author: King, J.

text:
    Parker v. Alexander et al.
    It is not necessary, to enable alessor to preserve her recourse against the surety of her lessee, that she should enforce her privilege against the lessee himself. It is enough that she has done no act to destroy or impair the privilege, or which could have prevented her, at any moment, from subrogating the surety to all her rights. Per Curiam: A surety is not discharged by the mere omission of the creditor to enforce or preserve a privilege. C. C. 3030.
    Novation will not be presumed. The intention to malte a novation must be clearly shown. C. C. 2186.

    Interest may be recovered from judicial demand, when the debt is due by contract.
    Appeal from the Parish Court of New Orleans, Maurian, J.

      E. T. Parker, for the plaintiff.
    The surety of a debtor will not be discharged by the mere forbearance of the creditor to sue the principal. Theobald, Princ. and Agent, § 166. Eyre v. Everett, 2 Russ. 381. Orme v. Young, Holt, N. P. C. 84. Cooly v. Lawrence, 4 Mart. 639. Warfield v.- Ludewig, 9 Rob. 240. Buie v. Bailey, 16 La 213. 3 Mart. N, S. 596. 8 Mart. N. S. 277. 3 La. 214. 5 La. 267, 18 La. 470.

      Schmidt, for the appellant,
    contended that the surety was discharged, citiDg Roman v. Peters, 2 Robinson, 479.
   The judgment of the court was pronounced by

King, J.

The plaintiff, who is a married woman separated in property from her husband, claims from Alexander Henry, as principals, and Roy, assiirety, $800, with interest from judicial demand, for rent alleged to be due. A judgment was rendered against the defendants for the sum claimed, from which Roy, the surety, has appealed.

The appellant avers in his answer, that he has been dischai’ged from the obligations of his suretyship, by reason of the plaintiff’s failure to enforce her privilege as lessor on the property of his principals, and of her having changed the conditions of the contract with the lessees, without his consent. He further contends that, the plaintiff recovered a judgment against Alexander, one of the lessees, for $49, which was determined to be the only sum due for rent, in March, 1843, a date subsequent to the expiration of the lease; which sum, not having been claimed in the present, suit from the surety, is presumed to have been paid, and was a full discharge of all dues under the contract. It is also asserted that the plaintiff has failed to make proof that the lessees were ever in possession of the property leased.

The contract of lease, on which this action is founded, stipulated for the payment of rent at the rate of $1300 a year, and by its terms expired on the 24th of January, 1844. The appellant became the surety of the lessees for the payment of the rent.

I. The possession of the premises by Alexander 8f Henry is fully shown, not only by the testimony of witnesses, but by receipts for rent as late as June, 1842, produced on the trial by the defendants themselves.

II. The ground assumed that all the rent due had been paid, we think is unsupported by the evidence. After the expiration of the léase on which the plaintiff’s demand is based, the premises were let by a second contract to Alexander alone, who remained in possession, until March. 1843. He failed to pay his rent under this second contract, and a suit was instituted against him, and a judgment recovered for a small sum found to be due. This claim for rent, which accrued under the second contract, to which the appellant was no party, cannot be construed into an admission that that which had accrued under a previous and different contract, entered into with different parties, had been paid.

III. The plaintiff permitted several months to elapse without proceeding, against her tenants for the collection of rent, and when she commenced her suit the effects upon which the law established a privilege in her favor had been removed beyond her reach. In order to preserve her recourse against her surety, it was not indispensable that she should have enforced her privilege against the lessees; it was sufficient that she had done no act which destroyed or impaired the privilege, or which would have prevented her, at any moment, from subrogating the surety to the full right accorded to her by law. The surety is not discharged by the mere omission of the creditor to enforce or preserve a privilege. To produce that effect, the creditor must do some act, by which the subrogation can no longer be operated in favor of the surety. Civil Code, art. 3030. 7 Toul. no. 172. Pothier, Ob. no. 557.

IY. In support of the alleged change in the conditions of the contract, several receipts have been produced from the husband of the plaintiff, for rent of the premises in question, at $83 33 per month. No authority has been shown from the plaintiff to her husband to change the contact, diminish the rate of rent, or otherwise stipulate in relation to the lease, and her right to recover rent in accordance with its terms, which accrued subsequent to those payments, remains unaffected by his acts. No change in the terms of the contact is to be inferred from those receipts. They merely show the remission of a part of a debt which had already accrued, of which the surety cannot complain. The evidence, in our opinion, establishes no novation or change in the conditions of the contract, whereby the surety has been discharged. The intention to novate must be clearly shown ; it is not presumed. Civil Code, art. 2186.

The plaintiff has prayed that the judgment appealed from be amended, by allowing her interest from judicial demand. To this she is legally entitled, the sum being due on a contract.

It is therefore ordered that the judgment of the lower court be amended, and that the plaintiff recover five per cent interest on the amount of that judgment, from the 11th of January, 1844, the date of citation. In other respects the judgment is affirmed, the appellant paying the costs of both courts.


source: Caselaw Access Project

author: Kitfe, J.

license: Public Domain

text:
    Colt v. O’Callaghan.

      An intervenor may appeal from a judgment though his claim he for less than three hundred dollars, where the amount claimed hy^the plaintiff exceeds that sum.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      Elwyn, for the plaintiff. Howard, for the appellants.
   The judgment of the court was pronounced by

Kitfe, J.

The plaintiff has moved to. dismiss the appeal of the intervenors, on the ground that their respective plaints are not sufficient in amount to give jurisdiction to this court. We think the motion ought not to prevail.

The demands of the intervenors, with one exception, are for sums less than $300. The plaintiff’s demand, however exceeds that amount. In the cases of Hart v. Lodwick, and Buckner et al. v. Baker, it was held that the amount claimed by the plaintiff gave the right of appeal; and this right was exercised in those cases against intervenors, whose respective claims were less than $300. 8 La. 166. 11 La. 462.

The second section of article 4 of the constitution of 1812, which gave appellate jurisdiction to the Supreme 'Court, when the matter in dispute exceeded the sum of three hundred dollars, and under whichythe decisions referred to were rendered, has been incorporated in the 63d article of the present constitution, and must have been adopted with a full knowledge of the interpretation which it had previously received. The jurisdiction of this court, as far as relates to the section referred to, remains unchanged. The application to dismiss is therefore refused.


author: Rost, J.

