author: Etjstis, C. J.

text:
    White et al. v. Chaney.

      A. Court of Probates lias jurisdiction of an action to compel a tutor to account, instituted at any time before his discharge. The court will have jurisdiction, though it bo alleged in the petition that the tutor, in collusion with tho imder-tutor, had been permitted to resign the tutorship without rendering any account.

      APPEAL from the Court of Probates of East Baton Rouge, Tessier J. The plaintiffs represent that, in the year 1831, the defendant was appointed their tutor by the Probate Court of East Baton Rouge : that he took charge of the estate inherited by them, amounting to about $4,000, which he administered, but has rendered no account thereof: That, on the 24th April, 1841, the defendant, in collusion, with one White, who had till that time acted as their under tutor, but who had then permanently removed with his property to the State of Mississippi, being only temporarily in this State, instituted certain summary proceedings in said court, whereby Chancy resigned his tutorship without rendering any account, and qualified as under-tutor, and said White, in his turn, resigned his trust as under-tutor, and was permitted to assume that of tutor: That the records of the court furnish no proof of White’s having been permitted to take possession of their estate: That the defendant suffered him to leave the State, without taking any steps to cause him to render an account, as tutor : That the pretended judicial proceedings, on the 24th April, 1841, cannot prejudice their recourse against the defendant, as their tutor: That they should be declared null and void, and Chaney, as tutor, compelled to pay to them the whole amount of the estate, with the fruits and revenues thereof, and the interest for which lie is legally liable. The petition concludes with a prayer that the defendant may be condemned to account, and pay over the balance due by him as tutor, with interest, &c.
    The defendant excepted to the j urisdiction of the court, on the ground of his discharge from the tutorship by a judgment of the court rendered on the 24th April, 1841, averring that the court had no power to compel him to render any account of the tutorship. The record does not show that any evidence was offered on either side. The exception was sustained, nnd the petition dismissed. The plaintiffs appealed.

      Elam, for the appellants.
    The exception does not allege that the plaintiffs were legally represented in the proceedings by which the defendant was discharged from his tutorship, hence the judgment was not binding on them. In the case of Marchancl et al. v. Grade, 2 .La. 147, a similar question was presented, and the Supreme Court held that “an executor who presents his accounts and prays for a discharge, must cause the heirs to be cited. In the case before the court, the tutor was discharged without being required to account. The Code of Practice, art. 997, declares that, “ the judges of the courts of probate who have appointed and confirmed tutors, alone have the power of compelling them to account, and pay over what they may be found to owe.”
    If the court decided correetlyin the case of Stafford el al. v. Villain et al. 10 La. 319, that “tutors, under an order of the court of probates must, and without it may, exhibit an account of their administration, and the court may make certain orders thereon, but nothing authorises it to homologate such accounts, so as to render them conclusive and binding on the minor; for the law gives the latter the right, until the expiration of a certain delay after he becomes of age, to examine and contest all the accounts of his tutor,” certainly no ex parte judgment of the probate court could discharge the tutor from its jurisdiction.

      G. S- Lacey, for the defendant.
    It is contended on the part of plaintiff: 1st, That the exception was not sustained by proof; and, 2d, that had it been proven, it ought not to have prevailed. The exception was proved, by the admissions in the petition “ that Chaney had resigned the trust, and that White had been appointed tutor.” The averment that this was done through fraud and collusion, does not deny that the discharge was granted. The exception or discharge was established by the tecords of the court of proh ates, of which the court was bound to take judicial cognizance, being its own records and judgments. The exception should have been sustained: 1st. Because the Probate Court was without authority to call upon defendant, after he had been discharged from the tutorship, to render an account, tie had ceased to be an officer or person, over whom its limited jurisdiction could extend. Art. 924 of the Code of Practice does not authorize a suit to be brought in the Probate Court, after the expiration of the administration of the curator, or other administrator. It only authorizes the. court to retain its jurisdiction, in such suits as may be brought therein daring the time of the administration. 2d. Because the Court of Probates had no authority to call for a rendition of accounts, until its first judgment was set aside, either by an appeal, or by an action of nullity. It has been decided by this court, in 1 Rob. p. 113, “that the court can in no case discharge the tutor, while the law makes him responsible to his pupil; and that he has after his majority, a certain delay to examine and contest the account.” Yet if the court does, notwithstanding the law, enter a judgment of absolute discharge, it is not, ipso facto, null and void ; and though illegal, it will be held to be good, until reversed, either on appeal, or by action of nullity. Fraud, collusion, or illegality, may be good grounds to revoke or reverse a judgment, but not to treat it as a nullity. 5 Mart. N. S. 165. 7 La. 223. This was the course adopted, in the case referred to by the plaintiffs,in 10 La. 319.
   The judgment of the court was pronounced by

Etjstis, C. J.

It is the opinion of this court that the Court of Probates had jurisdiction to determine and decide on the matters in issue between the plaintiffs and defendant, in their petition and answer set forth.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that the case be remanded for further proceedings; the appellee paying the costs of this appeal.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Duplantier, Tutrix, v. Newcomb et al.
    In an action against the endorser of ra note secured by mortgage, defendant may set up his discharge in consequence of plaintiff’s having postponed the mortgage by which the note was secured to another in favor of a third person, without having pleaded it specially, where» from previous proceedings in the case, plaintiff was apprised of the defence that would be set up, and the evidence of the facts which discharged- the defendant was introduced by the plaintiff himself.
    APPEAL from the District Court of East Baton Rouge, Boyle, J.

      Watts and Spring, for the plaintiff.

      Elam, for the defendants,
    contended that though a party would not be permitted to prove a fact extinguishing an obligation contracted by him, without having specially pleaded it, yet where a plaintiff, in his efforts to establish the contract, introduces evidence which shows its extinction, that evidence must avail the defendant, under the general issue. In Brown v. Saul, 4 Mart. N. S. 437, the court say that, “a total want of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause.”

      T. G. Morgan, on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

This case was before the late Supreme Court, and is reported in 10 Robinson’s Rep. p. 104. On the argument of that case, it was urged that the judgment appealed from, so far as it related to the defendant, Harney, ought to be reversed, on the ground that he, as the endorser on the notes sued on, was discharged by an act of the plaintiff, in postponing the mortgage by which the notos were secured to that of another creditor, the Union Bank; but Harney had not appealed, and the objections to his liability were not noticed. The judgment was reversed, and the case remanded for a new trial. On the trial, the whole case was considered and treated as open, both in relation to Newcomb, the maker of the notes, and Harney, the endorser. Títere was judgment for the plaintiff; and Harney and the plaintiff have both appealed ; and Harney has also appealed from the judgment which was before the Supreme Court as we have before stated, and which he was precluded from questioning, not having been a party to the áppéall- Both'appeals have been argued before us, and the question of Harney’s liability, as endorser of the notes sued on, remains to be considered.

It appears that, on the 9th of February, 1839, the plaintiff did postpone the mortgage, by which the notes endorsed by Harney, were secured, in favor of a new one granted to the Union Bank, and that this act in- law discharged the endorsers on the notes, is not questioned.

The late Supreme Court, in an obiter dictum, intimate that Harney ought to have pleaded his matter of defence specially, and the same argument has been urged by counsel on this appeal. As the matter stands before us, it is clear that the plaintiff was- necessarily apprised of the ground of defence upon which Harney relied. It had been presented unsuccessfully on the appeal, and the answer gave the plaintiff ribtice that the defendant only considered himself as ori. ginally bound to the plaintiff on fhe'notes of Newcomb, as surety for the latter* Well knowing this, the evidence of the1 postponement:'of the- mortgage, to the manifest detriment of the rights of Harney, as surety and endorser on the notes by which it was secured, was offered by the plaintiff, without showing any assent on the part of Harney to the transaction. The release of Harney from his obligations, was thereby established, and no judgment could be rendered against him. Where parties, plaintiffs, have been thoroughly apprised of matters of defence, defendants have not been held to special pleading. Tracy v. Tuyes, 7 Mart. N. S. 354.

It is not necessary to decide the question whether, under the allegations of the answer, evidence of the postponement of the mortgage, to the injury of the rights of Harney, was admissible'. If a case of surprise had been made out, or, if the party had been misled by the dictum, of the Supreme Court, before mentioned, and had applied to have the cause remanded', the application would have been favorably considered. But called upon to terminate this litigation on its merits, we cannot hold Harney liable for a debt from-which the plaintiff had himself proved that he has been in law discharged. The judgment of this court is, therefore, in his favor. We must consider the judgment against Harney, signed on the 22 of June, 1844, from which he has taken an appeal, as vacated by the proceedings of all parties in the subsequent trial of the cause, and therefore declare it void and of no effect, and his appeal from it must therefore fail.

It is therefore decreed that the said judgment be declared to be null and void, and that the appeal taken by said Harney be dismissed with costs;' and it is further ordered that the judgment against said l-Iarney, rendered by the District Court on the 16th of January, 1846, so far as the same relates to said Homey, be reversed, and that judgment be rendered in favor of said Harney against the plaintiff, with costs of this appeal, and those accruing inthe District Court since1 the remanding of the first appeal. •


author: Rost, J.

text:
    Succession of Noblet.
    An administrator is responsible personally for any loss sustained by tbe succession, from the want, on Ms part, of that degree of cave which a prudent father of a family uses in tbe management of bis own affairs.
    Appeal from the Court of Probates of Livingston, Watts, J.

