text:
    Salter et al. v. Duggan et al.
    A provisional seizure may be dissolved summarily by a rule to show cause, where the apprehensions of the plaintiff, which led to the seizure, is clearly proved to be Unfounded.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Schmidt, for the appellants.

      Bradford, for the defendants.
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

This action was for the amount of work and materials done and supplied for tho owners of the Wave. A personal judgment was claimed, and also a decree of privilege upon the vessel. A provisional seizure was obtained, which, upon rule, the district judge dissolved, the testimony disproving the alleged intention to remove the vessel. To the admission of this testimony the plaintiff excepted, “on the ground that there is no law authorizing a defendant in such caso to disprove, in this summary manner, the plaintiffs’ declaration under oath.” It will be observed that the rule taken, and the testimony adduced, did not go to the main action, but simply to the plaintiffs’ right to a conservative process, by which he desired to protect an alleged accessary of his claim. Considering the severe nature of the proceeding, which anticipates the ordinary course of the law, and deprives the defendant of the possession of his property before judgment, upon the esc parle showing of his adversary, we think it is proper to grant a summary hearing upon rule, and to relieve the defendant from the seizure, where the apprehension of the plaintiff is clearly proved to be mistaken or unfounded. The main action is undisturbed, and is left to be tried in the ordinary form. Judgment affirmed-.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Short v. The City of New Orleans et al.
    Novation can only be established by an express declaration to that effect, or by acts tantamount to such a declaration. Tlie attending circumstances must be weighed with exactness, to ascertain whether the parties have really intended to make a novation and release the original debtor,
    from the Fifth District Court of New Orleans, Buchanan, J.

      Denis, for the plaintiff.

      Morel, for the appellants.
   The judgment of the court

{King, J. absent,) was pronounced by

Eustis, C. J.

The plaintiff alleges that he was, in 1845, the owner of certain coupons of interest due on bonds issued by the corporation of the city of New Orleans; that to provide for the payment of these coupons the mayor drew his three drafts, in different sums, on each of the municipalities; that the draft for the proportion of the Third Municipality was for the sum of $301 70, payable one year after date, and, after having been accepted by the treasurer of the municipality, was protested for non-payment, of which the drawer had notice. The plaintiff brought his suit against the Third Municipality and the former corporation of New Orleans, and obtained judgment against each for the amount of the draft, with costs. The parties representing the latter corporation have appealed.

The principal ground of defence presented in the written argument of counsel is, that a novation of the original debt had been produced, by the surrender of the coupons and tailing the drafts on the municipalities, and that thereby the original debtor is released.

The very argument that a novation has taken place, seems to us to exclude the conclusion that the old corporation was not bound on the draft which the creditor received as an equivalent for the obligations of the corporation which he j surrendered. Without an express declaration to that effect by the creditor, or j acts tantamount to such a declaration, it can never be held that an original debtor I is released. This rale is well settled, and is always adhered to in questions ocS curring in the changing of debts. Courts are bound to weigh with exactness all ;the attending circumstances of transactions of this kind, in order to ascertain / whether the parties have really intended to make a novation of their debts,and to release the original debtors by the substitution of others. Pardessus, Droit Commercial, vol. 2, § 221. Not that we consider any responsibility attaches to the old corporation from the signature of the mayor to the draft as an ordinary commercial instrument, because it is not of that character, nor has any authority been shown to bind that corporation in that form; but, from the whole transaction, as it is before us in argument, wo think the original debt has not been changed, and the original party to be liable. Judgment affirmed.


text:
    Stockton v. Craddick.
    attachment by a creditor of a fraudulent vendee of real estate, not proved to have had notice of the nature of the vendee's title, levied on tho property while in the possession of his debtor, will hold the property against creditors of the fraudulent vendor.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton, plaintiff, pro se, and Steel, who was with him, in support of plaintiff’s right,
    cited 11 La. 408. 15 Vesey jr.. 331. 13 La. 126. 8 La. 14. 16 Peters, 14. 2 An. 196, 249.

      Benjamin and Micou, for the appellants, Hyde and Clapp.

    If Stockton had purchased the property from Craddick, for a valuable consideration, on the faith of his apparent title, and without notice of the fraud; if he, had under similar circumstances, loaned his money to Craddick, on a mortgage of the property, or if, in any manner whatever, he had trusted the apparentowner, under the title, he would undoubtedly be entitled to the favor of the court, and the protection of the principle of law on which he relies. But this principle has no application whatever, to the case of Stockton. To ascertain his real position, interrogatories were addressed to, and answered by, him. We are quite willing to take his own statement on this point. To these interrogatories he answered that: He became owner, in the State of Mississijjpi, of the notes which are the basis of the suit no. 3368, just before the filing of said suit, that is only a few days before the said filing; and of the note which is the foundation of suit no. 3402, only a few days before the filing the petition therein; the precise day he acquired said notes does not now recollect. He obtained all said notes from one Abram B. Reading, then, and, as affiant believes, now a resident of the city of Vicksburg, and State of Mississippi. lie did not pay any money for said notes—for the notes which are the foundation of suit no. 3368, he agreed with said Reading to pay him eighty cents on the dollar, and for the other note which is the foundation of the' suit no. 3402, affiant agreed with said Reading to pay him sixty cents on the dollar, and it was also agreed by and between him, affiant, and the said Reading, that affiant was to make him said Reading no payment for any of said notes until after affiant should have realized said claims against óraddick. This is stated according to the best of affiant’s recollection and belief. He is the sole owner of said judgment, and of the notes on which it is fouuded; and there is-no other person either directly or indirectly interested with him in the ownership of said judgments, or said notes, nor is there any one who has any Hen, or privilege, or claim of any kind on said notes, nor has the rights of said Reading to receive and recover the ■ full amount of said notes from Craddick ever been questioned, ( so far as affiant knows,) before they became the bond fide property of affiant. A few days before he purchased any of said notes, he learned by inspection of the books of the conveyance office of New Orleans, that Craddick was then owner, by conveyance to him, of four lots and a fraction of ground, and of the house thereon, in Delord street, in New Orleans, of which the lots now claimed by Hyde Clapp were two—affiant cannot recollect the precise number of days which elapsed from the time he acquired his knowledge, till he became owner of the notes. Affiant verily believed at the time he became the owner of said notes, that said Craddick was the real and bond fide owner of all said lots of ground in New Orleans, and he so informed said Reading at the time. As well as he can now recollect, he knew Joseph N. Craddick, the defendant, by sight, only fora year perhaps before he became owner of the said notes. Affiant has no personal knowledge of the pecuniary'circumstances-of said Craddick; he was at one time in good credit in Vicksburg; but before affiant became the owner of said notes he had lost credit, and affiant was informed money could not bo readily nítido (rat of 'him bn execution in Mississippi. Affiant cannot say óf his own knowledge if he, said Craddick, is, or is no*-, insolvent, but affiant believes lié is insolvent; and that he was so reputed in Vicksburg, before affiant bee une owner of any of said notes, but for what length of time before that period affiant cannot any. He is now, and was then, but very illy informed as to the circumstances of said Craddick.”