text:
    Sexton et al. v. McGill.
    The proof of loss which will authorize the introduction of inferior evidence, must depend on the particular circumstances of each case.
    The oath of a subscribing witness, attesting the execution of a bond by which the obligor hound himself to make a good title to certain land, taken before the parish judge by whom the bond was recorded, is, prima facie, sufficient proof of its genuineness.
    Where the subscribing witness to an instrument resides out of the State, the signature of the party by whom the act was executed may he proved by other witnessess.
    The return of the sheriff on a subpoena taken outfor a subscribing witness to an instrument, that, after diligent search and enquiry, no person of that name could be found in the parish, ’is not sufficient to authorize proof of the signature of the party by whom the act was executed. Per Cwiam: The degree of diligence tobe used in the search for subscribing witnesses to private acts is the same as that required in the search for a lost paper. It must he a strict, diligent and honest enquiry and search.
    Plaintiffs' ancestor having acquired, during marriage, a warrant authorizing the holder to enter a certain quantity of public lands previously offered for sale, located it, after the death of his wife, on a part of the public domain which he occupied with his family, and on other adjoining lands, which had not been offered for sale until after her death. -Under a pre-emption right acquired by a settlement commenced during the community, and continued after its dissolution, he purchased another portion; and other land was purchased by him after the dissolution of the marriage, under a settlement right of a third person, also acquired by him during the marriage. In an action by the heirs of the wife, against the defendants claiming under a purchase made from plaintiffs’ ancestor after the dissolution of the community, the purchase being considered to have been made without notice; Held, that the title to the lands never vested in the community, and that whatever equitable claim plaintiffs mny have against their father, the title of the defendant is unaffected by it. Per Cwiam: Purchasers, without notice, cannot he disturbed by reason of frauds committed by their vendors, unless their participation in them he proved.
    APPEAL from the District Court of Concordia, Wilson, J. Plaintiffs’ father purchased during marriage, a government warrant issued in favor of one Le Page, authorizing the holder to enter any 320 acres of public domain previously offered for sale. This warrant was located by him on a portion of the public domain which, he had occupied with his family, and on other adjoining land, but which was not offered for sale till after the death of his wife. Under a right of pre-emption acquired by a settlement commenced during the community and continued after its dissolution, he purchased another portion of the public land; and a third portion was purchased by him, after the dissolution of the community, under a settlement right of a third person,- also acquired by him during marriage. The plaintiffs’ claim, as heirs of their mother, one undivided, half of the lands, on the ground that the warrants and settlement rights belonged to the community, and that the purchase by their father inured to the benefit of the community. The defendants claim by purchase by their ancestor from plainitffs’ father, and there was a judgment below in their favor, from which the plaintiffs appealed.
    Tlie defendafits having offered in evidence a copy of a bond,-signed by-plain* tiffs’ ancestor, by which he' bound himself to make them a valid title to the lands in contest, the following bill of exceptions was taken to the opinion of the1 court, admitting it:
    “ Be it remembered that, on the trial of this cause, the defendants, by their counsel, offered in evidence, to prove the existence, loss, and contents of a certain title bond or deed, declared upon by them as title, a record contained in book E, pp. 452-3, in parish judge’s office, Concordia, purporting to be a copy on record of said title bond or deed, with the oath of a subscribing witness showing its execution, and the certificate of the parish judge attesting the record: also the testimony of judge Guión to verify the said record, and to prove the existence of said original instrument, and contents of same; and the testimony of McCall, agent of the defendants, that he had made diligent search for the original, without success: also the testimony of Sparrow and Copley, that diligent search had been made at the land office at Ouachita and at Washington city, without success, for said instrument. Also proof that the loss of said instrument had been advertised during the year 1842, in the manner required by law: and upon this testimony they offered the said record as secondary evidence of the contents of said instrument, which evidence contained in said record plaintiffs, by their counsel, objected to, on the ground that the existence and loss of said instrument were not sufficiently shown; that the loss should have been shown by the affidavit of the defendants; that the genuineness of the original instrument recorded was not shown; that the record of the same was illegally made, not having been proved by acknowledgement of the party, nor by the oath of a subscribing witness before a notary and two witnesses, and the said acknowledgement or proof recorded with the instrument as required by law; and that the testimony of judge Guión going to establish said original and said Vecord was inadmissible, so far as his impressions were given, and so far as they went to establish by parol the correctness of said record: — all of which objections the court overruled, and admitted the said secondary evidence of said title bond or bill of sale. By the Court: It was proved that search was made diligently in the parish judge’s office, at Vidalia, for said paper, and that written notice was served on the counsel of the plaintiffs to produce it.”
    The condition of the bond signed by plaintiffs’ ancestor is in these words:
    “ The condition of the above obligation is such that, whereas the said Daniel Sexton hath this day bargained and sold to said James McGill, all and singular the tracts, or parcels, or body of land, claimed by him, and lying and being on lake Bruin, in the parish of Concordia, Stale of Louisiana, about forty miles above the town of Vidalia, supposed to contain in the entirety, seven hundred and eighty acres, be the same more or less, for and in consideration of the sum of $5,500 r now, if the said Sexton shall make to said McGill, a good and sufficient deed or deeds for said body of land, so soon as he shall get his title thereto derived from the government, completed by patent, &c., the said deed or deeds to be with warranty, general against all persons whatever, then the above obligation to be void; else to remain in full force.
    Daniel Sexton. [Seal]
    Witness, T. T. Ghaysob.”

      J. Dunlap and T. P. Farrar, for the appellants.
    The copy of the bond was
    improperly admitted as evidence: First, because it is but the copy of a copy of a private act, the absence of the original not being accounted for. Secondly, because the execution of the original was never duly proven, and the record of the same was illegal. C. C. 2250, 2242. 8 Mart. N. S. 565 and 140. 3 La. 419. 11 Mart. 243. 3 Mart. N. S. 396. If the document was properly received, still it is not evidence of a sale, because: first, there is no description of the thing sold; second', it was never accepted by the vendee. C. C. 2414,1794,1759, 1804. 4 Mart. N. S. 261. If it be evidence of a sale, it conveyed only the undivided half of the lands belonging to the community. No evidence was offered to show that the've’nddf claimed the whole of the lands in dispute, nor what lands he did claim; anil therefore the'law presumes that the sale was limited to his legal interest in Said lands, whidli Was one-half. The decision in 7 La. p. 230, is conclusive as to this point. /
    ■ '.Tlie'endftiSqment on the land receipts is no evidence of a sale, for want of acceptance and of'a fixed price. 4 Mart. N. S. 263. Nor of a ratification of any prqvious^ sale. C. C. 2252. 1 Rob. 457-59. 11 Mart. 612. 17 La. 293. Story’s •'E()hitji;'.St37.' ^Whatever right Serio» acquired during the marriage, either in or ,to the land, onejialf vested in his wife’s heirs on the dissolution of the community. vv Civil Code, art. 2371 and 2374. Merlin’s Rép. verbo Communauté, § v. Gomez;’Ad leges Tauri, 57 in notis. Neither the act of 1810 nor that of 1813, nor the Code, require that the title of the' wife in community property should be' recorded, to give it effect as to third persons. In relation to the title of wives,, the rule of Caveat emptor applies.

      I-I. A. Bullard, on the same side.
    The husband' acquired, during the existence of the community, a warrant Which authorized him to locate three hundred and twenty acres of public land, or to give it in payment of land at two dollars per acre. He acquired from Johnson a right to an improvement, which was-made before the pre-emption law of 1814. The family resided on the land during the life time of the Wife, and Valuable improvements' were made. After her death the warrant was located on the same land, and a small fraction besides, was purchased for cash.- The rest of the land was acquired in virtue of the preemption which existed at the death of Mrs. Sexton.

    We contend that these rights, not certainly in the land, but to it — jus ad rem, acquired and improved by the community, belonged to the community the moment they were acquired; and that these rights, which are essentially property, became irrevocably vested, on the dissolution of the community, in the spouses, each for one undivided half. That rights of this kind constitute property (biens) cannot be doubted. They are appreciable in money. They were acquired out of the means of the community, and the lands afterwards acquired in consummation of these equitable titles was improved by the collaboration of the parties. The husband, after his wife’s death, had no right to dispose of more than his half; and, in perfecting his title by locating the warrant and entering the preemption, he must be regarded as having acted for the heirs of his wife, as a trustee or negotiorum gestor. See the case in 7 La.
    The Code (article 2371) enumerates the property which composes the ac-quests and gains of the community. It consists of the produce of the reciprocal industry and labor of the parties — of’the estates (les biens, in the French text) acquired during the marriage, except by donation or inheritance. Article 2374, which declares that all the property or effects possessed by the parties at the dissolution of the marriage, are presumed to belong to the community, establishes only a rule of evidence, throwing upon the party who claims a part of such property, as exclusively his, the burden of showing it. But the moment pro* perty is acquired, it becomes common property.
    Gomez, in treating on the 72d law of Toro, says: “ Item confirmatur, quia in bonis superlucratis et acquisitis constante matrimonio ipso jure transit dominium et possessio in uxorempro medietate,” &c. Ad Leges Tauri, page 689, sec. 2, in notis. Hence the very next text of the law of Toro, saves from confiscation the share of the wife, on the conviction of her husband of a crime followed by a confiscation of his property. The same law exists in France. Merlin’s Rép. de Jurisp., verbo Communauté, sec. v. The property is vested at once in such a manner, that the right of the wife cannot be defeated by a fraudulent alienation, during the marriage.
    But the warrant was a real right* — a right to appropriate to the exclusive use of the holder, a portion of the domain. It was an equitable right to three hundred and twenty acres ofland. It was a right to the thing on the fulfilment of a single condition, and although it conferred no exclusive title to the particular tract, it was an equitable right, binding on the government, and would have entitled the holder to take the whole domain, if it had consisted of only three hundred and twenty acres. The entry of it at the land office was nothing more than giving to that right a more definite character, a kind of assiette. The land officers had no discretion in the matter. The pre-emption right was stillincom* píete. The settlement and cultivation of Sexton’s vendor authorized him to enter and purchase the specific tract occupied and improved by him. Boththen, were equitable rights to land, and the legal title is still in the go«(Sl*flSmLiSSe^^,^ patents have issued, which is not shown.
    The question then arises, could the husband, acting after«ía^ire’s death, itr^» taking in his own name a certifícate of purchase and consulnmation of equitable titles belonging to the community, make the propejW he confer on his vendee a valid title for more than one-half, if ^¥-*elieve‘i conceded, that if he had done so before the death of his wife, thtjland itself vvpiRd®!. have belonged to the community. There can be no doubt it appears plain, that the title would have been to every esseitóíf purpose the. same acquired during the marriage, by the purchase of the land pre-emption right. Nothing else had been done than to obtain from the gWernment a recognition of these primitive titles and the completion of the inchoate right.
    But it is said the defendant had no notice of these rights and of the title in the community. In the first place, I answer, that he knew that Sexton and his wife lived on the land, and cultivated and improved it; and, secondly, that no law requires that the title of the wife should be recorded. If the husband dispose, (luring marriage, of property in fraud of his wife’s rights, there is no doubt she can recover the specific property thus fraudulently alienated, even in the hands of third persons, although the original purchase was made in the name of the husband alone. In the case of Hennen v. Caldwell, your predecessors held, that acts under private signature by the husband during the marriage, conclude the wife. He is considered as acting for her. No statute requires that her right and title should be made known by registry, any more than her legal mortgage. I refer the court to the statutes of 1810 and 1813. See B. & C.’s Digest, 596. The law has provided no means for giving publicity to such rights or titles of the wife, and yet they undoubtedly exist, or else they could not be the object of a fraudulent disposition. It follows, therefore, that like tacit mortgages, the purchaser runs the risk of them, if he deals with a man in such a situation-in life aa to expose his property to such secret encumbrances, and acquires no greater right than his vendor had. The husband was, in relation to the heirs of his wife, being their self-constituted agent, a negotiorum gestor, in making the entry at the land office. That act consummated the title, and it is a well settled doctrine, that the principal may, in all cases, identify and trace his property, and claim its restoration; and if the question were between the plaintiffs and their father, their right to one-half the land appears to me self-evident. He could not gain at their expense — he could not divest them of a right and invest it in himself.
    It is with these views of the rights of the parties originally, that the "court ought to put a construction on the conveyance made by Sexton to McGill. It will appear that he does not sell a specific quantity of land, but only all his land on lake Bruin. The deed ought to be construed as the will of Theall was, in the case referred to in argument. He should be considered as having sold only one-half, which alone was his, leaving the defendant his recourse and warranty on his vendor, if it should appear from the acts of the parties that, as between themselves, the intention was to sell the whole land.

