text:
    J. M. Butchert v. Samuel Ricker, Jr. J. M. Bach, Appellant.—Mrs. S. Lakin, Appellee.
    Where the purchaser took a rule on the prior mortgage creditors to release mortgages and distribute the purchase money, the latter may Insist on their mortgage rights and subject the property to the payment of their debts.
    Matters properly triable in a hypothecary action, should, after the parties have gone to trial, be deter mi -ied by the court, on* a rule, where the form of proceeding had not been objected to at the proper time.
    An attachment will issue in favor of a vendee against the property of a non-resident vendor, to secure a claim in warranty v
    Where counsel for a married woman admitted in his brief that the person who filed an answer on her behalf, was her accredited agent, u with the full authorization and consent of her husband,” the court will presume that the proceedings against the wife were fully authorized by the husband. The exhibition of a certificate of mortgages, or the attaching of the same to an act of sale, does not relieve vendor from an express warranty of u all mortgages and incumbrances.”
    APPEAL from the District Court of the parish of Jefferson, Burthe, J.

      Purvis & Dugu&, for appellant. Van Balsón, for appellee. Stansbury, for Pearson.

   Merrick, C. J.

John M. Back, the plaintiff in, the rule taken in this case, on the twenty-second day of April, 1853, bought of Mrs. Celeste Eliza Steiner wife of John Solomon Lahin, of the city of 'Cincinnati, two squares of ground containing forty-six lots, in Rickerville, a few miles above this city, for the price of $7,368.

Mrs. Lahin, who is the daughter of Samuel Sicker, Jr., on the 22d of June, 1852, purchased those lots at a Sheriff’s sale, made upon two executions issued by a Justice of the Peace, at the suit of J. M. Butchert, for work done upon banquettes in front of certain of these'lots. The judgment being by confession and for $36 45, in one case., and $46 48, in the other, and purporting to give a privilege on each square respectively.

At the time of the sale, the property of Richer was encumbered with mortgages to a large amount, and thpre can be but little doubt that this proceeding was resorted to for the purpose of extricating a part of it from the power of the mortgage creditors; for it appears that the sale of almost any one of the lots would'have paid the judgment before the Justice of the Peace. Mrs. Lahin became the purchaser at the sum of $1800, which after paying the two judgments under which the property was sold, left, by the terms of the adjudication, in her hands, for the mortgage creditors, $T,653 32.

J. M. Bach having, in the act of sale, assumed to pay this sum to the mortgage creditors, and, it seems, afterwards apprehending-that they might endanger his title to the whole property bought, if the matter was suffered to remain in that condition, took a rule in the District Court upon the mortgage creditors to show cause why their mortgages should not be cancelled upon this property, upon his depositing in court the $1663 32 above referred to.

J. S. Pearson, being one of the mortgage creditors cited to show cause, and holding a judicial mortgage for $32,162 92, filed an answer to the rule, wherein he set forth, among other things, that Butchert had no privilege upon the two squares of ground, and that the judgment could not create or recognize a privilege, and that (he privilege, if it existed, only affected the Jots in front of which the work was done and did not affect the whole square; that the pretended sale to Mrs. Laloin was collusive and contrived by Picker to defeat the defendent; and he concluded, by praying that his mortgage be recognized as existing and unimpaired upon said two squares of ground in the hands of said John M. Bach, and praying that the mortgage property be seized and sold to pay the debt.

Thereupon, John M. Bach, the plaintiff in the rule, filed what he designates as a supplemental petition, and sued out a writ of attachment against his vendor, on account of the threatened eviction, and cited her, through her agent, in warranty.

This attachment having been set aside, a second attachment was moved. To obtain these attachments, he sets forth his proceedings in the rule and the reconventional demand of Pearson, 'and prays for judgment against Mrs. La-Icin, and propounds interrogatories to her agent, John Galhoun, as garnishee.

Galhoun, the garnishee answered, that he had in his hands $6,120 of Mrs. Zakin's money.

To this demand in warranty, Mrs. Laloin, by counsel, answers the rule and the pleadings of John H. Pearson, by a general denial, and she avers that her warranty to Bach only extended to such mortgages as were not mentioned in the certificate of mortgage annexed to the act of sale. She alleges that Pearson obtained his judgment against Bicker by collusion, and that the same being by confession, is not binding on her. She further alleges, that she is a mortgage creditor of the said Samuel Picker, and that her credit is of a date anterior to that of Pearson, and that it has never been cancelled. She then assumes the character of plaintiff in reconvention against Pearson, and prays that he be cited to appear and answer her petition; that his petition be dismissed, and should he establish his mortgage against John M. Bach, that then her mortgage on the property be recognized against Pearson, and she have judgment against him for $750, and six per cent, interest, and that her mortgage be recognized on all the other real estate belonging to Samuel Picker, Jr.

John H. Pearson, after service of Mrs. Lahin's reconventional demand on his attorney, comes into court and excepts to the same on the following grounds

1st. That she is a married woman and not authorized by her husband.

2d. That she sets up no cause of action against him.

3d. That her claim as a mortgage creditor is inconsistent with that of owner.

4th. That she does not set forth the ground of her claim against her father, S. Picker, Jr.

Sth. That her demand contains no allegation under which John M. Peao’son can be called upon to prove his judgment.

Subsequently, Pearson filed his answer to the merits. He denied generally all of her allegations. He denied that Mrs. Lahin was a creditor of her father, and alleged that her pretended mortgage was placed there to baffle the creditors ; that he, Samuel Picker, Jr., was not indebted to his children, but that the mortgages in their favor are fictitious and void; that in a suit wherein Mrs. Laloin, and her husband and her father were parties, and he, said Pearson, defendant, said mortgage now set up by Mrs. Lahin, were decreed to be fictitious and void; he plead said judgment as a peremptory exception in bar of Mrs. Lahin's claim. He further pleaded, that his judgment is real, and that it was so adjudged in the same judgment, and precludes Mrs. Larkin from again questioning the same.

So far the parties seem to have acquiesced in these irregular proceedings, and with the exception of the objections of Pearson to Mrs. Zakin's demand, they have confined themselves to allegations upon the merits.

At this stage of the controversy, Mrs. Zakin filed what she calls a peremptory exception, wherein she alleges that Pearson's action can on&, as a hypo-thecary action, be brought directly against Bach as third possessor, and that “ Pearson cannot stand in court in consummation of his alleged claim,without first having given thirty-days notice to the third possessor of the property sought here to be made responsible, before commencing suit for the recovery thereof, which he has failed to-do.”

. The parties thus having brought the proceedings to an issue, Mrs. Zakin and Pearson entered into an agreement, that either party might, on the trial, offer the part of any judicial record in evidence. Under this rule, the parties went to trial, and after they had, by their industry, made a voluminous record and submitted their case to the Judge, he dismissed the proceedings on account of their irregularity, and condemned Bach to pay the costs. From thi¡¡ judgment he has appealed.

Bach demands that the decision of the lower court should be reversed, and that the mortgages against this property be cancelled, or that he have judgment against his vendor for $6,900, and that the attachment bo sustained.

J. 3. Pearson appeared in this court and filed an answer, praying that the judgment of the lower court might be-amended in his favor.

The counsel for Mis. Zakin admits, in his brief, that John Calhoun, Esq., who it appears filed the answer of Mrs. Zakin at the time of the filing the affidavit for an attachment, “ was and yet remains the .most perfectly accredited agent and attorney in fact of Mrs. Zakin, with the full authority and consent of her husband.” We, therefore, conclude that the proceedings in this case on the part of Mrs. Zakin, were fully authorized by her husband. We should, therefore, give them £uch effect as they are entitled upon this supposition, and we will proceed to consider the objections raised by her counsel as far as we are able to gather them from the brief, though not in the order there treated.

L It is objected that neither Bach nor Pearson had the right “ further to discuss the rights to real property in the form of their present proceedings, which is simply a rule to erase mortgages in which Pearson and Bach were attempting to aim at a judgment upon matters that clearly can only be discussed in a real action of the hypothecary form.” The Judge of the lower court seems also to have been of this opinion, inasmuch as he dismissed the proceedings.

The proceedings in this case are certainly very irregular, and had they been excepted to in time, such exception would have occasioned the dismissal of the rule. But the exceptions of Mrs. Zaktn were not filed until after the cause had been at issue on its merits. Even.then she did not require the Judge to pass upon her exceptions, but proceeded to the trial on the merits. Moreover Mrs. Zakin was not the third possessor. Without questioning the right of the court on its own motion, to dismiss proceedings for great irregularity, yet we think, after the parties had gone to trial and he had heard the testimony, he should have passed upon their pretensions, as the substance of their respective claims and rights were set forth in the pleadings, perhaps as fully as they could have been presented in a formal petition.

