author: Eüstis, C. J.

text:
    Young et al. v. Templeton et al.
    A marriage settlement, executed in another State, where the property was situated and where the parties resided at the time, if valid by its laws, cannot be effected by the subsequent removal of the parties to this State.
    By the laws of Mississippi, no covenant or agreement in consideration of marriage, nor any deed of marriage settlement or deed of trust, though the consideration be a valuable one and the bonaJides of the parties unquestionable, is good against creditorá, unless acknowledged by the parties bound thereby, or proved before a judge of the Supreme Court, or a justice of the county court, or justice of the peace, or notary public of the county in which the lands, tenements, and hereditaments, or some part thereof, are situated, and unless a certificate of such acknowledgment or proof, written upon said instrument, and signed by the officer before whom it was made, be lodged with the clerk of the county court of the proper county, to be there recorded in the same manner as other deeds of real or personal estate arc required by law to be acknowledged or proved. A marriage settlement, not duly acknowledged or proved, and recorded, is not void merely as to creditors having liens on the property to be affected, but is void as to all creditors whosoever.
    On a question arising under the laws of another State, in which the english common law, so far as adapted to our constitutions and consistent with our form of government, and not repealed or modified by statute, is in force, and where the principles of the english equity jurisprudence also prevail, and where the courts are authorized to look to english authorities in equity for rules of decision on questions turning on the principles of equity, the courts of this State will be bound to notice any thing applicable in principle, which it finds laid down in approved works.
    In those States in which the common law prevails, a general lien on land resulting from a judgment, constitutes, per se, no property or right in the land itself. It confers only a right to levy on the land, to the exclusion of other adverse interests subsequent in date to the judgment, and can only be made effectual by a levy.,
    A deed, executed in a State where the english common law prevails, conveying property to a trustee, for the benefit of creditors of the grantor, though fraudulent and void as to creditors, is sufficient to divest the legal title of the grantor, and conclusive against . him. And where the. property so conveyed in trust for the creditors, is subsequently conveyed by the grantor to a trastee as a marriage settlement, it can only confer on the intended wife, or on her trustee for her benefit, the right to have a conveyance made to her of the property when the prior deed shall have been satisfied or otherwise discharged. It creates in her favor a lien in equity only, of no validity against a creditor until actual notice, or the filing of a bill asserting such lien, which is constructive notice; and where a judgment creditor, who, by reason of the conveyances in trust for the creditors, has but a lien in equity upon the property conveyed, instead of a legal lien, files his bill in equity before any acual or constructive notice of the deed of marriage settlement, his right to subject the property to his debt will take precedence of that of the wife. As the judgment creditor would prevail in Mississippi over the wife, by reason of his earlier assertion of his equitable claim by a bill in equity, the husband cannot, by subsequently removing slaves, who formed a portion of the property to this State, create a right of priority in her favor.
    from the District Court of Carroll, Selly, J.

      Short and Parham, for the plaintiffs.

      Thomas and Snyder, for the defendants.
   The

of the court, {King, J. absent,) was pronounced by

Eüstis, C. J.

This suit is brought on a judgment obtained by the plaintiffs in the State of Mississippi, against Samuel Templeton and others. The object of it is to obtain a judgment in this State against Samuel Templeton, one of the defendants, and to annul a conveyance of certain slaves made by said Templeton to another defendant, James Wyley, in trust for Mrs. Templeton, in consideration of marriage, and to subject the slaves, twenty-one in number, to the payinent of the plaintiffs’ debt. There was a verdict of a jury in favor of the plaintiffs, against Templeton, for the amount of his debt, but in favor of the other defendants Wyley and Mrs. Templeton, against the plaintiff’s ; and judgment having been rendered accordingly, the plaintiffs have appealed. The judgment having sustained the conveyance under which the'slaves were held in trust for the benefit of Mrs Templeton, the principal argument of counsel has been directed to the question of its validity.

On the 9th of October, 1843, in view of the marriage afterwards contracted, and in consideration thereof, Templeton, the defendant, made a settlement of these slaves, with other property, through the instrumentality of a trustee, upon his future wife, selecting Wyley, his father-in-law, for the trustee. The deed was executed in Madison, in the State of Mississippi, the residence of Wyley; that of Templetpn being in Warren county of-that State. Templeton and his wife, early in December, 1846, romoved to the parish of Carroll in this State, with the slaves, and the instrument above described was there recorded about that time.

The judgment on which this suit is brought, was rendered in May, 1840, in the. Circuit Court of Warren county, Mississippi. If the marriage settlement was valid against the plaintiffs under the laws of Mississippi, the parties residing there, and the property upon which it was to operate' be ing also there, it may be assumed that the rights of ownership under it are not affected by the removal of both to this State. The validity and effect of the settlement under those laws is, therefore, to be examined.

It is contended by the counsel for the plaintiffs that, the' marriage settlement never had any legal existence under the laws of Mississippi, as to those who were creditors of Templeton at the time it was executed; that it was void as to all •such creditors, whether they had judgments or not, it not having been aeknowleged, proved, or recorded in the manner required by the statutes of that State in order to give it effect.

We understand the statute particularly referred to as providing that no covenant or agreement, in consideration of marriage, shall be good against any creditor, unless it be acknowledged by the party bound thereby, or proved to be his act, and lodged with the clerk of the County Court ofthe proper county, to be there recorded in the same manner as other deeds of real or personal estate are by law required to be acknowledged, proved, andrecorded. The nextsection provides that, all deeds of settlement of marriage, and all deeds of trust, shall be void as to all creditors, unless they shall be acknowledged or proved and lodged with the clerk of the County Court of the proper county, to be recorded according to the directions of the act. The directions of the act appear to be that the writing be acknowledged or proved before a judge of the Supreme Court of the State, or a justice ofthe County Court, justice of the peace, or notary public of that county, in which the lands, tenements, or hereditaments, or some part thereof, are situated, and that a certificate of such acknowledgment or proof, written upon said instrument and signed by the officer before whom it was made, be lodged with the clerk of the County Court, to be there recorded. Statutes of Mississippi, by Howard & Hutchinson, p. 343.

The only evidence of a compliance with the provisions of this statute by the, parties to the marriage settlement, is a certificate of the clerk of the Probate Court ofthe county of Madison, State of Mississippi, dated on the 35th of Decemcember, 1843, to the effect that, the two subscribing witnesses appeared before him, and proved the execution and delivei'y of the instrument on the day and for the purposes therein mentioned.

In the act of settlement Templeton describes himself as of the county of Warren, and conveys to his future wife, twenty-one slaves, together with the plantation upon which he then resided in Warren co.unty, with all the stock, farming utensils, household and kitchen furniture, and other moveables. It is therefore apparent that, the requisites of the statute as to acknowledgment, proof or recording, have not been complied with. Nor does it appear, except as stated, that the instrument ever had effect in the State of Mississippi. It stands then as a private writing, without any act connected with it which would give it any effect as an executed contract.

But it is contended by the counsel for the defendants, that Mrs: Templeton must be considered in the same light as a purchaser for a valuable consideration, the law attaching that import to marriage settlements from motives of the soundest policy. Templeton, as we have seen, lived in the county of Warren, and his property was there situated. Mrs. Templeton, before her marriage, resided in the county of Madison, and it is said she and her father, the trustee, were entirely ignorant of the state of the affairs of Templeton. But the answer to this argument is found in the statute itself. Whatever may be the verity of the consideration and the bonafides of the parly to the marriage settlement, to have effect against creditors it must be acknowledged, or proved, and recorded as the statute has provided.

It is also urged that marriage settlements not duly acknowledged, proved and recorded, are void merely as to creditors having hens, but, if the lien be lost, such settlements are not void in relation to creditors having no lien on the property to be affected by the settlement.

The term made use of in the statute is general—all creditors without any limitation. If the operation of this statute is only in favor of creditors by judgment, or judgment creditors having liens, it must depend exclusively upon the jurisprudence of that State.

In the ease of Armfield v. Armfield, 1 Freeman’s Chancery Reports, 316, the chancellor of Mississippi stated, in giving his opinion, that courts of equity go very far to sustain marriage settlements where they are just and free from the imputation of fraud, and that marriage is held to be a bona fide consideration, and the wife stands in the light of a bond fide purchaser, and is entitled to the same protection. He refers to the treatise of Atherby on Marriage Settlements, p. 130, as containing the doctrine that the claim of creditors is never an objection to the execution of marriage articles, unless they were creditors by judgment or other matter of record before the articles were entered into.

That the plaintiffs had a lien on the properly in dispute by virtue of their judgment and its enrollment, is conceded in argument; but it is urged that the lien having expired by the effect of the act of the legislature referred to, although the marriage settlement would have been void at the time it was executed as to the plaintiffs, yet by reason of the extinguishment of the lien they are not in a situation to be able to contest the validity of the marriage settlement.

We understand the common law of England, so far as it is adapted to our institutions and is consistent with our form of government and not repealed or modified by statute, to be in force in Mississippi, and that the principles of equity jurisprudence which prevail in England are those which prevail in that State, and that courts there are authorized to look to english authorities in equity, for rules of decision on questions turning on the principles of equity.

As no adjudged case has been adduced pertinent to the subject and as the true rule in this case which a court of equity in Mississippi would be guided by, rests entirely on doctrine, we are bound to notice what we have found laid down in approved works, and which is applicable in principle to the case under consideration.

