance with tableau, $5,516 19=$30,903 62, leaving $251,096 38. 3d. Amount of the dividend paid to the holders of the third series, not parties to the agreement,$7,028 64. Balance to be distributed between parties to the agreement, $244,067 74. Of this two hundred and sixteen thousand two hundred and eighty-one dollars and forty-nine cents, was contributed by the holders of the bonds of the first series, to wit: R. P. Shepherd,- Lizardi Sf Co., John Slidell and Mark Phillips, under the decree as per tableau, leaving as a dividend due to Mr. Shepherd, as holder of bonds of the second series, twenty-seven thousand seven hundred and eighty-six dollars and twenty-five cents, instead of sixteen thousand eight hundred and fifty-five dollars and forty-five cents. And, it is farther ordeped, that the dividends due on the several interests, be distributed accordingly, in the account filed, so far amended; and that the appellees pay the costs of this appeal.

Preston, J., concurred.

On an Application for a Re-hearing.

By the court:

Rost, J.

The petition for a re-hearing in this case appeared to me deliberately offensive, but as my brethren were willing to act upon it, I have perused it with great care.

The perusal has not been unattended with advantage, as it has fully satisfied me of the correctness of the judgment.

The counsel regrets to be compelled to raise a direct issue of fact with the court. Any body may raise issues of fact with us, but the question on every particular case is, whether it can be fairly done; the issue of fact raised in this case, does not rest on truth, but on mere verbal criticism, to which all judicial opinions ai’e more or less obnoxious. The opinion assumes, that the plaintiff knew his rights, because it was no where alleged or shown that he had not. But suppose that all the parties to the agreement contracted in ignorance of their legal rights ■ as to priority. Still, under the view which the counsel takes, it was intended to benefit .some of them; and after it was ascertained by the judgment of classification of the mortgages, that the plaintiff was the party protected by it, and he claimed that protection, it was true to say, that he claimed a waiver of the right of priority, made by the other parties, for his benefit; if not nominally, at least, substantially under the decree of the court; and whether he knew his rights originally or not, the rule of law invoked against him is equally applicable.

It may be true that the agreement was the work of the other parties as well as his own; but the difference between them is, that they claim nothing under it, and he does. They say that the leading object of it was the purchase of the cotton press; that this object has been attained, and they are satisfied with the position given them by the judgment of classification. If they sought to disturb that judgment, under the agreement, they would fail, for the reasons which have caused the failure of the plaintiff.

The court had not the most remote intention in applying article 1953 of the code to the case, to charge the plaintiff with concealment or bad faith. First: because we know him to be incapable of either; and, next, because we considered that if the common intent of the parties was as now represented, his adviser alone was to blame for not having placed the matter beyond doubt in the agreement, and for having caused the rank of the mortgages to be finally determined between all the creditors, without reference to it. It was reserved for the plaintiff’s counsel himself, to subject his client to imputations which never entered our thoughts. We assumed, in the opinion, that the plaintiff knew that the claims of the defendants were entitled to the preference over so much of his own, as rest upon bonds of the second series.

“ So far from this being the case,” says the learned counsel, “ at the period the agreement was entered into, it was the firm conviction, of all the parties to it, that the bonds of the second series had primed and obtained preference over those of the first. It was not until the decree of this court, on the subject, that the parties were apprised of their legal rights.” Be it so; and how does the matter stand upon this and another statement of the learned counsel. “ He informs us, that the individual interest of the nominal plaintiff, himself a holder of a very large amount of bonds of the first series, is identical with that of the defendants themselves, over fifty thousand dollars of the bonds of the second series having been sent to him, and put in judgment, for account of Messrs. Morrison 8f Son, of London, who are still sole owners of the same, and the only real plaintiffs in this controversy.”

The bonds which have given rise to this litigation, belong to Morrison Sf Son, and the plaintiff merely acted as their agent in making the agreement. He had the firm conviction, at the time, that those bonds are entitled to priority over his own, and yet his counsel contends that he entered into an agreement by which he betrayed the confidence placed in him, and enriched himself by renouncing, without necessity, vested rights which he was firmly convinced his principals had. I say, without necessity, because it is not only conceded, but strenuously insisted upon, that the defendants were in his power, and could impose no conditions upon him.

It does not matter what the decree of the court in those rights subsequently was, the morality of the act must be tested by the belief of the plaintiff, at the time, and his counsel cannot maintain his argument without convicting him of a flagrant breach of good faith and common honesty.

