author: Rost, J.

text:
    Thomas M. Rankin v. Nolan Stewart et al.

    Where the defendant purchased a plantation at sheriff’s sale, and suffered the original owner to remain on it and cultivate it for his own benefit, from motives of friendship, he will not bo liable for a lot of mules purchased by the tenant to cultivate the plantation, the latter having made the purchase not as agent but on his own credit.
    APPEAL from the District Court of West Baton Rouge, Burke, J.

      C. Ratliff, for plaintiff,
    contended: It is, in the opinion of counsel, a well settled principle of law, that agency can be created by implication as well as by express authority. See Story on Agency, p. 51, marginal p. 47 and 56. Cain was permitted to act as the general and unqualified agent of Stewart for that plantation, to buy and to sell, whereby Stewart became bound by the acts of his agent. See Story on Agency, marginal p. 126,133 and 165.
    The appellants’ counsel has not as yet favored us with his brief, therefore we are precluded from answering any points he may make in the case, except orally, yet we cannot believe it necessary. The idea of permitting a man to possess your estate and act as the ostensible owner; to buy and sell for the estate; to manage it as his own, and to give credit and confidence by virtue of his apparent wealth, and to purchase horses, mules, or working cattle for the use and benefit of the plantation, and refuse or neglect to pay for them, and the real owner reap the benefits of the purchase if it turns out to his advantage, and if not, to send the creditor to seek his remedy against the agent, is too preposterous to admit of argument. In this case, Cain has gone to California, Stewart is in possession of the plantation and negroes, and these very mules; for the testimony of Oats proves they were on the plantation and defendant has failed to show they were ever removed or disposed of by Cain after they were placed on this plantation. That equitable maxim of the common law is applicable in this case, which says, when one of two innocent persons must suffer by the misconduct of athird person, that party shall suffer who by his own acts and conduct has enabled such a third person, by giving him credit, to practice a fraud or imposition upon the other party. Story on Agency, 56. But we contend, and we are borne out by the testimony, that Steioart cannot be the sufferer; he has got plaintiff’s mules on his plantation; Cain has gone to California. Then it is nothing but right and just that he should pay for them; if not, there can be but one innocent sufferer in this case, and that is the plaintiff.
    The defendant relied in the lower court mainly upon the decision in the case of Nugent v. Hickey, 2d Ann. 348. We cannot see the analogy between that case and this. In that case, the factor for the plantation made sundry advances in the way of supplies for the plantation, and received the proceeds of the crops and sold them on commission, which proceeds far exceeded the advances made; but the factor permitted the agent of Hickey to apply the proceeds to the payment of his individual debt, and then sought to make Hickey liable for those supplies, which the court very properly said he could not do.

      George S. Lacey, for defendant,
    contended: This is an action brought upon a certain draft drawn by JD. P. Cain upon Messrs. Payne and Harrison. The pleadings and facts are almost identical with those in Locke v. the same defendant, and, in argument, we submit the same positions as are urged in the brief filed by us in that suit. We also submit to your honors, that should you come to the conclusion that there has been an agency established, and that this agency authorised the said Cain to buy and sell, and that he could well give a draft binding upon Colonel Stewart, in payment of articles or property purchased, even then judgment cannot, be rendered against respondent upon the draft sued upon, because he was not notified of the protest; nor is there any legal excuse shown why protest should not have been made and due notice given.
    If Colonel Stewart can be considered a party to the draft, he was entitled not only to have the same presented for paymentto the drawers, but protest for nonpayment made, and due notice of such protest given to him. If Cain ever was notified of the protest, such notice cannot be considered as conveyed to Colonel Stewart, nor is there any legal excuse shown why protest was not regularly made and notice given. It is true, that Dempsey P. Cain had no funds in the hands of Payne and Harrison, but there is no evidence proving that Stewart was without funds. If he is the person responsible upon the draft, the draft must be considered as his, and he, not Cain, is the person who should have been shown without funds. If every other circumstance was calculated to attach liability to Colonel Stewart, he is amply protected by the want of protest, &c.

       This case, by oversight, was omitted in the cases reported for February, 1850.

   The judgment of the court (King, J. being absent,) was pronounced by

Rost, J.

The plaintiff claims from the defendant the price of a lot of mules alleged to have been sold to D. P. Cain, his agent, for the use of one of his plantations.

The defendant filed a general denial, and specially denied the agency of Cain; he further averred that he never had any dealings with the plaintiff, and if the mules were sold to Cain, they were sold exclusively upon his credit, and he was alone liable. There was judgment in favor of the plaintiff,- and the defendant appealed.

It appears that Cain being very much in debt, his plantation and negroes were sold under execution and purchased by the defendant, who, from motives of friendship, suffered him to remain in possession of them; to work them as his own, and to dispose of the crops. When he purchased the mules from the plaintiff he gave a draft in his own name upon Messrs. Payne and Harrison, his factors in New Orleans, which was not accepted. One of the members of that firm states that the proceeds of the crops of Cain for the years 1847 and 1848 were placed to his credit, and that he did not know that Stewart was the owner of the plantation.

We infer from the evidence, and the fact does not appeal- to be denied by the plaintiff’s counsel, that the agreement between the defendant and Cain, under which the latter enjoyed the plantation as owner, was publicly known and susceptible of proof. Cain was not, therefore, the agent of Stewart; his relation to him was that of a tenant; he did not pretend to act as agent in this case, and the credit was given exclusively to him; under the rule laid down in the case of Nugent v. Hickey, 2d Ann. 248, the judgment should have been in favor of the defendant.

It is therefore ordered and decreed, that the judgment in this case be reversed, and that there be judgment in favor of the defendant Nolan Stewart, with costs in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    Succession of John Nicholson.
    Where the testamentary executor was absent and his address unknown at the opening of the succession, it was the duty of the court to appoint a dativo testamentary executor. And where such dative testamentary executor has fully administered, and delivered seizin of the property to the heirs, and has been discharged, the court will not order a new administration upon the appearance and demand of She testamentary executor.

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Cohen, Labatt and Grymes,

    for the testamentary executor, who was appellant. Micou, Ogden and Peirce, for dative testamentary executor and appellee.
   The judgment of the court was pronounced by

Rost, J.

The late John Nicholson appointed his brother James his executor, and gave him the seizin of his estate. Atthe death of the testator, James Nicholson had removed from this State and resided in Pennsylvania. On the allegation of this fact, and the representation to the court that the affairs of the succession required immediate attention, Wm. T. Hepp was appointed dative testamentaiy executor, and proceeded to execute the will. Pending his administration, James Nicholson came from Pennsylvania, and took a rule upon him to show cause why his appointment should not be vacated, on the ground that he had never refused the executorship, but, on the contrary, had always signified his intention to accept it. The rule was discharged on the exception of the defendant, that the demand of the plaintiff could not be entertained in this form of action.

The plaintiff then presented a petition praying for the removal of Wm. T. Hepp. To this petition the defendant excepted, alleging that there were no legacies contained in the will; that the heirs were all present and of age, and had the right to take the seizin of the succession at any time. He prayed that they be made parties to the action.

Before any further proceedings were had, the executor rendered to the heirs a final account of his administration, which they approved. They gave him a full discharge by notarial act, and took from him the seizin and actual possession of the effects of the succession. He presented a petition to the court stating those facts, praying for the homologation of the account thus accepted by the heirs, and for his final discharge from all further liability as executor. Two oppositions were made to the homologation by persons pretending to have claims against the succession. ■ Those oppositions were overruled, and a decree made in conformity with the,prayer of the petition. James Nicholson has appealed from this decree, and also from the order appointing Wm. T. Hepp dative testamentary executor.

We are of opinion, that the appointment of Hepp was justified by the facts of the case. The appellant alleges in the petition filed by him to set aside that appointment, that in consequence of his address not being known in New Orleans, no information was received by him of the death of his brother, and of his appointment as executor till after the appointment of Wm. T. Hepp had been made. If no one knew where to find him when the succession was opened, it became the duty of the court to supply his place; and if the person thus appointed has fully administered, and has been discharged, the appellant’s occupation is gone, and we cannot order a new administration to gratify him. Succession of G. Dupuy, 4th Ann. 570.

After the final discharge of the acting executor, it is of veiy little consequence that the bond he gave was not for quite as large a sum as it should have been; and, under all circumstances, as the heirs were satisfied with the security, and accepted it, the appellant would have no right to complain.

The judgment is therefore affirmed, with costs.


author: Eustis, C. J.

text:
    J. R. Marshall v. Grand Gulf Railroad and Banking Co.
    When the appeal bond is not sufficient in amount to authorise a suspensive appeal, but is good for a devolutive appeal, the appeal will not be dismissed, but the plaintiff may take out execution if the bond be not sufficient in amount to stay it.
    Where the debtor of a corporation is garnisheed upon a debt which was payable in the notes or obligations of the corporation, he cannot be condemned to pay the amount of the debt in current funds. The judgment should be that he pay in the notes or obligations of the corporation, within a certain specified time, or that he shall, in default, pay a certain sum of money.
    APPEAL from the District Court of Tensas, Selby, J.
    Appeal by Thos M. and E. D. Newell, garnishees.