      Stacy and Sparrow, for the defendants.
    At the death of Ann Sexton, the community had no title to any specific land by virtue of the land warrant. Acts of Congress of 1807, p. 107, vol. 4th, U. S. Laws. 7 Wheaton’s Rep. Hoofnagle v. Anderson, p. 317. It was simply an incorporeal right, subject to be exercised at some future time. It was either real, or personal. If personal, the vesting it in lands gave the heirs no title to those lands, even as against Sexton, any more than if it had been money of the community which Sexton had appropriated to the purchase. If real, Sexton had no right to alienate the share of the minors, without the intervention of justice, nor to acquire lands by purchase for said minors. Civil Code, arts. 334, 333, 337, 338. 6 Mart. N. S. p. 21. If these heirs now ratify the purchase of the land by their father, they are bound 'also to ratify the alienation of it made by him (Civil Code, arts. 1786, 1788 1789,) and to look to him alone for their part of the price. _ _ »
    _ _ Admitting that Sexton entered the lands by virtue ot pre-emption rights acquired by him during the existence of the marriage, the community had no title to the land. The law was nothing but a pollicitation on the part of the government, unaccepted at the death of Mrs. Sexton.) Civil Code, arts. 2414,1794. Milligan’s Heirs v. Hargrove, 6 Mart. N. S. p. 341. 7 Wheaton, p. 217. The husband had no right after the death of his wife, to accept it so as to bind her heirs. If they now accept the purchase, they can do it only by ratifying the sale he made.

      Sexton was the head and master of the community. Civil Code, art. 2373. As such, he could accept or reject the proposition of the government. The eommunity ceased to exist with this pollicitation unaccepted, and with no right acquired to it. 7 La. pp. 222, 224. Civil Code, art. 1804.
    There is no evidence that the defendant, McGill, under whom defendants claim, knew that this land wras entered by virtue of a pre-emption right and land warrant; or, if he knew this, that he knew that those incipient rights had been acquired by Sexton before the death of his wife, which took place nearly six years before Sexton entered the land. This knowledge is not to be presumed in him, for bad faith is never presumed. 10 Mart. p. 439. 15 Peters, 104. McGill then being a purchaser in good faith and of a person having the only legal title to the property, cannot be affected either by the previous fraud of Sexton, or the equitable rights of his children to the land. G Cranch’s Rep. p. 133. Fletcher v. Peclc, 8 Mart. N. S. p. 342. Thomas v. Mead, Ibid. p. 227. 9 La. pp. 288r 298. 13 La. 130. 11 La. 407. 10 Johnson, p. 196. Ibid. 14, 415.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim one undivided half of several adjoining tracts-of land, under the following circumstances: Their father acquired during marriage, a warrant, issued in favor of one of the companions of Lewis and Clarke, which authorized him to locate three hundred and twenty acres of public land previously offered for sale by government, or to give it in payment of public lands at the rate of two dollars per acre. He occupied at the time, with his family, a portion of the public domain, which was not offered for sale till after the death of his wife. When he was authorized to do so, he acquired a portion of those lands, and others adjoining them, with the warrant. Under the settlement commenced during the,community and continued after its dissolution, he purchased another portion; the remainder was purchased under the settlement right of another person, also acquired by him pending marriage.

The plaintiffs allege that the defendants are in possession of the lands without title, and claim one undivided-half of them, on the following grounds: 1st, That the warrant and settlement rights belonged to the community existing between their father and mother. 2d, That the purchases made by their father after its dissolution, should inure to their benefit, for one undivided half. 3d, That the document on whiclrthe defendants claim titlo, if proved, purports to bo a promise of their father, to sell all his lands on lake Bruin, and must be understood as conveying only the land he had; that is to say, one undivided half of the whole.

The defendants set up title by purchase from Daniel Sexton by their ancestor, and want of notice. The case was tried in the first instance, before a jury, whose finding was in favor of the defendants, and the plaintiffs have appealed from the judgment rendered on the verdict.

The defendants offered certain evidence to prove the existence, loss and contents of the title under which they claim, to the introduction of which the plaintiffs’ counsel excepted, on the ground that the existence and loss of the instrument was not sufficiently shown; that the evidence adduced was not supported by the oath of the party; that the genuineness of the original act was not proven, and that it had not been properly recorded.

There is no error in the decision of the court below overruling those exceptions. The original was recorded as required by art. 2250 of the Civil Code, in order to have effect against third persons; and the sworn declaration of the subscribing witness establishes, prima facie, its genuineness. The defendants are the widow and minor heirs of the original purchaser, and as it has not been shown that the title was ever in their possession, they cannot be required to swear that they lost it. The evidence of the loss satisfied the court and jury, and, in our opinion, justified the introduction of the secondary evidence adduced by the defendants. The proof of loss which will authorize the introduction of inferior evidence, must depend on the particular circumstances of each case. 7 Mart. N. S. p. 548.

The title, of which the record is offered, is a promise of Daniel Sexton, to sell to the defendants’ ancestor, for the sum of §5,500, all his lands on lake Bruin, supposed to contain, in the whole, seven hundred and eighty acres, under the penalty of §10,000. It is supported by an assignment to the purchaser, for value received, of the receipts given by the receiver of the land office to Sexton, for the price of all the lands purchased by him, and also by delivery of the land at the time, and actual possession ever since by the purchaser and his heirs.

The plaintiffs excepted to the introduction, in evidence, of the receipts of the land office and of the transfer of Sexton, on the ground that the subscribing witness should have been produced, or at least an attempt made to procure his tes. timony. It is proved that this witness resides out of the State, and, under the uniform practice of our courts, the signature of Daniel Sexton was properly proved by other witnesses.

Two other documents were also offered in evidence, to prove circumstances tendingto corroborate the sale. The plaintiffs excepted to their introduction, on the ground that it was not shown that the subscribing witnesses were either dead or absent, and that they alone were competent to prove the signature of Daniel Sexton. It appears that subposnas were taken out for those witnesses, upon which the sheriff made return that, after diligent search and inquiry, there were no persons of that name to be found in the parish. The court erred in suffering the signature to be proved by other witnesses, under that showing. The degree of diligence in the search for subscribing witnesses to private acts, is the same which is required in the search for a lost paper; it must be a strict, diligent and honest inquiry and search, 1 Greenleaf’s Evid. p. 574.