II. She denies that Bach has any claim in warranty against her, as the mortgage of J. H. Pearson was mentioned in the certificate of mortgages, made a part of the act of sale to Bach.

We do not understand that the exhibition of a certificate of mortgages or the attaching the same to an act of sale, relieves the vendor from her express warranty against all mortgages and incumbrances. It might be the veiy reason why the third warranty was required.

III. Mrs. Lalcin has not urged in this court, as wo understand, any objections to the proceeding by attachment. We, therefore, proceed to consider the last objection urged by Mrs. Lalcin, which is, that Pearson did not appeal, and therefore he cannot demand a change of the judgment in his favor. To this, it is satisfactorily replied that Bach appealed, and that Pearson, as appollee, by the prayer in his answer, has a right to have the judgment corrected as against Bach.

.As between the parties to this proceeding, Pearson has most clearly shown the reality of his mortgage, and, moreover, that the pretended mortgages of Mrs. Lalcin have been decreed to be fictitious and void.

We furthermore think that the proceedings instituted before the Justice of the Peace, were designed to defeat the mortgage creditors, and that no prudent person, in view of the trifling amount of the judgment, and the great number of lots put up to be sold under them, with the long list of mortgages exhibited, could have formed any other conclusion. We are therefore of the opinion, that whether there was a privilege upon the lots in favor of Butehert or not, the proceeding cannot be permitted to prejudice the mortgage creditors.

We understand from the pleadings, that in the event the mortgage of Pearson is recognized, that Bach abandons the property to his mortgage creditor. 0. 0. 38G3.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and proceeding to pronounce the judgment which ought to have been rendered by the lower court, it is ordered, adjudged and decreed by the court, that the judicial mortgage in favor of John E. Pearson, upon the said squares of ground numbered six and eleven, in said Rickerviile, in the parish of Jefferson, be recognized for the sum of thirty-two thousand one hundred and fifty-two dollars and ninety-two cents, witli five per cent, interest thereon per annum, from the third day of June, A. D., 1841, until paid. And it is further ordered, that said squares of ground be seized and sold to pay said judicial mortgage and interest thereon. And it is further ordered, adjudged and decreed, by the court, that the said John M. Bach, on his demand in warranty, do recover and have judgment against the said Mrs. Oeleste Eliza Richer, wife of John S. Lalcin, for the sum of five thousand seven hundred and nine dollars and forty-three cents, with five per cent, interest thereon, from the twenty-sixth' day of February, A. D. 1855, until paid.

And the said John Oalhoun, garnishee, is ordered to pay to said Bach, all or so much of said sum of six thousand one hundred and twenty-dollars in his hands, as may be sufficient to pay said sum of $5,709 43 and interest, and so much of the costs in this case as the said Mrs. O. E. Lalcin may be decreed to pay.

And it is further ordered, that the costs of this appeal be equally borne by the said John M. Bach and said Mrs. G. E. La,kin, and that the costs of the lower court be paid by the said Mrs. G. E. Lahin.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    James Crane v. Henry W. Allen.
    Witnesses cannot be impeached by proof of particular facts but only by proof of their general reputation for truth and veracity in the neighborhood where they are known, otherwise a witness might be prejudiced without Ihe possibility of defending himself.
    Though recognizing the decisions of common law courts, that where a father sends home slaves with his married daughter, it is presumed to be a gift — yet it is settled in Mississippi, that the character of the wife’s possession of such property may be shown by her acts and declarations, out of the presence of her husband.
    Only adverse possession can be the basis of prescription in Mississippi
    APPEAL from the Tenth District Court, parish of Tensas, Farrar, J.

      T. JP. Farrar and Beenes & Briscoe and Parham & Short, for plaintiffs. Stacy & Sparrow and J. M. Chilton, for defendant. Stockton for Douglas.

   Merrick, C. J.

This suit is brought by the plaintiff to recover of the defendant twenty-eight slaves and their natural increase, together with $2,800 per annum, the alleged value of their services.

The principal facts out af which tin's controversy took its rise occurred in the State of Mississippi, where both plaintiff and defendant resided at the time.

The defendant claims title to the slave's in controversy through the plaintiff, and hence the burden of proof in this case is upon the defendant to establish, by clear evidence, his right to the property in question.

The principal facts.in the case are these: Jn, 1S45 the defendant married Saloam Grane, the daughter.of the plaintiff', who resided in Claiborne county, Mississippi. At the time of her 'marriage she possessed in her own right certain negroes inherited from her deceased brother, William G. Grane, an estate in certain other negroes called the Brashear negroes, determinable upon her death without children, and perhaps one other negro girl given her by her father.

James Grane, the plaintiff, having a tract of land ov plantation in Sunflower county, Mississippi, placed his daughter and her husband upon the same, with certain negroes belonging to himself, which were either on the place at the time or placed there after Allen and his wife took charge of it. Allen cultivated the place with these negroes and those belonging to his wife for his own account. In 1847, the second year after Allen and wife had taken possession of this plantation, called the Greenbriar or Sunflower Plantation, Mrs. Allen being dissatisfied in Sunflower county, an arrangement was made by which she and her husband returned to Claiborne county. The Greenbriar Plantation was left in the condition it then was, negroes and stock, except three of his wife’s slaves, Charles, Anarcha and Little Sara, and some horses which Allen brought away with him.

He removed to a plantation under the control of James Crane, which belonged to his children, inherited from William O. Grane. Mrs. Allen's interest in this plantation, as heir of her brother, was one-fiftb. Crane had on the plantation, when Allen and wife moved to it, in Nov. 1847, the twenty-eight slaves now in controversy. Allen and wife cultivated this plantation for their own use, as they had previously done with the Greenbriar Place, until she died, in January, 1851. The defendant refusing to deliver up the slaves, an action of replevin was instituted in Mississippi by the plaintiff against the defendant. The defendant removed the slaves to the parish of Tensas, in this State. The bond under which the slaves had been-released on replevin being defective, that action was dismissed, and the present action was commenced against the defendant in this State.

He alleges in substance that he has title in this manner: That said Orane had given his daughter six slaves previous to his removal to Sunflower county ; that at the time of his removal he gave her verbally a tract of land and three more slaves; that with these slaves, his wife’s Brashear negroes and those she had inherited from William O. Grane, the Greenbriar plantation was cultivated by him ; that he and his wife exchanged the Greenbriar Plantation and slaves with the plaintiff for the William C. Crane or Waterman Crane plantation and slaves; that by the law's of Mississippi he inherited the slaves on the death of his wrife as next of kin.

He also relies on the statute of limitations of Mississippi limiting the actions of trover detinue and replevin to three years.

The testimony is almost exclusively made up of depositions.

The jury, on a second trial, (the first jury being unable to agree) found for the defendant, and the plaintiff appealed.

The record is voluminous, and the testimony somewhat conflicting. We shall not undertake to recapitulate the same, but merely state the conclusions to which wrn have arrived.

We disregard all that plea of defendant by which the testimony of certain of plaintiff’s witnesses is attempted to be impeached by the proof of particular facts against them. The mode of impeaching the credibility of witnesses is well defined: it is by inquiries as to their general reputation for truth and veracit3' in the neighborhood w'here they are known, and not in inquiries as to particular facts which might often be extremely prejudicial to a truthful witness without any possibility of his defending himself against them. Stanton v. Parker, 5 Rob., 109. 1 Greenleaf’s Evidence, No. 461.

Wo find no sufficient evidence in the record to show that the plaintiff made a verbal gift of the Greenbriar Plantation and the negroes claimed to the defendant’s wife. In arriving at this conclusion we have not been unmindful of the decisions of the common law courts, that where a father sends slaves home with his married daughter it is presumed to be a gift; but while we recognize this principle of law, we find another equally well settled in Mississippi, which is also available in this case, viz: that the character of the wife’s possession of such property may be shown by her acts and declaration out of the presence of her husband. Muirhead v. Muirhead, 1 Gushman, 97.

We think it results from the testimony:

1st. That Grane, who had not been in the habit of giving off property to his children, did not intend to do so in this instance, either to transfer the ownership of the land which was transferable by deed, or the slaves, which might be conveyed by him by parol.

2d. That Mrs. Allen did not understand that she had any title to the property except the eight negroes she held in her owd right.

In regal'd to the alleged exchange of the property in the two plantations and slaves, we do not think it took place for these reasons:

1st. Grane had not been divested of title to the Greenbriar Plantation, and it would have been absurd in him to attempt to acquire title to a plantation which he already owned, by giving in exchange therefor one which already belonged to the person with whom the exchange was made and her co-heirs.

2d. Allen was a lawyer, and the property considerable, and there is not the slightest written evidence of such transfer, and moreover we are informed by defendant’s counsel, and such is the law, that a married woman cannot alienate even her right to slaves except by deed duly acknowledged.

3d. The acts of Mrs. Allen were inconsistent with such exchange of property, and were not so understood either by herself or by Grane.