      J. J. Amonett, for plaintiff,
    contended: The garnishees failed to pay or deposit in court the amount of their liability to the defendant, as contained in their answers, and decreed against them, by reason whereof, the plaintiff was unable to execute his judgment by corporeal seizure, &c. The plaintiff took a rule against the garnishees to show cause why they should not comply with the j udgment of the court, and in default thereof, that the rule should be rendered absolute, and that the plaintiff recover of them the amount of his judgment, with interest, at eight per cent, &c. See Miss. Law. They failed to comply with the rule and order, and judgment was rendered accordingly.
    When the plaintiff once obtains judgment agaiust the defendant, all that is required is to obtain an order on the garnishees to pay over the funds of the defendant in their hands. 18 L. R. 405. The notes of the bank not haviüg been deposited in court, the judgment against the garnishee was properly rendered. 5 R. R. 033. The appellants have not complied with the order of appeal, in giving bond for the amount required by law. The appeal therefore should be dismissed ; if not, the judgment should be affirmed, with costs.

      Benjamin and Micou, for garnishees,
    contended: The entire proceedings are so irregular and anomalous, as regards the garnishees, that it is difficult to apprehend in what single step taken by plaintiff they can be supported. The errors are apparent on the face of the record; but, in addition to these irregularities, the proceedings are indefensible on the merits. Let us first examine the questions of practice : 1st. It is alleged in plaintiff’s rule, and shown by the act of mortgage, that the debt attached or attempted to be attached, was one evidenced by promissory notes. On the execution, the same debt was sold to plaintiffs. But, both the attachment and execution are totally irregular, because the notes have never been taken into possession by the sheriff. The notes are still in possession of the Grand Gulf Bank, and no valid seizure of them has yet been made. Fluker v. Ballard, 2 Ann. 338. Simpson v. Attain, 7 Rob. 504. Gobeau v. Carrollton Compamy, 6 R. R. 348.
    2d. If the seizure and execution were valid and legal, then the plaintiff, by virtue of his purchase under them, became owner of tho debt due by the garnishees to the bank. The proceedings against the garnishees as such were thereby at an end. They were out of court. If, after having bought the debt due by the garnishees, plaintiff desired to collect it, he could only do so by suing them. They could not be brought into court by a rule, and the attempt to proceed against them in that form is totally irregular.
    The whole of the evidence taken on the trial of the rule is in the record. The rule was taken to show cause why garnishees should not pay $5400, and interest, for failing to deposite notes and obligations of the Grand Gulf Bank to the amount of $13,608 41. This rule was made absolute, without a particle of testimony as to the value of the Grand Gulf Bank obligation. In no point of view can this judgment be sustained. If the obligation of the garnishees was to deliver a certain amount of obligations of the bank, the creditor can obtain the specific performance of this contract, or money damages for the breach of it. As money damages were claimed in this case, and no proof of damages was made, plaintiff should have been non-suited. Roberts v. Stark, 3d Ann. 73. If the obligation be considered an alternative one, or to pay a certain amount in Grand Gulf notes, or in cash, then the judgment should have been in the form settled in the case just quoted.
   The judgment of the court was pronounced by

Eustis, C. J.

Thomas M. and E. D. Newell have taken a.n appeal from a judgment rendered against them in the Court of the Tenth District sitting in the parish of Tensas. Gordon, against whom judgment was also rendered, filed his petition of appeal, but has given no bond; the judgment against him is consequently final. There is a motion to dismiss the appeal made by the counsel for the appellee, on the ground that the appeal bond is not for a sum sufficient to operate a stay of execution. The bond being tor a sufficient sum to cover all reasonable costs, the appeal stands with the right of the plaintiff to take his execution, in the event of the bond being insufficient in amount to stay it. Ralph v. Hoggatt, 2d Ann. 462. Lewis, Executor, v. Splane, 2d Ann. 755. The motion to dismiss therefore fails.

It.appears, that on the 21st June, 1844, in the late Court of the Seventh District sitting in the parish of Tensas, the plaintiffs having recovered judgment against the defendant in this suit, the Grand Gulf Railroad and Banking Company, took a judgment against the appellants, who were garnishees. By this judgment, a privilege ofi certain debts due' the defendants by the garnishees was decreed, which were ordered to be sold,- to satisfy the judgment against the defendant; it then went on to decree the garnishees to be indebted to the defendants in certain sums payable in notes or obligations of the banking company, and that the notes .by which the debt to the bank Was created be' held subject to execution, or other order of the court.

On the 20th of March, 1849, the district court sitting in the parish of Tensas, rendered the judgment from which the present appeal is taken. By this judgment the plaintiff recovers from the appellants and their co-garnishee Gordon “ in solido, and in current funds,” the sum of $5400,- with interest at eight per cent, from May, 1838, and costs; he was subrogated to the rights of the banking company in a certain mortgage, by which the notes of the appellants were secured, and the property mortgaged was ordered to be sold to satisfy the plaintiff’s debt. This judgment was rendered against the appellants on an order of court nisi, that they pay or deposit in court the amount of their indebtedness to the banking company, or in default thereof,- that the plaintiff recover from them the amount of his debt, with privilege on the property attached. We know of no warrant of law for a judgment by which a plaintiff is decreed to recover in current funds a debt'; the formula is entirely without precedent, and inadmissible.

The proceedings of the plaintiff are under the original garnishment, and must be conducted according to the laws regulating attachments. The article 265 of the Code of Practice provides for the remedy of the attaching creditor against property attached, and the power of courts over garnishees, withholding attached property, is certainly adequate to the full enforcement of the creditor’s right. The plaintiff has his judgment of June, 1844. The garnishees have the right .to require his proceedings in garnishment to be regular, and in conformity with law.

It is therefore decreed, that the judgment of the court below be reversed, as to the said appellants Thomas M. and E. D. Newell; and it is further decreed, that unless within thirty days after the present decree becomes final in this court, the said appellants, or either of them, shall produce and file in the court below notes or obligations of the said Grand Gulf Railroad and Banking Company, to an amount equal to the sums following, to wit, the sum of $10,538 41, an(j ^g ful^]jer sum 0f $3070 with interest on said last named sum at the ■ rate of eight per centum per annum, from the 8th day of June, 1838, until paid and costs of this suit, the said plaintiff have leave forthwith, after the expiration of said delay, to issue execution against the said Thomas M. and .E. D. Newell in solido, for the sum of $5400, with interest at the said rate of eight per centum per annum, from the 8th June, 1838, until paid, and costs of this suit in the court below; the said principal sum, interest, and costs, to be made and collected in lawful money of the United States; and it is further decreed, that the plaintiff pay the costs of this appeal.


text:
    Municipality Number One v. Adam Young et al.
    The act of 3d of April, 1832, for the opening of streets, authorised the expropriation of property for that purpose under certain circumstances, but in order to do so the power to cany out the guaranties and requisitions of the law must be complete in the corporation seeking to enforce the right.
    By the act of 8th of March, 1836, for the division of the city of Now Orleans, the centre of Esplanade street was made the boundary between the First and Third Municipalities. The First Municipality has not the right alone to expropriate private property for the opening of Esplanade street.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Preaux, for the plaintiff.

      Collins, Blache, Loclcett and Goold, for defendants and opponents.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a decree of the Court of the First District of New Orleans, dismissing their oppositions to a tableau of assessment and estimate made by the commissioners appointed for the opening of Esplanade street,-under the act of 1832, entitled an act regulating the opening, laying out, and improving streets, &c. Acts of 1832, p. 132.

This act conferred the power on the old corporation of New Orleans, under certain judicial proceedings, to appropriate land for the public use for the purpose of laying out and opening streets, squares, and public places. On the division of the city in 1836, the middle of Esplanade street was established as the dividing line between the First and Third Municipalities; so that the jurisdiction of the First Municipality does not extend beyond that line.

It is plain, that the act of 1832 can only be carried into effect by a corporation whose jurisdiction extends to both sidos of the street to be opened, and which has the power to receive the abandonment of any lot not exceeding four acres, part of which may be taken for the public use. The right to abandon such whole lots is guaranteed to the owner by the 5th section. The power to assess the property, or to receive the abandonment of lots situate on the eastern side of the street it is not pretended the First Municipality possesses. It is impossible to proceed under this act, unless the power to carry out its guaranties and requisitions is complete in the corporation seeking to appropriate private property to public use. Whether the union of (he two municipalities in proceedings for the opening of this street could be maintained, is a question not before us.

The judgment of the district court is therefore reversed; and it is further ordered, that the proceedings against, the property of the opponents and appellants be dismissed, with costs in both courts.


text:
    Pierre Boulat v. Municipality Number One.
    Where, under the act of 3d of April, 1832, for the opening of streets, &c., the owner abandons a lot and claims the assesed value, and the proceedings are afterwards homologated, the property belongs to the corporation, which has a right to take possession of it, and the former owner is a judgment creditor for the value assessed.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Budd, Cusiera and Barthe, for plaintiffs.