      Baylies, for the appellant,
    cited 12 Mart. 684. 3 Rob. 287. 4 Mass. 354. Winter and Wailerston, contra, cited Arcenaux v. Michel, 6 Mart. N. S. 93. Longbottom v. Babcock, 9 La. 48. HeLorme v. BeLallancle, 10 Rob. 477. Láfon's Heirs v. His Executor, 3 Mart. N. S. 707.
   The judgment of thecourt was pronounced by

Rost, J.

McRae, who was administrator of a succession, has appealed from a judgment of the Court of Probates, charging him, in the final account of his administration, with the amount of a note of $916 66, belonging to the succession, and not recovered by him.

It is in evidence that this note was fully secured by mortgage, and that it was left in the hands of a former judge of the Court of Probates, who collected the amount of it, and applied it to his own use. This person has not accounted to the administrator, and no legal proceedings have ever been instituted against him. The administrator alleges that the note was left in the hands of the judge, in his capacity of notary public, to be protested, and that he cannot be made responsible for the breach of trust of that public officer. He further avers that the judge and his sureties had been notoriously insolvent for years, at the time of the conversion, and that legal proceedings against them would have involved the succession in expense unattended with any advantage.

The appellant’s own witness shows that the note was entrusted to the probate judge for other purposes than that of protest, and that he was authorized to collect upon it the amount of the fees due him by the succession. The administrator made him his agent for that purpose, and is liable for all damage sustained by reason of that ngency. His allegation that the judge and his sureties were notoriously insolvent when this authority was given, satisfies us that in giving it, ho did not use the degree of care which a prudent father of a family uses in the management of his own affairs. Judgment affirmed.


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

text:
    The New Orleans Draining Company v. De Lizardi et al.
    Where a paper signed by a third person, and other acts of his, and hearsay evidence of con versations with him, have been offered in evidence by a party, other statements made hy him, though not under oath, and made out of the presence of the party against whom they aro offered, arc admissible to discredit the writings and statements first introduced.
    The action mandati directa embraces all claims of the principal against the agent, whether resulting from the execution of the obligation, or for damages for failing to execute it.
    Where litigants withhold the evidence by which the nature of their case would be manifested, every presumption to their disadvantage will be adopted.

      Whoro the bailees of securities, entrusted to them for sale, lortiously pledge them, it is an ox ercise of dominion which amounts to a conversion.
    The measure of damages where a written security has been the subject of a tortious convereion, is, ordinarily, the sum recoverable on that security, though the defendant have sold it for less. In tho common law courts the plaintiff is entitled to-reoover, under this rule, the par value of the security, with interest only to tho day of rendering the verdict, tho jury alone being competent to assess the damages, and their verdict being final. In this State, where the damages may bo assessed cither by the inferior or Supreme Court, interest due on the day of the final judgment is recoverable as part of the damages.
    An agent is bound to pay legal interest on any sum belonging to his principal illegally converted to his own use, from tho time of its conversion till paid. C. C. 2984.
    Appeal from the Parish Court of Now Orleans, Maurian, J.

      SouU and Itoselius, for the plaintiffs. L. Jarán, Benjamin and Micou, for the appellants.
   Tho judgment of the majority of the court was pronounced by

Rost, J.

The petition alleges that, on or about the 9th of August, 1836, the plaintiffs made a contract with M. De Lizardi & Co., of New Orleans, by which the Draining Company bound themselves to consign, for sale, to F. De Lizardi Co. of London: 1st, Fifty bonds of the State of Louisiana in favor of the said plaintiffs, bearing five per cent interest, each bond being for one thousand dollars. 3d, Three hundred and sixty bonds also for one thousand dollars each, boaring five per cent interest, drawn by the corporation of the city of New Orleans to the order of said plaintiffs. That the said M. Be Lizardi Sf Co. bound themselves to advance to the petitioners in New Orleans, on the consignment of said bonds, in such sums and at such terms as might be required, one hundred thousand dollars, at an interest of five per cent per annum.

That it was also agreed that said bonds should not be sold for less than $104, for each hundred dollars here; and, if they should not be sold at that rate within six months, the plaintiffs would have the right, within the six months thereafter, to withdraw tho bonds, or the unsold portion thereof, on paying the capital advanced. That if they did not, F. Be Lizardi & Co. would, after twelve months from the date of the contract, be authorized to sell at their current value, a sufficient number of the bonds to pay their advances.

The petition further states, the manner in which the proceeds of tho bonds and the interest due on them were to be paid, and the commissions allowed to F. De Lizardi & Co. It alleges that the bonds were transmitted to F. De Lizardi & Co., according to contract. That, between the years of 1836 and 1839, the said F. De Lizardi & Co., and M. De Lizardi & Co. negotiated and sold said bonds, or tho greater part thereof, at a premium of four per cent; but instead of advising the plaintiffs of the sale, fraudulently concealed it from them, and iu order more effectually to keep the said plaintiffs in ignorance of the transaction, the said F. De Lizardi made various wilful misrepresentations, and resorted to various manosuvres and subterfuges, to induce the belief that the bonds were still in their hands, undisposed of. That tne said M. Be Lizardi Sf Co. aided and abetted in said concealment, and that, amongst other facts, in the beginning of the year 1839, said F. Be Lizardi & Co. advised them that all the bonds woro still in their hands and could not be sold, but proposed to purchase one hundred and twenty-five of them at eighty cents on the dollar, subject to a commission in their favor of two per cent, and payable on time. That the plaintiffs were induced, by that fraudulent misrepresentation and by their pecuniary distress, to accede to that proposition.

That with a view of preventing the plaintiffs from discovering their illegal and fraudulent conduct, the said F. De Lizardi & Co. insisted on inserting a clause in the contract, that, in case the Company should find an opportunity of selling the remainder of the bonds, a preference, or rather right of refusal to purchase them, should be given to the said F. De Lizardi Co., on terms equal to thoso offered by any other party. That, in the subsequent correspondence between the plaintiffs and F. De Lizardi & Co., the latter always represented the remainder of the bonds as still in their possession, and that the late Miguel De Lizardi, the principal partner in the firm of M. De Lizardi & Co., advised, instigated, aided and abetted the said F. Fe Lizardi Sy Co. in making said misrepresentations and committing said fraud, and participated in the advantages derived therefrom.

That on the 28th of January, 1841, the plaintiffs, still believing that the bonds remained unsold in the possession of their agents, and being much pressed for money, borrowed from F. Fe Lizardi Sy Co. the sum of $25,000, to be refunded on the 31st December, 1841, at an interest of seven and a half per cent per annum, and one per cent commission. That they were further forced to pledge to the said F. Fe Lixardi Sy Co., to secure said loan, fifty of the city bonds, which the lenders represented as being still in their hands; and that, in order to prevent the plaintiffs from detecting the fraudulent deception practised on them, the same right of preference or refusal was again stipulated, at the instance and request of said F. Fe Lizardi Sy Co.

That the fiscal concerns of the jfiaintiffs having become desperate by being unjustly deprived of their means, they were compelled, on the 17th of April, 1843, to sell to the said F. Fe Lizardi Sy Co., 219 of the remaining bonds at the price of forty-seven and a half percent, on certain conditions mentioned in the petition.

That all those transactions, having originated in fraud and deception on the part of F. Fe Lizardi Sy Co. and in error on their own, ought to be rescinded and annulled, and all the participators in the fraud be made to pay damages over and above the liability resulting from their agency.

That Miguel Fe Lizardi died on the 20th of September, 1840, leaving as his heirs pure and simple, the widow Olizabal, his mother, and his two brothers. That Francisco Fe Lizardi died in March, 1842, leaving as legatees his widow Helena Fe Cabas, and bis minor children, all properly represented in New Orleans. That the surviving partner of F. Fe Lizardi Sy Co. is Alexander Gordon, and that the late firm of M. Fe Lizardi Sy Co. is represented by the widow Olizabal and Manuel Julien Fe Lizardi.

The petition prays that the defendants be ordered to render an account of their agency in the sale and negociations of the bonds; that judgment be rendered against them in solido, for $440,000, or such other sum as, on a full and fair account and settlement, may appear due to the petitioners, with interest and damages; and that the different contracts and agreements enterod into between F. Fe Lizardi Sy Co. and the petitioners, subsequently to the 9th of August, 1836, be annulled and set aside. The petitioner concludes with a prayer for general relief.

Alexander Gordon, the only one of the defendants present at the time of the institution of this suit, filed a separate answer, and denied on oath any knowledge whatever of the sale of the bonds, or of any negociation in relation to them, between the Marqnis Fe Casañera and the firm of JP. Fe Lizardi Sy Co,, of which he was at that time the managing partner. He denied further, plaintiffs had any right of action against him individually.