4th. Such exchange is also inconsistent with the declarations and acts of the defendant after the death of his wife, in obtaining a release of the heirs as to the other property claimed by her in her lifetime, and in asserting as a moral right that Grane ought to allow him possession of the property until the debts were paid.

The next question presented for our consideration is the statute of limitations.

We find that the limitation of the actions of trespass detinue and trover for taking any goods and chattels to three years, and we suppose the action of replevin to have been limited by a previous statute to the same period. As this statute, instead of acting directly upon the right to the property, only applies to the actions named which might be invoked to recover the property, and does not apply to a bill in Chancery, there might perhaps be some question how far the courts of this State ought to regard the statute creating, as it does, a prescription so much shorter than that known to our own laws.

But we will assume for the purpose of this case, although the point is at least doubtful, that property protected by it from actions of law in that State will be protected when brought to Louisiana, and test the case on this supposition.

We gather from the decisions of the courts of Mississippi that the law in regard to the limitation of actions is governed by rules almost identical with our own lav/s. Among other things, in order to claim the benefit of this statute, the party must possess as owner. In other words, the possession must be adverse. Now we think this was not the character of Mrs. Allen's possession up to the time of'her death; she was one-fifth owner of the plantation; she had three negroes upon the place the title to. which in her was admitted; her husband had five negroes upon the same place. We think it sufficiently appears, from her declarations and her acts, that she did not possess as owner but merely by the permission and as tenant at will of her father. The possession by Allen since his acknowledgement to Bertron can give rise to no prescription. In this connection it is proper to remark that the testimony in this case will appear less conflicting when we consider that the act of Grane in permitting his son-in-law to remove from one of his plantations to another under his control, and stocked with his hands, could hardly be spoken of by the family or neighbors without calling it an exchange of places. Probably Grane himself may have used the same expression, which has been misinterpreted by some of the witnesses.

There is no force in the objection made by defendant, that Grane ought to have tendered to the plaintiff the negroes in his possession previous to bringing this action. If Mrs. Allen was merely his tenant, the property in the slaves was not divested, and he could vindicate his ownership of the slaves against any one attempting to deprive him of them. We will, however, in the decree which we shall pronounce, guard the defendant’s interest in this respect.

We do not think it just to award damages to the plaintiff without first giving the defendant an opportunity to compel the plaintiff to account for the hire of those slaves, belonging to the defendant, in his possession.

In conclusion, we remark, as we have often done, that it is with diffidence that we undertake to make an application of the law of our sister State on the subject of title to slaves. But as the parties, instead of leaving these matters to the courts of Mississippi for decision, which would have been so much more satisfactory, have sought the interposition of our own courts, wo are obliged to decide the case in accordance with such reasons as seem to preponderate.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and now proceeding to pronounce such judgment as ought to have been rendered, it is ordered, adjudged and decreed by the court, that the plaintiff do recover and have judgment in his favor, and against the defendant for the following named slaves described in his petition, viz: Joels, Tom, Will, Bill, George, Lewis, Jenny, Elizabeth, America, Patsey, Emma, Ed, Hannah, Henry, Sarah, Branch, Haroissa, Ed, Martha, Anderson, Haney, Ruth and her child Hoah, Anri, Barbara, Watt, John and Henry, and their increase, if any, born since the pendency of this suit; and it is further ordered, that no writ of possession issue until the plaintiff deposit with the Clerk of the lower court his written release, under seal, in favor of the defendant, of all interest and claim to the girl Ann and her children, bequeathed to said Saloami Allen by Waterman Orane, also all interest and claim in and to slaves Joe, Isaac, Anarcha, Charles and Little Sarah, and any increase since they have been in the possession of the plaintiff, with a special warranty against his own acts, as affecting the title to said slaves since November, 1847; and it is further ordered, that this cause be remanded to the lower court for the sole purpose of assessing the value of the hire of said slaves herein decreed the plaintiff, with leave to the defendant to plead by way of re-convention or compensation any claim he may have against the plaintiff' for the value of the services of his slaves whilst in the possession of the plaintiff; and it is further ordered, that the defendant pay the cost of the appeal and the costs to this date in the lower court, any future cost which may accrue to abide the event of the further litigation in this case.


author: Spoitoed, J.

text:
    Same Case.
    To entitle a party to the extraordinary remedy of a supersedeas to stay a writ of possession, issued from the District Court on a judgment of this court, he should show affirmatively that the writ of possession issued in contravention of the terms of the decree of this court.
    QN application for a supersedeas to stay a writ of possession.
   Spoitoed, J.

The defendant in the above cause, determined by this court in May last, asks for a supersedeas to stay a writ of possession which issued from the District Court upon the judgment of this court remanded for execution. He bases his application upon the Art. 629 C. P. and upon the authority of the cases of Cox’s Executors v. Thomas, 11 L., 867, and Lovelace v. Taylor, 6 Rob., 92.

His affidavit avers that the plaintiff in whose favor the writ of possession issued, still keeps in his possession, in the State of Mississippi, seven of the slaves which this court, by its decree aforesaid, intended he should deliver to the defendant, before any execution should issue, to wit: the slaves Joe, Isaac and Ann and her four children.

The language of our decree upon this branch of the ease is as follows : “ And it is further ordered, that no writ of possession issue until the plaintiff deposit with the Clerk of the lower court his written release, under seal, in favor of the defendant, of all interest and claim to the girl Ann and her children, bequeathed to said Saloam Allen by Waterman Orane, also all interest and claim in and to the slaves Joe, Isaac, Anarcha and Little Sarah, and any increase since they have been in the possession of the plaintiff, with a special warranty against his own acts, as affecting the title to said slaves since November, 1847.1'

The affidavit does not deny that the plaintiff has-executed the release in conformity to this decree.

We are without power to relieve the defendant. Our judgment, heretofore rendered, is final upon this subject, and cannot be amended or enlarged, even by ourselves. That judgment is silent upon the subject of the delivery of the slaves in question.

To entitle himself to the extraordinary remedy asked for, the defendant should have shown affirmatively that the writ of possession issued in contravention of the terms of our decree. He has not done so.

Petition praying for a supersedeas dismissed, at appellant’s cost.


text:
    Girod’s Legatees v. A. D. Crossman et als.
    Parties to a judgment homologating a tableau of distribution cannot sustain an action against o ne who was also a party, to recover the amount decreed to him as legatee, on account of his incapa city to receive the legacy.
    Where a testator left $100,000 to the Mayor of the city, to be used in the construction of an orphan asylum in the city of New Orleans, and after his death his estate was so reduced as only to pay - one-fourth of this amount — an amount insufficient to fulfil his intention — an investment of the sum at interest by the Mayor, with a view to raise the requisite amount, did not forfeit the legacy.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Soulé and Janin, for plaintiffs and appellants.

      Biron and Train, for intervenor,
    cited :

      Prevostv. Martel, 10 R. 511; Compton v. Prescott, 12 R. 56; Succession of Langley, 6 A. 199 ; Toullier, vol. 5, p. 637, Nos. 677, 678, 679, &c.: Pail-liet, notes under Article 1043, O. N.; Aacroissement, 0. N. 1044, 1046; C. C. 1696, 1697; C. C. 1702, 1703.
    Donations inter vivos are liable to be revoked or dissolved on account of the following cause: the non-performance of the conditions imposed on the donee. C. C. 1646,