It is stated in the treatise of Mr. Sugden on Vendors, a work which has received commendation for its exactness and the learning ability of its author, that although a judgment was not docketed and therefore void against a purchaser, yet, if the purchaser had notice of it and did not pay the value of .the estate, it was presumed that he agreed to pay off the judgment, and equity compelled him tc pay it; and that the general rule of equity would warrant the assertion that the case would have been the same although no agreement had been made. It had been decided by the master of the rolls that, notice of judgment not docketed was not material, but the case has been overruled, and Lord Eldon decided in favor of the purchaser being bound by notice of the judgment creditor, though the judgment was not docketed, and carried with it no lien. C. 12, § 20. This was Ore doctrine in England, on the subject previous to the act of 1 and 2 Viet. c. 110. Vide Coote on Mortgages, 71.

By the act of the legislature of Mississippi, before referred to, the liens created by judgments obtained previous to its passage were limited to two years. The plaintiff’s judgment was duly enrolled before the date of the marriage settlement, and under this law would have expired pending the litigation between the plaintiffs and Joseph Templeton et al., which had for its object to subject the property of Samuel Templeton, covered by a deed pf trust, to the payment of their judgment, which we will afterwards notice.

It is not understood that a general lien by judgment on lands, constitutes, in law, per se, a property or right in the land itself. It only confers a right to levy on the same, to the exclusion of other adverse interests subsequent to the judgment, and can only be made effectual by that means. Conrad v. Atlantic Insurance Company, 1 Peters’ Rep. p. 443.

The marriage settlement never having been recorded in Mississippi, and there being no pretence for any notice of it to the plaintiffs, it is very difficult to perceive on what ground it could have been held valid against a levy on the property' by an execution of the plaintiffs. Here this levy was prevented by the -conveyance of the legal estate in the property under the deed of trust to Joseph Templeton, which the plaintiffs have been attempting to set aside. This deed having been recorded in the proper county, and the judgment having been enrolled there, it seems to us obvious, that it fixes the notice of both upon the trustee as well as the party in interest, and disclosed fully the rights of plaintiffs under their judgment, and the desperate condition of Templeton's affairs. The transfer of his homestead, furniture, and slaves, could imply nothing else, and we do not understand how, by going out of his county and contracting with a person there, the latter could be held ignorant of, or relieved against, those incumbrances. Under our laws a marriage settlement of this character, adversely to creditor’s, would have no effect, and we are not able to understand on what ground it can be sustained on the principles of equity recognized in England and in Mississippi. The very case we before noted, that of Armfield, appears to be conclusive against the defendants; the settlement under those circumstances is, in no sense, just, nor is it free from the imputation of fraud.

It is necessary to ascertain what estate or property the trustee, Wyley, acquired) in the property conveyed to him by the marriage settlement. The argument o£ the defendants’ counsel has given the answer to this inquiry. He states that, att the time of the recovery and enrollment of the plaintiffs’ judgment in Mississippi,. the title was in Joseph Templeton under the deed of trust. This deed was. offered in evidence, and the plaintiffs’ bill in chancery and the proceedings had, show that the litigation for the purpose of annulling it, is still pending in Mississippi. A statement of these matters becomes necessary in order to explain the title in Joseph Templeton, as asserted by the counsel.

The appellants, Young, Smith <§• Co. first instituted suit in the Circuit Court of Warren county,. Mississippi, on the 3d of October, 1838, against Samuel Templeton et al., in. which the judgment was obtained which constitutes the foundation of the present action. The writ in that suit, was executed on Templeton on the 15th of October, 1838. At the November term, Templeton put in. a demurrer to the declaration, and the case was continued until the next term,, which was to come on the 20th of May, 1839. On. the 9th of May, 1839, he made a transfer of all his property, consisting of about nine hundred and sixty acres.of land in Warren oounty, Mississippi, with about fifty negroes, together withallshis stock, growing crops, and every thing, down to the household furniture, to his brother, Joseph Templeton. The deed was put on record, in Warren county, on the 15th' July, 1839. On the 1st of May, 1840, the appellants obtained then1 judgment in the Circuit Court of Warren county, against Samuel Templeton, Isaac N. Qlidwell, Thomas M. Green and John Gowan, for the sum of. $11, 472 66, and costs of suit. Execution having issued on this judgment and been returned ‘■'■nulla hona,” the sheriff having made no levy on the property of. Samuel Templeton, it having been thus conveyed to Joseph Templeton, no further proceedings appear to have been taken by the appellants until the 20th of March, 1844. They then filed their bill for the purpose of annulling the deed of trust from Samuel to Joseph Templeton, made on the 9th of May, 1839, on the-ground thatitwas made to hinder,, delay, and defraud the creditors. All the parties, who were supposed to claim any rights under the deed of trust were made parties to the suit. All were called on to set forth the amount of the debts which they claimed as secured by the deed of trust. The bill directly charged that no such debts existed,, or that, if they ever did exist, they had been paid off by Samuel. Templeton,, and that the deed of trust was held up as a shield in fraud of the rights of the complainants. Neither the creditors, nor Joseph Templeton ever answered the bill. Judgmentpro confesso was entered against them and all the other defendants. On the 12th of June, 1845, on motion of Samel Templeton, the pro confesso judgment was set aside as to him, and he had leave to file his answer. The. only portion of this answer we deem it necessary to- notice is, that Templeton. admits that from the execution of the deed of trust in 1839, he had been in possession of the property conveyed in the deed, and in the receipt of the proceeds and that no steps were ever taken by the trustee,, or the creditors mentioned in. the trust deed, to apply the properly conveyed to the objects of the trust. After Samuel Templeton had filed his answer other parties were added to the suit who., claimed rights superior to those asserted by the-.complainants, under certain judgments they held against Samuel Templeton,.and, pending these proceedings, in November, 1846, as we have seen, Templeton removes to Louisiana with his. household, slaves, and moveables.

The marrriage contract was put on record in the parish of Carroll, on the 5th of December,. 1846. This instrument purports to have been executed in the.. ¡county of Madison, in the State of Mississippi, on the 9th of October, 1848. By it Samuel Templeton, in consideration of the marriage intended to be shortly hadbetween him wadMartha E. Wyley, and in case the said marriage should talca place, conveys to James Wyley, in trust for the benefit of his intended wife, a •large amount of property. The property conveyed in the marriage contract consists of twenty-one of the same negroes that were conveyed in the deed of trust to Joseph Templeton; also all the household and kitchen furniture, stock of hogs, cattle, sheep, horses and other beasts, wagons and farming utensils, together with a “ fine four-wheeled carriage and harness and a piano forte”; and also a tract of land, the plantation on which Samuel Templeton then lived, section twenty-six. The land is tire same that was conveyed in the deed of trust to Joseph Templeton. 'This marriage settlement never was recorded, either in Madison county, where it was executed, or in Warren county, where the property is situated.

To return then to the inquiry as to the title of the trustee, Wyley, or that of the wife of the debtor, Samuel Templeton, in the slaves, which are the subject of this suit: Templeton, the defendant, having, by his deed of the 9th May, ■1839, conveyed his whole legal estate in the slaves, with tire other property, to his brother for the benefit of his creditors, it is clear that he had no legal title remaining in him which he could convey in the marriage settlement. The deed to •his brother, whether fraudulent as to creditor's or not, was vafid between the parties, and was of ample force at common law to vest the legal title to the slaves in Joseph Templeton, and the deed from Samuel Templeton to Wyley, in October, 1843, conveyed no legal title in this property. It gave to the intended wife, or her trustee, for her benefit, the right to have a conveyanoe made to her of the property when the prior deed should be satisfied by the payment of the debts, or otherwise discharged.

It created in her favor a lien in equity only, which is of no validity against a •creditor until, either actual notice, or "the filing of a bill asserting such lien, which is constructive notice. Had the marriage settlement been recorded under the laws of Mississippi at its date, (9th October, 1843,) such recording would have fixed the date of this equitable lien on all others claiming also liens in equity upon the property. But before it was recorded, and while concealed strangely -by the trustee, a judgment creditor, who, by reason of the deed to Joseph Templeton, has but a lien in equity upon the property instead of a legal lien, files his bill in equity on the 20th March, 1844, and asserts his lien in equity. In such a case we understand the rule to be, qui prior in tempore, potior in jure est. 'The right •of the judgment creditor to subject this property to his lien in equity must date ¡from the filing of his bill, and that of the wife, from the first publication of her ¡equitable claim in the parish of Carroll, in 18415.

We have looked in vain for any distinct act of delivery, or of possession, of the ■slaves on the part of the trustee, and can find no evidence of any such act; nor is there any possession on the part of the wife, except that which is left to the inferred from the conjugal relations. Templeton, the defendant, considered them in his possession, in 1845, and he made oath to the fact in his answer to the appellant’s bill in chancery.

We consider the possession to have been unchanged since the first deed to Joseph Templeton, and to have remained unchanged in Samuel Templeton.

The removal of the slaves to this State was made pendente lite, after the notie of the claim in equity of the appellants as judgment creditors, and before aa appearance of the marriage settlement, which is now set up to defeat it. From the best consideration which we have been able to give to this difficult question, we believe that, in a court of equity in Mississippi, the judgment creditor would prevail, for the reason that he was the earliest to assert his equitable claim by the filing of his bill over the wife’s equitable title which her trustee had neglected to assert and publish. If she could not have secured her priority in Mississippi, we cannot permit the husband, by removing the subject of the litigation to this State, to create a right of priority in her favor.