      Breaux, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff is the owner of a lot fronting on the Carondelet walk. In the judicial proceedings instituted by the municipality for the opening of the said walk, a portion of the petitioner’s lot being necessary thereto, the whole of the petitioner’s lot was appraised at the sum of fourteen hundred dollars, under the act of 1832, for the opening of streets in New Orleans. Under the 5th section of said act, the said plaintiff abandoned his lot to the municipality. The tableau of assessment was afterwards homologated; and the judicial proceedings closed. In those proceedings, the plaintiff prayed for judgment against the municipality in conformity with the law ; and although the tableau has not been brought up before us, we presume that the proceedings were in conformity to the statute. Under this section of the act, by virtue of these proceedings the lot became the property of the corporation, which was thereby put in the place of the owner, who becomes the judgment creditor of the corporation.

The corporation had a right to take possession of the lot, which the petitioner had thus transferred; and as it is the act complained of by the petitioner in this suit, he has no action against the corporation on that account.

The other parties made defendant in this suit not having appealed, no change can be made in the judgment against them.

It is therefore decreed, that the judgment of the district court against the appellant, Municipality Number One, be annulled and reversed; the plaintiff’s petition, as to the appellant, being dismissed, with costs in both courts.


text:
    Canal Bank v. Henry Holland et al.
    Where the charter of a company directs the mode in -which stock in it shall he taken, and stock is issued by the company in contravention of the regulations imposed by the charter to a purchaser who executed his note therefor, when sued on the note he cannot set up as a defence the violation of the charter in the sale to him. If other stockholders do not complain of the sale to him he cannot set up his own wrong in liis defence.
    APPEAL from the Fourth District Court of New Orleans. Stratohridge, J.

      E. A. Bradford, for plaintiff.

      J. Gedge, for defendant.

      Miles Taylor, for Mexican Gulf Railroad Company. E. L. Goold, for warrantor.
   The judgment of the court was pronounced by

Rost, J.

The defendant, Holland, subscribed a note for the sum of $5000 payable twelve months after date to the order of the comptroller of the Mexican Gulf Railway Company, for value received in stock. That note was discounted by the plaintiffs in the usual course of business. It was protested for non-payment at maturity, and notice of the protest was given to the company. The object of this suit is to recover the amount of the note from the drawer and endorsers.

The railway company made no defence. Holland admitted his signature to the note, but averred that it was null and void, on the following grounds: 1st. That the note was obtained by fraud and false representation, without any consideration. 2d. That the railway company proposed through their agent or broker that he should take shares, representing that the railroad should be carried to a point at least twenty miles beyond its then terminus, and that the stock should be a stock paying eight per cent. 3d. That it was agreed that he should make his note for the amount of stock he should take; that it was to be paid in twelve months, and should be renewable for six and twelve months longer; and that it should then be null and the agreement cancelled if these promises and conditions were not fulfilled and performed. 4th. That Conrey, the president of the company, and Gordon, one of the directors, combined to procure the note for their own use and benefit.

The defendant prayed that the railway company, Peter Conrey, and the Executors of Alex. Gordon, who had died before that time, might be cited and made parties to the suit; and should judgment be rendered against him, that the same judgment might be rendered in his favor, and in solidum against these parties, reserving all his rights for damages against them.

Peter Conrey and the Executors of Gordon filed general denials; the railway company also filed a general denial, and further answered that it is true they agreed that the note sued on should at maturity be renewed, one half for six months and the other half for twelve months, if the defendant desired it. But that he never notified them of his desire to renew on the terms agreed upon, nor did he tender the notes he was to give in renewal.

The judgment of the district court was in favor of the plaintiffs, against each of the defendants for the amount claimed, and in favor of the Mexican Gulf Railway Company, Peter Conrey, and the Executors of Gordon, on the call in warranty, reserving all claims and rights of the defendant Holland for damages against all or any of them. Holland has appealed.

We concur fully in the opinion of the district judge, that there is nothing in the record to show that the plaintiffs are not the bond fide holders of the note sued on, and that the negotiability of a note is not affected by the fact that it shows on its face the nature of the consideration for which it was given, provided that consideration be lawful.

The defendant’s counsel urges that the consideration stated in this note is unlawful, on the following grounds: 1st. That the .charter of the railway company is a public law, of which the plaintiff cannot plead ignorance. 2d. That the 9th section of that act says, that the books of subscription for stock shall remain open during twenty days, and that this delay having expired when the stock in controversy was sold to the defendant, the sale was illegal and void. 3d. That the 4th section of the same act provides that two dollars per share shall be paid at the time of subscribing, and the remainder at such times as the president and directors shall appoint; provided that no more than ten dollars a share shall be called in at any one time; and provided also that thirty days notice in two newspapers printed in New Orieans shall be given for the payment of each installment; and that a sale of stock at twelve months’ credit, renewable for six and twelve months longer, is in direct violation of this section.

It is shown that there was stock already taken and in market when the subscription books were re-opened; and the note does not, on its face, show for which of the two kinds of stock it was given. But if it did, the informality complained of is one of which the other stockholders could alone take advantage; and they have not done so. The defendant is now in the undisturbed possession of the stock purchased by him, and has made no offer to return it. It would be against good conscience to release him from the obligation of his contract while he retains the consideration of it. If the charter of the company was a public act, he also is presumed to have known it when he induced the company to disregard its provisions. If the subscription, as made, was illegal, about which we express no opinion, he was the cause of the unlawful act, and cannot be permitted to take advantage of his own wrong.

We adopt, also, the interpretation put by the district judge on the promise of the company to renew the note at six and twelve months. Under the common acceptation of this phrase, the note was to be replaced by two others, each . for one half of the amount: one payable at six, and the other at twelve months.

The defendant, not having tendered notes of that description, is bound on his original contract.

The last ground alleged is in relation to the call in warranty. The defendant alleges that the company is liable to him on account of its misrepresentations as to the prolongation of the railroad and the value of the stock, and its promise to return the note if those representations were not verified.

The evidence adduced, if it was properly before the court, and in itself satisfactory, does not support those allegations. The defendant and his witness seem to have considered Mr. Gordon as the railway company. He was merely a stockholder, and his representations cannot bind the corporation. There is nothing in the record to substantiate the charge that Conroy and Gordon combined to procure the note for their own use and benefit. The proceeds of it appear to have been applied to a debt of the company.

The judgment is affirmed, with costs.


author: Slidell, J.

text:
    Edmund P. Dwight v. Theodule Richard.
    The question of continuance cannot be considered by the Supreme Court where there has been no bill of exceptions taken to the ruling of the court of the first instance.
    A purchaser who knew, at the time of the purchase, of the existence of outstanding conflicting claims, cannot refuse payment of the price on account of those claims. C. C. 2535.
    Where a plat of a survey was annexed to interrogatories, and filed in the clerk’s office, it is not necessary that a copy of the plat should also be served on the opposite party to render the evidence taken under the interrogatories admissible.
    Where an order of seizure and sale issued for the payment in cash of one of the installments past due, and for the installments to become due, and before the sale a second installment fell due, for the payment of which a second order of seizure and sale was issued upon both orders being enjoined, the court dissolved the injunction, and decreed that the property should be sold for cash, all the installments having in the meantime fallen due.
    APPEAL from the District Court of Assumption, Randall, J.

      W. C. Dwight filed a brief for plaintiff in injunction.

      C. A. Johnson, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The first subject presented for our consideration by the appellant is the refusal of the court below to grant a continuance. The ruling of the court below cannot be enquired into here, the party not having taken a bill of exceptions to the ruling of the court. See the case of Florance v. York.

One of the grounds of injunction was, that the plaintiff had been disquieted in his possession of the property bought from the defendant, and had justreason to fear, that he would be further disquieted. Therefore he alleged, that he had a right to suspend the payment of the price until restored to quiet possession, or until security was furnished against eviction.

It appears that the plaintiff is owner of a large tract of land, only a portion of which was purchased from the defendant. There has been some distui'bance of the plaintiff’s possession of some portion of the tract purchased from others; but we find no such evidence touching a disturbance of possession of that portion purchased from the defendant, as would authorise a reduction of the price, even if the plaintiff was entitled to a reduction under the deed.

It appears from the evidence in the cause, that there are outstanding claims, which, if legal, would conflict with a small portion of the tract bought from the defendant. No actual disturbance from these claimants is shown; and even if the party had proved any reasonable apprehensions of disturbance by those claimants, we could not permit him to suspend the payment of the price, or require security; because it is shown, that at the time of his purchase he knew the existence .of these outstanding pretensions. See C. C. 2535. Whether the parol evidence going to prove that knowledge was admissible for the purpose of establishing an absence of right in the buyer to claim a restitution of price in case of actual eviction, is a question which was much discussed in the arguments of counsel, but upon which we consider an opinion unnecessary. The objections made to the competency of the witness appear to us untenable ; and we see no reason to question his credibility. We may add, that his testimony, on the score of credibility, is aided by the guarded and peculiar language of the deed of sale.

The testimony of this witness was taken under commission, and an objection was made to its reception at the trial, because a copy of the plat of survey, alluded to in the interrogatories and annexed to them by the defendant, was not served with the interrogatories upon the plaintiff before the commission issued. When the interrogatories were filed in the clerk’s office, the plat of survey was filed with them. It was there open to the inspection of the plaintiff, who resided in the parish. We know of no rule requiring, in such case, a service of a copy of a document annexed to interrogatories; and it seems to us, to exact it would be imposing unnecessary expense upon the litigants. There might be a propriety in such a requisition where the document was not put on file. But upon this point an opinion is unnecessary.