      Livingston, for defendant:
    Judgment of homologation obtained has the authority of the thing adjudged against all creditors who were placed on the hilan. 7 N. S. 183 ; li L. 571; 12 L 121; 14 L. 241; 3 A. 664, 532; 4 A. 450.
    The legacy is valid.
    The validity of the legacy was attacked in argument on one ground, and that was want of certainty. Charities are always uncertain — that is, the recipients of the donor’s bounty are uncertain. The charity is for orphans. Who can tell who will become orphans? Who can foretell, when an epidemic decimates our city, who will be called upon to mourn the loss of parents? The very purpose of a charity is to succour the unfortunate, to aid and comfort the distressed, and to cheer the afflicted. It is intended, in the present case, to reach those who, .from no fault of theirs, are deprived of their natural protectors. There is, of course, an uncertainty as to persons, and for this very reason it is a charity, and should be protected. The authorities are numerous— 2 Vesey, 273 ; 7 Vesey, 76; 17 Vesey, 371; 1 Vernon, 248; 5 Rawle, 151 ; 7 Cranch, 46 ; 6 Peters, 436; 2 Peters, 256; 2 Howard, 127; Vidal et al.v. Gi-rard' s executors, Story’s Equity, sections 1169, 1170, 1181. There must be a certainty as to the object. It may now be considered ah established principle of American law that the court of chancery will sustain and protect such a gift, bequest or dedication of property to public or charitable uses, provided the same is consistent with local law and public policy, when the object of the gift or dedication is specific and capable of being carried into effect according to the intention of the donor. 6 Paige, ch. 649 ; 2 Kent, 286 ; 4 Kent, 508; 2 Peters, 566 ; 3 Peters, 99 ; 7 Vermont, 241.
    The object is certain and specific. It is to build an asylum, to be named after the donor, for the benefit of French orphans. See 17 L. 52, Milne’s Heirs v. Milne's Executors; The Succession of Man'y, 2 Rob. 440; State v. MoDonogh, 8 An. 171. In all these cases the object was certain, but the persons to be benefited were uncertain.
    The legatee is certain.
    This objection has been answered. If the city is considered the legatee, he had official capacity. O. 0.1536. Suppose he had no official capacity, that would be no reason why the charity should fail. Courts of Chancery will never let a charity fail for want of a trustee. Story’s Equity, 1165,1166,1167, 1168. Even where a charity is given that there can be no objects, the courts will order a new scheme to execute it, 1170. It was admitted at bar in the case of Gineinnati v. White, 6 Peters, 436, that dedication of land for charitable and religious purposes, and for public highways, were valid without any grantee to whom the fee could be conveyed. 2 Dan. 177. Our courts hold the same doctrine, which comes to us from the civil law. See Domat, sections 3588, 3590, 3590£.
    If the fund is too small, it is not the fault of the legatee, and neither will the legacy lapse for any such cause. If the identical, the specific object cannot be accomplished, according to the cy pres doctrine of Chancery and recognized here, the fund would be applied in such a manner as to carry out as nearly as possible the intention of the donor. 2 Story’s Equity, 1169, 1170 etseq.', Lewis v. Perpetuity, 426, 454; 4 Kent, 508, notes; Gostev v. LorriUard, 14 Wendell, 265.
   Merrick, C. J.

Nicholas Girod, who died in the latter part of the year 1840, loft an olographic will, wherein he recognized eighteen “ bons,” or acknowl-edgement of debts to become due by his estate, to as many legatees, to whom he bequeathed $710,000, which was then supposed to be but a part of his large estate. 18 L. R. 394, Girod’s Heirs v. Girod's Executors. This controversy arises out of the first of the dispositions of the will, which recognizes the “ bon,” executed by Nicholas Girod, in favor of the Mayor of the city of New Orleans. It is mentioned in the will in these words, viz:

“ Un bon á Mr. le Maire de la ville de la Nouvelle Orléans, pour la somme de $100,000, pour étre appropriée á la construction d’un édifice portant le nom de N. Girod, dans la paroisse d’Orléans, pour receroir et venir au secours des orphelins Frangais, habitant de la Louisiane.”

The bon reads as follows: “Bon á Mr. le Maire de la Nouvelle Orleans au réglement de ma succession pour la somme de cent mille piastres; pour étre appropriée á la construction d’un edifice portant le nom de N. Girod, dans la paroisse d’Orléans, pour recevoir et venir au secoqrs des orphelins Eranpais, habitant l’Btat de la Louisiane.

Nouvelle Orleans, 23 Décembre 1837.

(Signée,) N. Gibod.”

The unfortunate termination of a suit in chancery, instituted after the death of Nicholas Girod, diminished his estate to that extent, that on a final settlement, it only paid twenty-eight per centum upon the bons or particular legacies. See Michaud et al. v. Girod et al., 4 Howard, 503.

The dative testamentary executor, therefore, not having sufficient funds to pay the particular legacies, distributed’the assets under a tableau of distribution, to which all the legatees were made parties, and which was duly homolo-gated. . , ;

Under these tableaus there were paid to the1 Mayor of the city of New Orleans, eighteen thousand dollars at one time, and ten thousand dollars on another occasion, making $28,000. ‘ - , ’

Tlie Mayor thinking this sum insufficient, to commence a building, which would.earrv out the intention of the testator,-concluded to invest the fund and accbrriulate the same by interest, until it should be sufficient. To this end he invested the $28,000 in city bonds, and from'184-6.to March 1854, the capital andip.fe.r.est had accumulated to the sunrU.of'$40,350'48. Nevertheless, the itivéstment was still continued in city bonds.. • \ ’

This suit is brought by fifteen of the particular legatees, against the former a-n'4 present Mayors, to compel them to pay over, under the direction of the cour,t, .to the other legatees, this fund, to be .distributed among them. The present and former Mayors answer the interrogatories on facts and articles propounded .to them, and the city of New Orleans appears and answers the petition and defends the suit. • . ., ,.

Jean Francois Girod intervened in the suit, as an heir of Nicholas Girod, alleging that the will had been faithfully executed, and that the legacy was valid, and joined the defendant in the defeoce=ofthe action, but prayed, nevertheless, if the legacy should be declared null and void for want of acceptance or capacity in the donee, that it should be’paid to intervenor and his co-heirs.

Afterwards, the dative testamentary executors-.intervened, and alleged the legacy to be a fidei commissum, and substitution, and pray that the fund may be paid to them for distribution directly, and not under the direction of the Probate Court. 1 . '

The District Judge dismissed the plaintiffs’ demand.

The plaintiffs and intervenor, the appellants, urge -as grounds of reversal of the judgment, “ that the condition restricting the legacy having never been complied with, the executors discovered that the benificent intention of the testator was destined to be frustrated, both by the incapacity of the devisee to receive and apply it as directed by the will and by other defects, which render it in many respects utterly inexecutable.”

That “ the payment to Grossman, having therefore been made in error, the executors and legatees, and one of the heirs of N. Girod, claim the sums paid and the interest accrued to the same, to be refunded to the estate and applied to its,liquidation.”

They contend that the legacy is null, because:

“ 1st. Of the want of power in the Mayor of New Orleans to receive it.” >

“ 2d. Of the impossibility of its being carried in furtherance of the views of the testator.”

“ 3d. Of tho refusal of the devisee to comply witli the condition on which it is made to depend.”

The first and second of these grounds may be considered together. It is not important to decide whether or not a bequest to the Mayor is a bequest to the corporation of New Orleans; nor whether the Mayor, whose office is perpetual, though constantly changing its incumbent, has capacity to accept donations on behalf of the city or the office which he holds; nor whether there is uncertainty as to the class of persons intended to be benefited by the bequest. We consider that as between the parties to this suit, these questions are no longer open to contest. The plaintiffs and legatees and the executors were parties to the decree of homologation, which directed the payments to be made to the Mayor; they are concluded by the decree which admits that the Mayor was the proper person to receive the fund, and whether he received it for the city, or merely as Mayor, that he has capacity to carry into effect the intention of the testator. The decree has this effect, because it is conclusive upon the question of the Mayor’s right to receive the legacy; the thing has been adjudged in his favor. In regard to the intervention of Jean Franqois Oirod, it does not appear that he was a party to the decree of homologation of the tableau, but whether he were or not, his allegations in his intervention estop him also from contesting the legacy which he has alleged to be valid and to have been legally accepted at the time. Indeed, it is difficult to perceive What interest the heirs cao have in contesting a bequest which, if invalid, could not be retained by them,, but would necessarily be distributed among the particular legatees, who have .«eceirved so small a portion of the amount bequeathed to them,

•On ¡the ¡third ground, it may be admitted so far as this case is concerned, ¡that the modm or charge upon the legacy is in the nature of a condition, and -subject to :the rules which govern other conditional legacies. Moreau & Carleton Partidas, 2 vol. 739, Law 6; 3 Savigny, 230, book 2, chap. 3, sec. 128. We concur also with plaintiff’s counsel, that in order to ascertain how the con-idition.conceeding-it to he one, should be performed, we should look at the indention of .the testator.

i(Jum in.eonditioniius testamentorum volunlatim,potim quam verba eonsi-■Aerari oporteat. Law 101, tilt. 1, Dig. 35. See also Law 19, same title.

If, then, we look at the intention of the testator, we find no difficulty in discovering that he intended ¡to found an institution worthy of his estate, and which should hear his name. It was to be a monument which, while it perpetuated his name, should furnish a home and protection to the French orphans from every part of Louisiana. Twenty-eight thousand dollars were not sufficient for such a purpose. The testator had determined upon one hundred thousand dollars, and it was the first.object which presented itself to his mind, when he sat down to draw his will. The legatee, fully impressed with the intention of the testator, that $100,000 should be applied to this purpose, determined to invest and accumulate the fund until it amounted to $100,000. He has prosecuted his object with such success, that he has increased the fund snore than eighteen thousand dollars in eight years. .