If the intention of the parties appeared doubtful, under the agreement, the high character of the plaintiff would justify the conclusion, that he never renounced rights which he could not have renounced without disgrace. But his action in the matter does not rest upon mere conjecture, as I will presently show. Reference has been made by the counsel, on both sides, to the agency of the counsel of Lizardi &f Co., in the making of the agreement now at issue; and, as that counsel has no interest in the cause, I have not hesitated to avail myself of his statement in relation to all the occurrences of that transaction. That statement, connected with other facts of indisputable truth, has satisfied me that no trace of this business has remained on the mind of the plaintiff’s counsel, and that the common intent of the parties is totally misapprehended by him.

The lands and buildings of the cotton press had cost between seven and eight hundred thousand dollars. Besides the double square actually built upon, there was a batture nearly seven hundred feet front, extending over a hundred feet towards the river, and increasing rapidly. Unimproved property had formerly been selling in that neighborhood at near $1,000 a foot front, and at the time the sale of the press took place, it was still selling for nearly double what it sells for now. It did not, at first, enter the minds of the parties to the agreement, that the' property about to be taken, under execution, would not sell for more than enough to pay the debts of the company ; and all the clauses in the agreement but the last, were evidently prepared, under the influence of that belief.

The defendants authorized the plaintiff to purchase the property, and to use their judgments and mortgage claims in any way he might see fit, to meet the cash payment which they anticipated he would have to make over and above the mortgages. Believing further, that by forcing a sale for cash, they would be enabled to purchase the property below its real value, they provided for the case of a resale at an advance, in which the profits would, of course, have been ratably divided, if the price given for the property had exceeded the amount of the debts, as they supposed it would.

They considered the necessity of determining the rank of the mortgages as a remote contingency, not likely to happen, but still they made provision for it, and expressly reserved the right. Such a reservation was in all respects consistent with the preceding parts of the agreement; and the argument, that it was intended to refer to new difficulties which might arise from the agreement itself, requires no answer.

The project of agreement had progressed thus far, when it was shown to Lizardi’s counsel, who thought it ambiguous, and asked the plaintiff and some of the defendants, “ if priority was to be waived by them, why the fact was not clearly stated in the agreement?” The answer was, “that some were acting as agents, and were unwilling expressly to bind their principals in that manner.” And here I find Mr. Shepherd where I was sure to find him ; he was agent of Morrison and Son, and firmly believed that they were entitled to priority over himself. When asked why he did not waive the right of priority in their behalf, he peremptorily refused to do so, as in honor and good faith he was bound to do, under the belief he entertained.

Lizardi’s counsel being then informed, and believing that the parties to the agreement were the only parties interested in the proceeds of the sale, suggested that he would draw up a clause which would, as he thought, prevent the question of priority from arising; and he drew up the last clause, providing, that if the property was bought for less than the whole amount of the claims of the parties to the agreement, yet, as between them, it was to be considered as having been purchased at the amount of the entire claims, so as to leave each one interested in proportion to his claim, and to avoid, as far as possible, between themselves, any question as to priority of rank.

Mr. Shepherd and the defendants acceded to the proposal, under the belief that the property could not sell below that limit, and that, at that price, it would be an advantageous investment.

This clause was inserted, with the implied understanding that the question of priority was not finally waived. If, as represented to Lizardi’s counsel, the entire proceeds of the sale had gone to the parties to the agreement, it would have been avoided; but, as under a decree of this court, nearly forty thousand dollars of the price had to be applied to the payment of other debts, it is clear that it remained open, until it was finally closed by the judgment of classification.

The plaintiff was either influenced by the advice of his counsel, or by motives of delicacy, when he proposed to distribute the funds in his.hands, in the manner most advantageous to himself. But I am convinced that this mode of distribution would neither be just towards him, nor in conformity with his intention in making the agreement for the purchase of the cotton press.

In conclusion, I will say that I was not at first entirely satisfied with the decision; but, with the statement of the counsel of Lizardi, and the new facts disclosed in the petition for a re-hearing, the case appears to me as free from difficulty as any I have ever decided ; and I feel no uneasiness as to the authority which the decision is to have hereafter. Re-hearing refused.

Eustis, C. J.

I regret to be obliged to withhold my concurrence in the elaborate opinion prepared by Judge Rost. My brethren being against granting a re-hearing, after a very elaborate review of the subject, I waive my own convictions, and concur in the refusal.