In this view of the case it is not necesssary to consider whether the 13th section of the stat. of 24 February, 1844, of the State of Mississippi, by which the lien of preceding judgments was to cease in two yeaa-s, is or is not in conflict with the constitution of the United States. If the law is held to operate upon any other than liens at law, we think it is sufficient to say that, the lien in this case, which we have called alien in equity, was put into execution within the two years required, to wit, in March following its passage. The proceeding was against the property in the possession of Samuel Templeton, and, until we find it decided by the courts of Mississippi that, the lien is lost both in law and equity, by the effect of the statute, while it is in litigation, under a state of facts as presented in this case, we must give the parties before us the benefit of our own convictions.

It is contended that the deed of trust from Samuel Templeton to Joseph Templeton, presents an obstacle to the application of the slaves to the satisfaction of the judgment of the plaintiffs. We think not. A court of equity in Mississippi, would not hesitate in decreeing the nullity of that deed. The retention of an interest in the grantor, the possession which he retains, with the revenues, and the fact that no time is to be discovered from its tenor, within which it is to be executed, are objections fatal to its validity. We conclude, therefore, that the plaintiffs are entitled to the relief they ask.

It is, therefore, decreed that, the judgment in favor of the plaintiffs against Samuel Templeton stand affirmed, that the judgment in favor of Martha E. Templeton and the said James W. Wyley be reversed, and that the conveyance from the said Samuel Templeton to the said James W. Wyley, for the use of Martha E. Wyley, of date of the 9th of October, 1843, so far as the same relates to the slaves mentioned therein arid described in the plaintiffs’ petition, be declaired to be null, void, and of no effect, and that said slaves be subjected to the payment of the said plaintiff’s debt, with interest and costs; and that the appellees pay the costs of this appeal.

       The defendant Samuel Templeton, also appealed.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Rightor et al. v. De Lizardi et al.
    In an action for a partition of land all the parties in interest must be joined; and it devolves on the plaintiff, on an issue made by one of the defendants, to show that the proper parties are before tlie court. C. C. 1252. C. P. 1024.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Preston, for the plaintiffs.

      T. A. for the
   The judgment

of the court (Slidell, J. not sitting on account of relationship to one of the parties,) was pronounced by

King, J.

Tlie plaintiffs allege themselves to be the owners of a large tract of land, in partnership with the defendants, and have instituted tins suit for a partition. The defendant Slidell alone opposed the action. A judgmeat was rendered in the court below in accordance with the prayer of the plaintiffs, and the defendant, Slidell, has appealed.

An insuparable objection presents itself to our affirming the judgment appealed from. Rightor and wife claimed three-ninths of the land held in partnership, but have shown no title in themselves. The evidence in the record would show them to bo without title, and that the portion claimed by them belongs to other parties. It is true that, two of the plaintiffs have shown themselves to be joint owners, and they have an undoubted right to claim a partition. C. C. art. 1215, 1227. But it is indispensable to the validity of the proceedings that all the parties in interest should be joined in the action ; and it devolved upon the plaintiffs, upon the issue made by one of the defendants, to show that the proper parties were before the court. C. C. 1252. C. P. 1024. Farrar v. Newport et al. 17 La. 348.

It is, therefore, ordered that the judgment in this case be reversed, and that it be remanded for further proceedings according to law; the plaintiff Rightor, and wife paying the costs of this appeal.


author: Eustis, C. J.

text:
    Hart v. New Orleans and Carrollton Railroad Company
    In an action fordamages for the destruction of plaintiff’s carriage, caused-by the neglect and imprudence of the driver of an omnibus alleged to belong to defendants, the latter may, under the general issue, offer proof that the omnibus had been leased by tbem to a third ' person at the time of the accident. The liability of defendants depending, not upon the ownership of the omnibus, but on the fact that the damage was done by their servant, it is no objection to such evidence that it is inconsistent with the denial of ownership of the omnibus in their plea of general denial.
    from the Fifth District of New Orleans, Buchanan, J.

      Roselius,

    for the plaintiff.

      Micou, for the appellants.
   The judgment of the court (Slidell, J. not sitting, having be en of counsel,) was pronounced by

Eustis, C. J.

This action is brought to recover the sum of $850, damages for the destruction of the plaintiff’s carriage,■ alleged to have been caused by the negligence, imprudence, or want of skill of the driver of an omnibus belonging to the defendants, in running foul of the carriage as it was standing in Chartres street, in the city of New Orleans. The general issue was pleaded. The plaintiff obtained a verdict in March, 1839, which was set aside on an appeal, in December, 1841. 1 Rob. 179. The present appeal is taken by the defendants from a judgment rendered on another verdict in favor of the plaintiff, on a new trial had in March, 1848. The case has been pending since July, 1838.

The accident is alleged to have taken place on or about the 20th July, 1837. On the last trial of the cause the defendants offered in evidence an instrument by public act, bearing date the 24th of January, 1837, by which the railroad establishment, with its moveables and dependencies, including these omnibuses, were leased to two individuals for a term of years. It was not admitted in evidence by the district judge, and thus deciding the defendants took a bill of exception to his decision. The judge was of opinion that, the ownership of the defendants of the omnibus having been denied, by the general denial filed by iLem, the proof tendered was inconsistent with that denial. The objection made by the counsel for the plaintiff to the admission of the instrument offered , , . , , , , , ... , , was that, there was no special plea to the effect that the omnibus m question had been leased and was not under the control of the defendants.

The responsibility of the defendants to the plaintiff, as we apprehend, depends not upon the ownership of the omnibus, but upon the fact that the damage was done by their servant, for whose acts they are sought in this action to be made liable. The object of the defendants was to show, by legal evidence, that the omnibus was under the exclusive control of the lessees of the railroad establishment, who alone employed the drivers, and that the driver in this particular case was not their servant but exclusively that of the lessees. Under the general ■issue we think the evidence admissible.

We do not deem it nessaiy to decide on the other bill of exceptions taken by the counsel for the defendants to a portion of the charge of the judge, as the case goes back, aud the necessity to determine on the points raised may not again occur.

The judgment of the District Court is reversed and the cause remanded for a new trial, with directions to the district judge to admit in evidence the authentic act offered by the defendants of date the 24th January, 1837, mentioned in the bill of exceptions no. 1, and that the plaintiff pay the costs of this appeal.


text:
    McGill v. McGill.
    Receipts of receivers of public moneys of the United States for the price of public lands, are sufficient evidence of title from the government to form the basis of a petitory action, in which the property itself may be recovered. Per Curiam : Lands held nnder such instruments enter into the domain of private property, and as such are subject to contracts, and, when there is no reservation by Congress, are liable to taxation.
    A patent from the United States is conclusive evidence of the divestiture of the fee in the land, which remained in the United States notwithstanding the sale made by its officers and the receipt of the price; but it does not affect any right to the land which may have existed under contracts between the patentee and third persons. The patent, to whomsoever issued, inures to the benefit of him to whom the patentee is hound to convey the legal title.
    A patent for public lands fraudulently obtained, or illegally issued, is void.
    A purchaser at a probate sale, of lands held by the deceased under an act of sale from an assignee of the receipts given by the receiver of public moneys for the original price of the land made sous seing privé and never registered, who has been for several years in actual notorious possession under a recorded title, cannot he affected by one claiming under a subsequent purchase of the land from the party by whom the price was paid to the government, and to whom the patent had been issued. The last purchaser, being the assignee ■of the party by whom the receipts had been previously assigned, cannot take advantage of the defect of registry and is bound by the act sous seing privé. C. C.2417, 3522, § 5. Per Curiam: A purchaser will he charged with notice who buys, in the face of a notorious adverse possession, under a recorded title, for several years, from one who holds merely the legal title_the patent, which inures to the benefit of the equitable owner, without possession or apparent ownership.
    Although acts under private signature do not of themselves prove the date of their execution against third persons, their date may he established by other evidence besides the actual proof of the time of their execution. Any circumstances which renders_the ante-dating ¡the act impossible will give effect to its date.

      from the District Court of Tensas, Selby, J.

      Shaio, Prentiss and Finney, for the plaintiff.

      Stacy and Sparrow, for the warrantor appellant.
   The judgment of the court (Slidell, J. not sitting,) was pronounced by

Eustis, C. J.

This is a’petitory action for the recovery of a certain tract of land situated in the parish of Tensas, in the possession of the defendant Penelope WleGill. The defence was made by Edward Sparrow, the curator of the succession of Ducker, deceased, from whom Penelope McGill purchased, and who was cited in warranty to defend the suit. The plaintiff had judgment in the District Court, and the curator has appealed.

Washington purehased the land in 1833 from the government, and took the usual duplicate receipts for the price paid from the United States receiver. Patents for the land were not issued until the 15th June, 1837; they were in his name, and appear to have been received by him. On the 26th of December, 1842, a sale of this land was made from Washington to the plaintiff by public act passed in the parish of Concordia, for the consideration of $2,200, which the vendor acknowledges to have received.

It is contended that a legal title to the land has thus been made out in the plaintaiff, which must prevail unless a better title is established to be in the defendant, or unless it be shown that the plaintiff’s title is fraudulent. The bur-then of establishing both these propositions is assumed by the warrantor, who, defends the suit. Sparrow, the curator, alleges, a valid and superior title to the land as against the plaintiff to have been vested in the succession of Ducker, and that the purchase of the title of Washington was the result of a fraudulent combination between the plaintiff, who is the son of the defendant Penelope McGill, the mother, the other defendant who is her brother-in-law, and Washington, the object of which was to effect an eviction of said Penelope McGill from the land, and thereby relieve her from the payment of the price of the land for which she was then sued.

We will examine the title under which the defendant holds the land under her purchase from the succession of Ducker, in 1838, conceding the proposition, of the plaintiff’s counsel as to the effect to be given to his title, subject to the contingency stated.