But it is urged, that the city has appropriated the fund to her own use; to the payment of her debts, and, therefore, the executors Or heirs have a right to recall it, on account of the non-performance of the condition upon which it was bequeathed. O. C. 1546, 1703. Had the executors or the heirs paid over to the legatee the one hundred thousand dollars bequeathed by the testator and placed it in the power of the legatee at once to fulfil the condition, all would have been done on their part, and they would have occupied a much more favorable position in questioning the right of the legatee to retain this money. Then they might, perhaps, have complained that the condition had not been complied with. The argument, however, that the funds have been used by the city, is somewhat incompatible with the petition, which demands 'the funds as invested; the bonds and the interest. We see no reason why the Mayor could not invest in city bonds as well as in any thing else. They were not, properly speaking, a debt of the city, as they had a long period to run before maturity. The investment must be considered safe, because the entire wealth of the city is pledged for its future redemption.

It is therefore unnecessary to consider whether the legatees can sue or not. The case is with the defendants on the merits.

Judgment affirmed.


author: Spoitord, J.

text:
    Heirs of Lejeune v. R. R. Barrow.—Wright et al. cited in Warranty.
    However informal the act of a family meeting may be, parties to it, wlio are at the time, as well as their assignees, are bound by their declaration therein, and estopped to deny the title of a person in whom the act declared it to exist.
    Continuous and unequivocal possession for ten years, under title, is necessary to prescription.
    ®o entitle plaintiff to payment for fruits and revenues accruing before the institution of a suit, it must be shown that defendant possessed in bad faith.
    As to value of improvements, the judgment of the District Judge will not be disturbed unless there be manifest error.
    "Where the vendee calls liis vendor in warranty, and there is a decree against the plaintiff in the action for improvements put upon the land, the distribution of the amount awarded must be made between the vendee and the warrantor, according to the estimated value of the improvements made by each.
    APPEAL from the District Court of Terrebonne, Gole, J.

      Bush, Gentile and Malliot & Mills, for plaintiffs. J. G. <& A. Beatty and Mercer, for defendant.
   Spoitord, J.

The plaintiff brought a petitory action against the defendant, Barrow, and recovered judgment for a tract of 320 22-100 superficial arpents, situated upon the Bayou Terrebonne, in the parish of Terrebonne.

Barrow cited bis vendor, Wright, and divers other parties were successively called in warranty.

The defendant and the warrantors, who have appealed, complain of the judgment on the main question of title, and allege certain errors therein as to the question of improvements.

The plaintiffs also ask an amendment imtheir .favor upon the subject of improvements, fruits and revenues.

. The very minute and searching examination which the facts in the history oí an ancient and obscure title have received from the District Judge renders it unnecessary for us to do more than express the conclusions to which we have come upon this branch of the case.

We are of opinion (hen that the particular tract for which the plaintiffs have obtained judgment was included in that larger tract which, by the act passed before Guyol, Parish Judge, on the 16th June, 1823, (styled proceedings of a family meeting) was declared to be vested in full property and possession in Alexis Lejeune and his heirs or assigns forever.

Wc are of opinion ttíat however informal this act may have been, as the act of a family meeting, the parties thereto, who were sui juris at the time, are bound by their declarations therein, and especially that Henry 8. Thibo-daux, and all those who claim under him (including the defendant) are estopped to deny thal, on the execution of that act, Alexis Lejeune was the owner of the land in dispute.

We are of opinion that the title of Alexis Lejeune to the land in question, as acknowledged and recognized by the members of the so-called family meeting, was not divested or impaired by the authentic act of sale from Marie Rose Lejeune (widow Minon) and her son Pierre Minon to Henry 8.' Thibodaux, and their confirmation to Alexis Lejeune in the same act, passed before Leufroy Barras, Parish Judge, on the 19th day of December, 1820.

We are of opinion that the defendant lias not established a title by prescription, no continuous and unequivocal possession for the term of ten years under title having been shown.

The judgment as to title is therefore correct.

In their answer to the appeal, the plaintiffs have prayed that the defendant be condemned to pay for fruits and revenues from the year 1845, when he took possession, and not merely from the date when the suit was instituted, as allowed by the District Judges.

The amendment cannot be granted, because it is not established that Barrow was a possessor in bad faith.

As to the value of the improvements made by the defendants respectively, and the rate of allowance for rents, the District Judge had better means of arriving at a correct estimate than we have, and although this part of the judgment has been somewhat complained of, no such manifest error has been pointed out as to require our interference.

One question alone remains, that is as to the rule of distribution between the defendant, Barrow, and his warrantor, Wright, of the compensation allowed for improvements.

The Judge apportioned the money which the plaintiffs were condemned to pay for the useful improvements put on their land by the adverse possessors ratably between Barrow and Wright, according to the estimated value of the improvements made by each.

This seems to be equitable, and we have been referred to no authority which sanctions a different doctrine.

Wright has to refund to his vendee, Barrow, the price which the latter paid him for the land as improved by the former. The improvements then existing enhanced this price in proportion to their value. If, on the eviction of his vendee, Wright has to restore the whole price, and to receive nothing in return for his improvements, whilst Barrow recovers of the plaintiff the value not only of his own improvements, but of those made by his vendor, it is obvious that Barrow would be twice paid for the same thing.

It is, therefore, ordered and decreed, that the judgment appealed from be Lbjbdmk affirmed, the costs of the appeal to be paid in equal proportions by the several Barrow. appellants.


author: Spofford, J.

text:
    Margaret Bush, f. w. c., v. Margaret Decuir and Her Husband.
    Proof that in the ordinary transactions of life one has acted as the agent of another does not show a power nor furnish presumptive evidence of a power to accept donations.
    That defendant’s ancestor once lived in a state of concubinage with the plaintiff will not defeat an action brought by the latter against the former to carry out an act of donation, inter vivos, made by defendant’s ancestor, to plaintiff, “ of movables not exceeding one-tenth part of the whole value of his estate.” 0. G., 1468. *
    In an action against the wife, service of citation on husband or wife is sufficient to interrupt prescription. 0 P., 192. The fact that the husband was not personally cited, and the wife not’authorized to-defend the suit until after the term of prescription pleaded had elapsed, did not destroy the effect of a legal service of citation upon the wife.
    0. 0., 8484, 8516.
    APPEAL from the District Court of Pointe Coupee, Robertson, J.

      W. 3. Cooley, for plaintiff and appellant. .Provosty & Farrar, for defendant.
   Spofford, J.

It does not appear that any evidence in the power of the defendant was rejected in consequence of the disallowance of the amended answer. As the defendant herself insists that the nature of the defence could not have been altered by the amendment, and that the issue would be substantially the same, only more explicitly stated, we cannot see any good ground for remanding the cause in the fact that the proposed amendment was refused.

The refusal of the District Judge to permit the plaintiff’s counsel to be ex amined as to his having been employed by Samuel Bush works no injury to the defendant. If the facts were as alleged in the bill of exceptions, they would not affect the merits' of the case.

There was no error in the refusal of the Judge to hear testimony to the effect that Samuel Bush, in the ordinary transactions of life acted as (he plaintiff’s "agent. That could not have given him power, or furnished even presumptive evidence of a power, to accept donations or to make contracts of the nature sought to be established by the defendant.

We.think the declarations of Jean Baptiste Deouir and his conversations with Bush out of the presence of plaintiff were improperly received as evidence for his universal heir, who in this suit occupies the position of Deouir himself.

The interrogatory put by the plaintiff’s counsel in cross-examination merely opened the question of concubinage, but did not authorize the introduction of incompetent evidence upon that question.

■Rejécting the evidence that was improperly received, there is nothing in the defence upon the merits but the simple fact that the defendant’s ancestor once lived in concubinage with the plaintiff.

By a positive provision of the Code that fact did not incapacitate him from making a donation inter vivos to her of movables not exceeding one-tenth part of the whole value of his estate. 0. 0., 1468.

The act of donation was most formal; it was absolute and irrevocable; it was of a sum of money not exceeding the limit prescribed in Article 1468; it was accepted by the plaintiff in a formal act, and the acceptance notified to the donor before his death.

The suit is founded upon the act of donation, not upon the note; the donation was of a specific sum of money, not of the note ; that was given, as the act states, merely to facilitate the donee in disposing of the amount donated, should she wish to do so; she has not done so, but now sues for it, and we think the heir is bound by the act of her ancestor.

Prescription had not accrued when citation was served upon the defendant, a married woman; service of citation, so as to interrupt prescription, could have been lawfully made upon either husband or wife. O. P., 192. The fact that the husband was not personally cited, and the wife not authorized to defend the suit until after the term of prescription pleaded had elapsed, did not destroy the effect of a legal service of citation upon the wife. O. 0., 3484, 3516.