The plaintiff on a previous occasion enjoined the execution of the writ of seizure and sale obtained by Rickard. 4th Ann. 240. This writ remained suspended ; and after the dissolution of the injunction the sheriff was proceeding to sell under the old writ. Some installments had become due in the meantime. We are not prepared to say that this would have prevented the sheriff from proceeding solely under that writ. But the creditor seems to have assumed that it would, and obtained a new order of seizure and sale for the installments matured since the issuing of the former writ. A state of confusion was thus produced, and it would seem that the complaint of irregularity set up in the petition was not unfounded. The sheriff had already advertised under one writ, and given notice that he would proceed to advertise under the other; and the only conclusion to which we can come is, that there was an intention to have two different sales. This is the only reason which induces us to refuse the creditor damages; and consequently to reverse the judgment of the court below.

If we had not concluded to reverse the judgment on other grounds, we should probably have disregarded, under the rule de minimis, the claim to enjoin, on account of an item of $47 30, costs of the appeal in Dwight v. Richard, 4th Ann. 240, which are set up in compensation, especially as no presentation of the claim and demand of payment were shown. As the matter stands, we will give the party relief for that item; and will endeavor by our decree to obviate any further delay.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the properly described in the deed of sale made by Theodule Richard to Edmund P. Dwight, whereof a copy is of record in this cause, and which was passed before Albert Duffell, recorder, on the 30th March, 1847, be seized and sold to pay to the said Theodule Richard the sums following, to wit: the sum of $2033 33, with interest thereon at the rate of eight per cent per annum from the 30th May, 1847, until paid; the further sum of $1500 with interest at the like rate thereon, from the 1st September, 1847; the further sum of $781 14 with interest at the like rate thereon, from the 7th August, 1849, until paid ; (this last named sum being the balance of the third installment of price, after deducting $47 30, costs of the former appeal;) the further sum of $803 with interest atthe like rate thereon, from the 1st March, 1850, together with the costs of executing this decree. And it is further decreed, that the costs of this suit, (No. 177,) already incurred in the District and Supreme Court, and also the costs in suit No. 172 be paid by the said defendant, Theodule Richard.


text:
    Elizabeth Blanchard et al. v. J. Allain et al.
    If a man stands by and is silent while bis own property is being sold, and suffers another to become the purchaser, he is estopped from disputing the title thus acquired; and his heirs and those claiming under him are likewise estopped.
    APPEAL from the District Court of Iberville, Nicholls, J.

      Z. Labauve, for plaintiffs.

      C. A. Johnson, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This was originally a suit for slander of title, which the adverse title set up by the defendants has changed into a petitory action. The plaintiffs pleaded prescription against the title thus set up; and judgment having been rendered in their favor, the defendants appealed.

The material facts of the case may be briefly stated as follows: Olivier Blanchard was the owner of a tract of land fronting on the Mississippi river, and having a double concession. In 1810, he sold to his brother, Victor Blanchard, the lower half of the double concession. The purchaser did not take actual possession of the land; and, in 1818, Olivier sold to Isidore Blanchard the front concession, according to his title and his pretensions to the double concession. Isidore soon after died, leaving minor heirs; and in 1819, the whole land, as originally owned by Olivier Blanchard, was inventoried and appraised as belonging to his succession. This inventoiy was made in the presence of, and signed by, Victor Blanchard. The prods verbal of the deliberations of the family meeting held to decide on the expediency of selling the property, was also signed by him. The family meeting having advised the sale, it took place accordingly, and the procés verbal made thereof, in which the land is described and adjudicated as it was inventoried, is also signed by Victor Blanchard.

The plaintiffs contend, that if there should be any doubt as to the extent of land conveyed by Olivier to Isidore, under the designation of “mes prétentions á la double concession,” the acts of Victor Blanchard, in signing the proceedings alluded to, .amount to a recognition of title in Isidore to the whole tract, and consequently of want of title himself to any portion of it. He relies in support of that position on the cases of Marsh v. Smith, 5 R. R. 518; McMasters v. Atchafalaya Bank, 1st Ann. 11; Richardson v. Hyams, 1st Ann. 287.

The defendants and warrantors, in reply, make the following points: 1st. That in the cases cited, the parties who had induced the error were the ones who were seeking to gainsay their own deliberate acts; while, in the present case, innocent third parties are seeking to repel the consequences of acts much less significant in themselves, and for which they are in no manner responsible. 2d. That at the probate sale of Isidore's succession, his widow, under whom the plaintiffs claim, became the purchaser of the land, and that, having been in community with Isidore at the time it was acquired from Olivia, she was the owner of one-half, and was bound to know the extent and defects of her title. 3d. That Victor Blanchard, in signing the proceedings, was totally unconscious that any rights of his were involved in them. 4th. That the effect of these acts is to be judged of by their tendency to mislead others, and tha.tthe question is not what would be the effect generally of such acts, but what effect had they upon the particular purchasers in this case.

The principle invoked by the plaintiffs, and recognised by the decisions to which he has referred us, is, that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, he is estopped from disputing the title thus acquired; or, in other words, that where one, by his words, his acts, or his conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.

Victor Blanchard, in this case, was present at the judicial sale, and was not only silent when the land now claimed was sold, but became a party to the procés verbal of adjudication without explanation or reservation of any kind. The eventual and residuary right which the wife of Isidore Blanchard had in the property of the community, was not sufficient to affect her with notice of the extent of the title given to her husband for any portion of it. But if it had been, Victor Blanchard would not have been dispensed thereby from opposing the sale and asserting his title. Had he done so, purchasers would have been put on their guard. His silence induced them to believe in the state of things presented by the inventory, and to act upon that belief by bidding for the whole land. It cannot be doubted that this silence caused the purchasers to pay a higher price, and that Victor Blanchard himself would be estopped from averring a different state of things as having existed at the time. It is well settled, that if the party himself is estopped, his heirs and those claiming title under him, are estopped likewise. 1 Greenleaf’s Evidence, Nos. 23, 24, and notes. Ferrett v. Taylor, 9 Crunch. 52.

Moreover, the enunciation in the procés verbal, that the land sold belonged to the succession of Isidore Blanchard, hada direct reference to the adjudication, and by an express provision of the code, that act forms against all the parties to it a presumption juris et de jure of the truth of the enunciation. That presumption cannot be affected by the capacity in which Victor Blanchard appeared in the act. L. C. 2235.

The judgment is affirmed, with costs.


text:
    Same Case — On a Re-hearing.
   The judgment of the court, on a re-hearing, was pronounced by

Rost, J.

A re-hearing was granted in this case on the suggestion of the counsel for the defendants, that there was land enough to satisfy the claims of all parties. The case has been elaborately argued, but the counsel differ on this question of fact, and the evidence in the recoi'd leaves it in doubt.

The original grant of the front tract was for four arpents twenty-one toises and four feet, with such an opening as gave to the double concession, at the depth of forty arpents, a front of over nineteen arpents. The grantee sold three arpents ten toises and two feet front by eighty arpents in depth, and retained the remainder. The case turns in a great measure upon the direction of the time of division between the grantee and his vendors, and that time is not shown in the record.

So far as there is a conflict between the plaintiffs and the defendants, we adhere to our former opinion, that the plaintiffs have the better title; but if, beginning at the upper line, there is more than thirteen arpents front, the defendants are entitled to the residue. For the purpose of ascertaining this fact, the case must be remanded.

It is therefore ordered, that the judgment in this ease be reversed, and the case remanded for further proceedings according to law, with directions to the district judge to cause the division line between Pierre Ooyer and the plaintiffs, and also the extent of the front of that portion of the double concession which originally belonged to Olivier Blanchard to be ascertained, by a survey made after notice to the parties interested; and should the double concession have more than thirteen arpents front, then to cause also the boundary line between the plaintiffs and the defendants to be ascertained and fixed by a survey according to the rules laid dovV.n in the opinion of the court. It is further ordered that the plaintiffs and appellees pay the costs of this appeal.


text:
    J. L. Roberts, for the use of, &c. v. Mrs. M. F. Wilkinson et al.
    The capacity of a married woman, in ordinary cases, domiciliated in this State, to make contracts to be executed in another State, must be determined by the laws of this State; the rules governing the capacity being personal statutes, especially where the married Woman is separated in property from her husband.
    The nullity of the contract of the wife, resulting from the Want of authorization on the part of the husband, rests upon the same rule as that of other nullities, which are in the interest of persons, and strictly relative. Such contracts are rendered valid by the subsequent ratification of both husband and wife.

      The concurrence of the husband with the wife, in the execution of a mortgage to secure the payment of a note signed by her without his authority, is a ratification of her contract, and renders her fiable for the note.
    A married woman, authorized by her husband, may become surety for a third person.
    Where a note is given to a bank for a sum of money payable in the notes of the bank, it is an obligation to extinguish so much of the bank’s liabilities on the maturity of the note ; in default of which judgment will be given for the full sum in money.
    APPEAL from the Fifth District Court of New Orleans, Buchanan. J.