      Stockton is not then a purchaser; he is not a creditor upon a new consideration, given on the faith of the paper title, and therefore does not come within the rule on which he relies. That rule is thus laid down in 1 Story’s Eq. Jur., sec. 381. “In concluding this discussion, so far as it regards creditors, it is proper to be remarked, that though voluntary, and other, conveyances in fraud of creditors, are thus declared to be utterly void; yet they are so far only as the original parties and their privies, and others claiming under them, who have notice of the fraud, are concerned; for bond fide purchasers for a valuable consideration, without notice of the fraudulent or voluntary grant, are of such high consideration, that they will be protected, as well at law as in equity, in their purchases. It would be plainly inequitable, that a party who has bond fide paid his money, upon the faith of a good title, should be defeated by any creditor of the original grantor, who has no superior equity; since it would be impossible for him to guard himself against such latent frauds. The policy of the law, therefore, which favors the security of titles, as conducive to the public good, would be subverted, if a creditor having no lien upon the property, should yet be permitted to avail himself of the priority of his debt, to defeat such, a bond fide purchaser. Where the parties are equally meritorious, and equally innocent, the known maxim of courts of equity is, qui prior estin tempore, potior estin jure; he is to be preferred who has acquired the first title.”
    In no treatise or case, do we find the rule otherwise laid down. It is always said to be applicable only to bond fide purchasers, upon a valuable consideration, and without notice. In Fletcher v. Peck, 6 Crunch, 133, Ch. J. Marshall, in giving the reason of the rule, says: “He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others; and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned.” Chancellor Kent, having held in Roberts v. Anderson, 6 Johns Ch. R. 371, that even a bond fide purchaser under a fraudulent sale, would not be protected against creditors, the doctrine was carefully reviewed by Judge Story, in Bean v. Smith, 2 Mason’s R. 272. He contends that the rule protects against creditors as well as othei-s, but he lays it down with the same care ns in his commentaries. The price paid, the valuable consideration, is every where urged as the reason of the rule—the ground on which the equity of the purchaser, is held superior to the equity of the creditor. See also 2 Vesey, jr., 458. 8 Mart. N. S. 342. 1 Mart. N. S. 387.
    But, on the oilier hand, it is equally well settled, that the rule does not apply to a mere creditor of the party, who receives a fraudulent title, without giving any new credit, or new consideration on thefaith of the title. “A plea oipurcliase for a valuable consideration, will protect a defendant from giving any answer to a title set up by the plaintiff, but a plea of bare title only, without setting forth any consideration, will not be sufficient for that purpose.” Walwyn v. Lee, 9 Vesey, jr., 24.
    “The rule adopted in England in favor of bond fide purchasers, without notice, is founded, as we have seen, upon a general principle of public policy. Walwyn v. Lee, 9Vesey, jr., 24. It is not, however, absolutely universal; for it has been broken in upon in two classes of cases. In the first place it is not allowed in favor of a judgment creditor, who has no notice of the plaintiff’s equity. This appears to proceed upon the principle, that such judgment creditor shall be deemed entitled merely to the same rights as the debtor had, as he comes in under him and not through him, and upon no new consideration like a purchaser. Burgh v. Burgh, Rep. Temp. Finch, 28. In the second place, &c.” Note to s. 410, 1 Story’s Equity.
    No case has been cited by the appellee, nor have we met with any even apparently changing the doctrine thus precisely laid down, except that of Foster v. Foster, 11 La. Rep. 401. In that case, Thomas Foster having made a fraudulent conveyance to Leri Foster, the latter granted a new mortgage for a preexisting debt of one William Seay. The court placed this mortgage upon the footing of a sale, for a valuable consideration, and held .that mortgagee should be equally protected) with a bond fide purchaser. The court may have- considered the mortgage for anothei’’s debt, as a new contract; time or indulgence may hav e been given to the original debtor, constiiuting a consideration for the mortgage, but neither of these reasons is stated in the opinion. Nor does the judge seem to intend to lay down any new rule, or to extend the operation of the rule bey ond its well known limits. • We can only conclude, that there were circumstances in the case which produced their influence on the mind of the court, but which are not reported, or else that the court unadvisedly made a wrong application of a known and familiar principle. Certainly the court did not intend to say, that a mere change in the security, by creating a lien upon a property fraudulently acquired, placed the creditor in a better position than those who had been despoiled by the fraud. It is true “ that third persons acting in good faith, shall not be prejudiced by the frauds of others, in which they had no agency or concern,” but it is equally certain that they cannot be enriched by such frauds, at the expense of others innocent as themselves. It is more reasonable to believe, that the court was influenced by circumstances notreported, than that it was extending, unconsciously, the limits of a rule, founded on public policy, and intended strictly for the protection of those who advance their money, or make new contraéis, on the faith of a recorded title. The case does not by any means go to the extent necessary to support Stockton’s claims. Although a mortgage may be treated as an alienation, and the mortgagee be placed on the footing of a purchaser, it can hardly be contended that an attachment, is either a mortgage or a sale. If that opinion intended to establish even the naked proposition, that a mortgage for a precedent debt, without any new credit or consideration, is to be protected like a sale for a price actually paid, it stands alone, and finds no support either in reaso» or authority.
    But there is still another point, in which this rule must be examined. It is applicable only, to those who have no notice of the fraud, either actual or constructive. Those who were put upon their guard, or upon enquiry, cannot plead ignorance of the fraud, or protect themselves, even where they have advanced their money on the fraudulent title; “whatever is sufficient to put a party upon enquiry, is, in equity, held to be good notice to bind him.” 1 Story’s Equity, sec. 400.

      Stockton tells us that he had no knowledged of the fraud committed by Craddick, but he knew that Craddick was insolvent, or was generally reputed so to be. When he found on the records, in New Orleans, a sale to such an insolvent person, for a nominal consideration of $16,000 in cash, he might well be considered as put on his guard. He appears to have received a transfer of the notes sued on, in consideration of attempting an attachment at his own expense, and of a promise to divide the spoils with the former holder, if any thing should be realised. How can a litigant, thus situated, claim the equitable protection which the law gives to innocent purchasers? Hyde Sf Clapp trusted Hall, on the credit which the possession of the property gave to him. It became the pledge of the creditors of Hall. It was sold under execution for his debts, and is in possession of purchasers in good faith, and upon a valuable consideration.
   The judgment of the court {Rost, J. absent,) was pronounced by

Eustis, C. J.

This suit was instituted, in January, 1841, and was eommenced by attachment against certain lots in New Orleans, as the property of the defendant. Judgment was rendered for the plaintiff, with privilege on the property attached, in February, 1842. Execution having been issued on this judgment, and the lots having been advertized for sale, the proceedings were enjoined at the instance of T. R. Hyde Sf J. S. Clapp, who claimed the lots as their property, having purchased them at a sheriff’s sale, at which they were sold under executions against J. J. Hall. On a hearing, the injunction was dismissed, and Hyde Sf Clapp have appealed.

This case has been already once before this court, and is reported in 1st An. p. 40. It is now before us in the form of an opposition to the plaintiff’s execution, called in our Code of Practice, the third opposition. An episode of the case is also reported in 10 Rob. 387. Hyde et al v. Craddick.

After the issue was joined on the original opposition, a supplemental petition was filed by Hyde Sf Clapp* in which it is alleged that the plaintiff is- an attorney and counsellor at law, licensed to practice in the several courts of this State, and that, at the time he purchased the claims on which he obtained the judgment ^gainst Craddick, he was practising in the late Commercial Court of N ew Orleans, in which the judgment was rendered, and that so far as said claims affect the rights and property afterwards purchased by the opponents they are litigious, and the sale of them to the plaintiff is absolutely null. Interrogatories were propounded to the plaintiif, who fully answered them; but we do not find that any answers was filed to the supplemental petition, though an exception was filed to it, which was afterwards withdrawn. We cannot consider this important allegation as admitted; but, as the cause was tried on its merits, we must hold it to have been at issue, under the answer of the plaintiif to the opposition filed by Hyde Sf Clapp-

The allegation relating to the plaintiff’s being a practising lawyer in the court in which the attachment was instituted at the time alleged, is not proved. He had been previously admitted to the bar in this State, but we have nothing before us on which any other place of residence or business can be assigned to him than is alleged in the petition for the attachment, which is Vicksburg, in the State of Mississippi.

It appears that the plaintiff acquired the notes sued on from one Reading, and, on being interrogated under oath, he states that he had learned, by inspection of the books of the register of conveyances in New Orleans, that Craddick was the owner of the lots attached previous to his purchasing the notes, and that he verily believed, at the time of the purchase, that Craddick was their real and bond fide owner, and he so informed Reading at the time.

Craddick held the lots under a fraudulent title. J.J. Hall, an insolvent debtor, had conveyed them to C. C. Hall, in July, 1839, who, on the eve of absenting himself, left a power of attorney to sell them, with his wife; she conveyed them to Robert Mott, who took the title at the instance of Craddick, under the conviction that the conveyance was made for the purpose of securing the rights of the wife of J. J. Hall, who was Craddick's daughter. Mott, as well as Craddick, resided at Vicksburg, at this time; and, on finding soon after the title was made to him, that one of the Halls was in jail and the other had absconded, he insisted on Craddick's taking the title out of him, which was accordingly done, by a transfer to Craddick, of the date of the 14th July, 1840.

The opponents, Hyde Sf Clapp, are judgment creditors of J. J. Hall, and, after the plaintiff’s attachment had been levied on the lots, they instituted their revocatory action to subject the property to their execution, on the ground of the fraud in the title to Craddick, and it was so decreed. Under this judgment execution was issued, the lots were sold under execution, and the opponents became the purchasers. This judgment was reversed on a matter of form—but a subsequent judgment was rendered, by which Oraddick's title was decreed to be fraudulent and simulated.

The question, as it has been presented to us in argument, and it embraces the substantial merits of the cause, is, as to the liability of this property to be attached by the creditors of Craddick, while this fraudulent title was subsisting. We think there is no evidence charging the plaintiff with notice of the character of this title, and the matter is therefore reduced to a naked question of law.

The district judge gave the plaintiff judgment, which held the property subject to the creditor’s attachment, under the authority of the case of Foster's heirs v. Foster's administrators. 11 La. 408.

In that case it was held that, where a fraudulent vendee of slaves, under a title valid in point of form and having the appearance of verity and good faith on its face, mortgages them to an antecedent creditor, who is ignorant of the fraud, his right will not be affected by the fraud between the original parties to the sale; and, on this ground, the verdict of a jury was reversed, and the judgment was given in favor of the mortgagees, in accordance with the views of the court on the matter of law. This decision appears to us to be in liarmouy with article 2236 of the Code, which provides that counter-letters can have no effect against creditors or bond fide purchasers, being valid as to all others. We have not been able to find any decision in which the rulo in this case has been impugned, and the title having passed out of Hall, and, by intermediate conveyance, to Craddick, and the latter being in possession of the property at the time of the attachment, the present case case comes clearly within it. Williams v. Hagan, 2 La. 123. Syndic of McManus v. Jewett, 6 La. 531.

Judgment affirmed.

        Benjamin and Micou, for a re-hearing. The fraud in Craddick's title has been twico pronounced. The plaintiff does not contest or deny the existence of this fraud, and yet he contends that, as a creditor of Craddick, he has a right to profit by it, and subject the property to his attachment. The question then presented, is between the creditor ot Mail and the creditor of Craddic/c. Tne property really belongs to'Hall, but Cradd.ck has the fraudulent title. The creditor of Hall claims, because the property belongs to his debtor; the creditor of Craddick, because his debtor has accepted and recorded a fraudulent title. Supposing them equally innocent, the decree in favor of the latter gives effect to the fraud. The ii aud, which despoils one creditor, enriches another. It is not the case of an innocent purchaser, or of a mortgagee who pays or lends his money on the faith of a solemn and recorded title. It is the naked case of the creditor of an insolvent, attempting to obtain payment of his debt, through the fraud of his debtor, at the expense of innocent creditors of another fraudulent debtor.
      I. Our first position is, that the title of Craddick, being fraudulent, was, so far as the creditor of Hall were concerned, void ab znJiO, and could give fio rights to the creditors of Craddick.