Penelope McGill,, the person in possession, purchased the land on the 22d June, 1838, at the judicial sale of the effects of the succession of John DuckerIt was adjudicated at the price of $51 50 per acre, amounting to $23,175, payable in one, two, three and four years. The proces-verbal of the sale describes the land as the same tract purchased by said Ducker of Jeremiah B. War,rent, containing four hundred and fifty acres more or less, &c., and refers to the inventory for a particular description. In the inventory the land in controversy, which consists of several parcels, is described under the general denomination of lots of land entered by Dr. H. F. Washington containing four hundred and fifty acres. In the mortgage given by the purchaser to secure the notes given in accordance with the conditions'of the adjudication, the land is again described in, the same manner as in the proces-verbal. The inventory and proces-verbal were duly recorded. There is no question as to the identity of the land,, nor of Ducker's, nor the defendant’s possession.

A writing under private signature, having the scrawl of a seal,, bearing date, Rodney, August 1st, 1834, signed by J. B. Warren, and .bearing the signature of two witnesses, is produced in evidence on the part of the warrantors. It purports that J. B. Warren hath, on that day, bargained and sold to John Ducker the land in controversy on the banks, of the Mississippi, describing it by one. of its lateral boundaries, and as entered by H. F. Washington and sold by Washington to him, for and in consideration of three notes of $3,000 each, payable in one, two and three years; and that when the above notes were paid, he, Warren, was bound to make Bucher a full and sufficient title to the land. The execution of this instrument, at the time and place it bears date, is proved by the testimony of one of the subscribing witnesses.

Warren, who resided in the State of Mississippi, died in 1845 or 184G, and, subsequently to October, 1847, among his papers were found three receipts of the United States receiver for the purchase money of the several lots of land sued for, from Washington, each of them having an assignment written on it to John B. Warren, all dated the 9th September, 1834, and bearing the signature of H. F. Washington; and with them was found an instrument of the same date and bearing his signature, acknowledging to have received from Warren certain notes of his for and in full consideration of the following lots, describing those which are the subject of the present suit; and adding, “the receipts for which above described lots I have this day endorsed over to J. B. Warren.” This receipt included other transactions between them, which it is not material to notice. One of the subscribing witnesses to the first doccument was examined under a commission, and the interrogatory was put to him, from whom and when did Warren purchase the tract of land specified in said deed; and the answer Was, that “he bought it from Br. Washington. I think, in June, or July, 1834.” Washington no longer resides in the State of Mississippi, and his place of abode in 1842, is given as in Christian county, Kentucky. The foregoing facts appear to constitute the defence of the title under which the land is held by Penelope McGill.

Before considering the objections made by the counsel for the plaintiff to the Validity of the defendant’s title, his relation towards it must be first ascertained. He bought of Washington, in 1842, the defendant Penelope McGill being in possession, under title from the succession of Bucher, since 1838. The plaintiff is the son of Penelope McGill, and resided with her in 1842. Her place of residence was in the State of Mississippi, about eight miles from her plantation in Louisiana. For two- or three years back the plaintiff has had- charge of his mothers’s business, and must have known that the tract of land in dispute had been in her possession since 1838, as it was in cultivation and formed a portion of her plantation establishment.

From these facts the conclusion is forced upon us-that, the int.erest of the son ■and mother were one and the same, and any other inference would be in conflict With the ordinary motives which influence human conduct. The purchase of Washington’s title, if the object was not a fraud on his mother, was to defeat the •claim of Bucher’s succession for the purchase money of the land, by establishing a legal ground for witholding payment in an eviction under an outstanding title.

The points made in argument by the counsel for the plaintiff are: 1st, that no title is shown to have been in the succession of Bucher, and, if such title whore shown, it would be null and void as to the .plaintiff for want of registry, it consisting of writings under private signature and not recorded; 2d, that the plaintiff had no actual notice of any title in the defendant derived from Ms vendor Washington, and that the possession of the land by his mother did not charge Mm with notice, actual or constructive, of any derivation of title from Washington; 3d, that the procés-verbal and record of the sale from Bucher’s succession did Mot constitute such notice, nor describe the lands sufficiently to identify them as these sold by Washington to tlie plaintiff; and lastly, that there is no proof of any fraud or collusion between the plaintiff and the defendant.

Before considering the proposition of the counsel concerning the writings under private signature under which Pucker possessed the land, and the effect of their not having been recorded, it is necessaiy to ascertain what title tire plaintiff acquired by his purchase from Washington, and its validity and effect when in the hands of Washington before the transfer to the plaintiff. ,

The plaintiff claims the land in dispute by patents regularly emanating from the government of the United States. In the disposition of the public lands belonging to the United States, Congress has the sole' power to regulate the form and effect of titles to be issued to the purchasers, and the jurisprudence of the courts of the United States has defined and settled their character beyond art controversy of which a brief reference to several leading. cases will give the outline. The documents before us are land receipts and patents, and it is not necessaiy to extend the enquiry beyond them.

We have seen that Warren was in possession of three duplicate land office receipts which had on each a written assignment from Washington, in whose favor they were given, bearing date September 9th, 1834. It has always been held in this State that the receipts of the receivers of public moneys for public lands were sufficient evidence of title from the government to form the basis of a petitory action in which the property itself could be recovered, and this class of suits has been frequently maintained on such instruments. Lett et al. v. Prudhomme et al., 3 Rob. 295. Guidry v. Woods, 19 La. 338. True it is that by the legislation of the United States the patent is the superior and conclusive evidence of the legal title to lands emanating from the government, and until it is issued the fee of the land is considered as being in the goverment, but this constitutes no objection to the recognition by courts of any other evidence of title from the government as a sufficient ground for recovery in an action for the land. Bagnell et al. v. Broderick, 13 Peters, 436.

The land office receipts, signed by the receiver of public moneys at Ouachita, we are bound to consider as evidence of a purchase of the land from the government of the United States, by Washington. They contain a description of the object sold, the rate, $1 25 per acre, and an acknowledgment of receiving the aggregate sum mentioned for the number of acres contained in the lots described. Lands held under such instruments enter into the domain of private property and as such are subject to contracts, and, where there is no reservation by legislation of Congress, as is the case as to some of the States, they are liable to taxation. The retention of the fee of the land in the United States is considered as being no obstacle. Carrol v. Safford, 3 Howard, 461.

We understand the regular course to be observed by the officers of the United States in the private sale of lands to be, that the application for purchase being made to the register, he endorses a certificate on such application, which is taken to the receiver, who is to receive the payment. When the purchaser pays his money, the receiver to whom payment is made issues duplicate receipts, one of which is given to the register who enters the sale on his books, the other is given to the purchaser as evidence of his right. The register makes returns of sales to the general’land office accompanied'by the receipts of the receivers thus given to him together with his own certificates of purchase, on which patents are issued and forwarded to the register to be distributed among the purchasers, who are to surrender the receipts thus held on receiving the patents. The patents are issued under the seal of the general land office, and duplicates of them are tilers’ preserved. Land Laws, 11, Edition of 1828. Carrol v. Safford, loc. cit.

Accordingly the patents in this case recite that Washington had deposited in the general land office a certificate of the register of the land office, whereby it appeared that full payment had been made by him for the land described, in consideration of which the land purchased by said Washington is granted, &c.

The patents being thus issued in the names of the purchasers, and we presume it is always the case unless there is evidence in the general land office of some ©flier right to it, it follows that the patent is not necessarily in favor of the person to whom the land belongs. The purchaser may have died or parted with his title, and though it may have been merely an equitable one, it is .not the less valid, nor are courts less bound to give it effect. The patent then is conclusive evidence of the divestiture of the fee in the land which remained in the United States, which it reserved, notwithstanding the sale made by its officers and the receipt of ths price; but we do not understand it as affecting any right to the land which may have existed under contracts between the patentee and third persons. Our courts have always recognized the superior dignity and effect which the law and jurisprudence of the United States have attached to patents for lands issued under their authority, at the same time that they have given effect to the certificates of purchase and land office receipts, considering that they were proper evidences of title—though that title, under that jurisprudence, was held merely to be an equitable one. And it is always considered that the patent to whomsoever issued inures to the benefit of him to whom the patentee would be bound to make conveyance of the legal title. The fee being in the United States is merely technisally so at law, but not in equity. Carrol v. Safford, loc. cit. And it has- been* we believe, uniformly decided that when an equitable right originating before the. date of the patent is asserted, the patent is no obstacle to its being examined in a-court of equity. Bush v. Ware et al., 15 Peters, 93, and cases there cited.

If a patent be fraudulently obtained, or has been issued against law, it is void. It would be a most dangerous doctrine to hold that in either of those cases a patent should vest the legal title. Stoddard et al. v. Chambers, 2 Howard, 318.

The patent in this case, according to the routine of the general land office* would have issued in favor of Washington, and have been forwarded to the register of the land office in Ouachita, to be delivered on the surrender of the receipts. These receipts were no longer in the possession of Washington; he had-parted with them, and consequently had no right to the patents, nor could he have obtained them according to the general instructions given to the receiver, unless on proof of their loss, or satisfactory evidence that the land had not been transferred by him. We have before us the usual advertizement of the register of this district, giving notice to the purchasers of public lands of the receipt of a. number of patents, and that they will be delivered, on the presentation of the receiver’s receipts of corresponding numbers. It would be a veiy serious question, as to whether Washington gained any rights by obtaining the patents after he had parted with the receipts* but we prefer determining the case,, as this objection was not raised in argument, on the grounds on-which the discussion at ban has principally turned.