The answer of the other defendants admits the agency, and the two purcilaseg j,y j)e Lizardi Sf Co. of the 125 and 219 bonds mentioned in the petition, and avers that the 344 bonds all belong exclusively to the widow and children of Francisco He Lizardi, and are now in their possession: That there existed three commercial firms under the names of Lizardi Hermanos, M. He Lizardi Sf Co. and F. He Lizardi Sf Co.: The first was established in Paris, and was composed of Miguel He Lizardi as head partner, and Manuel Judien He Lizardi as junior partner : The second was established in New Orleans, and composed of Miguel de Lizardi, as its chief, and of Edmond T., and Placide Forstall, as the other partners : The firm of F. He Lizardi Sf Co. was established in London, and was composed of Francisco He Lizardi as head partner, and of Alexander Gcrrdon, and Pedro He la Quintano: That an intimate connexion existed between the several firms, which, on this and many other occasions, acted as agents for each other: That as soon as the bonds mentioned in the petition were sent to the London firm, the New Orleans house commenced making the promised advances: That, in the month of April, 1837, Miguel He Lizardi was in Paris; that, not knowing the extent to which advances had been made on the bonds by his house in New Orleans, under the contract of the 9th of August, 1836, and being desirous to re-imburse himself for the advances already made, and provide means for the further advances required by said contract, he took the bonds from the London house forsale in Paris, but could find no purchaser at the limits fixed by the company: That the said firm of M. He Lizardi Sf Co., beingatthat time indebted to Lizardi Hermanos, who were also expected to provide the funds to be advanced to the Draining Company, the said Miguel He Lizardi pledged said bonds to the Marquis de Casañera, a capitalist then and still residing in Paris, for a loan made by him to Lizardi Hermanos: That notwithstanding said pledge, they had full power to sell the bonds, and attempted in vain to do so: That to reimburse themselves of their advances, they subsequently purchased the bonds, as stated in the petition: That they have since repaid the loan to Casañera, and, having the 344 bonds in their possession, now assumed the character of plaintiffs in reconvention. They aver that the plaintiffs, by unjustly aspersing their character, and that of their deceased relatives, and throwing doubts on their title to the bonds, have rendered the sale of them disadvantageous, if not impossible. They, therefore, pray for the recision of the contracts of the 23d of January, 1839, and 17th of April, 1843, and the recovery of the price paid, with interest and damages.

It is in evidence, that, in April, 1843, one Felipe Mora came to New Orleans, as agent of his uncle, the Marqius de Casañera, and was directed by him to make inquiries in relation to his interests invested in the New Orleans Draining Company. The letter of instructions, bearing date the 25th of February, 1843, contains this passage: “ Soy poseedor también, mios y de algún otro amigo, de 300 obligaciones de la ciudad de la Nueva Orleans, á favor del Draining Company, de á $1000 cada una, cuyo capital y intereses son también pagadores en Londres.”

This letter enclosed also the following certificate :

“ We, the undersigned, do hereby certify, that, in the year 1837, we sold to the Marquis de Casañera, of Paris, a certain amount of bonds of the City of New Orleans, issued in favor of the Draining Company, and endorsed by said institution ; and we further certify and declare that, we have paid unto the said Marquis de Casañera, through the medium of his agent in this city (London), the dividends which have been made on the said bonds, until the present time; and that, to the best of our knowledge and belief, the said Marquis de Casañera is still tho owner and proprietor of said bonds, and that he has them at the present time in his power and possession. Witness our hands, this 13th day of February, in the year of our Lord, 1843.

[Signed,] F. De Lizardi & Co.”

Shortly after his arrival, Mora made inquiries of the house of Lonjear £f Co., in relation to those bonds, and was introduced by them to the Mayor of this city, who had him introduced to the President of the Draining Company. Mora has testified that, in that interview, he simply stated to the president of the company, that his uncle possessed 300 of the bonds issued by the city, in its favor. The person who went with him, and who was present at the conversation which took place, states, that Mora told the presidont of the company, that the Marquis de Casañera was in possession of 300 of the city bonds, issued in their favor, which he had purchased several years before, of the house of F. D. Lizardi Co.”

Early in May, the Draining Company dispatched an agent to Paris, for the purpose of ascertaining from the Marquis de Casañera what amount of bonds had been sold to him, by whom, at what time, at what rate, and, if possible, of procuring legal evidence of those transactions. On the day of his arrival in Paris, that agent called on Casañera, informed him of the object of his visit, and had with him, on that day, and on several subsequent occasions, long conversations in relation to these bonds. Casañera made it a condition, before ho would place at the disposal of the company, the evidence that might be in his possession in relation to the disposal of them, that they must bind themselves to apply all sums they might recover, to the redemption of the bonds in his hands. He stated that if they did not, he would join with the Lizardis in the defence, if they made it his interest to do so. The plaintiffs peremptorily refused that proposal, and upon the information received from their agent, instituted the present action.

An exception was taken to the introduction of tho testimony of this agent, so far as it related to his conversations with Casañera, on the ground that the acts and sayings of the witness and Casañera were res inter alios acta, not binding on the defendants, and that Casañera was a competent witness in the cause.— That evidence, though originally not admissible, beeame so in the course of the trial, to discredit tho counter letter, and the other acts of Casañera, and tho hearsay evidence of conversations with that person, introduced by the defendants themselves. 1st Greenleaf’sEvid., no. 4G2. Butwe leave it outof view, except so much of it as goes to prove the degree of diligence used by the plaiy tiffs in search of tho witness Casañera, and the answers givon to their interrogatorios. 1st Greenleaf’s Evid., no. 574.

A commission was sont to Paris, to tako the deposition of the Marquis de Casañera; but he positively refused to testify, and frustrated every effort to compel him so to do. On the application of the American Minister, at the court of France, a special order was given by the Minister of Justice, to compel him to testify. On that occasion he absconded from Paris, and went en poste to Boulogne, to avoid yielding obedience to the order of the court. At another time) he suffered himself to be fined, rather than appear before the magistrate, ^e 6®'0rts °f tb° American consul, were equally unavailing.

One of the defendants’ witnesses states, that he called upon him on their part, an(j reqUeS(;e(j jjjm t0 testify. It has been argued that this witness had been made the dupe of the defendants. Whether he was or not, is not material, under the view we have taken of the rights of the parties.

The cause was tried before a jury, who returned the following verdict:

“ We the jury find a verdict in favor of the plaintiffs in the sum $60,000, and and are of opinion that the bonds were pledged.”

The judgment rendered upon that verdict was, that the contract for the sale of 125 bonds, executed on the 23d of January. 1839, -and the contract of the 23d of April, 1843, for the sale of 219 bonds of said city, be annulled, reseinded, set aside, and the bonds returned to the plaintiffs; and that the plaintiffs recover from the defendants the sum of $60,000, with interest from the judicial demand and costs; reserving to the said defendants the right of off-setting any sum which they may have paid on account of the plaintiffs, since the institution of this suit. From this judgment the defendants have appealed.

It would be alike dangerous and unprofitable to go into the inquiry suggested in argument, that the judgment appealed from is inconsistent with the verdict, as the jury understood it. We have authority to pass upon the facts of the case, and to draw our own conclusion from them. If the jury had expressly acquitted the defendants of fraud, and we came to the conclusion that the verdict was contrary to law and evidence, the case would be remanded for trial before another jury. But they have not done so; the verdict in that respect is special, and limited to the finding of the single fact, that the bonds were pledged. The legal inferences from that and the other facts of the case, not concluded by the verdict, fall within the proper province of the court; and, as the plaintiffs have earnestly asked that'this litigation be now terminated, we will take of the rights of the parties, as they are placed beforo us, the only view under which that desirable object can be accomplished, although, in so doing, we are far from being sure that we are adjudicating upon real facts.

The argument that the defendants came into court to answer the charge of selling the bonds and no other, is not tenable, and has not been insisted upon in the second brief of their counsel. Although the petition alleges specially the sale of the bonds, the prayer is sufficiently general to embrace all dispositions, lawful or unlawful, which may have been made of them, and all claims which the plaintiffs may have against the defendants by reason of their agency. This is the action mandati directa of the roman law. It embraces all claims of the principal against the agent, whether they be for indebtedness resulting from the execution of the mandate, or for damages sustained by the breach or inexecution of it. See Pothier, Contrat du Mandat, no. 61. Story on Bailments, no. 191.

The evidence in relation to tho real naturo of the transaction which took place between the defendants and Casañera, is so conflicting, and, in part, of so suspicious a character, that the mind gives a reluctant assent to the conclusion to which the juiy came, that the bonds had been pledged, and were not sold. We will, however, give the defendants the benefit of the finding of the jury. We will take the facts as stated in argument, that, at a time of great embarrassment, they pledged the bonds to Casañera, in April, 1837, as security for a loan made to Lizardi Hermanos, the amount of which they have not seen fit to disclose, and upon which they paid an exorbitantly usurious interest during six years and a half.

Under this view, the case prosents the following questions for our cbnsideration:

1st. Could the defendants lawfully pledge the bonds; and, if so, were their subsequent dealings with tho plaintiffs, such as to render the pledge lawful, during all the time of its continuance ? 2d. If the pledge was at the beginning, or subsequently became, unlawful, how did that circumstance affect the subsequent sales of the bonds made by the plaintiffs to the defendants? 3d. If the pledge was unlawful, was it such an application of the property to a purpose unauthorized by the plaintiffs, as constitutes a conversion; and, if it was, what are the damages which the plaintiffs are entitled to recover ?

On tho first point, it may bo conceded that in England, at the present day, a factor who is entrusted with tho possession, either of goods or of documentary titles to goods, may deposit the same by way of pledge for advances made to himself, and that such a contract, when entered into in good faith on the part of the pawnee, in binding on the owner of the goods. That right however, does not exist by virtue of the custom of merchants, but was given by the statuto 5 and 6 Victoria, ch. 39, passed in 1842, in derogation of commercial use as previously understood. See Russell on Factors and Brokers, pp. 98, 99; vol. 38, Law Library. It is not easily perceived how a contract of pledge, executed in Paris, could come undor the statute of Victoria; but had the pledge been made in England, instead of France, even after the enactment of that statute, although it might have been binding on the plaintiffs, to the amount of tho loan between them and tho defondants, it would, on the part of the latter, have been tortuous and fraudulent. Miguel de Lizardi Co. had advanced a small sum on account of the §100,000 promised in the contract; but that sum was refunded, long before tho expiration of the year during which the loan was to continue, by the sale of the fifty state bonds mentioned in the contract, and of six of the city bonds. At the expiration of the year the defendants were largely indebted to the plaintiffs, and continued to be so till some time in 1841.