The sheriff’s return of non est inventus, on the subpoma, is not, by itself, a compliance with the rule.

But disregarding this evidence, there is no reason to doubt the reality of the transfer and the good faith of the purchaser. We consider that the defendants have made out their allegation, that their ancestor was a purchaser without notice: and this court has repeatedly decided, that such purchasers cannot be disturbed, by reason of frauds committed by their vendors, unless their participation in them is proved. In"the case of Tippet and others v. Everson, which does not materially differ from the present, judge Mathews, a high authority in questions Evolving equitable considerations, said: “Whether this court would interfere to enforce the inchoate rights of settlers on the domain of the United States, and to determine on the preference which is to be given to one or the other of two individuals contending for a right of pre-emption, while the contest remains between the original settlers, is unnecessary to determine. The defendant is an innocent purchaser, without^notice of the claim of the plaintiffs, and ought not to be disturbed in his property and possession, on so vague and uncertain a title.” 8 Mart. p. 719.

We concur in these views. The land in this case was not purchased till after the dissolution of the community. That acquired with the warrant could not have been purchased during its continuance, because it had not been offered for sale. The title to the land never vested in the community, and whatever equitable claim the plaintiffs may have against their father, the title of the defendants is unaffected by it. Judgment affirmed.


author: Eustis, C. J.

text:
    Urquhart et al. v. Sargent.
    The adoption in art. 227, of tit. 2, book 3, of the Civil Code of 1808, of the general principle of the Spanish law, that property acquired hy one sponse from the other by donation before or after marriage or otherwise, or through the succession of a child, shall, in case of a second marriage by the surviving spouse, belong to the children of the first marriage, did not repeal the exceptions to that principle existing under the Spanish laws. The principle mast be considered to have been adopted here, subject to the limitations and modifications which belonged to it in Spain.
    A testatrix living in Pennsylvania, having two children by her first husband, and one by a second, conveyed “in consideration of natural affection and of the sum of five dollars,” to the last child, by deed, all her right and interest in certain lands represented by her as having belonged to her last husband. By her will, made several years after, she bequeathed all the residue of her estate, in equal portions, to her three children: Held, that though the sale be considered as a donation, the lands so conveyed would not be subject to collation t the terms of the conveyance showing unequivocally that it was the intention of the donor that the property should inure as an advantage to her son.
    APPEAL from tlie District Court of Concordia, Curry, J. This action was instituted by Mary Urquhart, the only surviving child of Mary Sargent, by her first husband David Williams, and by the children of James C. Williams, her brother. The ancestor of the plaintiffs, David Williams, died in 1792, leaving four children. Mary, one of the plaintiffs, and James C., David, and Anna Williams. His widow was married, in 1793, to Wzntlvop Sargent, who died in 1822, leaving two sons, George W. Sargent, the defendant, and another son, who died in 1823, intestate, unmarried, and without issue. David Williams, the son, also died intestate, unmarried, and without issue, Anna Williams was married to one Thompson, by whom she had three children; but Thompson and his wife died in 1823, and their throe children a few days after them. The plaintiffs allege that the estate left by Thompson's children was inherited equally by their paternal and maternal ascendants, and that Mary Sargent, the only surviving ascendant on the maternal side, was only entitled to the usufruct of one moiety of the estate, her second marriage having deprived her of the absolute title, which vested in the petitioners, descendants of her first marriage. They aver that the successions of Thompson and his wife consisted, in part, of certain lands, for which the defendant, as heir of Mary Sargent, has brought suit, claiming them as his property; and they pray that he may be compelled to desist from setting up title thereto, and for damages. They allege that Winthrop Sargent, acquired, by purchase, two tracts of land in this State ; that there was no administration on his succession here; that after his death, his widow, Mary Sargent, by a deed of sale conveyed to the defendant all her interest in the two tracts for the sum of five dollars, and for the maternal love and affection which she bore to him ; that this sale was intended as a donation, and must be so considered; and they pray that the defendant may be required to collate the property, or to surrender it for division according to law. They aver that Mary Sargent was entitled to one half of these tracts of land as being community property, and that, on the death of defendant’s brother in 1823, Mary Sargent became entitled to his half of the other half of the property.
    The defendant prayed that the plaintiff’s demand might be rejected, claiming to be the owner of the two tracts of land acquired by his father by purchase,' and of one undivided third of all the property of every description belonging to the succession of Mary Sargent, his mother.
    The deed from Mary Sargent to the defendant, arid her will, were offered in evidence. It was admitted that the english common law formed part of the law of Pennsylvania; that Mary Sargent, and her second husband, Winthrop Sargent, never resided in Pennsylvania; that one of the tracts of land conveyed by Mary Sargent to the defendant was a donation to Winthrop Sargent from the Spanish government, and that the other tract was acquired by Winthrop Sargent, by purchase, during marriage; and that the property forming the successions of Thompson and his wife, was acquired by them by purchase, during their marriage. The deed to the defendant was executed by Mary Sarent, in 1840; and she died in 1843. The court below ordered the defendant to collate the two tracts of land conveyed to him by his mother; and from this judgment he has appealed.

      Frost and Prentiss, for the plaintiffs.

      Mary Sargent having contracted a se-' cond marriage, inherited only the usufruct of the Thompson property. Code of 1808, p. 258. It will be urged that there was by the Spanish law, an exception to the general rule, restricting the wife’s rights to the usufruct, in cases where the property was acquired by the labor of the child, as was the case with the properly left by tire Thompsons.

    The question is whether that exception was abolished by the statute adopting the Code of 1808, or whether it remained in full force until the repealing act of 18281 In support of its existence there are three decisions. 6 Mart. N S. 31. 7 Ibid. 6GG. 15 La. 112.
    It is a settled rule that, when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered us annulled. 1 Pick. 45. 12 Mass. 544. 6 Dana, 589-90. 9 Pick. 97. 11 Mart. 149. 12 Mass. 537, 545. 10 Pick. 39. 5 Pick. 109.
    The preamble of a statute is the key to its construction. The preamble "sets forth the necessity for “collecting in a single work the laws in force, which might serve as a guide for the decision of the courts and juries, without recurring to a multiplicity of books, which being for the most part written in foreign languages offer in their interpretation inexhaustible sources of litigation.” This of itself shows that the legislature meant this single work to be the guide for courts and juries.
    “Such a construction ought to be put upon a statute as may best answer the intention which the makers had in view. And this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances.” 15 Johns. 381.
    The second section is in these words, “whatever in the ancient civil laws of this territory, or the territorial statutes, is contrary to the dispositions contained in said digest, or irreconcilable with them, is hereby abrogated.” Now an exception is certainly something contrary to, and irreconcilable with', the general rule.
    The principle of stare decisis, will be invoked. W e reply, “ it is obvious that when the intention of the legislature is clearly to the contrary, no current of decisions can or ought to counteract that intention.” 3 Chitty’s Pract. 55. 1 Black. 69, 70, 77. 1 Chitty’s Rep. 299.
    The deed to the defendant is both by the civil and common law a deed of gift. The burden of proof is on the vendee, to prove a valuable consideration. No such evidence has been introduced, aud under article 1326 the son is bound to collate.

      Stockton and Steele, for the defendant.
    1st. No court of Louisiana can entertain a demand for collation on the part of the plaintiffs, because such claim, being a merely personal demand, like all other personal or moveable property, is to be governed by the laws of the domicil of the deceased, to wit, the laws of Pennsylvania, where the succession is administered; and it can be pi-osecuted only before the court in Pennsylvania having jurisdiction of the distribution of the estate.
    2d. Collation can be asked only on a final distribution of the estate: it is never competent for the parties claiming collation to institute a petitory action for the thing on account of which collation is claimed to be due; and consequently, if there is no distribution about to be made, on which to found the claim for collation, then there is no foundation on which to base a judgment.
    3d. If the court shall be of opinion that a case is shown requiring any other judgment than one of dismissal for want of jurisdiction, we hold that the judgment, in so far as it orders the defendant to collate, is erroneous, and ought to be reversed, and, in all other particular's, confirmed; because the act of Mary Sargent making a will in Pennsylvania, which was her domicil, is in fact an express declaration, on her part, that the donation of the lands in Louisiana, made in her lifetime to the defendant, was intended as an advancementto him, over and above what she bequeathed to the other heirs, and therefore, no collation is due; and we hold there was no forfeiture, on the part of Mary Sargent, of her fee simple right in the lands descended to her from her grand-children, because the said lands were acquired by Mrs. Anna Williams, wife of Jonathan Thompson, by purchase, &c.