It is, therefore, ordered that the judgment of the District Court be reversed; it is further ordered, adjudged and decreed that the plaintiff recover of the defendant the sum of two thousand dollars, with eight per cent, interest thereon from the 31st March, 1849, until paid, and costs in both courts.


text:
    Harmon Doane v. New Orleans and Ohio Telegraph Company.
    Where property is seized under attachment, and the property is bonded, the surety, in proceedings against him, will not, after judgment unappealed from by defendant, be allowed to show that the attorneys who filed an answer for the defendant were not authorized to represent the defendant.
    A surety is bound to ascertain his principal, and where, by mistake, he signs a bond for the lessee of the owner, instead of for the owner himself, to release property from attachment, he will be bound; for, if he had not signed the bond, the property would not have been released and the attachment dissolved.
    Where, in such a case, judgment has been rendered against the owner, and execution has issued against him, and has been levied on his property, and his lessee enjoins the sale, the surety on the attachment bond, being also surety on the injunction bond, cannot set up his mistake as a defence to proceedings against him. He should not be allowed to aid in defeating the levy, and ihen set up his own act as matter of defence.
    A rule against a surety- on an attachment, if taken after the actual return of an execution against the principal, is regular, even though taken before the return day named in the execution.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      L. L. Levy, for plaintiff. Semmes & Edwards and T. Hunton, for defendant and appellant.
   Merrick, C. J.

The appeal is taken in this case by the surety on an attachment bond, he having been condemned to pay the judgment rendered against the defendant, the Telegraph Company.

Four grounds are relied on by the appellant for the reversal of thejudgment.

I. The first ground is that “there was no valid judgment against the defendant, because Semmes & Edwards, the attorneys, were employed by Mr. Brother, the agent of the lessees of the telegraph, and not the agent of the defendant.” Messrs. Semmes <& Edwards having filed the answer in the original attachment, suit in which judgment was rendered against the Telegraph Company, offered on the trial of the rule against the surety to prove by Thomas J. Semmes that the firm of Semmes & Edwards, who filed the answer to plaintiff’s petition, were employed by Mr. Balcer, the manager of the lessees of the Telegraph Company in this citythat they had no connection, director indirect, with the defendant, or its President or Directors, and that the distinction between the lessees of the company and the company itself did not occur to counsel. This testimony was rejected in the lower court, and the defendant in the rule reserved his bill of exceptions. Had the testimony been received, we do not think it would have affected the question before the court. There was another party interested, whose rights the defendant in the rule seems to have overlooked, and that was the plaintiff in the suit. He, so far as it appears, commenced his suit regularly by attachment; the defendant was regularly in court to the extent, at least, of the property attached. Now it would be trifling with his rights to permit persons who have undertaken to represent the defendant to say that they did so by mistake. Such persons might render themselves responsible in damages to the defendant, but it would be an extraordinary case which would induce the court to hold, in a collateral proceeding, a judgment rendered even in an attachment suit, void, where property of the defendant has been attached. So long as the (jefendants, whose property had been attached, have not appealed or in any manner disapproved of the acts of the counsel who represented them, it is to be presumed that they were satisfied with the same. The testimony offered, unsupported by the oaths of the officers of the company, and the agent, Mr. Brother, would have been without influence on the result of this case, even if the testimony were deemed admissible. 3 Ann., 558.

II. The second ground is that “the surety expected, when he signed the bond, that his principal would be the New Orleans and Ohio Telegraph Company, instead of that, it turns out to be the bond of the lessees."

The principal named in the bond is the “New Orleans and Ohio Telegraph Line.” It is signed, however, by US. D. Balcer, manager of the New Orleans office for the lessees of the New Orleans and Ohio Telegraph Line.” The question before us is one between the surety and the plaintiff. It is clear that if the surety had not signed the bond the attachment would not have been dissolved, and the. plaintiff deprived of his privilege upon the property attached. If there is any loss it ought to fall upon the surety and not upon the plaintiff, for it is by the intervention of the surety in the bond, such as it is, that the plaintiff has beeri deprived of his security upon the property attached. Moreover, the defendant in the rule was bound to ascertain who was his principal in the bond, and whether the lessees of the Telegraph Company, or the Company itself, is the principal, is a question which concerns himself more than it does the plaintiff

• IIL The third ground urged is, that “ the execution (issued against the principal! shows that property was found, and that plaintiff, by countermanding his own execution, released it.” The return on the fi. fa. shows that the Sheriff was enjoined from seizing and taking into his possession the furniture, fixtures and movable effects of the Telegraph office at the corner of St. Charles and Grravier streets, in this city, and from interfering with the possession and use thereof by the lessees, and the Sheriff' returned the writ by order of plaintiff’s attorney, “no other property having been found after due demand made of the parties!”

It is true by the Act of 1839, amending Article two hundred and fifty-nine, ¡j. ¡g pi-0vided that the plaintiff may proceed on the attachment bond against the surety “ on the return of the Sheriff that no property has been found, and on exhibiting to the court said obligation duly transferred to him.” Acts 1839, p. 162. But in this case we find, on an examination of the injunction bond that Logan McKnight is surety on that also. He ought not to be permitted to aid in defeating the levy of the execution, and then set up the want of such levy as the reason why he should not paj' the attachment bond.

IV. The fourth objection is that the rule on the surety was taken before the return day mentioned in the writ. . It was sufficient that the rule was taken after the return of the writ, although the writ was returned before the return day. Guay v. Andrews, 8 Ann., 141; Holmes v. Steamboat Belle Air, 5 Ann., 523.

Judgment affirmed.


author: Merrick, O. J.

text:
    Samuel Davis v. John Fletcher.
    The claim of 0. to a tract of land was confirmed. Plaintiff employed at his own expense, and without the knowledge of the heirs of O., a surveyor to locate the claim confirmed to 0. on other land, and entered the C tract as subject to private entry, and obtained his patent therefor. The defendant, who claimed under O.’s title, was quieted in his possession by final judgment of the Supreme
    APPEAL from the District Court'of the parish of Concordia, Gooley, J.

      Shaw, for plaintiff and appellant. Farrar and Elam, for defendant.
   Merrick, O. J.

The tract of land in controversy in this case is the same just decreed to belong to the defendant in the case of Olho Farmer's heirs against him.

The plaintiff claims under a patent issued on a certificate of entry and purchase. The defendant claims under a confirmation by Act of Congress in the name of Ferdinand Leigh Claiborne, No. 70, class B. Statutes at Large, vol. 8, p. 239, sec. 1.

The view which we take of this case will render it unnecessary to decide whether the patent or the Act of Congress confirming class B is the superior title.

The proof satisfies us that the plaintiff was aware of the claim and probable possession of Claiborne of the land in controversy. With this knowledge he employed a surveyor at his own expense, unknown to the heirs of Olaiborne, to .locate the Olaiborne confirmation on the west side of Lake Concordia. He then entered the Olaiborne tract as subject to private entry, and obtained his patent therefor. In the meantime it was discovered that the survey of the Olaiborne tract which he had caused to be made did not correspond with’the description of the tract. The survey was rejected, and a new one ordered. The new survey has been made, and embraces the original settlement of Otho Farmer, the land possessed by Olaiborne.

We think a court of chancery, under these circumstances, would compel the plaintiff to convey the land to the defendant, even if he had no legal title, Stoddard v. Chambers, 2 Howard, 318; Bodely v. Taylor, 5 Cranch, 191; Kettridge v. Brand, 4 Robinson, 83.

Under our system of jurisprudence, we can grant relief by a final judgment in favor of tho defendant, quieting him in his possession and ownership of the land.

Judgment affirmed.


author: Buoiianan, J.,

text:
    C. W. Muncaster v. M. W. Bland.
    When the co-plaintiff or co-defendant dies, pending a casein the nigh Court of Errors and Appeals of Missisippi, the practice is to suggest the death on record, and to let the cause proceed,
    APPEAL from ‘the District Court of Tensas, Farfar, J.

      Stacy & Sparrow, for plaintiff. Farrar and Short & Parham, for defendant and appellant.
   Buoiianan, J.,

This is a suit brought upon a judgment rendered by the Circuit Court of Claiborne county, Mississippi.

Tho defence is, that the judgment of the Claiborne Circuit Court was reversed, on appeal, by the High Court of Errors and Appeals of the State of Mississippi.

The judgment of the Circuit Court, rendered October, 1847, was, “ that plaintiff in execution (Charles TV. Muncaster) recover of Maxwell W. Bland, and Bmeline Bland, his wife, and Thomas Beans and George 0. Wilson, their securities on their claimants bond, the negro slaves Jim,'’’ &c.

From this judgment, a writ of error was sued out of the High Court of Errors and Appeals, (being a court having appellate jurisdiction in the premises,) by all tho four parties cast at tho December term, 1847.

Pending this writ of error, and after transcript of the record filed in the appellate court, at the January term, 1850, the death of Bmeline Bland was suggested, and it was ordered by the court, that the writ of error abate, as to the said Bmeline Bland. Afterwards, and at the same term of the court, tho cause was argued and submitted to the High Court of Errors and Appeals; which, at the April term, 1852, rendered the following judgment: “that the judgment of the Circuit Court of Claiborne county, rendered in favor of said defendant in error, on the 9th day of October, in the year 1847, be and the same is hereby reversed, and the cause remanded to that court for a now trial; and further, that the plaintiffs in error do have and recover of said defendant in error, the costs of this cause in this court expended, to be taxed.”