In support of the proposition that, if the title of Bucher consisted of the acts-under private signature from Warren, and from Washington to the latter, the title is void for want of registry, the counsel relies upon article 2417 of the Code* which provides that the sale of any immovable or slaves, made under private signature* shall have effect against the creditors of the parties and against third. persons in general only from the day such act was registered in the office of a notary and the actual delivery of the thing sold took place. Registry and delivery are thus both requisite to give effect to sales against creditors and third persons in general. But the article has this proviso, that this defect of registry shall not be pleaded between the parties who shall have contracted in such act, their heirs’ and assigns, who are as effectually bound by a sale made under private signature’ as if it were an authentic act. If, therefore, the plaintiff is the assign or assignee of Washington, the defect of registry cannot be taken advantage of by him, and he is bound by the act under private signature. The Code has not left the meaning of the word to conjecture, and under article 3522, which provides that, whenever the terms of law employed in the Code have not been particularly defined therein they shall be understood as defined in that article, it gives this definition to the word assigns, § 5: “Assigns means those to whom rights have been transmitted by a. particular title, such as sale, donation, legacy, transfer, or cession.” The defendant having bought the land in 1838, and being in possession under a title by public act in 1842, her possession being notorious, it seems obvious that the plaintiff, independent of his relation as son and forced heir of the defendant, could acquire nothing by purchase from Washington beyond his rights, and that the transfer-of Washington’s title was a mere assignment of his rights in the sense of the definition. The defendant was the apparent owner of the land, Washington had no possession and could, give none, and the transfer from him could not be a sale of the land, but was a mere assignment of his right in or to-it.

In the case of Splane, curator v. Micheltree, 2 An. 265, it appeared that Maxwell being aware of the possession and ownership of a portion of a tract of land by the defendant, which he had purchased by an act under private signature from Campbell, and knowing that the act had not been recorded, bought the whole tract from Campbell by authentic act, which he had recorded in the parish where the land was situated before the registry of the defendant’s title. He had stated that he had the advantage of the defendant, that the latter had neglected to have his sale recorded, and that he would start the next morning at day-light and have his sale first recorded. It was held that Maxwell having, at the time of his purchase, full knowledge of the ownership and possession of the defendant, whether derived from the records or any other source, could acquire no title to the prejudice of the defendant.

It had been previously held by this court, in the case of Stockton v. Briscoe, 1 Ann. 249, Mr. Justice Slidell dissenting, that one in possession of land purchased at a judicial sale of the effects of a .succession cannot be affected by the fact, that the sale, by which the deceased acquired the land by act under private signature from a party then in possession, was never registered. The court considered that the object of the registry laws was to make apparent the ownership of property, and as the ownership of the land was manifested by a sufficient title and notorious possession, the party buying the title of the original owner, which had been transferred by. an act under private signature to the deceased, at the sale of whose estate the defendant had purchased, could not recover the land from the defendant—in other words, that possession under a sale by public act duly recorded gave the purchaser of an outstanding title such notice as that he bought subject to the notice of adverse ownership, thus placing him in the attitude of an assign, and not a tim'd person in the sense of the Code.

In both these cases the claim of the plaintiff was for part of land possessed by the defendant—in one for an undivided .half, and in the other for a definite portion; and the adverse possession was what the law defines as natural possession, not merely civil possession, and there could be no question as to its being actual notice and presumptive evidence of ownership.

The discussions which have taken place among civilians as to the meaning of the words tiers and ayants-cause under the Napoléon Code, and the difficulties which our courts have had in establishing any rule of universal application on their sense as used in our Codes, are familiar to the profession. Art. 3522, §§ 5, 32. They have admonished us of the caution necessary to be exercised in undertaking to lay down any general principles on this perplexed subject. In the cases we have decided, and in that under consideration, we concede that there are difficulties in the rule on which they aré determined: but the antagonist doctrine appeal's to us to be not only impossible under our system in its operation, but immoral and subversive of all principles of common justice. In holding that actual notorious possession under a recorded title for several years is notice to all the world of ownership, we are not aware that any principle is asserted which is not in harmony with the law itself as well as with public policy.

The entry of land by purchasers at the land office is not only a public act, but in all new settlements the entry is not only a matter of notoriety but the land frequently takes its name from the person making the entry. The facility given to the transfer of the lights of the purchaser by the assignment of the land receipts has renderod very common the use of acts under private signature in the sale of lands purchased from the United States, as the records of our courts abundantly testify. In charging a purchaser with notice, who buys in the face op a notorious adverse possession under a recorded title for several years, from a person who holds merely the legal title—the patent which inures to the benefit of the equitable owner—without possession or apparent ownership, the facilities for speculation in titles may be abridged, but the interests of bond fide purchasers and of property itself will be subserved and protected. The apparent adverse ownership is, according to every fair presumption, under the entry, and of itself is sufficient to put any prudent man, who treats with a person out of possession, upon his guard against the title he is about purchasing.

To enable a man who has sold a tiling once to turn round, and, with the price in his pocket, to sell the same thing to another who knows of the first sale, is to encourage iniquity and give effect to fraud. When the second purchaser is unthout notice, and the consideration of his purchase is what the law holds to be valuable, as he is not a participator in the fraud, he is maintained in his legaj rights, and equity will give no assistance against him, for he has done nothing against equity or good conscience. “It is the notice of the use that is all the effect of the matter; for then he is parliceps criminis, et dolus et fraus nemini patrocinantur, since in conscience he purchased my lands or my goods. For the common law whenever it found a consideration discharged the covin, but chancery-looks further to the corrupt conscience of the party that will trafic for what in equity he knows to belong to another.” Fonblanque’s Equity, 151..

Conceding, however, that the title of Washington could be acquired by purchase adversly to the defendant in possession under a title, it is clear that nothing more than his rights were bought by the plaintiff. Considering the latter in the place and stead of Washington, the original owner, it remains to be ascertained what rights he has to the land in dispute against the defendant.

If we examine the validity of the acts under private signature on the groundg presented by the counsel for the plaintiff, we think the objections taken to their effect will bé found to be untenable, whatever force they might have if taken in favor of a bond fide purchaser without notice. It is said that these acts, being mere private writings, have no date against the plaintiff until their date is proved aliunde. But Washington in his receipt, and in the assignments of the land receipts to Warren, is a party to them, and in addition to article 2417, which provides that the parties to acts under private signature, then- heirs, and assigns are as effectually bound by such acts as if they were in authentic form, article 2239 gives to acts under private signature, acknowledged by the party against whom they are adduced, between the parties who have subscribed it, their heirs and assigns, the same credit as an authentic act. Although writings of this class under private signature do not themselves make proof of the date of then- execution against third persons, yet their date may be established by other evidence besides the actual proof of the time when they were executed. Potfiier gives an example, where the contents of a private writing are mentioned in acts drawn by public officers, such as proces-verbaux of affixing the seals or inventories. Treatise on Obligations, § 715. This example, of the decease of the party, given by Pothier, is not exclusive, and any circumstance which renders the ante-dating of the writing impossible has been considered as giving effect to the date of the instrument, under the rigid system of evidence established by the Napoléon Code. 8 Toullier, 241. In the inventory of the Ducker’s succession, made in 1838, and referred to in the proces-verbal of the sale, we find the land described as three lots of land lying on the bank of the Mississippi river adjoining Daniel M. Bondurant, entered by H. F. Washington, &c.

The testimony of Woodruff, though indefinite by itself, points to the same conclusion, that the acknowledgment of Washington and the assignments of the land receipts found among Warren’s papers after his decease, were genuine, and not ante-dated; and, we think, the evidence is conclusive against any right of Washington to claim the land in controversy. The document having the signature of Washington is, as we conceive, proof of a sale having been made to Warren, and its date, being subsequent to the sale from Warren to Ducker, is not material, as giving Washington any right adversely to the present defendant.

The writing under private signature from Warren to Ducker, bearing date August 1, 1834, is proved to have been executed at the time it bears date by one of the subscribing witnesses. Whether it conveyed the legal title to the land oían equitable title only, it is not material to enquire. The plaintiff claims in the right of Washington, and has no right to contest the title of the defendant under this contract between Warren and Ducker, as it stands executed between their heirs.

Considering, therefore, that the plaintiff, having due notice and actually knowing that the land in dispute belonged of right to the defendant, his mother, though technically the legal title was in the United States, she having been for several years previously in notorious possession thereof under a recorded title, if the purchase from Washington was not a piece of fraud and collusion between them, the only rights which the plaintiff could acquire being those of Washington, of whom he thereby became the assign,, and Washington having no right whatever to the land in dispute, our judgment must be for the defendant.

The judgment of the District Court is, therefore, reversed, and judgment rendered for the defendant, with costs.


text:
    Brown, for the use of &c. v. Route et ux.
    Where a plaintiff; in an action on a note given to him in pledge, admits, by a supplemental answer, defendant’s right to pay the debt in the notes of a particular bank, and avers his readiness to receive them, but defendantmakes no tender, and answers denying any cause of action against him, and plaintiff, in another supplemental petition subsequently filed, avers that he has become the absolute owner of the notes by purchase at a judicial sale, and withdraws his consent to receive payment in the notes of the bank, defendant cannot require that judgment should be rendered payable in the notes of the bank.
    Where.an act of mortgage does not contain the pact de non alienando, and the property is in possession of a third person, no judgment can he rendered for its seizure and sale in an action against the mortgagor alone.
    from the District Court of Tensas, J.