      First. As to the first point — the objection to the jurisdiction. To sustain this position, it is, perhaps, only necessary to establish, that the claim of collation, set up by the 'plaintiffs, is simply a personal demand, or demand of money. The law of Louisiana is conclusive on this subject; for it makes the thing which has been given, and on account of which collation is claimed, to be the property absolutely of the donee, to whom it tenders, however, the option, in case collation is due, of surrendering the thing, or of keeping it, and taking less in the distribution of the estate; and in case he exercises no choice, then it treats the property as belonging to the donee. See C. 0. 1254,1255, 1256. If the donee elects to collate in kind, from the moment of his election, the thing belongs to the succession, and is no longer at his risk. See Civil Code, 1339. This election to collate in kind is equivalent to a sale or conveyance made by the donee to the succession: he may sell it, or burden it with mortgages; or it may be taken in execution for his debts, &c. See C. C., 1348, 1349. This thing, therefore, forms no part of the succession which is to be divided: it is the property of the donee, the value of which he may, perhaps, owe to the succession of the donor; and if so, it is an incorporeal right — a debt — personal property belonging to said succession, to be governed, disposed of, and distributed according to the laws of the domicil of the donor, at the time of his death. See Story’s Conflict of Laws, § 481.

      Second. But even if the domicil of the testatrix was in Louisiana, the succession there opened, and the claim for collation well founded, still there must be a suit for partition on which to found it; because, collation is but an incident to a suit for partition. The present suit is, in fact, a petitory action, in which no valid judgment can be rendered, except one of dismissal. By reference to art. 1258 of the Louisiana Code it will be perceived that it is there expressly stated, that the claim for collation is but an incident to a suit for partition.

      Third. There is sufficient evidence of the intention of the donor, that the lands in Louisiana were given to the defendant, as an advancement over and above what is given to the other heirs.
    By articles 1309, 1310, 1311 of the Civil Code, the heir who has received from the ancestor a donation or legacy, is not bound to collate what he has so received, if the ancestor has sufficiently expressed that it was intended by him, as an advancement over and above what is given to the other heirs.

    There is an apparent contrariety in these three articles of the Code, as to the evidence to be furnished by the heir, who desires to excuse himself from the obligation of collating. Art. 1309 says, “the donee shall not be bound to collate; if the donor has formally expressed his will, that what he thus gave was an advantage or extra part,” &c. Article 1310 allows proof to be made of this expression of will, by a publie act made subsequent to the donation, &c. And lastly, art. 1311 says, “ the declaration that the gift or legacy is intended as an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor.” There is a like contrariety between arts. 221 and 227 of the Code, which have reference to the acknowledgment of illegitimate children; the first requiring that it shall be made by public act, and the latter admitting other means of evidence as equivalent and sufficient. In a late case, Compton’s Heirs v. Prescott et al., 12 Rob. 56, arts. 221 and 227 are reconciled and construed, and other evidence than that by a public act is deemed sufficient. We therefore suppose, that the intention of the donor that the donation should be an extra p/ortion, may be established by any reasonable evidence.
    The common law of England is proved to be the law of Pennsylvania, according to which, the claim for collation could take place only in case lands had been given by way of advancement in marriage, and afterwards, other lands descended in fee simple, from the same ancestor, to the donee and her sisters. It was necessary, in order to warrant the claim for bringing the lands so donated into hotchpotch, that the other lands should have descended in fee simple; a descent of lands in fee tail would not support the claim, as an estate tail can be created only by the express direction of the donor. See 2 Blackstone’s Com. 190, 191. The particular customs of London and Yorkshire are much the same as to personal property: such is, also, the law of Scotland. See Black.’s Com. 517. There was no proof in this case, .that the statute law of Pennsylvaniahas altered the common law; but we are aware that such is the fact, and that, by the statute law of Pennsylvania, collation is due by the heir who has received any donation from the ancestor in his lifetime, provided the ancestor dies intestate, and not otherwise. It appears, then, that both the common law and the statute law of Pennsylvania demand, that the donation shall be brought into hotchpotch (or shall be collated), unless the ancestor shall have expressed his intention to be otherwise. The making a will, or the creation of an estate tail, is, however, evidence that the ancestor intended the donation as an advancement to the donee, over and above what is given to the other heirs. The common law, and the statute law of Pennsylvania, in reference to this subject, are both founded (as is the Louisiana law) on the supposed desire of the ancestor, in the absence of evidence to the contrary, that his heirs shall share equally all his property. Now, any evidence which shall destroy this presumption, is sufficient to defeat the claim for collation. This is effectually done in Pennsylvania, by making a will. This was done by Mary Sargent, who, at the date of making her will, and at the date of her death, resided in Pennsylvania. She must be presumed in making her will in the place of her domicil, to have had reference to the laws of Pennsylvania, according to which the act of making a will is ah express deduration that, she gave the defendant the lands in Louisiana, as an advantage and extra portion, over and above what was given to the other heirs. Mary Sargcntnevev, at any time, resided in Louisiana; had she resided in Louisiana at the date of her death, a more explicit declaration of intention, than the mere act of making a will, would have been necessary to excuse the defendant from collation, because she would then have been held to have acted with reference to the laws of Louisiana. The case is very different where she acted with reference to the laws of Pennsylvania, which require no other act than the mere making of the will to evidence her intention, that the donation of the lands should be an advancement over the other heirs.
    The question is, whether it is to be believed that Mary Sargeant, in making a deed of gift to the defendant, in 1840, of the lands in Louisiana, and afterwards, in 1843, making a will In Pennsylvania, by which she devises all her estate equally to be divided among her own heirs, has not thereby sufficiently expressed her will and intention that said gift should be an extra portion, &c. ? The strict rules of law as to the formalities of executing a will, are rigidly adhered to; but when established, the law is liberal in so construing the contents of the instrument, as to carry out the intention of the testator. Therefore, where the intention of the testator is manifest, to dispose of property, although he entirely misdescribes it — calls it personal, when he intends real property, &c., yet effect shall be given to his real intention. See the case of Doe ex dem. Tofield v. Tofield, 11 East’s Rep. 246, mentioned in Roberts on Wills, 387, Exeter, N. H., edit. See also Roberts on Wills, 413. Ibid. 465.
    The testatrix in this case had resided most of her life in Pennsylvania. She may reasonably be supposed to have been well advised by the best counsel, as to the requirements of the laws oí Pennsylvania, in order to make a valid will; and we may fairly conclude, without any presumption of law to that effect, that she well understood that if she did not make a will, and died intestate, the gift of lands in Louisiana to the defendant, would not avail him anything. It is fairly presumable that she made the will to prevent this contravention of her wishes and intentions. But the law presumes, that she knew the law of Pennsylvania, and that she acted in reference to it; that she intended by her will, what that law intends, to wit, that the donation of the lands in Louisiana should be an extra portion to the defendant.
    The case of Anstruther v. Chalmers, mentioned in Story’s Conflict of Laws, § 491, reported in 2 Simons’ Reports, 1, and 3 Hagg. Ecc. Rep. 444, is perfectly to our purpose. The court there laid down the rule, “that in the construction of a will, the lex domicilii must govern, unless there is sufficient on its face to show a different intention in the testator;” “that, being domiciled in England, it was presumed that the testatrix intended the law of England to be applied; and that there was not enough in the will to repel that presumption.” The will of Mary Sargent must, then, be construed by the lex domicilii, by the laws of Pennsylvania, which make the will itself to be a declaration of the donor that the gift was intended as an extra portion. See the case of Gordonv. Brown, Story C. Laws, § 490.