      Clarke and Bradford, for plaintiff,
    contended : This suit was instituted against the defendants as joint and several makers of a series of notes in favor of the plaintiff. The notes are dated and payable in the State of Mississippi, and are secured by a deed of trust in that State, and by a mortgage on certain slaves in Louisiana. The judgment of the court below discharged Mrs. Wilkinson from all personal liability, on account of her incompetency to execute a promissory note, under the laws of Mississippi, but held her property as bound by the mortgage. From this judgment the defendant, Mrs. Wilkinson, has appealed, and the plaintiff has joined in the appeal, and prays that the judgment may be amended according to the prayer of his original petition. 1st. The competency of the defendant, Mrs. Wilkinson, is governed by the laws of Louisiana, where she has her domicil. Gamier v. Poydras, 13 L. R. 182. Augusta Insurance Company v. Morton, 3d Ann., and cases there cited. 2d. It is apparent, from the whole circumstances of the case, that Robert A. Wilkinson knew and approved of the execution of these notes. The consideration of the notes is stated in the answer of Stark, which Mrs. Wilkinson specially adopts .ns her own. The origin of the notes is found in the agreement between the plaintiff and Stark, under date of March 28th, 1842. It is evident that the notes, although purporting to have been executed on the 1st March, 1842, was really made in pursuance of said agreement, and that Mrs. Wilkinson has, with the knowledge and participation of her husband, adopted and complied with said agreement. This is shown by bis concurrence in the deed of trust on the 29th March, 1842, to secure these notes, and also in the act of mortgage annexed to the plaintiffs petition, passed on the 11th April, 1842. The plaintiff would further refer to these acts, and also to the act of sale from Stark to Mrs. Wilkinson, under date of the 5th December, 1842, and to the agreement between them of the same date, as proof that he approved and ratified the contract of Mrs. Wilkinson, in virtue of said notes. 1 Boilean, 166. Gamier v. Poydras, 13 L. R. 183. Dalloz, 1843, 1st part, 228. 3d. But, if Mrs. Wilkinson is not personally liable on these notes, her property is, unquestionably, bound for their payment. Kerr v. Well's, 2d Ann. 832.

      J. R. Grymes, for the defendants,
    contended : This is an action on several promissory notes. The defence is, the incapacity of the defendant to contract. The first point to be decided in this case is, by what law are the rights, duties, and obligations of the parties to be regulated? The defendant, Wilkinson, assumes and insists, that her liability should be tested by the laws of Mississippi, or, in other words, by the common law, for the following reasons : 1st. Because the notes sued on were made and executed in the State of Mississippi, and are payable there. 2d. Because the mortgage, which is the accessary contract, though executed in this State contains, a clause stipulating that it shall be subject to the operation of the laws of Mississippi. Thus subjecting all the transactions between the parties to one and the same law, viz : that of Mississippi.
    As a general principle of law, the defendant thinks it is most clear, that her obligation must be tested by the laws of the country where the contract was made, and where it was to be executed. 1 L. R. 542. 1st Ann. 431. 2 Howard S. C. Rep. 612. Story Con. Laws, § 76, 103. Ware’s Rep. Polydore v. Prince. Code Practice, art. 13. C. C. art. 10. This principle of law is clearly established by the foregoing authorities, and when applied to the promissory notes, on which this action is brought, most clearly shows, that their validity or binding effect upon the defendant is to be tested by that law. The subsequent execution of the mortgage in this State cannot change the law of the principal contract, for the following very plain, and we think conclusive, reasons : 1st. Because of the stipulation in that contract before referred to, which is as follows .- “ The grantors reserve to themselves the right and privilege of construing the said contracts, according to the laws of Mississippi, where the said notes are drawn and are to be paid. 2d. Because the promissory notes are the principal contract, and the mortgage only the accessary, and a purely accessary contract cannot control, change, or modify a principal one; it must follow and partake of the nature of its principal, and if the principal be a nullity, the accessary contract, such as a mortgage to secure its performance, is a nullity also. C. C. art. 1764, 3251, 3252. 3d. Because the act of mortgage is purely and simply an act to secure the payment of the notes, according to their tenor, to wit, in Mississippi; and, therefore, the act itself is, according to well established principles of law, to be construed, and its force and effect regulated, by that law; and this principle is sanctioned and established by the positive provisions of the Louisiana Code. L. C. art. 10.
    If we have succeeded in establishing the position, that all the contracts between the plaintiff and the defendant, Wilkinson, are to be governed and regulated by the common law, then the next enquiry will be, as to the binding effect of that contract upon her. This we consider as most clearly settled by the following authorities: Davis v. Foy, 7 Smede & Mar. 64. Frost v. Doyle, lb. 68. Berry v. Blund, lb. 77. Story on Prom. Notes, § 85, 87, 185, 189. 6 Wendell, 17. 5 Day Rep. 505. 4 Howard, S. C. 242. 2 Kent’s Com. 166. 168. 1 Bayly South Car. Rep. 184. Doty v. Mitchel, 9 Smede and Mar. 2d Kent’s Com. 167, 168, 5th ed., note to page 166. Reed v. Lumar, 1 Stobart’s Eq. Rep. Montgomery v. Agricultural Bank, 10 Smede & Mar.
    All the property mortgaged was either acquired by the defendant in Mississippi, before marriage or during her marriage, and was never settled within the meaning or scope of any of the authorities quoted, and could not be conveyed or mortgaged, but in the manner provided by the laws of Mississippi. Story Con. Laws, § 259,260. 6 Wendell, 20. Howard & Hut. Digest of Miss. Laws, cap. 7, p. 344 ; cap. 15, p. 346 ; cap. 19, p. 347, 332.
    If we should have been unsuccessful in our efforts to show that the validity of this contract is to be tested by the laws of Mississippi, it will be necessary to enquire how far it is binding upon the defendant, Wilkinson, under the Louisiana law. The laws of this State render manned women incapable of contracting, without the authorization of, their husbands. C. C. art. 124, 131, 1775, 1779. Poth. Trait de Puisance Marital, No. 3. Code Nap. Art. 217. The notes in question were executed in Mississippi, and made payable there, for aught that appears in the record, in the absence, and without the participation or knowledge, of the defendant’s husband. They are the principal contract, and are void by the laws of both Mississippi and Louisiana. But, it is insisted by the plaintiff’s counsel, that the subsequent execution of a mortgage to secure the payment of the notes, supplies the want of the authorization of the husband ; we say, it does not, for many reasons. 1st. The principal contract was a nullity; in its inception a positive and radical nullity. The accessary contract must follow the nature of the principal, and so far from imparting to it any additional force or vigor, must fall with it. This is positive legislation. Civil Code, arts. 1764, 3251, 3252. 2d. Admitting that the radical vice in the principal contract could be cured by the accessary contract, it cannot be tacitly done, or by mere inference; it must be express, with a full knowledge of the existence of the vice, either of law or fact, and an unequivocal intention to renounce or cure it. Civil Code, article 2252. 4 Dess. 712, 713, 714. 1 McCord, 338, 391. 3 Yerger, 369. 1 Russ. & Mylne, 418. 1 Beat. 413. Dalloz Jur. General du Royaume, 1833, p. 113.
    In this act of mortgage, no mention is made of any vice or nullity; no intention is expressed to renounce or cure any; it is simply a pledge of property to secure the performance of a void contract, and does not express or intimate any other purpose; it does not even recite, that the husband had any knowledge of the contract at the time it was made, that he had yielded his consent in writing, or even that he would have been willing to yield such consent; such an act cannot be considered as supplying the defects in the original and principal contract; it cannot be carried by implication beyond its plain import and language. We'do not think, that, under any circumstances, it could have any such effect. The 124th article of the Louisiana Code clearly indicates a eotemporaneous consent in writing, or joining in the act itself. The article 124 of the Louisiana Code is an exact copy of the article 217 of the Code Napoleon ; and the most weighty and respectable authorities have very clearly settled, what will amount to an authorization, or supply its place. 2 Toul. Nos. 645, 646, 647, 648 7 lb. No. 571. Dallos? (1828,) 128. lb. (1839,) 250. 2 Duranton, No. 445. 2 Merlin's Rep. Jur. 200, verbo Autho. Mar. Poth. Trait de Puis. Marital, Nos. 67, 68, 69,. 71,_ 72, 73, 74.

      The plainti/T has attempted to support his action by the introduction of a long series of. documents relating to antecedent transactions between defendants and others: deeds of conveyance of property, and many others, tending to show the consideration of the notes; but this cannot help them, because no consideration can cure, or ,do away with an incapacity to contract, created by positive law, and on grounds of public policy or morals; and because all those acts, by which the said property was acquired, are subject to the same nullity that exists in the same contracts now sued on; in no one of them, either the conveyance of the property, or the notes or obligations contracted for the price, was the husband of the defendant a party, nor did he yield his consent. All these acts, however, were opposed as evidence by the defendant, and ought to have been rejected; there is a bill of execeptions on the record, and the objections there made are reliod on. The plaintiff has mistaken his remedy ; if he has suffered any damage, equity will relie.ye him by a restoration of the property acquired,
   The judgment of the court (Slidell, J. recusing himself, having been of counsel,) was pronounced by

Eustis, C. J.