      Frazer, Farrar and L. Peirce, for the plaintiff.

      Prentiss, Stacy and Sparrow, for the defendants.
   The judgment of the court (Slidell, J. not sitting,) was pronounced by

Eustis, C. J.

On the 22d March, 1848, judgment was rendered in favor of the plaintiff against John Routh, for the amount due on two notes, subscribed by said Routh and his wife, and a certain plantation and slaves, which had been mortgaged to secure the payment of the notes, was ordered to be seized and sold to satisfy the judgment. The suit against Routh and his wife to obtain judgment on the notes, and subject the mortgaged property to seizure and sale, was instituted, in June, 1843. Mrs. Routh died in 1845; the plantation and slaves having been purchased by her in the mean time, were inventoried as belonging to her succession, and have been in possession of her heirs since, they having accepted her succession with the benefit of inventory. From this judgment the defendant John Routh, has taken an appeal. An appeal is also taken by John Routh as administrator of the succession of his deceased wife, and by the heii-s of Mrs. Routh, on the ground that they have been aggrieved by the judgment, though insisting that they were not parties to the suit in the District Court. The object of the appellants is to have the judgment against Routh changed so as to be made payable in notes of the Agricultural Bank of Mississippi, and the decree ordering the mortgaged property to be seized and sold, annulled; and to those points the argument of counsel have been confined.

The notes sued on originally belonged to the Agricultural Bank of Mississippi, to whose order they were made payable, and from whom the plaintiff acquired them. The modification of the judgment, which the defendant Routh insists on having a right to claim, is founded upon an admission contained in one of the several supplemental petitions filed by the plaintiff in the course of the proceedings in the District Court. Routh, in his answer, had pleaded, among various other matters, that any judgment against him must be rendered payable in these bank notes, and made oath, which was filed on the 18th June, 1844, that one of the partners of Brown, Brothers Sf Co., who appear to be parties in interest in this suit, had entered into an agreement with him to compromise and settle this claim against him, the defendant binding himself to confess judgment for the amount thereof, payable iu the notes and bills of the bank at par. The amended petition filed by the plaintiff’s counsel on the 18th December, 1844, which is relied upon as establishing thp right to have the judgment appealed from modified, is to this effect:

“Plaintiff, by leave of the court first had and obtained, amends his petition, and admits that the notes herein sued on were pledged and delivered to him to secure a debt due from the Agricultural Bank. Plaintiff admits defendants’ right to pay the same in the notes of the Agricultural Bank, but avers that defendant has never tendered the notes of said bank to pay this debt herein sued on; and avers that, in truth, the defendant is only endeavoring to delay the payment of the said debt. Plaintiff further avers that he is ready and willing to receive the notes of said bank in payment thereof, if the defendant will make a tender of the same to him; wherefore he prays for judgment etc., and for general relief in the premises.”

To this the following answer was filed on the same day: “The defendants file this their answer to plaintiff’s amended petition, and deny specially that the plaintiff has or can show any cause of action against these defendants; they allege that the assignment and transfer alleged by the plaintiff from the Agricultura} Bank of Mississippi to plaintiff of the claims sued on was null and void, and made in direct contravention and violation of the positive statutes and laws of the State of Mississippi, where said bank is situated, and by whose laws said bank was chartered. Wherefore they pray that plaintiff’s demand be rejected, with costs? and for general relief in the premises etc.”

On the 6th of May, 1846, another amended petition was filed by the plaintiff to the following effect: “That since the institution of this suit Brown, Brothers 8f Co., for whose use plaintiff sues, have become the absolute owners, by purchase at sheriff’s sale, of the two notes heretofore pledged to them, and sued on in this suit. Petitioners retract and withdraw the consent heretofore made, that they would receive the notes of the pledgor, the Agricultural Bank, in payment for said debt, and pray for judgment for the amount of said notes, interest and costs' against the defendants, and for general relief in the premises.”

To this a still more formidable array of matter of defence was pleaded. The amended petitions were signed by the plaintiff’s attorney, and it seems to us to be obvious that there is nothing in these matters which affect the original rights of the parties. The proceedings are very irregular, and we think it the duty of the court to take no heed of them. The plaintiff was undoubtedly willing, at the time, to take a judgment payable in the notes of the bank, provided they were forthcoming; but the defendants would neither confess judgment, nor tender the notes. The obligations, on their face, are payable in money; the' right to pay in bank notes seems no part of the contracts. It may have been incident to it. An ordinary debt can be paid by compensation in the debt of the creditor, and When assigned in a debt of the assignee due to the party opposing it previous to the assignment; but the right of a debtor to pay a debt sued on by way of compensation can only be tested on a proper plea, and by the debtor wlyo is the holder of the debt offered in compensation. The right of the defendant, acknowledged by the plaintiff’s attorney, we consider amounts to no more than'this; and as no notes were tendered or offered in payment, we think, the District Court did not err in rendering an absolute judgment against the principal defendant, JohnJRouth.

The mortgage given by South to secure the payment of the' notes of himself and wife to the bank, included a debt they owed to Gordon Sf Coffey, on which they had judgment, in 1842. On this judgment execution was issued, and the plantation and slaves was sold to Mrs. South, in October, 1843, for $151,000, she? paying the judgment debt, and retaing the balance due to the other mortgagees—■ the plaintiff’s mortgage remaining entire, and thus being assumed by her, and forming part of the price of the property.

This change in the position of Mrs. South, by the purchase of the mortgage property, was the ground of an amendment to the original petition in which an additioal liability on her part towards the plaintiff was alleged, and recourse claimed against her accordingly as before prayed for, which was for a personal judgment, and that the property mortgaged be seized and sold to satisfy the plaintiff’s debt. This amended petition was served on Mrs. South, on the 8th February, 1845, but does not appeal' to have been answered, although, as we have seen, the amended petition filed subsequently, to wit, on the 6th of May, 1846, was answered.

On the 18th of February, 1848, a fourth supplemental petition was filed, alleging the death of Mrs. South, &c., and the heirs and administrator of the succession were made parties to the original suit. Judgment for their virile shares, and for the seizure and sale of the property mortgaged, was prayed for. This, with a copy of the original petition, appears to have been served upon the several parties, and,' on the 22d of March, 1848, a judgment by default was entered against all the defendants except John South, but which has not been made final. It follows, therefore, that, as to the succession of Mrs. South, the issues thus made having never been determined, are still pending. The judgmentappealed from has settled the right of the plaintiff to his debt, and his remedy against the land and slaves mortgaged, and, so far as the defendant John South is concerned, he has no light to object to the legality of that part of the judgment, which subjects the property mortgaged to be seized and sold according to the prayer of the petition.

But the heirs object to the judgment which orders the seizure and sale of the property, of which they are in possession under the sheriff’s sale, and which possession is declared upon in the supplemental petition of the plaintiff as an additional substantive ground of their liability for the plaintiff’s debt. It is to be observed that one of the grounds of the defence of Mrs. South in her life time was, that she had renounced the community, and, at the time of the purchase at sheriff’s sale, she was separated in property from her husband.

Cases are frequently presented before us in such a form that the application of the principles of law to them becomes difficult aud embarrassing, of which this cause furnishes an example.

The mode of subjecting this property to the payment of the plaintiff’s debt appeai-s to be simple, provided the rules of practice are adhered to. It is clearly erroneous to have given a judgment against the property mortgaged in the possession of the heirs, by which itwas ordered to be seized and sold on a judgment against South, who was not in possession, when the act of mortgage did not contain the pact do non alienando.

The district judge was of opinion that no other party than South was before the court on the trial of the cause, and it being so, although the judgment is valid so far as South is concerned, it seems to us that the seizure and sale of the mortgaged property could not be ordered under the state of the pleadings.

The plaintiff was bound to pursue the ordinary or the executory mode of proceeding. If he is held to the former, there are issues still pending between him and the heirs, which remain to be tried. Under the latter, the judgment, so far as it affects the heirs, cannot be maintained.

It is therefore decreed that, that part of the judgment which orders the seiz-m-e and sale of the properly mortgaged, so far as relates to the heirs of Mrs. Routh, be reversed, and that, in other respects, it be affirmed; the plaintiff paying the costs of this appeal.


author: Slidell, J.

text:
    McCausland v. Lyons et al.
    'One, not a party to a promissory note, who puts bis name on the back, will bo bound as a surety.
    'Where two persons, not parties to a promissory note, write their names on its back, being bound as sureties, judgment will be rendered against them, in solido, for the whole debt-The obligation of each surety is to pay the whole debt; but -this obligation is subject to the right to claim a division. Until this right is exercised, the obligation is in solido. O. G. 3018, 3019.
    The exception of division by a surety is a peremptory one, which must be pleaded specially.
    from the District Court of West Feliciana, Boyle, J.

      Paterson, fot the appellant.
    No counsel appeared for tíre defendants.
   The judgment of the court [King, J. absent,) was pronounced by

Slidell, J.

Lyons and Smith are sued upon a note of the following tenors

“On the 1st of April, 1843, we or either of ns promise to pay to Robert McCauslancl, or order, the sum of two thousand and two hundred dollars, payable and negotiable at -the Louisiana State Bank, at St. Francisville, bearing ten per cent per annum from maturity, until paid, it being for value received, this 1st day of April, 1842. P. B. McKelvey.”

On the back of this note are the signatures of the defendants, “II. A. Lyons and Ira Smith.”