The ground on which plaintiff seeks to maintain this action is, that the writ of error having abated as to Mrs. Bmeline Bland, by order of tho High Court of Errors, the subsequent judgment of that court was a nullity as to the interest of Mrs. Bland in the subject-matter, for want of jurisdiction. And of this opinion are six members of the Mississippi bar, who have been examined as witnesses in relation to the law and practice of Mississippi. But on the other side, thirteen members of the same bar, among whom are three actual or late Judges of the High Court of Errors and Appeals of that State, testify to their opinion, that the judgment of the Circuit Court has been annulled, by that of the High Court, and can no longer have any effect against Mrs. Bland's represent! Ves. The views taken by thy learned gentlemen who have been examined, may be summed up in the following brief extracts from their depositions 1

William Setters, examined for plaintiff; saj^s: “Aftei: abatement as to her, {Mrs. Bland,) the case Stood upon the writ of error of Bland alone, precisely as though he had sued it out alone, ab initio.”

And 'William T. Martin, on the same side : “ Mrs. Bland having died pending the writ of error, and the High Court having ordered that the writ of error should abate as to her, and her representatives not being made parties, the High Court had not jurisdiction to pronounce judgment as to those no longer before the court.”

On the other side, George L. Potter, examined for the defendant, says:

“ Of a judgment of reversal, thus broad and general in its terms, the effect was, in my opinion, to annul and vacate the entire judgment of the Circuit Court, as to both Bland and wife, unless it can be shown that said judgment of reversal was void in whole or in part; and I understand the rule of law to be, that a judgment, however erroneous, if rendered by a court of competent jurisdiction, must stand as conclusive between the parties, until reversed or vacated by the proper tribunal, upon a direct proceeding for that purpose. Its validity cannot be impeached in any collateral proceeding.”

Thus far the witnesses, pro and .contra.

In Borden v. Fitch, 15th Johnson, 141, which was a suit in New York, in which the validity of a Vermont judgment of divorce pronounced against a defendant residing in Connecticut, was collaterally drawn in question, the Supreme Court of New York said: “To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person, and of the subject-matter; and the want of jurisdiction is a matter that may be always set up against a judgment, when sought to be enforced, or when any benefit is claimed under it.” And the court thereupon proceeded to review the cases in the different States, from which it clearly results that the want of jurisdiction spoken of, which would authorize the court of one State to treat the judgment of the court of another State of the Union as an absolute nullity, must be an original and radical want of jurisdiction. For, where jurisdiction has once attached, as is remarked by the Supreme Court of the United States, in the case of Elliott v. Piersol, 1st Peters, 340, “ the court has a right to decide every question which occurs in the cause ; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court.” And the same doctrine is thus‘enunciated by the same high tribunal, in the case of Voorhies v. The Bank of the United States, 10th Peters, 474. “The errors of the court do not impair the validity of its proceedings; binding, till reversed, any objection to their full effect, must go to the authority under which they have been conducted.” “ The line which separates error in judgment from the usurpation of power, is 'very definite; and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally when it is offered in evidence,” &c. Ibid, p. 476.

The original jurisdiction of the High Court of Errors over the parties and' the subject-matter, is not disputed; but it is contended, that the jurisdiction was lost, by the abatement of the writ, as to one of the plaintiff’s in error; and that the cause of action of that plaintiff in error did not survive to the others, under the Statute of Mississippi, and that of William 3d, from -which it is taken. In all the remarks of the learned gentlemen examined for plaintiffs, upon this question of survivorship, the fact seems to have escaped attention,. that there were two other plaintiffs in error besides Bland and wife namely, Doans and Wilson, the securities upon the forthcoming claimant’s bond, given by Mrs. Bland and her husband; and who, by a proceeding analogous to our injunction law of 1831, were included in the verdictand judgment against Mrs. Bland in the court below. There would seem strong color of reason for the opinion, that the cause of action of Mrs. Bland in error, which was an erroneous forfeiture of said bond to her prejudice, survived to her securities in the bond, co-plaintiffs with her in error, even conceding that it did not survive to her husband, by reason of the Mississippi Statutes of 183!) and 1846-But after all, this seems to be a question of practice, which cannot be here examined collaterally, however palpably wrong the decision of the Nigh Court of Errors may have been. Did we consider ourselves under an obligation to examine it, or even vested with authority to do so, wo should be very much inclined to consider the late distinguished Chief Justice of Mississippi, Shar-key, as the very best authority extant upon the practice in the High Court of Errors of that State. In his deposition on file in this case, Judge Sharkey says : “I believe it has been the invariable practice of the High Court of Er. rors and Appeals, in case of the death of a co-plaintiff or co-defendant in error, to have the death suggested on the record, and to let the cause proceed.’’

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment for defendant, with costs in both courts.


author: Spoffoud, J.

text:
    Henry Marks v. Harman Stein.
    A contract, however inartificially or obscurely drawn, by which two persons agree to furnish mer_ chandise “ to the concern” and stipulate that one should act as salesman and the other pass as the proprietor, and that both should share equally in the expense and profits, constitutes a partnership between the parties.
    And one party cannot sue the other upon an account for any specific sum, until the affairs of the partnership have been liquidated.
    APPEAL from the District Court of the parish of Carroll, Snyder, J.

      Selby, for plaintiff and appellant. Galdioell & Dubose, for defendant.
   Spoffoud, J.

We concur with the District Judge in regarding the contract between the plaintiff and defendant, as one of partnership.

The instrument in which they sought to embody their agreement is inarti-ficially and obscurely drawn.

But it appears that both were to contribute merchandise to “ a certain concerns,” as they styled it; that the defendant was to be the salesman ; that the plaintiff was to pass as the proprietor; and that both were to divide the expenses and partake equally of the profits.

This being the substance of the agreement, the defendant’s exception to the suit was well taken.

The plaintiff has not sought a liquidation of the partnership affairs, but has brought an action upon an account for goods furnished, as the bills themselves recite, “ to the upper store.” ,

Even as to these goods, we find it difficult to reconcile the allegation of the petition.

The plaintiff claims to be the owner of them, and calls the defendant his agent; still he does not demand the goods themselves, but their value, as charged in his bills against the upper store, and ho asserts a privilege on the goods, which he procured to be sequestered.

It is needless to consider the motion to dissolve the sequestration, as that must fall with the principal demand.

The plaintiff complains that he was condemned to pay costs, and that the defendant summoned over six witnesses, so that the costs allowed are more than he is bound to pay.

The judgment for costs is only a judgment for legal costs, which are to be taxed by the inferior courts. There is no showing in the record, that illegal costs have been taxed.

The judgment is affirmed, with costs.


author: Buchanan, J.

text:
    Wm. E. Leverich, Curator, v. Amos Adams et als.
    Plaintiff sued fov the nullity of a judgment, and for an injunction to restrain the execution of tifi. fa. issued under it. The defendant in the injunction and the owner of the judgment directed the Sheriff to release the seizure, and afterwards made a motion in open court for the release of the seizure, which motion was allowed, hut the District Court went further, and ordered the suit to be dismissed. Held,: that the order dismissing the suit was improperly made, the plaintiff having a clear right to a trial of the issue of nullity of the judgment.
    APPEAL from the District Court of East Baton Rouge, Burke, J.
    Morgan, for plaintiff. B. & H. Harr, for Me Galop's Exeeulor. J. M. & J. E. Elam, for Adams.

   Buchanan, J.

A plantation and slaves belonging to the succession of Edward J. Walsh, administered by plaintiff, having been seized and advertised for sale in execution of .a judgment obtained by James S. Bailey against Amos Adams, this suit was instituted for the nullity of the said judgment, as also of another judgment against Adams at the suit of his wife, on the ground of the said judgment being fraudulent and collusive. And the petition prays in the alternative for judgment in warranty against Walsh's vendor, and the vendors .of his vendor, up to Amos Adams, who formerly owned the property in question. Tile plaintiff also prayed for the conservatory writ of injunction, which was issued upon a proper affidavit and bond given. All the parties, plaintiff and defendant, to the judgments sought to be annulled, as well as the different warrantors mentioned in the petition, were cited as defendants herein.

One of the parties cited in warranty (the executor of the last will of James MoGalop, deceased,) filed an exception, which was sustained by the court, and the suit dismissed as to him, by judgment signed the loth December, 1852.