If the sum of §100,000, which the defendants were bound to advance to the plaintiffs for one year at an interest of five per cent, was not refunded at the stipulated time, the defendants were authorized to sell, at their market value, a sufficient number of bonds to reimburse thomselves. They had no claim for reimbursement until the 26th of August, 1837, and, after that-time, in case of nonpayment, the sale of the bonds was their only remedy. It presented no difficulty, as their own brokers have proved that the sale could have been effected, at from 73 to 75 per cent. It would have been much better to make that disposition of them, than to retain them till they fell to 47£ per cent of their par value. The defendants had no color of light either for pledging the bonds, or for suffering that pledge to continue to exist for years afterwards.

"We would have been assisted in this inquiry by being informed of the amount borrowed by the defendants on tho pledge, and it Was incumbent upon them to have shown it; but that fact has been kept concealed from us, although a person, who was at the time an inferior clerk of the Paris house, has, to our surprise, testified to his personal knowledge of all the particulars of the contract of pledge, which the acting partner of F. De Lizardi Co. has sworn were unknown to him. That witness has been careful not to inform us of the amount boiTowod. No trace whatever of the transaction is found in the books of any °f the three firms. It was kept concealed to the last from the plaintiffs, and the correspondence, which is represented as having passed on the subject, between some of tho defendants and Casañera, as well as the counter-letter adduced jn evidence of the pledge, are full of indirection and mystery. If litigants withhold the evidence by which the nature of thoir case would be manifested, we must adopt every presumption to their disadvantage. We must apply to them the favorite maxim of the law, omnia prcesumuntur contra spoliatores. See Armory v. Delamirie, 9th Law Library, 115, and notes.

The defendants received the bonds with the condition that they should not dispose of them at a price less than four per cent over their par value. They sold fifty-six at that limit, and shortly after pledged the remainder as their own, and for their exclusive benefit. We would presume that the sum they borrowed on this unlawful pledge was as large as Casañera would lend, if this was not made certain by their own admission that he was to receive, and did receive, during more than six years, in consideration of the loan, the whole amount of the interest stipulated in the bonds.

It is urged, in extenuation of thoir conduct, that the contract of pledge between them and Casañera left thorn at liberty to sell the bonds; but that faculty was given to them on the condition only, that the entire sum borrowed should be returned, before any of the bonds were delivered. The fact that Casañera consented, atone time, to return forty-four of them upon the promise of the payment of a portion of tho sum borrowed, if true, shows that, on that occasion, Casañera did not insist upon the strict performance of the contract. He was not bound to do so.

The witness already mentioned testifies that, the sum borrowed might have been returned at any time, if it had been necessary to do so. We hold common honesty to be one of tho necessities of commerce, and we must believe that it was so considered by tho defondants. A moral necessity did exist, independently of all chances to sell tho bonds. The defendants must have felt every day, every hour, the necessity of relieving themselves from the weight and disgrace of that unfortunate transaction. The facts that they did not do so until after the institution of this suit, and that they paid usurious interest on the loan during six years and a half, leave no doubt on our minds that, it was utterly out of their power to redeem the pledge, and to sell the bonds as opportunities might offer. It is alleged that they withdrew forty-four of them at one time, and would have withdrawn tho remainder, if purchasers had been found. That consequence does not follow;.those bonds were returned to them on their express promise to pay back a certain sum, the amount of which is, as usual, not disclosed; but we are left in doubt whether this sum was paid, or whether the bonds were returned to Casañera. Indeed the conduct of those parties would justify the belief, that they were in that transaction making evidence for the litigation they must have expected.

To avoid detection they purchased the bonds at long credits, as fast as they could, and reserved, in all thoir contracts with the plaintiffs, the right to take the bonds unsold at the price that other persons might be willing to give for them. If their embarrassment had continued, and had prevented them from paying Casañera, he was authorized by the contract to sell the bonds at any price, whilst the defendants themselves had no authority to sell them under four per cent premium. If the defendants had failed, and the contract of pledge was valid, the bonds would have been sacrificed to pay the loan, and the plaintiffs must have lost them. It is alleged that, as no sale could be effected at the limit, the circumstance the bonds being placed in the custody of Casañera, instead of remaining in that of F. De Lizardi & Co., has caused the plaintiffs no injury. We are not satisfied that the bonds, or at least a portion of them, could not have been sold at the limit, if the attempt had been seriously made. In the letter from F. De Lizardi <$• Co. to M. De Lizardi Sf Co., advising the latter of the sale of six of the bonds to Casañera at 104, they say ; “The prices can be considered only as indicative of our view of their value, and we regret to say that this market is not yet in a state to enable us to make progress at these rates.” When subsequently they withdrew forty-four of the bonds under the expectation of selling them, they still entertained the same view of their value. In opposition to their own contemporaneous declarations, the evidence of their brokers, taken seven or eight years after those transactions, that the bonds were only worth, at that time, from 73 to 75 per cent, is entitled to little weight, and even those brokers are compelled to say, on the cross-examination, that the bonds in controversy were never offered in the London stock market by them, or to their knowledge. However this may be, the legal rights of the plaintiffs were fixed by the conversion.

If the defendants had sold the bonds under the limit, and subsequently taken them back at half price, the argument that no damage had been sustained by the plaintiff, because no sale could be effected at the limit, would apply with equal force. The rule of damages in cases like this is a question of law; and, beyond the rule, special damages are recoverable, if particularly alleged. 17 Pickg. p. 1. 4 Pickg. p. 466. 2 Greenleaf, Ev. no. 649. Sedgwick on Dam. p. 496.

It is one of the most painful duties of judges, to arraign the motives of suitors and to expose the immorality of their transactions; but, in cases like this, the ends of justice cannot be attained without doing so. We feel constrained to say, that the pledging of the bonds, and the subsequent representations of the defendants, are tainted with deception and fraud, and that the two purchases of bonds made by them during the continuance of the pledge, and under the influence of those representations, must be rescinded and set aside.

The extent of the liability of the defendants remains to be considered; and here it is as well to state that, we consider that liability as joint and several, reserving only to the heirs of Francisco de Lizardi and to those of Miguel de Lizardi, the benefit of division among themselves. The warranty which one of them has from the others, is a matter to be settled among themselves.

The contract between the plaintiffs and defendants was a bailment of securities, to be sold in England, by F. de Lizardi Sf Co. Those securities were sent by them to France, and there tortiously pledged. This exercise of dominion over them, in defiance of the plaintiffs right, is a conversion. 2 Greenleaf’s Evid. no. 642. Russell on Fact, and Book., no. 271, 38 Law Library. 4 Term Reports, 260. Reynolds v. Shuber, 5 Cowen 323. 7 Johnson, 254. 10 Johnson, 172.

The measure of damages, when a written security has been the subject of the conversion, is ordinarily the sum recoverable upon that security, though the defendant may have sold it for a less sum. 2 Greenleaf’s Evidence, Nos. 276 and 649, and the cases above cited. In the common law courts the plaintiffs are entitled to recover, under this rule, the par value of the security, with interest down to the day of the rendition of the verdict. 17 Pick. p. 1. Sedgwick on Damages, p. 517, 518. The defendants allege that the bonds have been rendered unsaleable by this controversy, and that they have ceased to be available at any price; but, as the defendants themselves, have forced this controversy upon the plaintiffs, they cannot be permitted to profit by their own wrongg_ gut por those wrongs the bonds would probably now be an available security for their nominal amount, and there is no reason why they should not again become so, when this litigation is ended.

The liability for interest is limited, in other States, to the time of the verdict, because, at common law, the jury is alone competent to assess the damages, and the verdict is final; it is otherwise with us. The damages may be assessed equally well by the court in the first instance, or, as in this case, by the appellate court; and the plain import and reason of the rule, under our forms of practice, is, that all interest recoverable on the day of the final judgment, forms part of them.

The defendants have shown that they have paid Casañera, in consideration of the loan he made them, the whole interest due on the face of the bonds, until the month of October, 1843, at which time they prove that the bonds were returned to them; they allege in their answer that they have them now in their possession, and pray to be allowed to return them, on being refunded the price paid. If the bonds, or part of them, had been tendered by the defendants and accepted by the plaintiffs, that restoration would have gone in mitigation of damages, and have placed the defendants in a much more favorable situation; but this has not been done, and the plaintiffs, instead of asking the restoration of the securities, claim damages for the unauthorized disposition of them. They are entitled to those damages; but equity requires that the interest, which the defendants are liable to pay from the time of the conversion to that of the final judgment, be considered as compensated by that, which, un_ der other circumstances, might have been recoverable upon the bonds for the same period of time, leaving the bonds in the hands of the defendants free from all interest that has heretofore accrued on them. The defendants must account, as of this day, for the par value of 344 bonds, and also for the sums charged in their accounts for dividends of interest on the 319 bonds purchased by F. De Lizardi Sf Co., for the interest charged on those sums, and for the commissions allowed them on the sales of those bonds. They must be credited with all sums realty advanced to the plaintiffs before the judicial demand, with the interest agreed upon, from the date of those advances to the present time, and with all other commissions charged in their accounts, reserving their right to recover subsequent advances. This will leave, on this day, in favor of the plaintiffs, a balance of $182,704 19, for which they are entitled to a judgment with legal interest from this date till paid. ' Civil Code, art. 2984.