      The general rule that whenever a party may sell, his creditors may attach, does not contemplate the case of possession obtained by fraud. With regard to personal property, it was formerly held, that the attachment would lie except when the property had been procured by a felony; but this rule has been modified, and it is now well established that, if possession be obtained by fraud or imposition, the original owner may recover bis propci ty. Such is the rule laid down by Judge Story in De Wolf v. Babbet, 4 Mason, 294, and followed by the late Supreme Court in Gasquet v. John on, 2 La. 516. In the latter case, possession had been obtained on the faith of a letter of credit, which had been revoked. Tne court held that, the use of such a letter, after it was recalled, was equivalent to forging a new letter; and, although the merchandize had been brought from Philadelphia to Now Orleans, by the defendant in attachment, the vendor recovered against the attaching creditor. So in Prall v. Pce', 3 La. 282, the court say that the fraud charged by the petition, and found by the jury, was sufficient to authorize the CQUYt to consider the sale in question void ab xn-tÁo, and not translative of property. It is only when the vendor has voluntarily parted with the possession, that his equity is not equal to that of a bond fide purchaser for a valuable consideration. Russell v. Favier, 18 La. 589. Marks v. Landry, 9 Rob. 526.
      In all these cases, the contest was between the owner and attaching creditors or purchasers. But if the owner in such cases could recover, his creditors have still a higher right. The owner may be charged with imprudence, at least, in permitting possession to be obtained by false pretences; but the charge will not.lie against creditors, who cannot, by any possibility, prevent their fraudulent debtor from secreting his property. His combination with another to defraud them, is independent of any action, or even knowledge, on their part. The parties who conspire are in fraud, but the creditors arc innocent. If then, by such fraudulent conspiracy, the possession or title to the property passess to a fraudulent vendee, the sale must he considered void, ab initio, as to creditors, and not translative of the propeity. Such is the rule applied in England, and in the couits of the United States. The stat. 27 Eliz. c. 4, declares, that fraudulent conveyances may be avoided by creditors, unless the property shall have passed to an innocent purchaser for money or other good consideration. Sugden on Vendors, c. 16, p. 416. The rule that is constantly applied in the chancery courts is the same; and when such fraudulent conveyances were attacked by creditors, they* have been repeatedly decreed void, abinito, as to their effect upon the parties defrauded. * “A deed founded in actual and positive fraud, as beingmade under the influence of corrupt motives, and with the intention to cheat creditors, maybe considered void ab initio, and never to have had any lawful existence.” Thompson, C. J., Murray v. Riggs, 15 Johns. 586. Osborne v. Moss, 7 Johns. 164.
      The distinction between a void deed and one only voidable bas been repeatedly and learnedly discussed. Mackie v. Cairns, 5 Cowen, 579. Henriques v. Hone, 2d ed. Ch. R. 122. We do not enter into it, because it is deemed u mecessaiy in the present argument. The deed may he good between the parties, yet if it is fraudulent as to creditors, if it is attacked "by them and set aside, the nuility is retro-active. The fraud being established, the oonveyuüce is treated as if it liad not existed. Whatever may be the distinctions between void and voidable, the judges all concur in this result, that the fraud once shown, although the parties may be bound, the deed is void as to creditors. Neither the courts of common law nor chancery allow any exception to this rule, except in favor of a bond jtda purchaser, for a valuable consideration. “And by the civii law, whatever debtors do to defeat their creditors is void, and there is a great resemblance between the civil law in this matter, and the statute of 13th Eliz.” 1 Ponblanque’s Equity, b.l, ch. 4, s.l2,p. 204.
      To the same purport is our own legislation. The Code gives to the creditor, his action to “ annul.” Art. 19(55. And, if his action be maintained, the decree is, that the contract be “ avoided as to its effects on the complaining creditor,” &e. Ark. 1972. The liability to attachment for debts of the fraudulent vendee, is one of the effects of the conveyance. The attaching creditor gives no consideration, for the right which he claims to exercise. He comes in under, and not through, the vendee. He seeks to avail himself of the interest of the debtor in the thing. If he bad paid value for it, or advanced his money upon mortgage, his case would depend on other principles. But he seeks to avail himself as a creditor, of an apparent right of his debtor, and is met with proof that the right is not real, and Is based in fraud. Tne positive language of tho law then applies. The creditors who have been defrauded, are to be redressed. Tho title of the defendant in attachment is annulled; it is decreed void ab ind\o, as to the injured creditors, and the attachment necessarily falls, with the title or interest on which it was based. That an attaching creditor can stand on no bettor looting than his debtor, see United States v. Vaughan, 3 Binney, 400.
      II. Tne registry laws, which declare that no act shall take effect against third persons unless recorded, are supposed to support the claims of the attaching creditor. We propose to show that such laws are not applicable to the case.
      We hold, that these laws are simply intended to enforce publicity of transfers; and, for that purpose, they impose upon every purchaser the necessity of dilligence in inscribing his act, at the risa. of losing his property. In the two cases cited in the opinion of the court, this heavy penalty was incurred and enforced—Hagan v. Williams, 2 La. 122; McManus v. Jewett, 6 La. 531; and to the same point is the later case of Crear v. Sowles, 2 Ann. 598. In the case of Stockton v. Briscoe, 1 Ann. 249, the attachment was based upon the neglect of registry ¿ it failed, because the inscription of the last act was considered sufficient; and tire dissenting opinion, is an argument upon the tenor and policy of the laws passed to cniorce the prompt; registry of acts. Tne penalty for neglecting to register a conveyance, is fixed by an express enactment. The penalty may always be avoided, by compliance with the requisitions of the law. If a purchaser neglect to inscribe his title, he exposes himself to loss by his own fault or want of diligence. Ifrpm motives of public policy, the risk of other rights being acquired is thrown upon the party in default. A purchaser who omits to comply with the law, can receive no favor from the courts. Whether those who oppose are creditors or subsequent purchasers, he has no right to complain. The provisions of the law may seem to he harsh, but his own diligence would nave avoided its penalty. If he loses, it is by his own neglect.
      But these considerations are wholly inapplicable to the creditors of a fraudulent vendor. They have done nothing which the law prohibits; they have omitted nothing which it commands. How then can Che force of a registry law be opposed to thorn, when they complain of a fraud'/ The mere registry of a fraudulent title, would certainly not prevent a revocatory action. To give to the registry laws such effect, would be a perversion of their meaning. They are intended only to compel inscription; not to regulate equities between creditors,- or to fix tho consequences of fraud. If the conveyance be made in good faith, tho registry is the perlectiou of the title; if made in fraud, other laws prescribe when, how, and by whom, it may be annulled. A case reported in Sircy, 1807, 877, affords the strongest illustration of this principle. By the laws of Ifrance, a tax was imposed upon all sales, in proportion to the price. In order to enforce this lav/, registry was required, with a statement of the price actually paid. It was further provided, that, if the parries attempted to avoid this impost, by counter letters, stipulating for a higher price than that stated in the public act, the counter letter was absolutely null. In a case arising under this law, the price mentioned in the act was 250,000 iraucs, while tho true price, as represented by a counter letter, was 300,000 francs. Tne counter letter was null between the parties, yet the creditors of tho vendor recovered the remaining 50,000 francs from the purchaser. The law declared the contract absolutely null, but the courts could not give it a construction which would enable the purchaser to retain part of the price justly belonging to the creditors. In the hands of the vendor, the agreement was null and reprobated, because he was guilty of a violation of the law; but his creditors were innoc.ent, and the penalty intended for him, could not he inflicted on them. “ Q.ue e’est done,” saj-s the court, “faireune fausse application de ces lois ou il s’agit de l’iutéiot de tierces personnes, de legitimes créanciers, qu’on a fcrompés á leur insu, par la contre-lettre dont il s’agit, dans laquelleils ne sont point parties, ct quo le vendcur, ¿’intelligence avec les acquéreurs, a voulu priver d’unc partie de leur gago; que ce serait autoriser le aol contre les créanciers, et les rendre victimes de la simulation ou de la fraude qu’ils ironfc pu empécher, si on annullait a leur égardle lettre qui la constate; ordonne,” &c. 10 Dalloz, Jur. Gen. G75. Here the law pronounced absolutely null an agreement not contained in the public act; but the nullity was enforced only between the parties in fraud. Innocent creditors did not receive the stripes intended for fraudulent vendors. To follow the letter of the law would have boon to annul its spirit. We repeat, therefore, that registry laws are intended to enforce diligence and to prevent frauds—not to favor them. No man can suffer by those laws who complies with their requirements. If a ■purchaser loses, lie has only himself to blame. He may refuse to pay until his deed is inscribed, or he may inscribe it himself as soon as signed. But tho law’of registry cannot punish the creditors of tho vendor, because it imposes no diligence upon them. Their rights are governed by rules and principles wholly distinct from those fixing the consequences of non-inscription. The proposition, that a title not registered has no effect against third persons,-or creditors, does not embrace the proposition that a fraudulent title, if registered, will prevail against the creditors of the vendor.
      III. Wliat effect has art. 2236,- as to counter letters, upon the issue now before the court ? That article provides that counter ietters can .have no effect against creditors or bond jide
        purchasers; but that they are valid as to all others. The article is applicable only to counter letters, bearing witness of a legal contract. If the object be illegal, the counter letter is void, and cannot be enforced between the parties. Act, 1887. On the other hand, the agreement being illegal, creditors may set it aside; they may use the counter letter as proof of the fraud; they may hold the vendee to its terms, although the vendor could not do it. The rule is reversed by the fraud. The parties cannot enforce the contract, but third persons can. The article is intended for cases where property is voluntarily, but innocently, conveyed. In such cases the vendor has his recourse against the vendee, but takes the risk of all other persons acquiring rights. If he has imprudently invested another with the insignia of ownership of his property, the law imposes upon him all the consequences of his imprudence. The creditors of the vendee, either precedent or subsequent, may seize it, and the real owner cannot complain. He is estopped by his own act, and is not permitted to set up his private counter letter, against the public title which he has himself conferred. It follows that this article is not applicable to cases of fraud.
      That this is true, will, we think, be moved by reference to the decisions and treatises upon the corresponding article of the Code Napoleon, art. 1321—notes, Sirey, Cede Annoté; 13 Duranton, n. 104; 8 Toullier, 186; S. & Villeneave, 1842, 167; Dalloz, 1826, 1st part, 266; 10 Dalloz, Jur. Gen. 674. The principles established by these authorities, are uniformly discussed and decided, with reference to the offects of counter letters between the parties themselves, or between the parties and creditors. The party tp the counter letter is always plaintiff’ or defendant. No case occurs of a conflict between the two classes of creditors, to wit, the creditors of the vendor and those of the vendee. The expression of the french article is, u les tiers,” a term if possible more broad than that of the corresponding article of our Code, yet this article docs not seem to have been applied to any case like the present. From one of the cases above cited, we may faivly presume that, if the position of the parties had been the same as in the present case, the counter letter would have been enforced.
      IV. The articles of the Code giving to creditors their action to annul contracts of their debtors in fraud, apply to this case. We have endeavored to show that, no special law, relating to counter letters and registry, imposes upon the court the duty of inflicting a wrong upon the opponents; wo have now to show, that the positive legislation of the Code, so far ñom commanding injustice, is entirely consistent with those principles of equity, for which we are contending, and wnich have been so repeatedly announced by chancellors and judges, in England and the United States. We think the case is lully covered by those articles of the Code, regulating the right of creditors to set aside contracts, in fraud of their rights. In the first place, the general principle is borrowed from the civil law, and consecrated by justice as well as by its age. “ Every act done by a debtor, with the intent of depriving his creditor of eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided.” C. C. 1964, 1984, Dig. lib. 42, tit. 8, s. 1. 17 Poth. Pand. 406. I Do-mat, p. 495, lib. 2, tit. 10, s. 1. This general provision is equivalent to the provisions of the stats, of 13th and 27th Elizabeth, which have formed the basis of the english jurisprudence on the subject. But the Code has extended the principle still further, and prescribed its application to special cases, thus giving to the injured creditor more completo and definite relief, than he could obtain in a court of chancery. For instance, the court of chancery will not inquire into the adequacy of the price, unless it be so small as to be palpably fraudulent (2 Hovenden, 74), while the Code gives to the creditor the right of redeeming the property, even from an innocent purchaser, if the value exceed the price actually paid by one-fifth. Art. 1976. The english law does not prohibit a conveyance in payment of a just debt, while the Code declares that the insolvency of the debtor renders such a transfer fraudulent and void, and gives to the creditors the right of rescinding it, thus taking back the property for the mass, and reviving the debt paid by its transfer. Arts. 1977, 1978. The Code provides specially for cases in which the purchaseris innocent, and for those in which he is guilty offiaud, actual or constructive. In some cases restitution of price is made, with or without interest*, in all, the property is recovered; and in all cases where the only consideration is a debt due, the only restitution made is, the replacing of the parties in the position in which they were before the transfer.
      We presume that the plaintiff in this case, does not consider his attachment superior to the claim of a purchaser for a valuable consideration. If a purchaser for an inadequate price, he would be bound to give up the property, on the price being refunded. But he has paid no price; consequently we arc compelled to place him a step lower in the scale. His position is nearest that of a creditor, who hasobtained propeityin payment or as security. It is true that he does not obtain it from Halt) nor is Hall his debtor. But if the property, though in Craddtck's name, really belongs to Hall, it is impossible to place a transfer to a creditor of Cradd.dc, upon a better footing than asimilar transfer to a creditor of Hall. That there are two fraudulent debtors, and two sets of creditors, cannot alter the principle, or pi event its application. The transfer to Craddidc has been annulled. So far as lie is concerned, his title is blotted out of existence. Then S£ockton\ms acquired alien on Hal’s property, for the debt of auother person. The basis of that lien, is a fraud upon the creditors of Hall. The rule laid downin the Code applies. The security thus acquired is annulled; there is no restitution, save replacing Stockton in his original position. He remains a ci editor of Cradd.dc as before his attachment.
      Nor can it be pretended, that these provisions are inapplicable to attachment by legal process. The relief contemplated by the Code, is not confined to the case of contracts alone. Every act of the debtorin fraud, may be set aside or remanded. Arts. 1964, 1984. The act or contract with all its effects, is annulled. Arts. 1972. The levy of the attachment, was one of the consequences or effects of the fraudulent transfer.
      The law Is not confined to the cases specially enumerated in the Code. The cases stated ere merely instances; the principles are embodied as the law.
      If Stockton had taken a mortgage from Craddidc for an old debt, his mortgage would be annulled. If he had bought the property for half its value, the property would be restored on refunding his advance; consequently he is to be put where he stood before. His attachment must be set aside, his notes go back to him. The only additional restitution that he could possibly claim, would be liis costs, until notice of the fraud. If more were allowed him, he would be more favored Ilian an innocent purchaser, for he would receive more than he gave.
      If we have not entirely failed in our argument, there is no special law, necessarily protecting this attachment against the just demands of the creditors of the true owner. The law of counter letters and of registry, being inapplicable, no other can be suggested leading to such a result. If the rules of the revocatory action do not apply, the conclusion must be, that in our most elaborate and highly artificial Code, there is no provision for a case of great importance and of frequent occurrence. Upon either hypothesis, this attachment must fail» If the Code does not provide for the case, we are thrown back upon those principles of justice and morality, which lie at the basis of all jurisprudence. Such principles are sufficient for the cause. No mancan claim under a fraud, unless he has innocently advanced his money on the faith of the apparent title. If he has paid nothing, he can lose nothing by the fraud being redressed. If two parties are equally meritorious and equally innocent, the possession of one will not be disturbed for the profit of the other; but to say that they are equally meritorious, means that both have advanced their money, or that both are exposed to loss. The term does not apply when one only is exposed to loss, and the other has but the chance of gain. 1 Story, Eq. sec. 381. Fletcher v. Peck, 6 Cranch, 133. Bean v. Smith, 2 Mason, 272. 2 Vesey, Jun 458. 8 Mart. N. S. 342. 1 Mart. N. S. 387. Walwyn v. Lee, 9 Vesey, Jr. 24. 2 Eonblanque, Eq. b. 2, s. 2. 2 Hovenden, on Fraud, c. 18,|p. 74.
      V. The case has been thus far considered upon the supposition, that Stockton the attaching creditor, was not notified of the fraud. But we must again urge upon the court, that the circumstances were sufficient to put him upon enquiry, and he is therefore in law affected with notice of the fraud. The disproportion between the condition of the purchaser and the pretended price, was sufficient evidence of fraud and simulation. Can it be contended that the plaintiff, who knew this condition, and who saw the record of the purchase, was not put upon his guard ? 2 Vesey, jun. 437. 1 Story's Equity, s. 399. If Stockton had purchased from Craddick, knowing his position as he confesses he knew it, he could not have been considered an innocent purchaser. When defrauded creditors are seeking restitution, even purchasers receive no favor, if they were put upon enquiry and did not choose to enquire. They may not shut their eyes and be accounted innocent, because they were willfully blind.
      It “ is notice of the use, therefore, that is all the effect of the matter; for then he is parti ceps crimints, et dolus el fraus nemini patrocinantnr, since in conscience he purchased my lands or my goods. For the common law, whenever it found a consideration discharged the covin; but chancery looks further to the corrupt conscience of the party, that will traffic for what in equity he knows to belong to another. And in all cases where the purchaser cannot make out a title, but by a deed which leads him to another fact, the purchaser shall not be a purchaser, without notice of that fact, but shall be presumed cognizant thereof; for it was crassa iteghgentia, that he sought not after it, and this is in law a notice." 2 Fonblanqne, p. 151, b. 2. s. 2. Re-hearing refused.