      Fourth. The case must be governed entirely by the laws of Pennsylvania; and by the laws of that State, collation cannot be lawfully demanded from the defendant before any tribunal whatever. Story says, in his work on the Conflict of Laws, § 481: “ The universal principle now recognized by the common law, though it was formerly much contested, is, that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate, at the time of his death;” and again, in the same paragraph and page, he says, “ and this doctrine is maintained with equal broadness by the generality of ioveigu jurists.” In the case of Balfourv. Scott, the facts were these: “A person domiciled in England died intestate, leaving real estate in Scotland. The heir was one of the next of kin, and claimed a.share of the personal estate. To this claim it was objected that, by the law of Scotland, the heir cannot share in the personal property with the other next of kin, except on condition of collating the real estate; that is, bringing it into a mass with the personal estate, to form one common subject of division, It was determined, however, that he was entitled to take his share without complying with that obligation. There the English law decided the question.” See Story’s Conflict of Laws, § 486.
    A claim for collation, according to the laws of Pennsylvania, can be effectually made only in caso of intestacy; and according to the laws of Louisiana, only in case of actual or quasi intestacy: consequently, the above authority is directly in point, to show, that the distribution of the estate of Mary Surgent must be made in Pennsylvania, and according to the laws of that State, which was the place of her domicil. To succeed under the laws of Pennsylvania, the plaintiffs are bound to show that Mary Sargent died intestate. We have established that there was a valid and legal will; that the land given to defendant did not in any manner belong to Mary Sargent at the time of her death; and any claim which plaintiffs might pretend to set up against defendant in consequence of such gift, is only a personal demand, is only personal property, and must be governed by the laws of Pennsylvania.
    As to the forfeiture of the lands descended to the testatrix from the children of Anna Williams, her daughter: it is admitted that these lands were acquired by purchase, by Anna Williams; and so, under the decision in 15 La. 112, it is clear that no forfeiture has taken place under article 1746 of the Louisiana Code.

      An error, in the answer, as to the intorost of the defendant in these tracts, was corrected, apparently by consont.

   The judgment of the court was pronounced by

Eustis, C. J.

Winihrop Sargent married the widow of David Williams. The plaintiffs are Mrs. Urquhart, issue of the first marriage, and the children of James C. Williams, her brother. George W. Sargent, the defendant, is the only surviving issue of the second marriage. The late Mrs. Sargent, as surviving ascendant in the maternal line, took half the succession of her three grand children, the minor children of the late Jonathan Thompson, in 1823. It is contended by the plaintiffs that she was only entitled to the usufruct, in consequence of her second marriage subsequent to the death of the father of Mrs. Thompson, the mother of the minors.

This is a question which has been very fully discussed, and decided several times by the Supreme Court, under the jurisprudence which prevailed before the repeal of the laws of Spain. The court always held that, the article in the Code cited in argument, did not repeal the exceptions which still existed limiting its operations. Verret and others v. Theriot, 15 La. 112. Le Blanc v. Landry, 7 Mart. N. S. 668. Duncan's Executors v. Hampton, 6 Mart. N. S. 32.

Wmthrop Sargent, the husband by second marriage of Mrs. Sargent, died possessed of two tracts of land on lake St. John, in the parish of Concordia, In 1840, Mrs. Sargent conveyed to her son, the defendant, all her right, title and interest in said lands, in consideration of the natural affection which she bore him, and also of the sum of five dollars to her in hand paid. By her will, made in March, 1843, after some legacies, the testatrix gives all the rest, residue and remainder of her estate, real and personal, whatsoever and wheresoever, one third part to her children, Mrs. Urquhart, and the defendant Geo. W. Sargent, and to the children of her deceased son, James C. Williams.

The intention of the testatrix that the undisposed of portion of her estate' should be equally divided among her children and their descendants, in equal shares, as directed, is evident; but the form of a sale, in which the conveyance of these tracts of land is made, we think shows the intention that something beside a donation, subject to collation, was intended by that act. Both the conveyance and the will were made in Philadelphia. The petition charges that said sale was intended as a donation, and is to be considered as such.” If it was, the manifestation of will on the part of the donor that it should inure as an advantage to her son, we think unequivocally results from its terms. She considered that these lands might of right be given to the defendant, without doing injustice to her other heirs; and of this we have evidence in this recital of the conveyance s “Being the same tracts formerly belonging to Winihrop Sargent and John Steele, and which, by conveyance of his share by said John Steele to said Winthrop Sargent, became wholly vested in said Winthrop Sargent, in fee simple." One of the tracts, called the Winthrop Sargent tract, was granted to the father of the defendant by the Spanish government, and formed no part of the community existing between him and his wife. Heirs of Rouquier v. His Executors, 5 Mart. N. S. 99. Frique v. Hopkins, 4 Mart. N. S. 212. Gayoso de Lemos v. Garcia, 1 Mart. N. S. 324.

The donor appeared to consider them as of' right the' patrimony of the only son of- her last husband, and wé think made the conveyance in the furtherance of that idea, to the exclusion of the relatives of the half blood. This view is fortified by the fact that the do u or was a resident of, and domiciliated in, P ennsylvania, where both instruments were made, by the laws of which collation cannot be exacted, as under the laws of Louisiana. Harrison v. Nixon, 9 Peters, 503. Story, Conflict of Laws, § 491. Gordon v. Brown, 3 Haggard Ecc. Rep. pp. 455, 444, et seq.

' The judgment appealed from is therefore reversed, and judgment is rendered for the defendant, with costs in both courts.

      Prentiss, for a rehearing. 'The plaintiffs ask for a rehearing of so much of this causo as relates to defendant’s liability to collate with them, such poitionof the two tracts of land as he received by-donation from his mother during her life time
      The court crred-in deciding that the donation to defendant, by his mother, is not subject to collation.
      I. The deed from Mary Sargent to G. W. Sargent, is to be governed entirely by the laws of Louisiana, both as to its construction'and effect. Nor does the fact of its having been executed in Philadelphia, alter the matter; it has precisely the effect it would have if executed in Louisiana, and no more. Story lays down the doctrine in his Conflict of Laws, ss. 424,427, 428, 435, as being recognized by the common law, and also-by all the foreign jurists, “ that the laws of the place where real property is situated, exclusively govern in respect to the rights of parties, the modes of transfer, and the solemnities which should \accompany them.” Art. 10, Civil Code, says: “ The effect of acts passed in one country to have' effect in another country, is regulated by the laws-of the country where they are to havo effect.” At all events, this rule is universal in regard to lands. It is the law of Pennsylvania, as well as all the common law States. The legal presumption is that, Mary Sargent knew that- her deed to lands in Louisiana, would be governed in its effects, by'the laws of Louisiana. The fact that the deed, as well as the will, “ were made in Philadelphia,” so far as the disposition of lands hi Louisiana is concerned, does not change the legal construction of either instrument
      ■ II. The conveyance of these tracts of-land, notwithstanding its apparent form of a sale, is upon its face a pure donation inter vivos. It is not a sale even in form; it wants one of the essential requisites of a sale, to wit, a price. The nominal price of five dollars is no -priee. Vide Pothier,- “ Traité du Contrat de Vente,” nos. 16,17,18. “ A prise that bears no proportion to the value of the things sold, is not a true price j for instance, if one sells a large tract of land for one crown, for the price being the estimate made by the contracting parties of the value of the thing, an estimate wliioh boars no proportion to its value cannot be considered a serious one, nor consequently a real priee. Such a contract is not a sale, but a donation, falsely termed a sale, which must be subject to all the formalities of a donation. Pothier “Traité du Contrat de Vente,” nos. 19,20. This doctrine of Pothier is recognized and relied upon by Judge Post, iii the case of D'Orgenoy et al. v. Droz, 13 La. 389-398. Also la Holmes v. Patterson, 5 Mart. 693. Tho rule is expressly adopted by our Code. Art. 2439 provides that the price “ ought not to be out of all proportion to the value of the thing; for instance, the sale of a plantation for a dollar, could not be considered as a fair sale ; it would be considered, as a• donation disguised." The same is the rule of the common law. Vida 2 Kent’s Com. 477. In the present caso, the conveyance is of sixteen hundred arpents of valuable land. The consideration is “natural affection and five dollars. “ Now, this five dollars is no real price, nor does this conveyance constitute a real sale, either according to the civil or common law. At common law, it is the usual, almost the universal mode, of making gifts, or pure donations inter vivos.