It is therefore ordered that the judgment in this case be reversed, and, proceeding to give such a judgment as should have been given in the court below, it is further ordered, that the plaintiffs recover from the defendants in solido but with the benefit of division between the heirs of Miguel, and Francisco de Lizardi among themselves respectively, the sum of $182,704 19 ; with interest at the rate of five per cent per annum from this day till paid, and the costs of the court below; those of this appeal to be paid by the plaintiffs and appellees.

It is further ordered, that the interest that has heretofore accrued on the three hundred and forty-four bonds in the hands of the defendants, be compensated with the interest which they are liable to pay by reason of the conversion of said bonds.

It is further ordered that the contract for the sale of 125 bonds, executed on the 23d January, 1830, and the contract of the 23d April, 1843, for the sale of 219 bonds, be annulled, rescinded and set aside.

It is finally ordered that the rights of the defendants, on account of advances made by them to the plaintiffs since the judicial demand, and also for all interest hereafter to accrue on the bonds in their hands, be reserved.

Eustis, C. J.,

dissenting. Not having been able to come to the same conclusion as to the facts which this singular case presents, which my brethren have thought themselves bound to adopt, it is incumbent on me to give the reason for my opinion, which I will comprize in as short a space as possible. The defendants have endeavored to establish that the bonds in question were pledged and not sold to Casañera, and the verdict of the jury, which was in favor of the plaintiffs for $60,000, is qualified by the opinion, that the bonds were pledged.

There are certain facts connected with this defence, which have satisfied me that it has no foundation in truth:

I. We have a formal certificate, under the hand of the London house, F. da Lizardi Sf Co., attested by two witnesses, that the bonds were sold to Casañera, in the year 1837. It is attempted to weaken the effect of this instrument by limiting it to the six bonds bought by Casañera, but its meaning is too clear. It evidently relates to the bonds in the possession of Casañera, at the time of the' certificate. Else why is this clause appended to the certificate — “ and we further certify and declare, that we have paid unto the said Marquis de Casañera, through the medium of his agents in this city, the dividends which have made on saii bonds, until the present time, and that, to the best of our knowledge and belief, the said Marquis da Casañera is still the owner and proprietor of said bonds, and that he has them at the present time in his power and possession.”

II. If the bonds were pledged to Casañera for a loan, even the amount of which we are left to conjecture, its duration, and the onei'ous terms on which it was said to be contracted, necessarily imply that the lender should have some security for its reimbursement. Whether we test the validity of this pledge by our own laws, or those of France, as we have the means of ascertaining them, the security of Casañera was not worth the paper on which it was written. Against third persons and creditors of the defendants, Casañera could not have retained one of these bonds for an instant The delivery of the bonds, as stated in the counter letter of the 24th April, 1837, and the letter addressed to Casañera of the same date, gave him no privilege on the bonds, nor any means of protecting himself from loss, in the event of a breach of trust, accident, or insolvency of the Lizardis, That a man, such as Casañera is represented to be by the defendants themselves, would have loaned so large a sum, for such a length of time, without security, under the circumstances represented,! cannot believe, and I therefore dissent from the opinion of the jury, that the bonds were pledged, and adhere to the opinion of the defendants themselves, given in their certificate of the 13th Feb., 1843, that, in the year 1837, they sold them to Casariera.

III. It has been thought material to aver and place on record, that one of the two partners of the house of F. da Lizardi Sf Co. of London, and an active member of that firm, had no knowledge whatever of the transactions with Casañera.

IV. It appears that there is no trace of this transaction on the books of either tl10 London or Paris house. What reason can be assigned for this omission ?

I have reluctantly come to the conclusion that the whole affair was a stoekjobbing operation between the Lizardis and Casañera, which they dared not avow, and of which the instinct of self preservation induced them to leave no record. Although the Lizardis sold the bonds to Casañera, it by no means follows that he bought them for himself. He was also a banker; he had friends, probably customers at a distance, as the Lizardis had — “ Soy poseedor también, mios y de algún otro amigo, de 300 obligaciones,” says Casañera to his nephew, in his letter of the 25th F eh-, 1843.

I think the plaintiffs’ case is fully made out. A clearer case of fraud is rarely presented to a court of justice. The conduct of the parties throughout is indefensible, and without palliation or apology.

As to the amount for which the defendants are liable to the plaintiffs, I acquiesce in the opinion of my brethren.


text:
    Ivor, Curator, v. Sullivan.
    Where a defendant, against whom judgment was obtained in his absence and in that of his attorney, makes oath that the evidence in support of his defence was in possession of his attorney, who was to havo attended to the case, and that his absence was unexpected and unauthorized, and the truth of the affidavit is unimpeached, he will be entitled to a new trial.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Ratliff and Cowgill, for the appellant,
    cited Nicholas v. Alsop, 10 La. 409. No coun. sel appeared for the plaintiff.
   The judgment of the court was pronounced by

Rost, J.

The defendant, being sued by the curator of the succession of Samuel Dalton, deceased, employed counsel, who filed an answer, setting up a large amount of claims in compensation. The defendant and his counsel being both absent when the case was called for trial, it was tried ex parte, and judgment was rendered in favor of the plaintiff for the whole amount claimed. Before the judgment became final, the defendant employed other counsel, and filed a motion for a new trial, supported by an affidavit that, the attorney who filed the answer was in possession of the evidence of the defendant, and was to have attended to the suit; and, secondly, that his absence was unexpected by the defendant and unauthorized by him. The court overruled the application, and the defendant appealed.

As the good faith of the defendant, and the verity of his affidavit, are unimpeached, we consider that he has made out a proper case for relief.

It is therefore ordered that the judgment be reversed,and the case remanded, to be proceeded in according to law; the plaintiff and appellee paying the costs of this appeal.


author: Slidell, J.

text:
    Plique v. Bellome.
    Where, on an appeal from an order refusing to set aside a provisional seizure, the question Of releasing the property is the solo matter for consideration, and the record contains no information as to the value of the property, the appeal will he dismissed, though the action was on a claim exceeding three hundred dollars. Const, art. 63.
    Appeal from the Ffth District Court of New Orleans, Buchanan, J.

      Elwyn, for the plaintiff. Pilié and Lc Garclcur, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

Upon a claim for rent exceeding three hundred dollai’s, a provisional seizure issued in this case, and the return of the writ shows that a few articles of household furniture were seized. The defendant moved the court to set aside the provisional seizure, which application was refused ; and from this refusal, the defendant has appealed.

If the whole case were before us, we would deem it our duty to consider the incidents of the cause. But the main cause is not before us, and may never come before us. The sole matter presented, if the present appeal be entertained, would be the question of releasing, or retaining in custody, the property seized. The record affords us no information of the value of the property. If it were utterly lost to the defendant by reason of the seizure, non constat that the defendant would sustain injury to the amount of three hundred dollars.

The framers of the constitution wisely provided a limit to the jurisdiction of this court, that litigants for small matters might not be burdened by onerous costs, or harassed by protracted litigation. This wise policy it is our duty to enforce; and parties who are dissatisfied with the decrees of inferior tribunals must exhibit affirmatively their right to our interference. Constitution, art. 63.

The appeal is therefore dismissed, reserving to the defendant the right of having the order of the court below, refusing to discharge the provisienal seizure, considered in any future lawful appeal; the costs of this appeal to be paid by the defendants.


author: Edstis, C. J.

text:
    Bosworth v. Beiller et al.
    In the event of a difference between (he parents as to the marriage of a minor child, the authority of the father prevails (C. C. 234); and he may disinherit the child, for marrying with-oat his consent.
    APPEAL from the District Court of Tensas, Curry, J. The plaintiff alleges that she is the only child of the late Jacob, and Nancy Beiller, and as such the only heir of her father. She avers that the defendants are in possession of all the property of her succession. She prays that she may be decreed to be his heir, may be put in possession of all the property of which he died seized, and that she may recover $150,000, for damages for rents, fruits, &c. The defendants, after several exceptions, answered by denying that plaintiff was the lawful heir of Jacob Beiller. They averred that Jacob, and Nancy

      Beiller were novel- lawfully married ; that, even if plaintiff should be consider, ed as the legitimate child of Jacob Beiller, she cannot be declared to be his heir, having been disinherited for an adequate legal cause; that they, the respondents, are the sole legal heirs of the deceased, as well as his constituted heirs, inheriting his estate by representation of their deceased father.
    The plaintiff was disinherited by the will of Jacob Beiller, for having, while a minor, married contrary to his wishes and without his consent. The evidence established the assent of the mother to the marriage. The plaintiff’s petition was rejected by the court below, and she appealed.

      Thomas, for the appellant.
    The power to disinherit is founded upon two articles of the Code; Art. 114 says, “The marriage of minors, contracted without the consent of their father and mother, cannot, for that cause, be annulled, &c. ; but such want of consent shall be a good cause for the father and mother to disinherit their children thus married, if they think proper-.” Art. 1613 declares that, “ The just causes for which parents may disinherit their children, are ten in number:” Sec. 10. “ If the son or daughter, being a minor, marries without the consent of his or her parents.” In what sense are the words without the consent, in these articles to be understood ? The right of the child to inherit from its parents, is not only the general rule of law, (C. C. arts. 1480-1-2,) but one of natural right; and the power to disinherit, an instrument in the hands of parents, to restrain and punish the disobedience of their children. 2 Domat,pp. 102, 104, 111.