This cause has already been before this court on an appeal taken by one of the defendants, Theodore O. Stark, and is reported in 3d Ann. 71. The present appeal is taken by the co-defendant, Mrs. Wilkinson. The action is brought by the plaintiff, for the use of the Trustees of the late Bank of the United States of Pennsylvania, upon certain notes drawn by the said Stark and the appellant. The judgment from which the present appeal is taken discharged the defendant, Mrs. Wilkinson, from all personal liability on the notes sued upon, upon the ground* that being executed and made payable in the State of Mississippi, they were of no binding effect under the laws of that State, she being at the time a married woman. The judgment, however, subjected her property to a mortgage executed by her in this State to secure the payment of the notes. From this judgment Mrs. Wilkinson has appealed. The plaintiff has joined in the appeal, and asks for a personal judgment against Mrs. Wilkinson for the amount of the notes sued on; subjecting the property mortgaged to payment, &c.

On the former appeal, taken by the co-defendant of the present appellant, it was contended that the assignment of the notes sued on to the present plaintiff was null and v.oid, and that no action could be maintained against the defendant by the present plaintiff upon them; but we came to a different conclusion — which we do no.t find any sufficient grounds for disturbing, upon a very thorough consideration of the subject.

The principal argument has been directed to the disability to contract which the appellant labors under, resulting from her condition as a married woman.

By a judgment of the late Court of the First District, dated the 19th of April, 1841, the appellant, then residing with her husband in the parish of Plaquemines, was separated in property from her husband at her instance. In the petition filed by her, she states that her marriage took place in Mississippi, in 1837, with a view of an immediate removal to the domicil of her husband in the parish of Plaquemines, to which she accordingly removed, with her slaves and moveables, immediately after the celebration of her marriage.

It is contended by the counsel for the defendant and appellant, that her liability on the notes signed by her must be tested by the laws of Mississippi, because the notes were made in that State, and are payable there.

The capacity of the appellant to contract in ordinary cases, she being a married woman, domiciliated in this State, must be determined by our laws. The incapacity of a married woman to contract, results from the relations which the law has established between husband and wife, which are personal; and the laws creating the disabilities of minors and married women have always been classed among those which are called personal, or, in the technical language of the civilians, personal statutes, in contra-distinction to real statutes. Merlin’s Rep. verbo Autorisation Maritale. Augusta Insurance Company v. Morton, 4th Ann. 41.

Conceding that there is no general rule, in which all nations acquiesce, concerning the disability of persons to make contracts out of the country of their domicil, and that every nation is at liberty to determine as to the extent to which effect is to be given to foreign laws in its tribunals, the question presented by the facts in this case bring it, we think, within a principle which cannot be drawn in question. It is the case of a married woman, separated in property from her husband, domiciliated in Louisiana, who goes into an adjoining State and makes a contract. This is the hypothesis presented by the defendant, who has not shown any of the circumstances attending the supposed execution of the notes at the place they are dated, or any act done by her, except the alleged signing of the notes. How far this hypothesis is supported by facts will be examined afterwards. A married woman of this State goes into an adjoining Stale, and makes a contract involving a large amount of money. The rule post hoc ergo propter hoc is a key to the purpose of the leaving the place of her domicil, and the party with whom the contract is made, knowing her place of residence, is a privy fo it.

The whole current of the decisions in Louisiana have negatived the possibility of defeating the effect of our laws which regulate the personal relations of its inhabitants by a mere temporary transit to another State, and any other conclusion would render these laws, and the necessary control of the State over the persons and property of its citizens, entirely nugatoiy.

But it is assumed, that the notes were executed in the State of Mississippi; this is denied by the plaintiff’s counsel, who contend that it results from the evidence that they were not executed at the place they purport to be. They are dated at Woodville, Mississippi, on the 1st of March, 1842. It appears that they were given in renewal and in lieu of certain other notes held by the Planters’ Bank of Mississippi, and to secure these latter notes the defendant, authorized by her husband, then present, appeared before the judge of theparish of Plaque-mines, the place of their domicil, and executed a mortgage on slaves, on the 1st March, 1842, the day on which the notes sued on purport to have been executed at Woodville, some two hundred miles distant from her place of residence. In the act of mortgage, which is in authentic form, the presence of the appellant and her husband at the time of its execution is formally stated, and the fact must be considered as proved.

It also appears, that the notes sued on were given in pursuance of an agreement made between Stark and the plaintiff, subsequent to their date; and that the original notes held by the Planters’ Bank were not delivered up until the 30th of March, 1842.

These facts, we think, conclusively establish, that the notes were not executed at the place and time they import; and that, in the absence of any proof, the court is bound to assume, that they were executed at the domicil of the defendant, and at the time of their delivery were post-dated.

In order to secure the payment of these notes, bearing date the 1st of March, 1842, the appellant executed another mortgage with Stark, before the judge of the parish of Plaquemines, on the 11th of April of that year, which contains the following clause: “The said Theodore Stark and the said Mary Farrar Stark, wife of Robert Andrews Wilkinson, hereby expressly reserve to themselves the right and privilege, at their option, of construing the above contract according to the laws and usages of the State of Mississippi, where the said notes were drawn and are to be paid.” This clause, it is contended, authorizes the appellant in insisting that her liability should be tested by the laws of Mississippi. A clause resembling, though not identical in its terms with this, was inserted in the act of mortgage given to secure the other notes. Our impression is, that the construction of the contract, and the capacity of the party to contract, by reason of her personal disability are two distinct things, and that it wmuld be doing violence to its plain and obvious sense to suppose that any right was thereby reserved to defeat its purpose, by reason of any personal disability to make the contract. The reservation of the right of construing the previous subsisting contracts according to the laws of Mississippi, at the option of parties, admits, we think, the capacity of the parties to make them. Any other construction would be a mere snare for the party for whose benefit the mortgages were given.

Our conclusion is, that the obligations of the appellants, dependant on her personal condition, and resulting from the notes sued upon, must be determined according to the laws of her domicil, and not those of the State of Mississippi.'

It is next objected, that the debt created by the notes sued on is not binding upon the appellant, by reason that they were executed and delivered in the absence of the husband, and without his knowledge, participation, or authority, and that they are consequently null and void; and it is contended, that the subsequent mortgage, given, with the authority of the husband, to secure the notes, does not cure this want of original authority on his part to his wife’s execution of the notes.

We will examine the authorities relied upon by the counsel for the defendant in support of this position.

The article 124 of the code provides, that the wife, even if she is separated in estate from her husband, cannot alienate, grant, mortgage, or acquire, either by onerous or encumbered title, unlesss her husband concurs in the act, or yields his consent in writing. This article is said to indicate, that a contemporaneous consent in writing or joining is required on the part of the husband, in order to give validity to the acts of the wife. The article is a copy of the article 217 of the Code Napoleon, and it is contended, that the jurisprudence of France supports that construction. Pothier, in his treatise on the Marital Power, says, that the authorization of the husband may be given before the contract, by which the wife is authorized; provided, that in the contract she declares herself to be authorized by her husband; but it will not render the contract valid by the husband’s authorization being given after the contract, though the wife should declare herself in the contract itself authorized by her husband, in the expectation of subsequently obtaining his consent; the act itself, being absolutely null for want of authorization, cannot be confirmed by an authorization subsequently given, inasmuch as that which is nothing is not susceptible of confirmation. Therefore he says, it would seem, that if we adhere to the rigor of principles, the authorization subsequently given is of no effect. But he adds, that Lepretre, loe. eit., has i-eported two decisions which determined, that an authorization by the husband subsequent to the execution of the act of the wife gave validity to it; and that this author and Lebrun were both of opinion, that these decisions did not determine that the subsequent authorization rendered the act valid from its date, ui ex tunc, but only that it was binding from the day of the authorization, ut ex nunc, as it were by the consent of the parties, which is supposed to continue as long as a change of will is not manifested. Hence, he concludes that if, before the authorization is given, one oí the parties dies, or loses the use of reason, or shall have declared a change of will in relation to the contract, the authorization given subsequent to the contract would not render it binding upon the wife; and further, that an act thus established by the subsequent consent of the husband produces no mortgage except from the date of the authorization, it being only valid from that day. Bernardi, the annotator of the edition of 1806 of Pothier’s works, adds in a note, that the nullity resulting from the want of authorization being at that time, under the code, only relative, the subsequent ratification of the act renders it valid. Toullier lays down the general proposition, that if the authorization required be special, it may be given by an act anterior to the contract, but not by an act posterior. But this proposition is qualified by what follows: “The contract which the wife may have made, declaring that she was authorized by her husband, though she was not,- will not be rendered valid by the ratification, or subsequent authorization of the husband, unless the wife shall have ratified it also, by virtue of the authorization.” Vol. 2, sec. 648.

In vol. 7, sec. 571, the opinion of this author is clearly in favor of the effect of the subsequent ratification in giving validity to contracts made by the wife.

The case oí Bellonde, cited from Dalloz, 1828, p. 128, was one in which the defect of authorization was attempted to be cured by a subsequent approbation of the act by the husband, without the concurrence of his wife, and to her prejudice.