      It is neverpresumed that the nominal consideration is actually paid; and nine out of ten of all the pure donations ever made, at common law, have been clothed in the form of the present convejmnce, and no common iaw lawyer ever dreamed of considering such a convey - anee as any thing but apure and simple donation. The court suggests in its opinion, “ that something besides a donation, subject to collation, was intended,” &c. This, conclusion, wa think wholly unwarranted both in law and fact. But wo will consider this point by itself

        III. We have attemptod to'show that the eonvoyanco from Mary Sargent toG. W. Sargent, was not a sale, hut a pure donation inter vivos, and is to be governed in its operation and effect by the laws of Louisiana, where the lands lie, and not by the laws of Pennsjdvania, where the deed was oxecuted. Now, is this donation subject to collation by tho laws of Louisiana! Let us refer to tho rules laid down in the Code on this subjoct. Art. 1306, of the Civil Code, provides “that children or grand children coming to the succession of their fathors or mothers, or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, unless tho donations and legacies havo been made to them expressly as an advantage over their co-heirs, and besidos their portion.” Tho samo article preserves that “ this rule takes place, whether the children, &e., succeed to their aseendauts, as legal or as testamentary heirs,” ifc. This conveyance is to ho construed then precisely as if Mrs. Sargent had died intestate, unless there is something in the will affecting it. Art. 1307 lays down tho foundation of “the obligation of collating,” to wit: “ the equality which must he naturally obsorved between children and other lawful descendants, who divide among.them the succession of their father, mother, &c.” Art. 1308, says: “Collation must tako place whether the donor has ordered it, or has remained silent on tho subject; for collation is always presumed where it has not been expressly forbidden,” Art. 1309 próvidos that collation shall not take place, “ if the donor has formally expressed his will, that what he thus gave was an advantage or extra part, unless tho valuó of tho object exceed tho disposable portion, .&c. Art. 1310 provides that, “ tho deelaaation that the gift is made as an advantage or oxtraportion, may he made not only in the instrument where such disposition is contained, but even afterwards by an act passed boforo a notary and two witnesses.” Art. 1311 says:“ The declaration .that the gift or legacy is intended as an advantage, or extra portion, maybe made in other equivalent terms, provided they indicate, in .an unequivocal manner, that such was tho will of the donor.”
      The last four articles show conclusively, that gifts or donations inter vivos are subject to collation, unless the donor has expressly declared the contrary, either in the act of donation, or some subsequent instrument; and this declaration must be in terms indicating in an unequivocal manner, such an intention on .the part of tho donor. Now there cannot be found in tho conveyance from Mrs. Sargent, nor in hor will, any express declaration that this donation was intended as an advantage, or extra portion; nor .can there bo found, according to art. 1311, any declaration made in other equivalent terms, indicating in an unequivocal manner, that such was the will of the donor.
      What are the expressions in this conveyance, equivalent to an express declaration, indicating unequivocally the donor’s intention, that this donation should he held as an extra portion, &e. Let us examine those upon which the court roly as the basis of their judgment.
      The court says: “jBut.the form of a sale in which the conveyance of these tracts of land is made, we think shows an intention that something besides a donation subject to collation, was intended by that act.” Now we have attempted to show that, both by the civil and the common law, this form of sale, with a mere nominal .price, does not alter its character and effect, as a donation; but even as a donation disguised in a sale, it is subject to collation equally with a pure donation. In the caso of Bossier v. Vienne, 12 Mart. 421, the court decided that, “ when the father sells to tho son at a very low price, the advantage thus conferred is subject to collation. In Benton’s heirs v. Benton et al., 14 La. 352, it was held “ that every donation, or advantage given to heirs is liable to collation, unless expressly excepted by the donor." This, too, was a case in which the donation had been made in Georgia. But the rale is .expressly laid down in the Code, art. 1326, which is as follows: “ The advantage which a father bestows upon his son, .though in any other manner than by donation or legacy, is likewise subject to collation. Thus when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.” Under this article, how can it he urged that the form of a sale, ..with a mere nominal consideration, indicates an intention that the property so conveyed shall not he subject to collation! Such a deduction is at war with both the Code and the adjudicated cases.
      But the court proceeds: “The manifestation of will on the part of the donor, that it should inure as an advantage to her son, we think unequivocally reeults from its terms. She considered that these lands might, of right, he given to the defendant, without doing injustice, &c.; and of this, we have evidence in this recital of tho conveyance, ‘being the same tracts formerly belonging to Winthrop Sargent and John Steele, and which, by conveyance of his share by said John Steele to said Winthrop Sargent, became wholly vested in Winthrop Sargent, in fee simple.’ The donor appeared to consider them as of right the patrimony of the only son of her last husband, and, we think, she made the conveyance in furtherance of that idea, to the exclusion of the relatives of the half blood.”
      Now, as to tho description of the land having been acquired from John Steele, &c., this does not constitute an express declaration, that the .donation was intended as an extra portion, nor does it amount to a declaration in equivalent terms, under art. 1311; and we respectfully urge that, unless it amounts to such a declaration, it cannot overcome the positive presumption of the Code, that collation is intended and understood. But what does the expression amount to! It is mere description of the property. It contains no declaration of motivo or intention. The motivo or consideration had already been fully expressed. It was “natural affection for (her) son.” But the court says this land originally belonged to tho defendant’s father, and therefore Mrs. Sargent thought he had a right to it. W e see no warrant for this prosumption. At the time of the donation, tho land belonged to her absolutely, at least tho portion we claim to be collatod; the heirs were all equally of hor blood, and thero is nothing to show that she'did not equally regard them. On tho contrary, her will shows that they occupied perfect equality in her regal’d. By her will, she divides her estate equally among them. This estate consisted of lands principally in Louisiana; among these lands are the Thompson tracts, which the court has decided in this veiy case, are to be divided betwoen defendant and the children of the first marriage. Now, if Mrs. Sargent, in her will, made no distinction among her children as to the origin of tho property, why should it be presumed she intended it by the conveyance to defendant? Tho Thompson lands came to her by inheritance from oho of her children of the first marriago; the lake St. John tract came to her in part as community property, and part by inheritance from one of the children of the second marriage. She divides the Thompson tracts equally between the children of both marriages. Wo think this affords strong presumption, that she did not intend tho donation of the lake St. .John tracts to bo an extra portion, but that they should bo collated. But on which ever side may be the weight of presumption, is of little importance; we invoke the benefit of articles 1307, 1308, 1309, 1310 and 1311 of tho Louisiana Code, and under these articles deny the right of the court to presume, that collation was not intended, unless such presumption is drawn from an express declaration of the donor to that effect.
      IV. Tho conveyance from Mary Sargent to defendant, is null and void. As a sale, it js clearly void for want of a serious price, according to tho authorities already cited above. It is void as a donation for want of form; it not being executed in tho manner and with the solemnities required by tho Code. We have already attempted to show that this was not a sale but a donation inter vivos¿ The Civil Codo, art. 1523, declares that “ an act shall be passed before a notary public and two witnesses, of every donation inter vivos of immovable property, of slaves or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” In the present case, tho donation is by priyate act. It was executed in presence of three witnesses, but not before a notary. After its execution, it was acknowledged before the mayor of Philadelphia. This is clearly not an authentic act under the provision of the article just cited, and we contend that it is null. Tho corresponding article of the Code of 1808, was different iu its phraseology, and was subjected to a different construction. That article (53, Code of 1808, p. 220,) declared “all acts containing donations inter uitws, must bo passed before a notary public and two witnessos, &c,, .othorwise thoy are null and void.
      In the case of Trahan v. McManus, 2 La. 209, tho court decided that a donation under .the form of an onerous contract, was not void, because not made as an authentic act. But .the reason given by judge Porter, is founded upon the peculiar phraseology of the old Code, He says: “ The opinion called for embraced tho question whether a donation under the form of an onerous contract, was null and void. This our Code has not said. It does not .declare that all donations shall be null and void, unless they pursue the form indicated,” Again, in the same opinion, “ the prohibition does not extend to the contract, but to the instrument which is the evidence of it. If the legislature had intended to prohibit all donations except those by public act, it must be presumed they would have said so, and would not have limited it to acts which contain them. A benefit disguised under the form of an onerous contract, is an indirect donation, and is not contained in the act.” Article 1523 of .the new Code, is not subject to this technical construction. It declares .that “ an act shall be passed before a notary public and two witnesses, of every donation inter vivos.” This .donation was not passed before a notary and two witnesses; it is therefore null and void.
      But this article has been already adjudicated upon. In Flores v. Lemée, adm.’r, 16 La. 273, the court says a donation cannot be validly made in any other form but that pointed .out by articles 1523 et seq. under tho penalty of nullity.
      The question came up more directly in Britain v. Richardson, 3 Rob. 68. The question was, whether a noto for $4,000, executed for an inconsiderable consideration, could stand asadisguised donation mortis causa. Tho court says, “ an instrument, the real object of which was a disposition mortis causa, if executed without the formalities required by law to give it validity as such, can have no effect.” The court further says that, the same rule is applicable to donations inter vivos, and that “ all donations inter vivos, must bo passed before a notary and two witnesses.” They also notice the case of Trahan v. McManus, and note the difference between the old and new Codes on this point.
      In conclusion, it may be proper to remark, that this last point was not made in the argument, because it was supposed the liability of the defendant to collation, would not be disputed. Indeed, defendant’s answer admits the liability to a certain extent. It is further respectfully urged, that if the court does not feel authorizod, under the pleadings, to annul the donation, it will so mudify the judgment as to dismiss our bill without prejudice, and ¡reserve .to us tho right .to attack the donation in a moro formal manner.