    The right to disinherit being in derogation of the general rule, and in violation of the natural right of inheritance, will be strictly construed against the power, and liberally in favor of the natural right. It is not the mere passive want of consent, but an active opposition to the will of the parent, upon which the right to disinherit must be based. A marriage, to authorize the disinheriting of the minor, must be contracted in opposition to the will of both the father and mother, the parents. Words of more force and clearness, the father and mother, his or her parents, could not have been used to express the idea that a marriage, upon which the power to -disinherit could be grounded, must have been contracted (without the consent) in opposition to the will of both the father and mother. But if these articles admitted of a doubt, it would be dissipated by the words of a previous article (99). “ The minor of either sex who has attained the competent age to marry, must have received the consent of his father and mother, or of the survivor of them.” In every thing connected with the marriage of their children, the Code intended to confer on the mother equal authority and equal rights with the father.

      Preston, on the same side.
    The law considers marriage a, civil contract. C. Code, 87. The legal advantages which the wife stipulates for her children are, that they shall inherit the estate of her husband, as prescribed in art. 833 of the Code, unless deprived of it by will; and, in case of a will, that alégitime shall be reserved, as required by article 1480 of the Code. Although the husband may dispose of his property as he pleases during life, yet the law disposes of it after his death to his children, unless for just cause he disinherits them. Code. 1613. He 'cannot derogate by marriage contract from the law of descents. Code, 2306.
    There must be: 1st. A cause for disinherison. 2d. It must be a. just cause. The just causes are ten in number. The cause is the fact. The justness of it is the qualification of the fact. If the child accuse the parent of a capital crime, it is a cause for disinherison; but, to be a just cause, the accusation must be false, for if the child knows the fact that his father has murdered his mother, and does not accuse him of it, he is guilty of misprision of felony himself. The marriage of the minor without the consent of the parent, is a cause for disinherison; but to be a just cause, the consent must be withheld for good reasons. The only good reasons are, that the marriage maj' bring : 1. Dishonor on the parent; or 2d, unhappiness upon the child. The great and only just objects of a parent in marrying his children, are to secure tlieir happiness, and to advance the honor of his family. If the marriage of a minor secures its happiness, and does not dishonor the parent, it is unjust for the parent to withhold his consent; and although marrying without the consent is cause of disinherison, it is not a just canse, in such a case. However vicious the disobedience, or wicked the act of the child, in France, the power of disinherison is abolished. Manuel des Successions, par De Langlade, p. 424. In Spain, the power of disinheriting a minor for marrying without the consent of the parent, was given by a Pragmatic Sanction, in 1776. 1st Febrero, 6105, note A. But an action was given to the child to sue for the right to marry without the consent of the parent, if it was unjustly withheld for caprice or an insufficient motive. This led to such crimination and recrimination between parents and children, that the action in advance of the marriage was abolished. But the right of inheriting, accoi-ding as the cause for which the parent withholds the consent is just or unjust, still remains in Spain: and although the laws of Spain which anciently governed this country are abolished, still, as it is most inequitable that the parent should unjustly withhold his consent to the child’s marriage, and then disinherit him for marrying without his consent, there being no law specially applicable to the case, the general provision in the 21 art. of the Code is applicable, and the judge is bound to proceed and decide according to equity. And although the action to obtain the right to marry without the parent’s consent is abolished, yet, if withheld without cause, the inheritance may be recovered by petition, or defended, if sued for, because the consent was withheld without cause. In Rome, if a parent disinherited his child without sufficient cause, he might by the action de inoficioso testamento annul the disinheritance, because it was inconsistent with the duty of a parent to his child. Cooper’s Justinian, p. 146. Wherever the civil law prevails, if disinherison is allowed at all, it may be annulled, if done, 1st, from caprice ; 2d, par fins particuliéres; 3d, when inconsistent with the duty of the parent. The same rules must govern our law: 1st, because they are equitable; and 2d, because our law expressly requires the proof of a just cause.

    The cause must not be caprice, nor to effect an improper object of the parent, nor must the disinherison be inconsistent with the duty of a parent to a child.

      J. Dunlap, on the same side.

      Benjamin, Micou, Stacy, Sparrow, Prentiss and Finney, for the defendants.
    The cause assigned by the testator for disinheriting the plaintiff is, that the daughter, being á minor, married without the consent of her father, and against his will. Is this sufficient? or was it necessary that the marriage should have been without the consent of either father or mother, to constitute a just cause of disinherison ? It was a just cause within the meaning of the Code, both in its letter and its spirit. The article says: “If the son or daughter, being a minor, marries without the consent of his or her parents.” It is clear that the consent of the mother alone, was not the “consent of the parents.” The plaintiff therefore married without the consent of her parents. There are several other articles of the Code which relate to this subject, and wiil make it perfectly clear. Article 99 provides, that “the minor of either sex who has attained the competent age to marry must have received the consent of his father and mother, or the survivor of them; and if they are both dead, the consent of his curator.” This article clearly requires theconsentof both parents, if they are living. Art. 114 still more strongly explains the meaning of art. 1613; indeed it places the construction we contend for beyond all doubt. This article provides,.“that the marriage of minors contracted withoutthe consent of father and mother, cannotfor that cause be annulled” &c., “ but such want of consent shall be a good cause for the father and mother to disinherit their children thus married, if they think proper.” Article 234 provides that, “ in case of differences between the parents, the authority of the father prevails.” Here then there was a difference between the parents — -and we claim that the authority of the father shall prevail. His dissent and prohibition overruled the consent of the mother; in other words, she had no right to consent against his authority. This principle of the superiority of the father’s authority over the mother’s, is not founded upon the arbitrary enactment of the Code merely; it is a principle of natural law universally acknowledged. Rutherforth, in his Institutes of Natural Law, commenting upon the great work of Grotius, says: “Both the parents have authority over the child, because the duty of maintaining and educating it belongs to both. However, if the commands of the father and of the mother should at any time happen to clash, the father is rather to be obeyed, upon account, says Grotius, of the excellence of his sex.” After criticising this reason given by Grotius, he adds: “Butif generation is considered only as the remote cause, and the duty of the parents to bring up the child and to form its manners, is considered as the immediate cause of their authority, then the father’s authority will be superior to the mother’s, upon account of what may be called the excellence of his sex; for he is in general, with good reason, supposed to be better able than the mother to defend and to instruct it; and in proportion as his abilities are greater, his duty, and with it his authority, must be greater likewise.” Rutherforth’s Institutes, p. 80-1.
   The judgment of the court was pronounced by

Edstis, C. J.

On the 26th of December, 1842, Jacob Beiller, late of the parish of Concordia, made his last will, by which he disinherited his daughter, the plaintiff. The clause of disinherison is as follows : “Fifth. To my daughter, Elizabeth Beiller, now the wife of Felix Bosworth, I give nothing; but, on the contrary, I expressly and totally disinherit my said child, Elizabeth Beiller, for the reason that, while she was yet a minor, she eloped from my house, my protec! ion, and my authority, and intermarried with the aforesaid Felix Bosviorth, without my consent, and in direct opposition to my command and wishes. I therefore, and for that reason, totally, wholly and expressly disinherit her.”

The District Court considering that the plaintiff, being the legitimate child of the testator, and having, while under the paternal power, married without the consent of her father, for that cause, was lawfully disinherited by his will, rejected her claim as heir to his estate, and from that judgment she has appealed. By article 1480 of the Civil Code, the testator had the right of disposing of one-half of his estate to the prejudice of the plaintiff, without assigning any cause. Two objections are urged, on behalf of the appellant, to the validity of this testamentary disposition. The first is that, parents are only permitted to disinherit their children for that cause, when, being minors, they marry in opposition to their Joiraf will. The second is that, in the relation of parent and child, the obligation of protection and the duty of obedience are reciprocal; that the failure to fulfil the first, forfeits every right which is founded on the non-observance of the last. In support of the proposition that the appellant did not marry in opposition to the will of both parents, the fact is established that the marriage was made, not only with the consent, but with the active assistance of the mother, she having accompanied her daughter in her elopement from her father’s house with her present husband, on the night of the 11th of August, 1834.

Had the father a right to disinherit his daughter for marrying without his consent, is the question of law which has been discussed at bar, and which we proceed to determine.

The law enjoins the minor to obtain the consent of the mother as well as the father to marriage, and thereby imposes the strong moral obligation of following the mutual advice of parents in this most important act of their lives. But in cases in which the parents do not agree as to the choice of the future companion of a daughter is her marriage, thereby rendeyed impossible, except under the penalty of disinherison and the pains of disobedience ? Does the law place an infant, whose capacity for marriage it recognizes, in this embarrassing and unnatural predicament ? We think not, and we think that on the dissent of parents as to the marriage of minors, the paternal power prevails. Independent of the positive provision of our Code (art. 234) that, in case of difference between the parents, in all matters in which they have authority over their children, the authority of the father prevails, a consideration of the nature and extent of the paternal power, as it exists under ourjurisprudence excludes, any other conclusion.

By the roman law the rights of the father of a family and of those under his authority, so far as related to their private affairs, were embodied, by a legal fiction, in the person of the father of the family, whose power was absolute.