The petitioner, who is the payee of this note, alleges that Lyons and Smith signed before the delivery of the note to -him, and thus incurred the liability of sureties in solido. Lyons and Smith answered, admitting their signatures only, and pleading the general issue. The court below gave judgment in favor of the plaintiff against the defendants each for his virile share, and from this judgment the plaintiff has appealed, and asks that -the judgment be amended .so as to condemn the defendants in sólido.

Our first enquiry is under what class of contracts does the obligation contracted by Smith and Lyons fall. This is answered by several decisions of our predecessors and of this court, which must be considered as settling the point in this State. By this irregular endorsement Lyons and Smith bound themselves as sureties. See Smith v. Gorton, 10 La. 376, Laurence v. Oakey, 14 La. 389. McGuire v. Bosworth, 1 An. 248.

Such being the character of the contract, our next enquiry is, are these sureties liable each for the whole debt, or is the liability merely joint. By article 2088 of our Civil Code (which is taken literally from article 1202 of the Napoléon Code,) it is declared that “an obligation in solido is not presumed; it must be expressly stipulated. The rule ceases to prevail only in cases where an obligation in solido takes place by virtue of some provision of law”—“ou la solidarité a lieu de plein droit, en vertu d’une disposition de la loi.” It is therefore necessary to consider the nature of the contract of suretyship, for the purpose of determining whether it falls within the exception contemplated by the article.

The rule of the roman law was that, if several persons become sureties for ®a© and the same thing, every one of them is answerable for the whole. Si plures sint fidejussores, quotquot erunt numero singuli in solidum tenentur. Ther benefit of division was not ipso jure, butmighf be demanded by a surety when liis co-surety was solvent. Inter fidejussores non ipso jure dividitur obligatio ex epístola JDivi Hadriani; et ideo si quis eorum ante exactam a se partem sine herede decesserit, vel ad inopiam pervenerit, pars ejus ad cceterorum onus respicit. Ut autem is, qui cum altero fidejussit, non solus conveniatur, sed dividatur actio inter eos, qui solvendo sunt; ante condemnationem ex ordine postulan solet. See the text and notes of Domat, Surety, b. 3, tit. 4, s. 2.

The french Code followed the Institutes and the Code of Justinian, not however without previous opposition on the part of those jurisconsults who desired to extend the rule of article 1292 to the contract of suretiship, and require an express undertaking to impose a liability in solido. That Code was thus made to harmonize with the roman law on this subject, and the opinions of Vinnius and Danneau, which were adopted by Pothier. See the history of the law on this subject as given by Troplong, Cautionnement, § 281 et seq. Pothier, Obligation, § 416. The latter considers the principle of solidarity as inherent in and derivable from the nature of the contract. II est de la_ nature du cautionnement de s’obliger á tout ce que doit le debiteur principal; et, par consequent chaeum de ceux qui le cautionment est censé contracter cet engagement, a moins qui’l ne déclaro expressément qu’il ne s’oblige que pour partie; c’est la raison qu’en rapporte Vinnius. He then alludes to the exception of division accorded by the' emperor Hadrian, and says it was adopted in the practice in France.

Our Code has adopted this principle; and so far as our present enquiiy is involved, has substantially followed the law of Rome and France. “When several persons have become sureties for the same debt, each of them is individually liable for the whole of the debt, in case of the insolvency of any of them.” Art. 3018. “Any one of them may, however, demand that the creditor should divide his action, by reducing his demand to the amount of the share and portion due by each surety, unless the sureties have renounced the benefit of division.” Ib. “A creditor can by no means claim the whole sum from the surety who applied for a division, when the other sureties have become insolvent since the time of that application. The same thing takes place if the creditor has himself voluntarily divided his actions.” Art. 3019-.

The contract of suretiship, under these provisions of law, is of a mixed character. The obligation of each surety is to pay the whole debt; but this solidarity js tempered by the right of division. This right however, rests in facúltateThe surety has the right to demand the division; but until the right is exercised, the obligation is solidary.

In the present case there has been no demand of division by the sureties. They were attacked by the-plaintiff as debtors in solido, and pleaded the general issuedlie exception is a peremptory one, which must be pleaded specially; aud this' has not been done in the court below, nor even in this court. Dividitur obligatio inter plures fidejussores per exceptionem duntaxat, non ipso jure. It is not an exception which can be supplied by the court. It is obvious that it presents a mixed question of law and fact. Suppose that Lyons or Smith had pleaded tha exception of division. The plaintiffs might have met the plea by proving the insolvency of the other surety. See Troplong, Cautionnement, § 297, and the' authorities there cited. Merlin, Rep. verbo Caution., § 4, no. 2.

It is therefore decreed that the judgment of the court below be reversed, and-that the plaintiff recover from the said defendants Henry A, Lyons and Ira Smithr in, solido, the sum of two thousand two hundred dollars, with ten per cent interest thereon from the 4th day of April, 1843, until paid, and costs in both courts.


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    The State v. Farron et al.
    Though there be no proof that a judgment, rendered against the principal and surety in a bond taken by one of the recorders of the city of New Orleans for the appearance of the principal to answer a charge of assault and battery, was ever notified to the parties, it cannot be set aside, under the provisions of the stat. of 11 March, 1837, after the lapse of ten days from the date of an offer made, with the assent of the principal, by the surety, in court, to surrender his principal, and of an application by the surety for the cancelling of the mortgage resulting from the recording of the judgment in the mortgage office.
    A PPEAL from the District Court of the First District of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

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

Eustis, C. J.

On the 10th of June, 1844, a judgment was rendered in the late Criminal Court of the First District, against Farron and H’Hebecouri, on a bond executed by them before one of the recorders of New Orleans, for the appearance of Farron to answer a charge of assault and battery.

On the 20th March, 1848, H’Hebecourt took a rule on the attorney general, in the First District Court of New Orleans, to show cause why he should not be discharged from the bond and judgment, on the ground that he, the surety, had made a formal surrender of the body of the principal to the sheriff in open court on the 17th instant, and that, even admitting the judgment to be legal and in due form, which was not conceded, the surrender was made in .time, no notice of said judgment having been served on the appearer. The district judge having discharged the rule, after hearing the attorney general in opposition to the action of the court as invoked, the defendant, H’Hebecourt, has appealed. The decision of the district judge was founded upon the opinion that, the court had no power to release a surety against a judgment of the late Criminal Court, on a bond forfeited in 1844.

We have examined the different points presented in the argument of counsel, which we consider untenable. Under the law of 1837, a judgment of this description, rendered in the parish of New Orleans, could be set aside for proper cause, at any time within ten days after notice to the parties. It is admitted that, on the 13th of January, 1848, the defendant offered in open court to surrender his principal into custody, he the said principal thereunto assenting. It does not appear that the judgment ever was notified to the parties. But on this day, the 13th of January, 1848, an application was made by the counsel for H’Hebecourt for the erasure and cancelling of the judicial mortgage, recorded in tire mortgage office, and purporting to be the record of a judgment rendered on the 10th of June, 1844, on the ground that no such judgment was rendered, or entered, on said day, or any other. This appearance of the defendant, and his application for relief from the mortgage resulting from the judgment, fully justified the district judge in his conclusion, that every thing had been done in accordance with law in the late Criminal Court, independent of the presumption which the law implies to that effect. Had the application been made to set aside this judgment within ten days from the day on which the appellant made the motion for the cancelling of the mortgage, a different question would have been presented. The judgment must, therefore, be considered as final, and in full effect.

We are by no means prepared to say that the appellant can be relieved against this judgment, by an ordinary action of nullity. Illegal and irregular as it is, it is still a judgment, and the State is the plaintiff. The remedy for the defendant is within the legislative power, and we are satisfied that it will not be withheld on a proper application. Judgment affirmed.


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    Herrick v. Conant.
    An appeal will not be dismissed on the ground of the record’s not containing certain evidence' adduced on the trial, where the defect was supplied, before the argument of the case, by an. authentic copy of the document which was wanting, under an agreement in the court below that a copy should be furnished. The irregularity resulted from the plaintiff’s consent, and it would be unjust to permit Mm to derive any advantage from a state of tilings he was instrumental in producing.
    A confession of judgment, in an action on a partnership debt, made, after the dissolution of the partnership, by one of the members, is binding only on himself.
    Where the principals in a bond are bound in solido, a judgment regularly obtained against either will be binding on their surety.
    A judgment confessed by an insolvent after a cossio bonornm made and accepted, cannot affect the property ceded, which, from the time of the cession, was vested in the creditors; nor will such a judgment in favor of the vendor of moveables, who had sequestered them before the cession, confessed, after the cession, by the insolvent, who had released the property on abond before 1ns cession, be binding on the surety in the sequestration bond.
    from the Fourth. District Court of New Orleans, Strawbridge, J.

      Van Matre, for the plaintiff.

      E. C. Mix and Roselius, for the appellant-
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment rendered against him as surety in a sequestration bond, dated the 15th of November, 1845. The bond was given in the suit of the plaintiff against Barton 8f Reed, to release certain articles being then- stock in trade in Poydras street, and at their camphine factory in Girod street.

There was a motion, made by the counsel for the plaintiff and appellee to dismiss the appeal, on the ground of the record being, defective, it not containing certain evidence adduced on the trial. The defect was supplied before the argument of the cause, by an authentic copy of the document which was wanting. It was agreed, in the court below, that a copy was to be furnished, and- the irregularity results from the plaintiff’s consent. It would be unjust to permit him to derive any advantage from a state of things which he was instrumental in producing.