text:
    McGregor et al. v. Ball.
    Underthe common law, the title of the owner of personal property cannot be lost without 1ns free consent.
    No authority from the real owner to sell personal property is implied, by the common law, from the naked possession of the property by a third person, without the consent of the owner, under circumstances which ought to have put a purchaser from the latter on enquiry as to the origin of his possession and his title.
    A sale of derelict or wrecked property, made under a statute, will not be valid unless there has been a substantial compliance with its requisitions.
    Where one who hadbeen authorized by a justice of the peace, under the provisions of the stat. of Arkansas of the 21st of Februaiy, 1838, s. 9, relative to the reshipment and sale of wrecked property, to ship such property to anymarket where he might deem it most likely that a good sale could be made of it, sells the property, by private sale, after its shipment, to the clerk of the steamer on which it was shipped, the sale will be without effect. Per Curiam: No application was made for permission to sell on the spot. Had such a sale been authorized, the sale would have been required to be public, after due notice, and at auction, to the highest bidder.
    Where wrecked property is in safety, the salvor cannot sell it. A case of necessity may exist in which the power of the salvor to sell may be recognized; but, shortof such acase, the salvor has no more authority to sell than a captor has.
    A depositary who sells the deposit commits a theft.
    If there be any thing unusual or irregular in a sale of property made by a party in possession but without authority to sell, the title of the real owner will not be affected by it, any more than it would be if the purchaser were not in good faith.