The paternal power was one of the main pillars of that wonderful "social organization which is the basis of modern civilization, and which gave laws to posterity on which society still rests for its support. Roman legislation placed the safety and welfare of the child under the eegis of paternal affection, and time has borne witness to the profound wisdom of its provision. The consent of the father alone was required for the marriage of the daughter or son.

By the laws of Spain the mother did not participate in the paternal power (1. 2, tit. 17, Partida 4. Institutes of the Law of Spain, 74), and minors who married without the consent of their father were exposed to the penalty of disinherison. Novissima Recop. 1. 9, tit. 2, lib. 10.

The Code of 1808, made a material change in the paternal power. The influence of Christianity had elevated the mother from the almost servile condition in which the roman law had originally placed her. Our institutions required that she should be associated in the councils of the husband in relation to the marriage of their minor children, to which the joint consent was accordingly required. The provisions of that Code on this subject are similar to those of tlie present Civil Code, with this exception, that the paragraph of article 234, cited in argument, which provides that in case of difference between the parents the authority of the father prevails, formed no part of the Code of 1808. Its insertion in the Code of 1825, could have had no other object than to supply the place of the Spanish law concerning the paternal power, the repeal of which would have otherwise left a large class of the most important points of our social relations entirely unprovided for. We therefore conclude that, the father has a right to disinherit his minor child, for marrying without his consent.

In this case the marriage took place not only in decided opposition to the wish of the father, but under the most aggravating circumstances of injury and outrage. We are satisfied his consent was witheld from the strongest and most deliberate convictions of duty towards the plaintiff, and a conscientious and affectionate regard for her future welfare and happiness.

But it is contended that the immoral conduct and bearing of the father in his family, deprived him of any right he might have to disinherit the plaintiff. The learned counsel for the plaintiff has urged that the right to disinherit may be forfeited, by misconduct which would justify a decree of destitution of the father from the paternal power. The Code provides (arts. 326, 371) that, no cause of exclusion or removal from the tutorship is applicable to the father, except that of unfaithfulness of his administration and of notoriously bad conduct; and that the minor may be emancipated against the wish of his father and mother, when they ill treat him excessively, refuse him support, or give him corrupt examples. Admitting, for argument sake, this view of the law to be correct, there is only one fact sufficiently well established in the conduct of the father, which requires from us any consideration, the charges of the plaintiff, as to other misconduct, not being proved.

It is stated in the testimony of a witness that, in the summer of 1833, Beiller committed an outrage upon the person of his wife, by giving her blows on the head with a large stick, which caused a profuse bleeding. The account of the origin of the quarrel between them, given by Beiller himself to the witness aggravates the injury rather than extenuates it. With the exception of this act, it does not appear that his conduct in his family was bad, still less notoriously so, nor that it furnished a corrupt example to his child. Beillerwas a hardworking, energetic man, of strong impulses and violent passions, far from being amiable in his domestic relations, but it is not pretended that he ever was unkind to his daughter. After the quarrel of 1833, for any thing before us to the contra" ry, the parties lived in peace up to the denouement of August, 1834. They had been married for nearly thirty years; the husband was advanced in life and very deaf, and we should not be authorized to decree a separation of bed and board after such a reconciliation, great as the outrage is said to have been. Nor would we feel ourselves at liberty to break up this family, by withdrawing from the care and protection of the father, and committing to others, his favorite child. Under all the disadvantages to which, under the paternal roof, she was exposed, as magistrates and fathers we should consider her happiness and future welfare better assured under the protection of the rugged affection of her father, with all his infirmities, than under the mercenary tutelage of strangers, or the custody of her nearest relatives.

The case before us is not one in which, for the interest of the party most concerned and of society itself, we should feel ourselves justified in depriving the father of the just prerogatives of the paternal. power. No authority lias been cited, nor reason given, which would authorize such an interference, under the very difficult and embarrassing considerations which the facts of this case present. The judicial power whieh takes from the father the custody of the child, is to be exercised with the greatest delicacy, and only in cases in which its exercise is indispensable for the protection of the rights, interests and future welfare of the minor, or the cause of sound morals and the established order of society, which are almost identical with the former. For those cases the Code has provided. Toullier thus gives his view of the sense of the terms notoriously bad conduct: the expressions commented upon are gens d’une inconduite noloire. Code Nap. act 444. “Expressions qu’il ne fautpas seulement entendre du défaut d’ordre dans les affaires, comme si un homme avait fait faillite, s’il avait oté sounds áun conseil judiciaire, mais encore d’un déreglement de mceurs noloire; comme si un homme avait subi it la police quelque condemnation pour des actions scandaleuses, s’il vivait dans un libertinage noloire: par example si, vivant avec sa concubine, il s’étaitreconnu le pére de ses enfans, Onne pourraitlaisser des mineurs, et surtout des filies, sons la garde d’un homme 'ainsi notó.” Vol. 2, § 1164. Article 371, concerning the causes for which minors may be emancipated against the will of their fathers and mothers, does not extend the operation of article 326, nor is it applicable in its terms to the same subject.

In stating our objections to the application of the argument of the learned counsel to the facts of this case, we must not be understood as deciding the principle that the misconduct, on the part of the father, which would authorize his destitution from the tutorship, would necessarily destroy the prerogatives of the paternal power, which are independant of the tutorship. Toullier considers the paternal power as personal, and the rights resulting from it as separate from the tutorship, and unaffected by it. Vol. 2, § 1170. It is a question on which we would not wish to be considered as expressing any opinion. It is of great moment, and can only be decided after the most thorough investigation.

But in conclusion let us suppose that, at the time this marriage was under consideration, a court had been applied to for the purpose of withdrawing the minor from the paternal power, for the causes presented by the counsel. A court would not be satisfied with any thing but the most unquestionable proof of the facts on which its action was to be based. If true, they must be well known, and how does it happen that, in this case, they are left to depend for their establishment on the testimony of a single witness 1 The notoriety as to certain matters which we have left out of view, because we did not consider them to be proved, this witness alone speaks of. Would not a court, before proceeding to perform one of the highest acts of judicial power, have required the charge of notoriously bad conduct and corrupt example to be supported by other evidence, and not to be dependent on the opinion of a single witness ? What reason can be given that this testimony stands alone ? Why were not his neighbours, his associates, brought forward to establish the fact of the notoriety of Beiller’s bad conduct, and the corrupting influence of his example. Many witnesses, neighbours, intimate friends, were examined, but not one of them testified in support of these allegations, which, had they been true, some of them must have known. Had the facts been as represented, they would have been proved, and not left to rest on the testimony of a single witness. The neighbours, heads of families, friends of the deceased, whose testimony on the example afforded by the conduct of the father, and whether the paternal dwelling was or not disgraced by the mode of life charged on the deceased, would have been conclusive on the court; but with the evidence before us, we are satisfied that no court would take the responsibility of removing the child from the protection of the paternal power, and on it we cannot reverse the judgment appealed from as centrary to evidence.

We therefore conclude that the testator by his conduct had not forfeited the right of disinheriting his child, a minor, for marrying without his consent.

We agree with the district judge in dismissing the plaintiff's demand. We have not come to this conclusion without the most mature deliberation ; and, in so doing we are acting in the best interests of society, in defence and in vindication of the paternal power, of the right which every man has to the fruits of his labor, and carrying out that fundamental principle upon which not only the welfare and happiness of the child reposes, but the posver and safety of the State— Honor ihy father and mother. Judgment affirmed.


author: King, J.

text:
    Morancy v. Ford.
    The United States never so entirely divest themselves of title to public lands, until a patent is issued, as to he precluded from cancelling the sale and setting aside an entry illegally made.
    The Register and Receiver of the Land Office are the proper tribunal for determining, whether land claimed by a party is embraced in the prohibition of the proviso inserted in the act of Congress of 13 June, 1832, authorizing the inhabitants of Louisiana to enter hack lands, and, for that reason, not subject to be entered as a hack concession. Their decision is subject to revisal by the Commissioner of the General Land Office, but 'not by. the state tribunals.
    APPEAL from the District Court of Madison, Curry, J. The plaintiff alleges that he is the owner, in possession, of lots of land 1, 2, 3, 4, 5 and 6, of section 26, township 17, range 13 east, in the district of pub-lie lands north of Red River, of the value of $10,000 ; that he acquired title by-purchase from the United States at the Land Office at Ouachita, on the first of December, 1832, and first of February, 1833. That the defendant has and continues publicly, by speech and in writing, to slander his title to said land, and to assert title in himself as pre-emptor, to his damage, &c.
    The defendant alleges that he has a good title to the land claimed by the plaintiff, in his own right, and as the representative of the widow and minor heirs of William Clair, deceased, by virtue of an act of Congress passed on the 15th of June, 1832, entitled “An act to authorise the inhabitants of the State of Louisiana to enter the back lands,” and of an act supplementary thereto, passed on the 24th of February, 1835. That, at the time of the passago of said acts and prior thereto, the defendant was the owner of lot 7, and the said widow and heirs of lots 4,5 and C, in township 17, range 13 east, in the land district north of Red River, fronting on the Mississippi River, under titles derived from the United States. That prior to the passage of said acts, defendant married Ethalie Clair, the widow of the deceased, and natural tutrix of his and her minor children, George G. Clair and William Armstrong Clair, and was duly constituted under tutor to said minors. That prior to the expiration of said acts, (in the spring, or early in the summer of 1835,) and in compliance with, and in conformity to, the provisions thereof, the defendant in his own right as owner of lot 7, and as the representative of said widow and minors, owners of lots 4, 5 and C, in said township and range, fronting on Mississippi River, “ did give the notice required by said act of Congress, and did also tender the money for the purpose of entering the land described in the plaintiff’s petition, at the Land Office at Oouchita, within which district said lands were situated.” That by the act of Congress aforesaid, he was entitled to a preference in becoming the purchaser of said land, it being his back concession in his own right, and as the representative of the said widow and minor heirs, owners as aforesaid of lots 4, 5, 6 and 7, in said township and range, fronting on the Mississippi River. That this right of preference vested by said act of Congress, and could not be taken from them. That the entries of said land “as set forth in the plaintiff’s petition,” were made in fraud of tlieir rights, conveyed no title to the plaintiff, and are null and void. That the unlawful entry and detention of said land, has occasioned to the defendant $1,000 damage, which he claims in reconvention.
    The facts established by the evidence in this case are stated in the opinion of the court, infra. There was a judgment in the court below in favor of tho plaintiff for the land in controversy, from which the defendant appealed.