In the case of Saugnier v. Villars & Co., Dalloz, 1839, p. 249, it was held by the court of cassation, that the subsequent ratification of the husband, without the concurrence of the wife, does not remove the defect of an obligation, contracted by the wife without the express consent of the husband.

Duranton, vol. 2, sec. 546, says, that the contracts of the wife, made without the authority of the husband, like that of any other person incapable by law of contracting, may be made valid by a ratification. The ratification maybe made during the marriage by the wife, duly authorized; but without this authorization there can be no ratification. The confirmation may be express or tacit by a voluntary execution of the contract.

Indeed, among the modern writers on this subject, some of the most eminent are of opinion, that the subsequent ratification of the husband alone suffices to give validity to the unauthorized contract of the wife, without her intervention or concurrence in the act of ratification, differing, but only in this respect, from the established jurisprudence of the court of cassation, which, we think, commands universal assent.

The opinion of Merlin is to the same effect, loe. (At.; he says all the modern authors concur in it. Under the Code Napoleon, as we have seen by the decisions of the court of cassation, the same jurisprudence prevails which had been followed at the Chatelet and in the Parliament of Paris, requiring the concurrence of the wife in the subsequent act of ratification on the part of the husband, in order to give validity to the contract of the wife made without his authority. This rule assumes that the authority of the husband need not precede nor concur in the act of the wife, but may be subsequently given expressly or tacitly.

We therefore conclude, that the exposition of the jurisprudence of France has been correctly given by the late Supreme Court in the case of Gravier v. Poyclras, 13 L. R. 183, and that the consent of the husband, or, in his absence, of the court, may be given before, at the time, or after the making of the unauthorized contract on the part of the wife.

In relation to our own jurisprudence, we are not aware that the point has ever been decided by our courts. On principle, we see no reason why the nullity of the contract of the wife, resulting from the want of authorization on the part of the husband, should not rest upon the same rule as that of other nullities which are in the interest of persons and strictly relative. Under the Roman law, the sale of the property of the minor by his tutor without observing the legal formalities, was absolutely null. But if, in the accounts rendered by the tutor to his ward on obtaining the age of majority, the proceeds of the sale had been invested or expended, the approval of the accounts was held to be a ratification of the sale, and the purchaser could not be disturbed. In this case, the purchaser is not even a party to the act of ratification; and yet his purchase was held to be affirmed. Such is our own jurisprudence, and it would be an anomaly to exclude from the operation of this just and salu.tary rule the case of a contract by the wife unauthorized by the husband, which was subsequently ratified by both. The article 1779 appears to us to presuppose the application of this rule. It provides that the authorization of the husband to the commercial contracts is presumed by law, if he permits her to trade in her own name. Whether the acts of the husband and wife, in the present case, amount to what is considered a ratification equivalent to an original authority, is next to be considered.

We have before stated that the notes sued on were given in pursuance of an agreement between the plaintiff and the co-defendant Stark. This agreement does not bear the signature of the appellant nor that of her husband, and we have seen that the notes do not bear his signature. Nor is there any writing from him authorizing her to enter into the contract or to sign the notes. But the agreement was made apparently in her interest and for her benefit, as well as for the benefit of Stark, inasmuch as they were both bound by the notes which the notes sued on were given in lieu of. Accordingly, we find the appellant and her husband availing themselves and carrying into effect this agreement, by executing a deed of trust with Stark of a plantation and slaves in Mississippi, to secure the payment of the new notes at maturity. This deed was acknowledged before a magistrate in the parish of Plaquemines on the 9th of April, 1842, and bears date the 29th of March previous, and is signed by the appellant and her husband. Afterwards, to wit, on the 11th of April, 1842, by a public act before the parish judge of Plaquinines, the appellant, aided and expressly authorized by her husband, jointly with the co-defendant Stark, mortgaged a certain number of slaves, reciting in the act the previous deed of trust on the Mississippi property, and declaring the mortgage to be given more effectually to secure the full and punctual payment of the same notes, which are set forth in the act.

It is sufficient to state that these two acts were made in furtherance of the agreement made by Stark, and that the securities given must be considered as in affirmance and execution of it, and that a ratification of the contracts of the wife, which the mortgage was given to secure, in the absence of all contrary proof, must be held necessarily to result from them. Having come to the conclusion, that so far as the authorization of the husband is concerned, the appellant is bound by his signature to the notes, it remains to consider the other objection made to the validity of her obligation by the learned counsel who argued this cause.

It is urged, -that a married woman cannot be a surety. The code provides that all persons may contract, except those whose incapacity is specially declared by law. These are persons of insane mind, slaves, those who are intei'dicted, minors and married women. Article 1775. But the article 1779 provides that the incapacity of the wife is removed by the authorization of her husband, or in cases provided by law, by that of the judge.

The Spanish law rendered women incapable of making the contract of surety, considering it not becoming that they should be engaged in litigation about the suretyships they contracted. But there were eight excepted cases, in which a woman could bind herself as surety. One is, where she receives a price for becoming security ; another is where she becomes security in relation to her own business per su feche mismo, as where she becomes security for a person who had been security for her, &c. Partida 5, tit. xii, laws 3 and 4. These laws being repealed, the capacity of the married woman to make this contract must depend upon the provisions of our code.

The court of cassation has always held, that since the repeal by the Code Napoleon of the Sendius consultum Velleianum, prohibiting women from being sureties, a married woman could bind herself as surety for another, with the authorization of her husband. There is a great difference between a married woman becoming security for her husband and becoming security for a third person. The law views the first with distrust, on account of the interest of the husband in binding his wife ; but in the latter case, where the wife becomes surety for a stranger, the incapacity of the wife is removed by the authorization of the husband as in any other contract. Code 124, 1779. Under this view of the subject, we held that a married woman could become seeui-ity with the authority of her husband. Farrell v. Yoe, 2d Ann. 903.

It will be recollected that the notes were payable in the State of Mississippi, and that there is a clause in the mortgage by which the mortgagors reserve to themselves the right and privilege at their option of construing it according to the laws and usages of Mississippi. The notes on which this suit is brought — and there is another suit before us on the other notes embraced in the mortgage — are all promises to pay Joseph L. Roberts, attorney, or order, a certain sum stated in dollars, “for value received, payable in the notes of the Bank of the United States, and negotiable and payable at the offiee of discount and deposit of the Planters’ Bank of the State of Mississippi.” It is stated that the only indebtedness of the appellant on these notes is the value of the United States Bank paper at their maturity, that the' contracts were to pay in a certain description of bank notes, and that their value, when the notes sued on fell due, ought to have been rendered certain by evidence and would fix the amount which the plaintiff is entitled to recover in an action on the notes. The decisions in the State of Mississippi certainly support the principle as a general rule, in cases where the action is brought and the judgment rendered on obligations in writings of this character.

It remains, therefore, to consider the application of the rule to the case as it is presented to us for adjudication. This will require a statement of the facts in which the notes sued on originated, as well as of tho pleadings.

To begin with the latter. The plaintiff styles himself as suing for the use of John Bacon, Alexander Symington, and Thomas Robbins, Trustees of the Bank of the United States, under a deed of assignment, &c. The notes sued on, as we have seen, are made to Joseph L. Roberts, agent, or order. The defendant has pleaded that the sole consideration for which the notes were given, was six other notes drawn by her and her co-defendant, Theodore Starlc, for certain debts due then to the Planters’ and Agricultural Banks of Mississippi, which said notes were transferred to the plaintiff, for the use of said trustees.

It appears in evidence that these notes were given by those banks in satisfacti° of debts due by them to the late Bank of the United States; and that by the assignment under which the trustees acted in receiving the notes they were bound to receive in payment notes of the Bank of the United States. By the evidence and by the argument of counsel before us, it appeal's that the obligations of the defendant could be paid and satisfied in those notes for the extinguishment of which the trust was in part created. It seems to us necessarily to result, that the debt evidenced by the notes sued on, being made payable in the notes of the Bank of the United States, the case is that of a debt contracted, payable in the obligations of the creditor himself, and not in those of another person; and that it stands before us exclusively on that ground, and that the obligations of each party are to be judged by the standards which such cases present. If a man sells an estate on time, the price payable in his own notes, the contract on the part of the purchaser is to extinguish so much of the creditor’s debt on a given day; if it is not so extinguished, by the fault of the purchaser, it seems to us clear that he necessarily owes the price, which he certainly is bound to pay unless he shall have given the creditor the benefit of its equivalent.

We have examined the decisions of the Supreme Court of the State of Mississippi, and are not satisfied that in a case of this kind, in principle, the conclusions of that court would vary from our own. The subject is one not free from difficulty, but we are not permitted to adopt any other rule than that which seems to us obvious and just, and resulting from the very natui'e of obligations, unless on positive decisions to the contrary of the tribunal of the last resort of the State, according to the jurisprudence of which the rights of these parties are to be determined.

The matters of defence, resulting from the consideration of the notes sued on, it is not necessary to recapitulate. They have been acted upon by this court in the case of Stark, 3d Ann. 70; and though again pressed upon- us in the argument of the present cause, we find nothing which requires any other notice than a reference to that case. It is sufficient to state that the debt, for which the notes sued on were given, was due by the defendants to the Trustees of the Bank of the United States, and that the present suit is prosecuted for their benefit, and that the notes are payable in notes of the Bank of the United States. For this reason we consider the judgment rendered in that case as correct; and that in this case judgment must be to the same effect, the plaintiffs consenting to take judgment payable in notes of the Bank of the United States.