      PPEAL from the Fourth District Court of New Orleans, Strawbridge, J;

      C. A. Jones and Maybin, for the appellants.

      Lacy, for the defendant.
   The judgment of the court (King, J. absent,),, was pronounced by

Eustis, C. J.

This is an action brought by the plaintiffs, who were consignees of a quantity of lard, which was shipped to them in New Orleans from Terrehaute, in Indiana, on board the flat-boat Thomas White,for the recovery of a portion of it, which was found in tho possession of the defendant in this city, and seized under a writ of sequestration. The parties in interest are the insurers on the cargo. It is alleged for the defence that, Ball purchased the lard in. the State of Arkansas in goo'd faith, and paid for it; and, on that ground, the district judge decided in favor of the defendant, and the plaintiffs have appealed.

It appears that the flat-boat was wrecked on her voyage on the Arkansas side-of the Mississippi and was abandoned by the officers and crew, and that the-cargo was taken possession of and sold to the defendant under color of certain statutes of the State of Arkansas. The validity of these proceedings were not. enquired into by the District Court, whose decision was based on the bona fides of the purchase of Ball exclusively.

It is impossible for us to reconcile this purchase by the defendant, who was. the clerk and part owner of the steamer Marengo, on which tire lard was at the time shipped, with our ideas of what constitutes a fair mercantile transaction,. The condition of the article, the external appearance of the casks, the jflace where the shipment on board tho Marengo was made, were circumstances, which ought to have induced more caution, and have put any person familiar-with the river business on enquiiy as its origin and the title of the party who undertook to disposo of it.

The defendant charges in his answer that he purchased the property in dispute from Geo. W. Underhill, as agent of one Peterson, and that ho paid foir it by two drafts, one for $700 on New Orleans, and another for $1,800 on Memphis, both of which he alleges have been paid. The former, it appears, only was paid; the second, for $1,800, was accepted under conditions, but there is no evidence of its having been paid. The lard was shipped on board the steamer from the plantation of Bayless, to which it had been hauled from the wrecked flat-boat, as the property of James Peterson, by order of the justice of the peace, and the sale was made, after the shipment, to the defendant, the clerk of the boat.

But it is not necessary to determine this case solely on the question of the bona fules of this purchase. It is sufficient, that Ball acquired no greater right than. Peterson, his vendor, had. As the common law prevails in Arkansas, we take' tho authority of Kent as conclusive on this point. 2 Kent’s Comm. 324. 1 Johnson’s R. 478.

The title of the true owner cannot be lost without his own free act and consent. No. authority could be implied from the naked possession of Peterson, under the circumstances, which was not with the consent of the owner, but the result of force majeure—the wreck of the boat, and by virtue of the statute of Arkansas, under which his doings in the premises are justified, and which it remains to consider.

But it is necessary to state the position of Peterson, who is an intervenor in this suit. He alleges that he became the owner of the property wrecked in consequence of having secured and saved it, and that he, through his agent Underhill, sold tho property in dispute to Ball, for a valuable consideration, and that Ball is the bond fide owner of it. He bases his rights on his compliance with the statutes of Arkansas relating to wrecked property, under which he claims title, and prays for an allowance of §3,500, for expenses, labor and risk in saving the property, in the event of its being adjudged to belong to tire plaintiffs. The proceedings under which he acted are set forth in an instrument purporting to bo a copy of a record of a justice’s court of the State of Arkansas, to the admission of which in evidence the plaintiffs’ counsel have taken a bill of exceptions.

The proceedings import that Peterson, as the salvor of the property, which ho had succeeded in saving from the wreck of the flat-boat, applied for an order of ths justice to ship it to any market which he might deem expedient for the purpose of effecting a good sale, on the ground of its being in a condition to become valueless if longer kept. The justice being satisfied that the requisitions of the statute had been complied with by Peterson, ordered that he be authorized to ship the lard to any market in which he might deem it most likely to effect a good sale. The lard was shipped, as we have stated, on board the steamer Marengo, and sold to Ball, the clerk of the boat, as we have before seen.

The authority under which Peterson justifies his acts, and undertakes to vest the property in Ball by a sale, gives him no power whatever to sell; on the contrary, it negatives any such power, as the statute under which tho proceedings were had conclusively shows. Ho did not apply for permission to sell on the ■spot, but to ship to a market, where a sale could be more advantageously effect-ed. Had he applied for authority to sell under the statute, it provisions would have been required to be complied with. The sale would have been public, after due notice by advertizement, and at auction to the highest bidder. This was not applied for. An authority to ship was asked for, and that alone was granted.

The statute of the State of Arkansas, concerning property lost or wrecked, ■contemplates the shipment of such articles as that in dispute in this case, to some market, for the purpose of preventing a sacrifice by a sale in an unfreqented and perhaps ahnost inaccessible spot, where the property is thrown, and where tho temptation is so strong, because the opportunities are so great, for collusion among those present, to the detriment and injury of the absent owner; but where a sale is required to be made on account of the condition of the pro-1 petty, it gives the absent owner the protection of a fair public salo at auction, after such advertizement as tho magistrate may direct.

The two sections of the statute which regulate the sale and shipment of property wrecked, are as follows: “Sec. 9. When a raft or boat with produce therein shall be taken up, which raft, or cargo of the boat, consists of such articles as are usually taken to the State of Mississippi or Louisiana, for salo, and the owner does not apply for, or make demand of, such property within twenty days, the person taking up such property may apply to some justice of tho peace of the county, where such property was taken up; and, on allowing that the property so taken up is of a perishable nature, and is likely to bo injured, or become of less value, by being kept, such justice may make an order author - . izing the taker of such property to sell such property at public auction, on giving notice by advertizement, as the justice may direct; or authorizing the taker up to ship such property to any market, where he may deem it most likely he will effect a good sale of such property.”

:Sec. 10. “Before such sale shal be made, or the property removed for shipment to another market, the taker up thereof shall enter into bond to tho State of Arkansas, with sufficient security, to be approved of 'by the justice, in double the value of the property so taken up, conditioned that if the owner shall appear, and establish his claim to said property, within one year from the time of taking up such properly, the taker up will pay to such owner the value of such property, deducting his salvage, or, when taken to a market, then deducting his salvage and reasonable expenses.” Revised statutes of Arkansas, p. 719, ch. 84.

In the presence of the provisions of this act, we can recognize no power in Peterson to sell, under the authorization of the justice to ship the property to a market for the purpose of securing a fair price for the benefit of the owner. For the private salo by his agent, Underhill, the precept in evidence was no warrant; and, without adverting to any of the circumstances which mark this case as extraordinary, we cannot hold a sale of derelict or wrecked property to be valid under a statute, without a substantial compliance with its requisitions. The owner cannot be deprived of his property without his agency or consent, except by virtue of law. Nor can we consider Ball as without that notice, which the facts of this case, as disclosed in evidence, strongly imply. There was enough in the circumstances to put him on enquiry. He ought to have looked into the matter when he made the purchase, and cannot now urge his want of due diligence and circumspection. Schooner Tilton, 5 Mason, 494.

The statute of Arkansas, which was made for the protection of property wrecked, we think places the salvor in the relation of a quasi depositaiy. It gives him the possession adversely to third persons, but negatives tho power to sell at private sale, by requiring the sale of wrecked property to be sold at public' auction. When property wrecked is in good safely, we know of no authority on the paa-t of salvors to sell it. A case of necessity, we are not prepared to say might not exist, in which the power of the salvor to sell might be recognized; but, short of such a case, the salvor has no more authority to sell than the captor has. The consequences of the contrary doctrine would be alarming to the interests of our internal trade. It would make the river coast, in times of tempest and disaster, the theatre of rapacity and plunder, and would defeat the conservative purpose of the statute itself. With a view to results like this, it has become a principio of the law of nations, that a naked sale of an enemy’s property by a captor is void, and does not divest the owner’s title, without a sentence of condemnation.

Without the statute, we can find no authority of Peterson to make the sale to Ball, still less in the manner and under the circumstances disclosed in the testimony. We have stated that it was not necessary to determine on the honafides of Ball, in making the purchase. It is sufficient for the owner to establish that the title to the property was his. The sale under the statute cannot be maintained ; the salvor had no right to make the sale. His possession as bailee gave him no right to sell, his powers being limited, on principles of law, to those of a keeper of an irregular deposit, custodian, or a guardian of things for hire. Story on Bailments, § 622. The depositary who sells the deposit, commits a theft of it. Et la chose devient infectée du vice de vol, qui ne se purge point, jusqu’ á ce qu’elle soit rendu an propriétaire. Pothier, Traité de Depot, § 43. But if there be any thing unusual or irregular- in the sale, the validity of the tittle of the real owner will not be affected by it, any more than it would be if the purchaser were not in good faith. Kent’s Com. loe. cit. Ball may not have known who the owner of this lard was; but the time, the place, the condition of the casks, and the attendant circumstances, satisfy us that tho sale was neither regular nor usual, and that the purchase was a speculation out of the ordinary course of the river trade.