      Stacy and Sparrow, for the plaintiff.
    The question whether the land fell within the proviso of the act of 1832, was solely within the jurisdiction of the officers of the land department; the courts of the State had no jurisdiction, and could not inquire into the matter. The power of declaring what are watercourses, S(c., is specially vested by law in the Surveyor General; and courts of justice have no jurisdiction to annul his acts, nor any superintending control over them. They have no authority to. control the surveys of the General Government, orto determine what are or are not water-courses falling within the meaning of the proviso of the act of 1832 (4 La. p. 549. 6 La. p. 12); nor to determine the character of the lands, in opposition to the expressed declarations of the government. 2d Land Laws, p. 928. no. 914.
    The Register decided that this land fell within the proviso of the act of ] 832, and was not subject to the operation of that act. The question now arises, what was the tribunal competent to decide this issue ? Undoubtedly the Register and Receiver of the Land Office; and the only evidence upon which they could act was the official returns made to their office by the Surveyor General. Upon appeal, the General Land Office, upon satisfactory evidence of fraud or error in the survey being shown, would have ordered a resurvey of the land, and that the plats should be made to conform to the resurvey. The decision of the Commissioner of the General Land Office would have been subject to the revision of tho Secretary of the Treasury, whose decision would have been final.

      Thomas, Dunlap and Shannon, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff alleges in his petition that he is the owner and pos. sessor of the lots of land numbered 1, 2, 3, 4, 5 and 6, of section 26, in township 17, range 13 east, in virtue of purchases from the United States, and avers that his title has been slandered by the defendant, who asserts title in himself. He prays to bo quieted in his title, and for damages.

The defendant denies the plaintiff’s ownership, and avers that, in his own right and as the representative of the widow and heirs of William Clair deceased, he has a good title to the lands claimed by the plaintiff, in virtue of an act of Congress passed on the 15th of June, 1832, entitled “ An act to authorise the inhabitants of the Stato of Louisiana to enter the back lands and of an act supplementary thereto, passed on the 24th of February, 1835. Fie alleges that prior to and at tho time of the passage of those acts, he was the owner of tho lot no. 7, and that the widow and heirs of Clair were the owners of the lots 4, 5 and 6, in township 17, range 13 east, fronting on tho Mississippi river, in the rear of which lie the lands claimed by the plaintiff: that before the expiration of those acts, tho defendant, in his own right and as the representative of the widow and heirs of Clair, gave the notice required by the act, of his intention to bocome the purchaser of the lands claimed by the plaintiff, tendered the price to the proper officers, and did every act necessary to secure and retain the right vested in him and those he represented by the acts of Congress, to become the purchaser by preference: that the entries of the lands claimed by the plaintiff were illegal and void, and conveyed to him no titlo whatever.

It is shown that the defendant and tho heirs of Clair are the owners of the lots of land fronting on the Mississippi river described in their answer, in the rear of and adjacent to which lie a part of the lands in controversy. In March, 1834, the defendant applied at the Land Office in Ouachita, to enter the back concessions of these several lots for himself and the heirs of Clair, under the provisions of the acts of 1832, and was answered by the officers that they were unprovided with a legal plat of tho township, and the entry was not permitted. On the 2nd of June, 1835, he made a formal application, through an agent, to enter these back pre-emptions, and tendered the price to the proper officer, and was again refused. The reason assigned for tho last refusal was, that the right of pre-emption claimed, extended so far back as to cover good lands bordering on another water-course, and consequently fell within the proviso of the act of Congress, which prohibited the entry of lands thus situated, as back concessions. Evidence was received by the Register, which convinced him that the map was inaccurate, but he considered that he was not authorised to disregard the official survey. From this decision, an appeal was taken to the Commissioner of the General Land Office, before whom it is still pending.

In December, 1832, and February, 1833, the plaintiff, Morancy, entered the lots of land described in his petition, and obtained the Receiver’s receipt for the price, and the Register’s certificate of purchase. These entries were permitted under the belief* that the township in which they lie had been previously offered for public sale, a fact which the testimony leaves in doubt, and that they fell within the proviso of the act of 1832, already referred to. No patents have thus fax', issued for these purchases in favor of the plaintiff, and further action in relation to them has probably been suspended, in consequence of the defendant’s appeal. These constitute the respective claims and titles of the parties to the lands in controversy.

It is conceded that the government never so entirely divests itself of title to public land, as to be precluded from cancelling the sale and setting aside the entry made in contravention of its laws, until a patent issues. It is clear then, that the title which the plaintiff asks us to decree to be valid is incomplete and inchoate only, subject to be revised by the government, and to be annulled, if found to have been issued in contravention of any of its laws. The title of the defendant, as presented in this controvexy, is equally imperfect. The government, it is true, through its officers, has given to the act of the 15th June, 1832, an interpi'etation different from that which it received in the case of Thompson v. Schlater, 13 La. 115. It has been determined that, “when land was offered at public sale, px'ior to the passage of the act, the individual claiming the back tract, in virtue of the provisions of the act, is to be permitted to file the notice of lxis claim, and complete his payment thereof at any time prior to the 15th of June, 1835, and that no sales of any such tract, could legally be made after the date of the act, to any other person than the owner of the front tract.” In the case of Jourdon and Landry v. Barrett, the Supreme Court of the United States recognised these instructions as furnishing the true construction of the act. 2 Land Laws & Opinions &c., p. 573. 4 Howard’s Reports, p. 183. This court will at all tixxxes be disposed to yield its own interpretation, and acquiesce in that given by the government of the United States, to the laws of Congress.— Under the construction given by the Commissioner of the Land Office to the act of 1832, the entry íxxade by the plaintiff was illegal and void, if the land was, at the date of his purchases, subject to be entered as a back concession. That however is one of the principal points of controversy between the parties. It has been submitted to the Register and Receiver of the Land Office, who were the appropriate tribunal for determining the fact, whether the land claimed by the defendant fell within the prohibition of the proviso contained in the act of the 15th June, 1832, and were for that x'eason not subject to be entered as a back concession. The opinion of those officers was adverse to the defendant’s claim, and in deciding the question they determined in relation to a matter within their jurisdiction. Theirdecision is subject to be revised by the Commissioner of the General Land Office, and not by the tribunals of the State; and to that officer an appeal has been taken. Until he determines between the parties and the patent issues from the government, neither will possess such a title as this court can deem to be valid. 4 Howard’s Rep. 185. 13 Peter’s Rep. 515, 416.

The parties are litigating before us in relation to titles which have not yet emanated from the government, and which may ultimately be refused to both.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that there be judgment against the plaintiff as in case of non suit, and that he pay the costs of both courls.


text:
    Covington v. Gustine.
    APPEAL from the District Court of Concordia, Curry, J. The question presented by this case, was settled by the decision in Morancy v. Ford, ante p. 299.

      Elam, for the appellant. Stacy and Sparrow, for the defendant.


text:
    Briggs et al. v. Phillips.
    A paper purporting to be the copy of the record of an act of sale sous seing privé, is inadmissible in evidence to prove title to real estate, where no proof of the verity of the act was exhibited to the recording officer at the time of recording it, and there is no sufficient proof of its being a copy of the original.
    APPEAL from the District Court of Madison, Carry, J.

      Slacy and Sparroio, for the plaintiffs. Pepper, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This case, as it stands before us, is a petitory action for a lot of land, described as lot 1, in section 31, township no. 16, range 12 east, containing 140 83-100 acres. The plaintiffs had judgment for 80 acres, judgment being against them for the rest of the lot. The defendant has appealed.

The plaintiffs offered in evidence a document purporting to be a record of a private act of sale from Dunham, and wife, the original owners of the land, under whom both parties claim, to one Nevils. Its admission was objected to on the ground that said paper was a copy of a copy, and was not sufficiently proved. No proof of its verity was made or exhibited to the recording officer when it was recorded, nor is there sufficient evidence adduced to show that it was a copy of the original, which it purports to be. The evidence of Barnes on this subject is notsufficient to establish the contents of the original with proper precision, still less that the document exhibited is a copy. The alleged sale from Dunham and wife to Nevils, was never carried into effect by the delivery of possession, and it would be unsafe to adjudge titles to land on evidence of this character.

The judgment of the District Court, so far as the same decrees the plaintiffs to recover eighty acres as an undivided portion of the lot described in the petition, is reversed, and the case is remanded for further proceedings, with directions not to receive in evidence the document offered by the plaintiffs and excepted to by the defendant, on the testimony exhibited in proof of it. The judgment in favor of the defendant for the rest of the land is affirmed, the plaintiff paying the costs of this appeal.