It is therefore ordered that the judgment of the district court be amended. And it is further ordered that judgment be entered in favor of the plaintiff, Joseph L. Roberts, suing for the use of John Bacon, Alexander Symington, and Thomas Robins, Trustees of the Bank of the United States, under a deed of assignment executed on the 7th June, 1841,by said bank against the defendant, Mrs. Mary Farrar Wilkinson, for the sum of $8395 61, with interest at eight per cent per annum on $2736 from the 4th December, 1844; like interest on $2782 72, from the 4th April, 1845; and like interest on $2876 89, from 4th December, 1845, till paid. Throe dollars cost of protest and costs of suit, with special mortgage and privilege on the property mortgaged by the said defendant, with the authorization of her husband, by act before Gilbert Leonard, parish judge of Plaquemines parish,, and ex-officio notary public, on the 11th April, 1842. And it is further ordered that the said property be seized and sold to.satify said debt, together with interest and costs; the said defendant having the privilege, until the day of said sale, of paying said debt, and interest, in notes of Bank of the United States. It is further ordered that the defendant pay costs in both courts.


text:
    The Same v. The Same.
    Where a notéis made payable in current funds, by the laws of Mississippi judgment can only be rendered for the value of such funds on the maturity of the note, and a case will be remanded to ascertain that value. But under the decisions in Louisiana, ju dgment will be rendered in contracts governed by our laws for the amount of the note.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. A. Clarice and Bradford, for plaintiff.

      J. R. Grymes, for defendants,
    cited the following authorities to show the law of Mississippi upon contracts payable in current funds or the notes of a particular bank: 2 Smedes & Marshall, 104, 488; 6 lb. 645; 8 Leigh, 516; 14 Peter's, 293; 3 Conn. 266; Bennellv. Covington, 7 Howard; 4 Yerger, 496; Kerd C. R. 260.
   The judgment of the court (Slidell, J. recusing himself, having been of counsel,) was pronounced by

Eustis, C. J.

This is an appeal taken by Mrs. Wilkinson, authorized by her husband, from a judgment of the Court of the Fifth District of New Orleans, rendered on four notes of the series adjudicated upon in the case just decided. The judgment was to the same effect as in that case. The principles involved in both are the same, except as to the mode of discharging the obligations contracted by the debtors.

The notes sued on in this case are all payable part in current funds, and the balance in notes of the Bank of the United States.

Under the decisions of the Supreme Court of Mississippi on the non-payment of the notes, we would not be authorised to give judgment absolutely for the portion of the notes payable in current funds. As we are at present advised, the party can only recover the value of that description of paper called current funds at the periods the notes severally fell due.

In the case of Wilson Petit and Smith v. Lambeth and Thompson, (not reported,) an action was brought on a bill of exchange against the defendants on an acceptance in current city notes. The judge of the Fourth District Court of New Orleans gave judgment for the plaintiffs, on the ground that the obligation of the defendants gave to them the privilege of paying the bill at maturity, in current city notes, but as they failed to do so, the obligation became absolute to pay the amount of the bill in specie. This judgment we affirmed on appeal for the reasons given by the learned judge. This decision we thought in conformity with the principles stated by Pothier on Obligations, § 496, 497.

The present case must, however, be determined under the jurisprudence of Mississippi, and we have no sufficient evidence in which we can close it. The case does not appear to have been prepared by either party with a view to this disposition of it, and it must be remanded for anew trial.

It is therefore ordered that the judgment of the court below be reversed, and the cause remanded for further proceedings according to law; the appellees paying the costs of this appeal.


author: Preston, J.

text:
    Solomon H. Eldridge v. Clark J. Tibbitts.
    The act of 10th of March, 1845, authorizing- the sale of property for the payment of taxes, was prospective in its character, and did not authorize the summary proceedings therein pro vided for the collection of taxes due in 1844.
    The possessor in good faith, who is evictedby judgment of a court, is entitled to the increased value given to the property by improvements which he has made.
    APPEAL from the District Court of Jefferson, Clarke, J.

      L. F. Ardry, for plaintiff, ex parte.

   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues for a lo.t of ground in the city of Lafayette. The defendant claims it under a sale made by the sheriff of the parish of Jefferson for State taxes.

The sheriff sold the lot in pursuance of the 3d and 4th sections of an act “to amend the,.revenpe laws,” approved the 10th of March, 1845. He seized and sold it for the State tax of 1844.

But the act of 1845 was, in express terms, prospective in its operations. It directed that the assessment rolls made in pursuance of the act should be considered executions in the hands of tho collectors of taxes, and that they should proceed to sell the properly in the manner, and after the delays, prescribed for ordinary executions. The act did not extend to assessment rolls made on taxes due before its adoption.

No power was given to the sheriff by the act of 1845 to sell the plaintiff’s property for the tax of 1.844; and therefore the plaintiff was not legally divested of the lot in controversy by the sheriff’s sale.

The sheriff, however, made a formal deed to Hill, and Hill to the defendant. We have no doubt all acted in good faith, and that the defendant is a possessor jn good faith under a title translative of the property, and is entitled to the increased value given to the property by all the improvements made' upon it since the sheriff’s sale. His right to recover the same is reserved to him; and the judgment of the district court is affirmed, with costs in both courts.


text:
    The Charity Hospital v. Charles Lammerman.
    Where the unconstitutionality or illegality of a tax is not expressly alleged, the Supremo Court has no jurisdiction unless the amount in dispute is over three hundred dollars.
    APPEAL from the Justice of the Peace of the Fifth District Court of New Orleans, A. Canonge, J.

      H. H. Strawbridge, for plaintiff.

      Jesse MeHenry, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment rendered against him for the sum of ten dollars, with costs, being the amount of a license for a ball, which the charity hospital claims the right to exact, under the acts of the Legislature, of 1814, and of 12th of March, 1838. It does not appear that the constitutionality or legality of this tax is involved in this case. First Municipality v. Pease, 2d Ann. 538. Charity Hospital v. Stickney, 2d Ann. 551. The amount in dispute gives no jurisdiction to this court.

The appeal is therefore dismissed, with costs.


text:
    Persifor F. Smith, Tutor, v. Syndics of Dorsey.
    The wife is entitled to one-half of the community property, and where, four years after her death, the husband surrenders his property under the insolvent laws, her heirs may recover from the syndics the share of the community to which she was entitled.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      P. A. Bonford, for plaintiff.

      L. C. Duncan, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The firm of Morgan, Dorsey 4* Co., and Greenbury Dorsey individually, made a voluntary surrender of their property to their creditors. Among the effects placed by Dorsey on his bilan, as his private property, was a lot of ground situated in the faubourg Annunciation. This property had been acquired by Dorsey pending his marriage with Emily B. PacJcwood, who had died previous to the surrender, leaving two minor children, the original plaintiffs in this suit. By agreement between them, Mrs. Neville is now the sole party plaintiff, and claims the undivided moiety of the lot surrendered by Dorsey, alleging that the share of her mother vested in her heirs at the time of her death, and that it could not have been legally surrendered by her father, four years after that event, for the payment of his own debts. The judgment of the district court was in favor of the plaintiff, and the defendants appealed.

The defence is, that no community interest ever attached or devolved upon the heirs of Mrs. Dorsey, because of the insolvency of Dorsey at the pei’iod of the purchase of the property in question, and at the period of Mrs. Dorsey's death; and that all legal interest in the property of Dorsey is rightfully vested in his syndic, for the benefit of his creditors.

The evidence of the insolvency of Dorsey at the time his wife died, is not satisfactory.

We agree with the district judge, that this case is not analogous to those in which innocent purchasers of community property, the price of which has been paid and applied to the extinguishment of community debts, have been protected against the claims of the heirs of the wife, based on defects of form in the alienation of the property.

The property claimed now stands in the hands of the syndic of the creditors of Dorsey as it was surrendered by the insolvent. It is not even shown that any of the debts proved in the concurso were community debts. No equity, therefore, has intervened which can defeat the title to one undivided half of it, vested in the plaintiff by the death of her mother. Broussard v. Bernard et als. 7 L. R. 222. German v. Gay et al. 9 L. R. 580. Morris v. Covington, 2d Ann. 259.

When, four years after the death of his wife, Dorsey ceded this property to his creditors, his legal title only extended to one-half of it, and he could surrender no more. The creditors of the communily, if there were any, may'have had rights upon the other half; but those rights were out of the syndicate. It is , , „ „„ , . . . urged, that the succession of Mrs. Dorsey was never opened, and continued an hcer editas jacens. The only consequence of that state of things would be to enable the creditors to acquire the entire property by the prescription of ten years, under the cessio bonorum. But the plea of prescription has not been made, and we cannot supply it, nor do we know that it could be sustained. C. C. 3426.

If there are creditoi’s of the community whose claims are still in existence, they will be benefitted by the course pursued. The plaintiff, by proceeding as she has done, has made herself liable for one-half of them, and their recourse against the property still subsists.

The judgment is therefore affirmed, with costs.