On both grounds, we think the law is against him. We think an adherence to established principles on the part of courts is absolutely necessary in cases of this kind, in order to secure the safety of property in its way down to this mart, during the long and hazardous navigation from remote States, by discouraging the avidity and misconduct of those who are constituted by the laws the protectors of it, and the aid afforded them by adventurous and incautious speculators.

We do not feel ourselves authorized to allow Peterson the salvage which he claims iu his petition of intervention. The bill of lading offered in evidence shows that there was on the boat other property of value, of which Peterson has given no account whatever, and which, on the evidence before us, must have been taken possession of by him. Under the circumstances an allowance of salvage on the property thus unlawfully converted by him to the injury of those interested, would be, under our views of the subject, in direct conflict with the reason and policy of the law. There were eighty-eight barrels of pork on board the boat, of which no account is given.

The judgment must be for the plaintiff, and against the intervenors.

It is therefore decreed that, the judgment of the District Court be reversed, and that the plaintiff recover from the defendant the property sequestered, to wit: one hundred and twenty-five barrels of lard, one hundred and eight tierces of lard or grease, and one hundred and nine kegs of lard, with costs in both courts; and that the intervention of Peterson be dismissed, with costs.


author: Rost, J.

text:
    Gales v. Christy, Assignee.
    A judgment obtained against a natural tutrix, ascertaining the amount due by her to her minor children, is not evidence against the defendant in an action to enforce the tacit mortgage of the minors against their tutrix on property in the hands of an assignee of one, who acquired by purchase at a judicial sale of the effects of the community formerly existing between the mother and the father of the minors, made before the date of the judgment.
    Art. 2428 C. C., which declares that property -claimed in an action cannot he alienated, pending the action, to the prejudice of the plaintiff,does not apply to one whopurchases real estate pending an action against the owner to recover a balance alleged to be due by him as tutor, the action being not for the land itself but for a sum of money. And one who claims to exercise a mortgage on the property for the debt so ascertained to be due to the minors, must produce other evidence than the judgment to establish the debt, the judgment being as to the purchaser res inte?' alios.

    A sale under execution of “all the rights, claims, demands and interest which the heirs of A. have upon their mother and natural tutrix, on account of their inheritance from &c.,” is void for vagueness and insufficiency in the description of the thing sold. The nature of the rights, interest, claims and demands should have been so statéd as to give bidders a clue to their value. Art. 647 C. P. does not dispense with a proper description of the rights and credits seized.
    As against himself and those he represents, a man’s actions and representations will he presumed to correspond with the truth. They are in all cases evidence of the fact; and where a party has induced another to act on the faith of such representations, and where he cannot show the contrary without a breach of good faith and common honesty, such representations are usually absolutely conclusive.

      from the Fifth District Court of New Orleans, Buchanan, I.
    A. and W. D. I-Iennen, for the appellants.

      Micou, Lockett and Goold, for the defendants.
   The judgment of the court (King, J. absent,) was jrronounced by

Rost, J.

This is an action against a third possessor, to enforce the tacit mortgage of minors against their mother and natural tutrix, on property alienated by her pending the tutorship. The nature of the claim can best be explained by stating the origin of the alleged debt, and the chain of title under which the City Bank, the real defendant in interest, holds the property.

Thomas Beale, sr., died in 1819, having, before his death, conveyed his property to a natural son, who died about the same time. After the death of Beale and his son, J. Wislar, one of his creditors, brought suit against Mrs. Beale, as widow in community and tutrix of her minor children, in the United States Court. Mrs. Beale successfully defended herself from this claim, on the ground that it had been contracted before her marriage with the deceased, and did not constitute a debt of the community; but a judgment was obtained, in May, 1829, against her minor children for $6705 80, besides interest. Under this judgment execution issued, and,' after various proceedings, the rights and claims, demands and interest which the minors had against their mother and natural tutrix for and on account of their inheritance from their father, were advertized and sold by the marshal. The deed given by him to the purchaser is, after reciting the seizure, sale and receipt of the price, in these words: “Now, therefore know all men by these presents, that I the said marshal do, in consideration of premises and by virtue of the act in such case made and provided, grant, bargain, sell, assign and set over to the said Alfred Hennen, as trustee and agont for Eliza H. Gales, and to his heirs and assigns forever, all the aforesaid rights, claims, demands and interest, which the said heirs of Thomas Beale, sr., had upon their mother and natural tutrix, Mrs. Beale, widow of Thomas Beale, sr., deceased, as aforesaid, on the 29th day of May, 1829, or as at any time since, on account of their inheritance as aforesaid, to hold the same to the said Alfred Hennen, as trustee and agent for the said Eliza H. Gales, and to his heirs and assigns forever.” This adjudication was made for §300.

Soon afterwards, a suit was instituted in the United States court by the present plaintiff against Mrs. Beale, alleging, that the latter was indebted to her minor children, to the amount of §20,000; that, by the marshal’s sale for §300, the petitioner had become subrogated to the rights of the minors ; and claiming judgment accordingly. The case was tried in the absence of the defendant’s counsel, and judgment recovered against her. She applied for and obtained a new trial, and, about eighteen months afterwards, in the year 1837, the cause was taken up again in the absence of her counsel, and judgment was rendered against her for §8,252 50.

Ponding these proceedings, the simulated sales made by Beale, sr., to his natural son, had been set aside by decree of court, and the widow in community and children obtained possession of a plantation in the parish of Jefferson, and a few negroes. Beale v. Delaney, et al., 6 Mart. N. S. 643.

An order of court was obtained in the parish of Jefferson, for the sale of the property recovered, and, at this sale, D. F. Walden became the purchaser, in 1831. The minor heirs subsequently brought suit against him for an undivided half of the property, on account of informalities in the proceedings, and recovered judgment. Beale et al. v. Walden, 11 Rob. 68. In 1839, Walden gave amortgage to the City Bank, under which his remaining half interest was sold by the sheriff, and the City Bank became the purchaser. The title of the City Bank is consequently derived from Mrs. Beale, and the plaintiff alleges that, while the property was in the hands of the said Mrs. Beale, it was affected by the tacit mortgage of her minor children to secure the debt due by her to them; that she is subrogated to their rights, and that the property in the hands of the bank remains liable to the mortgage.

The defence set up is: 1st. That the judgment of- Wistar against the minor heirs is null: 2d. That the sale of their rights under execution was null: 3d. That the judgment obtained by the plaintiff against Mrs. Beale has no effect upon the property acquired by the City Bank from Walclen: 4th. That Mrs. Beale was not indebted to her minor children: 5th. That if there ever existed

such a mortgage upon this land, as by plaintiff alleged, it is extinguished by prescription : 6th. That the pretended proceedings by which a judgment was obtained against Mrs. Beale, were fraudulent and collusive. This defence was sustained by the District court, and the plaintiff appealed.

Under the facts of the case the judgment obtained by the plaintiff against Aire. Beale was not evidence, as against the City Bank.

The pleas that Mrs. Beale was not indebted to her children in any amount whatever, and that the judgment was obtained against her by fraud and collusion, Involve negative propositions, which it was not in her power to prove conclusively. Sorapuru v. Lacroix, 1 La. 380. Beard v. Bijeaux, 8 Martin, N. S. 462. The subject matter of these negative averments being peculiarly within the knowledge of the plaintiff, those averments should perhaps be taken for true, unless disproved by her. But the defendants have gone further, and introduced evidence which affords ground for presuming that the first, at least, of those averments is true. 1 Greenleaf, Ev. nos. 78, 79.

It is urged, on behalf of the plaintiff, that Walden purchased the plantation during the pendency of her suit against Mrs. Beale in the United States Court, and that, under art. 2428 C. C. he has no greater rights than his vendor. The District court correctly held that the claim of the plaintiff in that suit, not being for the plantation but simply for a sum of money, the article of the Code relied on did not apply, and that Walden should be held in the light of a third person. It was therefore incumbent on the jfiaintiff, when claiming to exercise a mortgage on the property, to prove by other evidence the existence of her claim. This, we are of opinion, she has failed to do. The evidence in the record, on the contrary, raises a vety strong presumption that no indebtedness existed, andthat, ifAira. Beale had been properly defended, judgment must have been rendered in her favor.

Being of opinion that the judgment in the suit of Mrs. Odies v. Mrs. Beale is not evidence in favor of the present plaintiff, the question then arises what effect is to be given to the judgment of Wistar and the proceedings under it, against the present defendants.

It is probably true, as alleged by the plaintiff’s cpunsel, that the only questions that the defendants have the right to raise against that judgment are, want of jurisdiction in the federal court and fraud in the parties; and we agree with him that the first is untenable, and the second not proved.

It was not necessary, under the rules of practice in force at that time in the courts of the United States, to appraise moveables or credits, taken under execution. But we are of opinion that the judicial sale to the plaintiff of the rights, interests, claims and demands of the heirs of Thomas Beale, sr., in right of their inheritance of their deceased father, on their mother and tutrix, is void, by reason of the vagueness and insufficiency of the description of the thing sold. The nature of the rights, interests, claims and demands should have been stated in such a manner, as to give bidders a clue to their value. Art. 647 C. P. authorizing the seizure of the rights and credits of the debtor when he has neither moveable nor immovable property nor slaves, does not dispense with a proper description of the rights and credits seized. The seizure and sale made in this case were illegal and void. McDonough v. Gravier’s curator, 9 La. 542.