On the 20th June, 1854, the following rule was entered on the minutes: “On motion of J. M. Elam, Esq., of counsel for Glara L. Stuart, universal legatee of James S. Bailey, deceased, authorized by her husband Amos Adams, that the property enjoined from sale be released from seizure, the Sheriff having been ordered to return thnfi.fa., the execution whereof was enjoined, ordered that the motion be entered for hearing,” and on the 22d June, 1854, the following judgment was entered on said rule : “In this case it is ordered, adjudged and decreed, that the motion of Glara L. Adams, universal legatee of James 8. Bailey, .deceased, to release from seizure the property enjoined from sale be sustained, and in consequence thereof it is further ordered, adjudged and decreed, that this suit be dismissed, and that the plaintiffs in seizure pay the costs of suit.”.

The next day, June 23d, 1854, plaintiff moved for a suspensive appeal, which was granted, and complains in this court that the release of the seizure of the property by one of the defendants, although it put an end to the necessity for the conservatory process of injunction, yet it by no means extinguished the various causes of action set up in the petition.

The appellant is clearly entitled to relief, and so much the more, as the rule taken by the representative of Bailey did not even ask that the suit should be dismissed. It merely asked leave to release the seizure of the plaintiff’s property, which it would have been the undoubted right of the party-to do, even without an order of court. But the object of this suit was more than the simple release of this seizure. The plaintiff demanded the nullity of the judgment under which the seizure was made. And this cause of action subsists as fully in the absence of a seizure as if the seizure remained in force. But if the suit be dismissed, what is there to prevent the representative of Bailey from issuing another fi. fa. and seizing the plaintiff’s'property again ? The appellant has a clear right to a trial of the issue of nullity, which, if decided in his favor, will quiet him finally in the possession of this property.

The appellant has asked us to reverse not only the judgment of the 22d Juno, 1854, dismissing his suit generally, but that of the 15th Decemher, 1852, dismissing it as to the succession of James Me Galop.

But we cannot consider this appeal as taken from the latter judgment. The plaintiff had suffered more than a year to elapse after that judgment, and had thereby lost the right of appealing from it, according to Article 598 of the Code of Practice.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that this cause be remanded to the said court, to be proceeded in according to law, as to all the defendants, except the succession of James Me Galop; the costs of this appeal to be paid, in solido, by Glara Adams and Amos Adams, appellees.


author: Buchahan, J.

text:
    James D. Hill v. J. H. Maddox.

      JPaets: An act of sale declared not to have effect as such, because there was no real price. A contract decreed to be usurious because borrower paid rent in addition to interest.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      JEstlin, for plaintiff and appellant. Durant & Eornor, for defendant.
   Buchahan, J.

The District Court did not err in receiving parol proof to explain the very vaguely written conventions of the plaintiff’s ancestor and defendant.

The true nature of the contract between the parties is proved to have been a loan, for which the borrower (defendant) gave his promissory noto to the Sender, (plaintiff’s ancestor,) which note included interest to maturity on the amount loaned, making the sum, principal and interest, thirty-five hundred dollars. Simultaneously with the making of this note, defendant made plaintiff a written sale, purporting to be for the price of thirty-five hundred dollars cash, of his library, furniture, plate, &c., in his dwelling-house, and subscribed an obligation to pay to the lender a yearly rent for the use of the articles thus sold.

•Very clearly this contract is not valid as a sale, for want of a real price. For plaintiff holds defendant’s note for that sum, which, in the pretended sale, is declared to be the price paid by plaintiff’s ancestor; and the witness, through whom the arrangement was made, swears that the bill of sale and the note were one transaction. The pretended sale was thus an informal pledge, and we take the obligation to pay rent for the furniture to have been intended between the parties as a badge of possession in the plaintiff’s ancestor, which is essential to constitute a pledge; and as betw'een the parties it may possibly have that effect; up.on which point we need not express any opinion at this time.

Under the evidence, and retaining possession of defendant’s note, as the plaintiff does, he cannot be allowed to treat the contract as a sale which has passed to himself the ownership of the effects sequestered herein.

Neither do we think the plaintiff’s claim for rent can be maintained. The rent stipulated, $250 a year, is about per cent, on $3,500, or within a half per cent, of the highest rate of conventional interest. But it is proved that ¡interest has already been received by plaintiff’s ancestor, in the shape of discount, upon the amount loaned defendant. The stipulation of $250 rent must, therefore, be viewed', under the circumstances, as usurious.

Judgment affirmed, with costs.


text:
    Ward Brack v. Samuel Wood.
    Act]oil of revendieation for a slave.
    The object of the possessory action is to enable the person clothed with possession to maintain that possession, and compel his adversary to exhibit and recover on his title.
    The rule in Art. 4á G. P., that plaintiff must recover on strength of his own and not the weakness of his adversary’s title, applied.
    The testimony of witnesses as to identity of a slave, when the slave is before them, preferable to that of witnesses who describe him from memory only, though the presumption be strong that the latter testify as to the same negro.
    The plaintiff to a petitory action must not only make his case probable, but legally certain, In pari casu potior est conditio possidentis.

      lx. PPEAL from the Fourth District Court of New Orleans, Beynolds, J.

      Wolfe & Singleton, for plaintiff Ogden & Chilton, for defendant.
   Merrick, O. J.

This is an action of revendieation brought to recover a slave. It has been made a question whether the circumstances of the case did not throw the burden of proof upon the defendant, he having taken the slave out of the plaintiff’s possession a short time previous to the commencement of this suit. The very object of the possessory action is to enable the person clothed with possession to maintain that possession and compel his adversary to exhibit and recover upon his title.

The plaintiff seems to have supposed that he had not possession which would enable him to bring the possessory action against the defendant who resumed the possession of the slave after an interval of only seven months.

Wo see no reason to introduce an exception in this case to the rule expressed in Article No. 44 of the Code of Practice, which has been recognized almost as often as there have been petitory actions tried, viz: that the plaintiff in this kind of action must recover upon the strength of 1ns own title and not upon the weakness of that of his adversary.

It' will be unnecessary in this case to consider'the objections raised as to the introduction of testimony.

The main difficulty in this case arises from a question of identity as to the slave, whether the testimony of both plaintiff’s and defendant’s witnesses all point to the same object, or whether or not there have not really been two negroes so similar in appearance as to bear the same description, both of which have been in the possession of plaintiff and his vendors, and one only in the possession of the defendant.

The testimony of defendant’s witnesses has this advantage over those of plaintiff; they had the slave before them when they testified, and they speak positively as to the identity of the negro. On the other hand, the plaintiff’s witnesses describe a negro with such marks 'as to create a very strong presumption that they testify to the same negro, although thej' had not seen him for some months, and as to some of the witnesses, perhaps years previous to the commencement of the suit

The defendant’s testimon}' establishes these facts, viz: that the identical negro which he has in possession was in the possession of one McDonald as owner from 1836 to 1840 and 1841, when McDonald left Natchez; that in 1S48 he was lodged in jail as a runaway; that he was seized under an execution at the suit of one lead as McDonald's property, and bought by the defendant, on the ¿5th day of June, 1848, for $475 ; that from that period the slave remained in defendant’s possession, on his plantation in Louisiana, up to October, 1851, when he ran away, and that the defendant recovered his possession of the negro in August, 1S52, by taking him from the steamboat Florida, where he had been hired.

The plaintiff’s testimony proves that, in 1839, a negro boy, answering to the description of the one in controversy, was lodged in jail in Helena, Arkansas, where he remained until December, when a man by the name of Ervart presented himself, with a written title from one John Weymouth, dated September, 1838, identified the negro as his property, and sold him the same day to Miller Irvine for $810. In 1844 Irvine sold to Wm. Polh for-. On the 19th day of March, 1846, Polh sold to John Trigg. About February, 1848, the slave absconded. In October, 1851, Trigg regained a negro, which plaintiff’s witnesses identify as the one runaway, having taken him out of the jail in Galla-tin, Mississippi, where he had been lodged as a runaway. The slave absconded again in January, 1852, and having been recaptured the same month, lie was sent to New Orleans, and sold as the property of John Trigg, at auction, and bought by the plaintiff. Plaintiff had hired the slave upon the steamboat Florida, from which the defendant took the slave which he possesses as owner. It will be observed that neither plaintiff nor defendant exhibit in their vendors any title except possession. The plaintiff’s possession is traced back to 1839, that of the defendant to 183G. Who had been the previous owner of the slave or slaves is not shown.

It is possible, notwithstanding the positive character of the testimonj' of the witnesses and their number, that the slave which McDonald had in his possession from 183(i to 1840 was the same which Ervart sold to Irvine, and that there is a mistake of the witnesses in regard to the dates. But were this so, still the plaintiff fails in his proof, because he Would then claim through McDonald, and having failed to show title from McDonald, his action fails.

It is not enough for the plaintiff in the petitory action to make his case probable, he must make it legally certain.

So far as it concerns the testimony in this case, to say the least of it, that of the defendant is as cogent and consistent as that produced by the plaintiff. In pari casu potior est conditio possidentis.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in this case against the demand of the plaintiff and in favor of the defendant, and that the plaintiff pay the costs of both courts.