Tlse bond was intended to secure the delivery of the articles sequestered, and the question before us is whether it has been forfeited. Welsh v. Barrow, 9 Rob. 535. The plaintiff had judgment agqinst Barton Sf Reed, on the confession of Barton. The partnership between these parties having been previously dissolved, Barton’s confession of judgment can only be held binding on himself; but as Barton Sf Reed were bound in solido in the bond, a regular judgment against either would be binding on the surety. It is objected by the counsel for the defendant, that this judgment is not binding on the defendant, and does not conclude his. liability on the bond, because, at the time the confession of judgment. was made, Barton could not by such an act affect in any manner the property sought to be made liable to the plaintiff’s claims. The judgment was rendered on the 26th of May, 1846, for the debt claimed, with the vendor’s privilege on the articles sequestered. On the '30th of March previous, Barton, in consequence of the seizure of his stock, had made a cession of the partnership effects, including these very articles, for the benefit of their creditors; which cession was duly accepted, and a provisional syndic was appointed under the authority of the late court of the First Judicial District. The property Barton had in those articles was from that time vested in his creditors, and he could not confess any judgment which could affect them in any legal sense. The judge of the District Court would not have permited a judgment of this kind to be entered; and it was solely from the circumstance of the judge of the Criminal Court, in which court the judgment was taken, being uninformed of the proceedings in the District Court, that the defendant, Barton, was held competent to confess a judgment against moveables of which he had divested himself by judicial proceedings. A judgment, rendered under these circumstances, we consider as not binding on the surety. Pothier on Obligations, 816, § 61. Clarke v. Scott, 2 An. 907.

The judgment of the District Court is therefore reversed, and judgment rendered in favor of the defendant, with costs in both courts.


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    Frierson v. Irwin.
    A commission directed to E. JR. Clyde, but executed and returned by Robert J. Clyde, as commissioner, will be admissible, where the attorney by whom the commission was taken out makes oath that he is well acquainted with Robert J. Clyde, that he was the person intended to be made the commissioner, that he caused the name of A. R. Clyde to be inserted in the commission by mistake, and that there is no other person of the name of Clyde- in the town to which tlie commission was directed.
    The designation of a commissioner to take testimony by the initials only of his first and second names, though his sirname be in foil, is irregular; and should be objected to by the opposite party before adding his cross-interrogatories.
    from the Second District Court of New Orleans, McHenry, J. presiding.

      Elmore and King, for the plaintiff.

      Grivot and JRoselius, /or the appellant.
   The judgment of the court {King, J. absent,) was pronounced by

Eustis, C. J.

This apppeal is taken by the defendant from a judgment by which the plaintiff recovered from him a slave named Sam, and fifteen dollars per month from 1st March, 1847, and the defendant recovered from his warrantors the sum of $290, the price paid by him for the slave, with interest.

The case has been argued at length on the merits, which involve questions under the jurisprudence of the State of Alabama. Independent of certain testimony, which was excluded by the District Court, we are not prepared to determine definitively on the rights of the parties, and we have come to the conclusion that it ought to have been admitted.

On the trial of the cause the plaintiff’s counsel offered in evidence the depositions of three witnesses, taken under a commission, which appears to have been executed by Robert J. Clyde, of Tuscaloosa, in the State of Alabama. The commission was directed to two persons, justices of the peace, or to E. R. Clyde, Esq., at Tuscaloosa, Alabama.

By the return to the commission, the depositions appear to have been taken under it at the office of the commissioner, in Tuscaloosa, by Robert J. Clyde, who signs the return as commissioner. The objection, which the court sustained, to the admission of these depositions was, that R. J. Clyde had no authority to take them under the commission, it having been directed to E. R. Clyde. On the objection being made, the counsel for the plaintiff submitted his affidavit to the court to the effect that, he was well acquainted in the town of Tuscaloosa, and with Robert J. Clyde, the commissioner; that he, Clyde, was the person intended to execute the commission, because he, the counsel for the plaintiff, on the issuing of the commission gave the name E. R. Clyde, erroneously, for R. J. Clyde.

To the decision of the court, the counsel took a bill of exception. The designation of the person to execute the commission by his name, Clyde, is that upon which the court is authorized to act. The addition of the initials merely of the Christian and middle names is an irregularity almost necessarily leading to mistakes, which the defendant ought to have objected to specially before the cross-interrogatories were filed.

Mr. King states in his affidavit, not only that the person executing the commission was the person intended, but that there is no other person living in Tuscaloosa of the name of Clyde, and that, if there were, he thinks he should have known it. We think the court erred in refusing to admit the depositions taken under the commission.

The irregularity of designating the commissioner by the initials of his Christian and middle name, may be considered as having been committed by both parties, and can be taken advantage of by neither.

The judgment of the District Courtis therefore reversed, and the case remanded, with directions to receive in evidence the depositions returned under the commission mentioned in the bill of exceptions; and it is ordered that the appellee pay the costs of this appeal.


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    The First Municipality v. Devron.
    .The ordinance of the Council of the First Municipality, of 16 February, 1846, imposing a fine on persons selling groceries in certain market-houses of that municipality, is neither illegal nor unconstitutional.
    by defendant from a judgment of a Justice of the Peace in New Orleans.

      Preaux and Morel, for the plaintiffs.

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

Eustis, C. J.

This is an appeal from a judgment rendered by a justice of the peace, by which the municipality recovered the sum of fifteen dollars from the defendant, being the amount of a fine incurred under an ordinance approved the 16th of February, 1846, which imposed a fine on persons selling groceries in the markets.

We perceive nothing unconstitutional or illegal in this ordinance.

Judgment affirmed.

      A similar judgment was pronounced, at thesame time,in aseeond case between the same parties, for another fine of fifty dollars.


text:
    Succession of Logan.
    Decision on Ducournau v. Levisiones, 2 An. 245, affirmed.
    from the Second District Court of New Orleans, Canon, J.

      Sever, for the appellant.

      T. H. Howard, contri!.
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

In this case the transcript not having been seasonably filed, and no application for time having been made, the motion to dimiss must prevail. It appears by the affidavit of the appellant’s counsel, that the omission was attributable to a mistake on his part. But this is not a ground for relief. See Ducournau v. Levistones, 2 An. 245; ante p. 30.

Appeal dismissed.


author: Rost, J.

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    Jones v. Lawrence.
    A third opponent cannot arrest the sale of the property in dispute, nor claim damages against the sheriff for executing the judgment, unless he obtain an injunction, and give security* C. P- 399.
    Where the principal demand has been tried, no further proceedings can be had on the inter* vention. The intervenor must be held to have abandoned that remedy.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Peyton, for the plaintiff.

      Prentiss and Finney, for the intervenor, appellant.
   The judgment of the court (King, J. absent,) was pronounced by

Rost, J.

The plaintiff sued out against the defendant an attachment, under' which a slave in his possession was levied upon. Smiley then intervened, claiming the slave under a deed of trust alleged to have been executed, and duly recorded, in Tennesse, by Lawrence and his wife, before the institution of this suit. He was represented by Messrs. Edwards and Barker, the defendant’s counsel.

On the trial of the cause, these counsel having absented themselves, and not being found in the court-buildings, the plaintiff proved his claim, and submitted the case. The judgment of the court was in his favor for the sum claimed, with privilege and preference on the property attached. Some time after the judgment had been signed, the intervenor, by his present counsel, filed a supplemental petition, alleging that his claim under the original petition remained undetermined. He prayed that his original and supplemental petitions might be considered as parts of each other; that the sheriff, who was then in- possession of the slave under an execution, and also the plaintiff, Jones, be cited, and that the slave seized be adjudged to belong to him, the said Smiley. He subsequently filed another supplemental petition, alleging that the slave attached was worth $1,000,- and praying that in case the slave could not be found, Jones, and the sheriff be condemned, in solido, to pay him that sum.

The plaintiff and the sheriff both excepted to these petitions, on the following, grounds :• 1st. That a final judgment was rendered in favor of the plaintiff against the defendant, with privilege and preference on the property attached. 2d. That the supplemental petitions are a part of, and intended to revive and continue, tho original petition of intervention. 3d. That, if the intervenor has any claim to the slave, he cannot assert the same as he has done. The District Court having sustained the exceptions, and dismissed the petition of tho intei'venor, he appealed.

Parties are permitted to intervene, for the preservation of their rights, in suits between other persons, on the express condition that, the intervention do not retard the principal suit. The intervenor must be at all times ready to plead and to exhibit his testimony,and, under an express provision of the Code of Practice, the demand in intervention must be decided at the samo timo with the princ'pal demand. C. P. 391, 154.

It is tu'ged that the court ought to consider the nature of the proceeding, not its name; and that the supplemental petitions filed were in reality a third opposition, under arts. 395 and 398 C. P.

We are unable to view them in that light. Daily experience teaches us that justice cannot be administered, unless the different remedies which the law gives are kept distinct from each other. In this very case, injustice would be done if this rule was not adhered to.

If the proceeding bo an intervention, the prayer that the sheriff and the plain- , tiff be made to pay the value of the slave unless they restore her, is proper; but in a third opposition, the party has no right to arrest the proceeding, or claim against the sheriff for executing the judgment, unless he obtains an injunction and gives security. C. P. 399.

It is further urged that, conceding that the intervention should have been dismissed on account of the absence of counsel, it was not so dismissed by the judgment of the court; and that, being still pending, the intervenor is entitled to havo it tried. We are of opinion that, under art. 154 C. P. already cited, when tho principal demand has been fried, no further proceedings can be had on tho intervention, and that the intervenor must be held to have abandoned the summary remedy to which he had resorted. There is no error in the judgment dismissing the intervention. • Judgment affirmed.