The record furnishes satisfactory evidence that, the counsel and agent of the plaintiff considered and treated the sale as a nullity. That agent was, from the beginning, the counsel of Wistar in his suit against the heirs of Beale. On the very next day after the marshal’s deed was made to him for the plaintiff, a pluries writ of ji. fa. was issued in the suit of Wistar against the heirs of Beale for the entire amount of the judgment, without any credit whatever, for the proceeds of the former sale. This writ was returned unsatisfied, and some time after another was issued for the full amount of the judgment. The return on this writ shows that the land was seized and several times sold by the sheriff, that the purchasers all failed to comply with the terms of the sale, and that finally the entire amount of the judgment was paid, and the writ returned satisfied.

These proceedings were had under the direction and supervision of the plaintiff’s agent, and his knowledge must be held to have affected her with notice. The legal presumption from his conduct operates in the nature of an admission that the first sale was a nullity, and that the price had never been paid; “for as against himself and those he represents, it is to be presumed that a man’s actions and representations correspond with the truth. These are in all cases evidence of the fact; and where the party has induced another to act on the faith of such representations, and where he cannot show the contrary, without being guilty of a'breach of good faith and common honesty, such representations are usually not barely evidence of the fact, but are absolutely conclusive.” Starkie, vol. 3, no. 1253. 1 Greenleaf, no. 27.

The record of the suit of the heirs of Beale v. Walden, shows also that Beale’s heirs have treated the alienation of their rights of inheritance as a nullity, to the knowledge of the plaintiff’s agent, and without opposition from him.

Judgment affirmed.


author: Rost, I.

text:
    Osborn v. Chambers.
    It is not necessary to serve on fee defendant copies of acts or documents annexed to fee petition, though fee petition itself states that they form part of it. C. P. 175.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Van Matre, for the plaintiff.

      Randall, for the appellant.
   The of the court (King, J. absent,) was pronounced by

Rost, I.

This action was brought on an open account, for work done and materials furnished by the plaintiff to the defendant. The defendant having failed to appear, a judgment was taken against him by default; and, after the legal delays, the plaintiff proved his claim, and the judgment was made final. The defendant then appeared in court by counsel, and moved for a new trial, on the ground that the account annexed to the petition was alleged to be made part thereof, and that he had not been served .with a copy of said account. The motion was overruled, and the defendant appealed.,

. It is not necessary to Serve on the defendant copies of the acts or documents annexedoto the petition, and the fact that the petition mentions that they form .part of it does not vary this rule of practice. C. P. 175.; The claim of the plaintiff is satisfactorily proved, and the judgment must be affirmed.

Judgement affirmed.


author: Eustis', C. J.

text:
    Walker v. Caldwell.
    The stat. of 16 March, 1848. ch. 191, purporting to amend the stat. of 4 May, 1847, by reference to its title only, and its provisions being necessarily inoperative without a reference ■ to the stat. of 1847, the first section mustbe considered as in direct conflict with arts! 118( 119 of the constitution, and any appointment made under it as void.
    from the Fourth District Court of New Orleans, Strawbridge., J.

      W.'; W. King, for the appellant,
    contended that the act of 1848 does not revive or amend that óf 1847 ; but provides’ Tor the appointment of an officer ! after the term ’of office under the first act had expired. The stat. of 1848’is within the concluding clause of’art. 1’20 of the constitution. Larue, forthé defendant.
   The' judgment of the court (King, J. absent,) was pronounced by !

Eustis', C. J.

This suit was originally instituted by Alexander. Walker, liquidator of the Atchafalaya Railroad and Banking Company, against the defendant, who was a stockholder of said company, ,to recover the sum of $SOOj being the amount of certain instalments which, it was alleged,, was due by the defendant on his stock. The office of liquidator having expired under the law of 1847, M. ,M. Reynolds was appointed to succeed Walker, under the act.of 1848, amending that of 1847, and, having resigned the office pending this suit, the present plaintiff, Theodore O. Stark', was appointed in his place. On Reykolds’ ’becoming a party to the suit an exception was taken to the validity of his appointment, on the ground of the unconstitutionality of the act of 1848," under which he was appointed, and the ’ District court sustained’ the exception.’ ’"The same exception was taken, to the appointment of .Stark with the same result and, the suit having been dismissed, the plaintiff has appealed.

Walker was appointed under an act entitled “ An'act to provide for the liquidation of the affairs .and payment of the debts of insolvent corporations,” approved on the 4th of May, 1847, and his term of service of one year, to which the duration of his appointment was limited by said act, had expired. His successor was appointed under an act approved the 16th March’," 1848, entitled “An act to amend the act entitled, an act ’to provide for the liquidation of the affair’s and payments of the debts of insolvent corporations, approved the 4th of May“ 1847.” The first section provides that, after the expiration of the term of office of the liquidators appointed under the act of 1847, the governor shall appoint the liquidators, who shall continue in office until the affairs of the respective insolvent corporations shall be liquidated and settled, provided the term shall not exceed two years ; and the’ liquidators shall give' bond and security, and conform to the provisions of the act hereby amended. ■ .

i-- Article 119 of the constitution provides that no law shall be-reVived dr'am'énded by reference to its title, but in such case the act revived or section amended shal? be re-enacted and published at length.

The act of 1848 purports expressly to amend the act of 1847, by reference to its title, and,without reference to the act of 1847, its provisions would be inoperative. It purports to do that which the constitution declares shall not be done, and the act must yield to the operation of the constitution, or the articles of that instrument providing for the forms of legislation be held to be of no effect. Those forms have been placed under the guarantee of the constitution, as a safeguard against errors and abuses in the legislative power. It has become the fundamental law of the State, that every law enacted by the legislature shall embrace but one obj ect, and that that obj ect shall be expressed in the title of the law; that the legislatuture shall never adopt any system or code of laws by general reference, but in all cases shall specify the several provisions of the laws it enacts ; and that no law shall be amended or revived by reference to its title.

The condition of our statute law was such, at the time of the formation of the constitution, as to impose on the convention the necessity of providing in the constitution itself for the forms of legislation.

The title of an act often afforded no clue to its contents; important general provisions were found placed in acts private or local in their operation; provisions concerning matters of practice or judicial proceedings were sometimes in the-same statute with matters entirely foreign to them; the result of which was that, on many important subjects, the statute law had become almost unintelligible, as they whose duty it has been to examine, or to act under, it, can well testify. To prevent any further accumulation to this chaotic mass was the object of the constitutional provisions under consideration. The legislature having provided for a revision of the former statutes, if those provisions are observed by future legislatures, this body of our law will be preserved in an intelligible form; otherwise, the confusion which prevails will be continued and increased.

The argument of the counsel for the plaintiff is, that the act of 1848 is constitutional, because it provides for the appointment of the officer after the term under the former act had expired, and therefore did not revive or amend that act in the intendment of the constitution. Notwithstanding this formal provision in the act of 1848, the objections to its form still remain. The object of the law is not stated in the title, except by reference to the title of the act it purports to amend.

The object and purpose of the constitutional provision being evident and unquestionable, and its language free from ambiguity, the duty is imposed on the judiciary of giving it effect.

Considering, therefore, that the first section of the act of the 16th of March, 1848, is indirect conflict with the 118th and 119th arts, of the constitution, the appointment of the plaintiff under it as liquidator of the Atchafalaya Railroad and Banking Company, confers on him no capacity to maintain the present action against the defendant. Judgment affirmed.


author: Host, L

text:
    Montgomery et al. v. Wood et al.
    A party to whom goods were shipped with directions to sell them for cash, delivered the goods-to a purchaser at a cash sale; but* in* compliance with a custom of the place,' as to ’ .encli sales, to deliver goods and call for the price three or four days after, did not require payment at the time of delivery, but called in the evening of the day of the sale, and for ' several successive days, without obtaining payment. The agent suffered several weeks to elapse without making any attempt to secure the price, though he must have suspected that the debtor was in failing circumstances, and might have recovered the goods or secured the pnce. There was no proof that such an attempt would have been fruitless. In an action by the shipper to recover the price of the goods: Held, that defendant was responsible for the price, having failed to show due diligence to collect the debt.
    from the Fourth District Court of New Orleans, Strawbridge, L

      Halsey and Britton,.{or the appellants.

      Bradford, for the defendants,
    cited 11 Mart. 636. 1 Pick. 342. Dunlap’s Paley on Agency, 26, 27, and cases cited: The judgment of the court (King, J. absent,) was pronounced by
   Host, L

This action is brought to recover the proceeds of a sale of goods, sold on plaintiffs’ account by the defendants, who are commission merchants. It is alleged in the petition, and admitted in the answer, that the goods were shipped to the defendants, to sell them for cash and remit the proceeds.

The defendants received the goods and sold them to Bernard Donlin, a person alleged to have been in fair credit at the time, and delivered them, without receiving or demanding the money. Six or seven weeks after the delivery, Donlin failed and absconded, leaving the debt unpaid; and the defendants, who are how sued for the amount, deny their liability, on the ground that the sale was made for cash, in pursuance of instructions, without guarantee on their part, and in the usual course of trade, to a person in fair credit at the time. They farther allege that they acted with due caution and prudence, and, after the sale, used all due diligence to collect the price from Donlin, but without success. On this issue there was judgment in favor of the defendants, and the plaintiffs have appealed.

In support of the ground assumed by the defendants that they sold in the usual course of trade, they have introduced several witnesses, who testify that it is the universal usage in this city, in sales for cash, to deliver the goods, and to call for the money two, or three, or four days, or more after the delivery. Those witnesses also testify that when a merchant in this city sells for cash without charging the guarantee commission, he is not considered liable for the sale.

Supposing this usage to be binding upon the plaintiffs, we are still of opinion that the defendants have failed to show due diligence, in their attempts to collect the debt. Ludwigsen, the former clerk of Wood S( Simmons, testifies that he made the bill of the goods sold to Donlin, and wrote thereon the word cash. He took the bill to him in the afternoon of the day on which the sale was made, and called again the next day, or the day after, for tire money. Donlin put him off for two or three days-; witness called again on the day appointed, and was told to call the next day. Witness called the next day and on several successive days, and was again put off. Donlin did not deny that he had bought the goods for cash, but said he was rather short of money, and would pay it in a few days. The money was never collected, and more than six weeks, after the delivery of the goods Donlin failed, and absconded.

The conduct of Donlin, when first called upon by the defendants’ clerk, was such as should have put them upon enquiry as to his circumstances. Had they made diligent enquiry, they would have ascertained that, before he absconded, two of the sheriffs of New Orleans had writs against him, and were executing them, and by prompt action they might have recovered the goods or secured the price. They suffered several weeks to elapse without making any attempt to secure the claim, when they should have known, and must have suspected, that Donlin was in failing circumstances; and they have adduced no evidence to prove that any such, attempt on their part would have been fruitless.

In the case cited by the defendants (1 Pick. 342), the circumstances were much less calculated to alarm the agent than those presented here. It is also worthy of remark that the court there considered that, to retake possession of the goods would have had the effect of cancelling the sale, and thus the principals might have suffered by a falling market;’ and it was thought to be a proper subject for " the agent’s discretion, under the circumstances, whether he would take that risk. But, under our law, which confers the vendor’s privilege, the seller may have the benefit of seizing the goods by judicial process and applying them to his debt,' without rescinding the contract, but still holding the vendor personally bound for - the price.

The plaintiffs are entitled to a judgment. It is therefore ordered that the judgment in this case be reversed, and that there be judgment -in faypr of the plaintiffs, and against the defendant Lorenzo D. C. Woods, who lias alone been cited, for the sum of three hundred and seventeen dollars and fifty cents, with legal interest from tho 23d May, 1846, till paid, and costs in both courts.


author: Sdidedd, J.

text:
    Livaudais v. Denis, Executor.
    Where obligations have been’ placed in the hands of an agent to collect, it is not sufficient far him, after some-time has elapsed, to offer to return them, without showing that lie exercised ordinary care and industry to obtain payment.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Le Qardeur, for the appellant.

      Denis', pro se.

      J. and H. LI. Strawbridge, on the same side.
   Tho judgment of the court (King, J. absent,) was pronounced by

Sdidedd, J.

St.-Avid was, during several years, the agent at New Orleans of the plaintiff, who was living abroad. This suit was brought to recover an alleged balance due from the agent, and, by the admissions of the parties at the' trial, the contest was narrowed down to certain specific items. St. Avid had received, in 1842, from the former agent of plaintiff, various assets belonging to the plaintiff, among which were a note of Charpeniier for $1,050 91, maturing a few days after its receipt by St. Avid, and also a protested note of Roussel 8f Vienne, on which it was stated in the receipt that two dividends had been paid.

Charpeniier, á witness for the plaintiff, to whose testimony no exception was taken, deposed that he had paid the amount of the note-to St. Avid in two payments, one of #500 and the other of #550 91 ; and that he Was unable to produce the note, having burned it after taking it up.

It appears that St. Avid has given credit in account for the first payment, but not for the second; and it is objected that the-testimony of one witness is not sufficient, under article 2257, to charge him with a liability for a sum exceeding #500. If the article can be deemed applicable, the objection is answered by the consideration that the claim does not rest upon the testimony of a single witness, but is supported by corroborating circumstances. St. Avid had given a written acknowledgment of the receipt of this note for collection, as plaintiff’s agent. If Charpeniier had not paid it, it would have been, in St. Avid’s possession, or-in that'-' of- his executor after his death, and should have been produced. The agent’s receipt, and the non-production of the noté, are strongly corroborative of the truth of Charpentier’’s testimony.

It appears that Roussel was an insolvent, and his estate .was administered by a Syndic, who had paid the plaintiff’s former agent two dividends. A dividend’ was declared in-1843,-being after the commencement of St. Avid’s agéíits'y'.í An agent of one of the creditors of Roussel states, that he collected the dividend for his principal, in October, 1843. The district judge decided that the defendant could not be held liable for the amount of the dividend, because St. Avid had not received it, and there was no proof that he had knowledge of its existence. One of two propositions is clear. Either St-Avid- knew the declaration of the dividend and riégiected to collect it; or else he neglected to make due enquiry from time to time, and his ignorance must be attributed to his own fault. Pie knew that the insolvent estate was under administration, and that dividends hkd been already-made; and it was his duty to use reasonable diligence, from time to time, by calling upon the syndic. If this had been done, it is fair to suppose he would’ have, been equally successful with the other agent. It has been repeatedly held that, wHen obligation's are placed in^he hands of an' agent for collection-, it is not-sufficient for him, after a lapse of time, to offer to return them, without showingtkat1 he exercised ordinary care and industry to get'the money. Police Jury v. Bullitt, 8 Mart. N. S. 328. Collins v. Andrews, 6 Mart. N. S. 195.

'■ The amount of the obligation entrusted for collection is, prima fade, the measure of damages'sustained by the principal. ' • • •' •

It is, therefore, decreed that the judgment be amended by increasing the capital sum adjudged, so that the same be fixed at the sum of ¡$21317 77, instead of’ thd sum of $2,-057 38 ; and that, so amended, the judgment be affirmed; the ■ costs of appeal to be paid by the defendant. 1 >


author: Rost, . J.

text:
    Zeringue v. White.
    ■Where'an act of sale refers to a plan as containing a drawing of the land, and/.tbe purchaser has possessed in conformity with it, he will-be estopped fi-om-claiming other boundaries on the allegation that the lines as represented on the plan are not in accordance with the original grant. . -
    Witnesses cannot be examined as to'matters of law, which it is the exclusive province of the court to determine.
    from the Fifth District Court’of New Orleans, Buchanan, J. L.

      Janin, for the plaintiff, appellant.',.

      J^enjamin and Micou, for the defendant.
   The judgment of the court (King,' J. absent,) was pronounced by

Rost, . J.

'íhe only question presented by this case is, as to the proper location of a.Spanish grant, under which the plaintiff claims. The requéte expresses the desire of the grantee to establish himself upon a tract of land called uel Encinal Grande (Grande Chéniére), which forms a sort of island between two lakes, and runs in a direction down the river, distant therefrom about one league, and is cut across by a bayou called bayou of the Little Lake. The requéte prays for a grant of sixty arpents in depth on each side of said bayou, with all the front thereon, which may be about eight arpents.” The ridge of the Grande Chéniére runs in a straight direction for about fifly arpents from the bayou of the Little Lake, at which distance it diverges towards the river, following the sinuosities of another bayou.

The plaintiff contends that, under the calls of the requéte, he is entitled to claim all the ridge of high land known as la Grande Chéniére, to the extent of sixty arpents from the bayou of the Little Lake. The defendant on the other hand, insists that the plaintiff is bound to protract his side lines straight from the bayou of the Little Lake to the entire depth called for by his title, and should not be allowed to alter the directions of those lines in order to suit the change of direction of the ridge of highland.

It is perceived that the controversy involves the right of the parties to the ridge of the Grande Chéniére beyond the depth of fifty arpents from the bayou of the Little Lake. It is admitted that this portion of land is included within the title of the defendant, which is posterior in date to that of the plaintiff.

It is in evidence that, in 1806, the grantee under whom the plaintiff claims, and his wife, to whom he had transferred his rights, caused a survey of his grant to be made by Barthélemy Lafon, and that, on this plan, the side lines are protracted without deflection from the bayou of the Little Lake to the depth of sixty arpents. This survey appears to have been made in presence of the adjoining proprietors, and has ever since been recognized by the grantee and his wife, and referred to by them in the subsequent sales they have made. Quinault, the immediate vendor of the plaintiff, had acquired with reference to it, and, in his. sale to the plaintiff, it is stated, “ que les dites portions de terre sont figurées sur un plan ensuite duquel se trouve un proces-verbal d’arpentage relatif á la totalitc de la terre susdite, dressé le 19 Avril, 1806, par feu Barihelemy Lafon alors. arpenteur, depute par Isaac Briggs, arpenteur general du Territoire sud du Tennessee, et dont une copie est annéxée a Vacie de ses vendeurs.” This act bears date in 1842.

No actual possession of the land in controversy by the plaintiff being proved, the District court was of opinion that the plaintiff was bound by the interpretation put upon the grant by the orginal grantee and those claiming under him. We concur in this view of the law, and are of opinion that the plaintiff is es-topped, by the very sale under which he holds, from alleging that the direction of the side lines, as they are represented in Lafon’s survey, are not in accordance with the original grant.

On the trial of the cause, the plaintiff offered practical surveyors to prove: 1st. How the concession under which he claims was to be laid down upon the ground. 2d. Whether the calls in that concession were so definite that a competent surveyor could not fail to lay it down correctly. 3d. Whether it is laid down correctly in the plan made by Phelps; and, if not, how it should be laid down.The court, on the defendant’s objection, refused to allow those questions to be put, considering that they were matters of law to be determined by the court on the title papers in evidence. The plaintiff took a bill of exceptions.

The District court did not err, in refusing to permit those questions to be unanswered by the witnesses. The answers would have-decided the controversy, which the court alone had power to determine. Bowman Flower, 7 La. 111.

Judgment affirmed.