        Rehearing refused.


author: Kins, J.

text:
    Davis v. Dale.
    The mere civil or legal possession of lands, notpreceded by a real, actual possession, is insufficient to support a possessory action. C. P. 49.
    Where depositions were admitied without objection at the time, a new trial will not be granted on the ground, that the defendant, by whom they were introduced, retained tbemfin his possession until plaintiff had nearly closed his evidence, in consequence of which he was taken by surprise.
    Appeal from the District Court of Concondia, Curry, J.

      Shato and Lawrence, for the appellant. Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Kins, J.

This action is instituted by the plaintiff' to recover the possession of a tract of land of which he claims to be the owner, and in the possession of which he alleges he has been disturbed by the defendant, Dale. Tha defendant avers that he took possession of the land in controversy under the authority of its lawful owner, which .possession he held for moro than twelve months previous to the institution of this suit; and he further denies that the plaintiff7 was .ever in possession. The cause was tried by a jury, whose verdict was for the defendant, and the plaintiff has appealed.

The principal point presented in this controversy is, whether the plaintiff has «ver been in actual possession of the land in dispute, under the title whicli he exhibits. The character of the possession necessary to maintain actions of this kind has been considered as settled, since the interpretation given to the 49th .article of the Code of Practice on the final decision of the case of Ellis v. Prevost, in which the question underwent an elaborate investigation. 19 La. ■p. 254. 13 La. 230. That article requires that the possessor who claims to exorcise this action, should have been in actual possession of the property at the instant when the disturbance occurred. A mere civil or legal possession is insufficient. In .the case of Ellis v. Prevost, it was held that, civil or legal possession, which has been preceded by a corporeal detention of the property, authorised a resort to this action, although the possessor should not be in the .actual occupancy at the moment of the disturbance, but that the mere civil or legal possession, which has not been preceded by such actual possession, was insufficient. The correctness of these principles has not been seriously questioned, nor is it believed that they can be successfully controverted. It remains to .apply them to the facts of this case. The plaintiff exhibited perfect titles in himself to the land in contest, and it devolved upon him to show that at some time he had held actual possession under them. He never resided upon or cultivated the tract, and relies upon other circumstances to show the possession. These are, that he caused the land to be surveyed, and for many years previous :to the institution of tiffs suit was in the habit of cutting trees upon it for the ■use of his plantation.

One of his witnesses states that he is the parish surveyor of Concordia, and was employed as such by Dams, in the summer of 1841, to ascertain the lines of the land, and particularly where the lines of the lots 47 and 48 met the Jake; that he did determine where they met the lake, and marked them. This person was not deputed to take possession for th& proprietor, but merely employed to perform a professional act. This cannot be considered a taking of corporeal possession, but appears rather to have been a measure preparatory to that end. Another witness states that he acted as the agent of Davis, from the spring of 1839 to the spring of 1S43, and during that time, annually, cut timber on the land in question for the use of the plaintiff’s plantation, and with the plaintiff’s authority. These ai-e the only witnesses relied on by the plainfiffto show actual possession, and the foregoing is the substance of thoir testimony in his behalf. The witness last referred to underwent a second examination, when he qualified materially his previous statements. When last examined he testified that, personally, he had cut no timber on the land ; that, in the year, 1837, he directed none to be cut; that, in 1838 or 1839, Favor, the plaintiff’s overseer, cut timber on the land under his instructions. In 1840, none was cut; and in 1841 or 1842, basket timber, for the use of the plantation, was taken from the tract. Favor, the person referred to, who was the overseer of the plaintiff, from 1837 to 1841, says, that during those years no timber was cut upon the land in contest, nor does ho know of any having been cut at any time by slaves of the plaintiff. That the timbor cut in 1839, was upon land more than half a mile distant from that in controversy. Several other witnesses, who appear to be well acquainted with the lines, and to have known the land for many years, state that Davis has never taken timber from it, that they are aware of, and could not well have done so without their knowledge. A jury, taken from the neighborhood, probably acquainted with the land and with the means of information possessed by the witnesses, appear to have concluded that the agent of the plaintiff had fallen into error, in supposing that the timber cut by his directions was taken fro m the land in dispute, and the weight of the testimony supports that conclusion. The character of the evidence is certainly not such as to authorize us to disturb their verdict. It does not, in our opinion, show conclusively any act indicating that the plaintiff has, at any time, either in person or by agent, had actual possession of the land in dispute.

A motion for a new trial was made on the ground that, the defendant’s counsel retained in his possession the depositions of several of his witnesses taken in writing, until the plaintiff had nearly closed his evidence, whereby he was taken by surprise. These depositions were admitted without objection at the time, and the objection came too late after the trial of the cause. The irregularity of the pi-oceeding, if it be one, should have been excepted to at the time when the depositions were offered. Judgment affirmed.


text:
    Johnson v. Hamilton, Administrator.
    Proceedings under the stafr. of 10 March, 1834, relative to tlie titles of purchasers at judicial sales, cover matters of form only.
    It is no objection to a judgment rendered by a Court of Probates, that the judge, in signing it, annexed the words “Parish Judge” to his name. The discharge of the duties of judge of the Probate Court is part of the functions of the parish judge.
    In an action by a creditor against the administrator of a succession, there is no occasion for the appointment of an attorney of absent heirs.
    No period is fixed by law within which the property of a succession, offered for sale at the suit of a creditor, must be appraised.

      ÁPPEAL from the Court of Probates of'Concordia, McWhorter, J. The petitioner, Johnson, applied to the Probate Court for an order of seizure and sale of certain property mortgaged to him by the deceased. The property was sold, and purchased by Johnson, who applied for- the homologation of the sale under the stat, of 1834. The homologation was opposed on the grounds: 1, That the judgment by which it was ordered, was signed “James Dunlap, Parish Judge,” instead of judge of Probates. 2, That no counsel was appointed to represent the absent heirs. 3, That the property sold was not appraised within a year preceeding the sale. 4, That the property was not legally advertised. The oppositions were overruled, and the sale homologated; and fronFthis judgment the defendant has appealed.

      Rowley and Frost, for the opponents,
    cited Civil Code, art. 1157. 11 La--116. 13 La. 431. 16 La. 65. 3 Robinson, 35. 10 Rob. 398. 1 Howard’s Miss. Rep, 444. 6 Ibid. 114, 234.

      T. P. Farrar, on the same side,
    contended that the property should have been appraised immediately before the sale', citing Code of Pract. art. 990. The appraisement in this case was made, when the inventory was taken, in March, 1840, and the sale on the- 19th February, 1842. Lawrence, also appeared on the same side.

      Stacy, Span'ow, and H. A. Bullard, for the petitioner.
    The validity of the judgment in this suit is contested on the ground that it was signed by James Dunlap, as “Parish Judge.” The petition was addressed to “James Dunlap, Parish Judge, and ex-officio Judge of Probates, in and for the Parish of Concordia, State of Louisiana. ” The suit was brought against the defendant as administrator. The minutes of the proceedings in the suit, show that they were had in the Probate Court. The default was taken, and the judgment made final in that court. The probate judge is such from the fact alone of his being parish judge; his probate jurisdiction is derivative and incidental. It is an ex-officio authority. Code of Practice, art. 923. The petition must mention the ñame or title of the court to which it is addressed. Code of Practice, art. 172. The petition in this suit is addressed to the Probate Court, and to James Dunlap as ex officio j udge of that court. This was clearly sufficient.
    The next objection is, that there was no attorney appointed to represent the absent heirs. In.August, 1840, Miles B. Hamilton was appointed administrator of the succession and tutor ad bona to certain absent minors, who, with Miles B. Hamilton, were then recognized by the Probate Court as the only heirs of the deceased H. C. Hamilton. They were then the only known and recognized heirs. They were represented by a tutor ad bona, under the 946th article of the Code of Practice (Berluchauxv. Berluchauxetal.,7 La.543,) and they, with M. B. Hamilton being at that time the only known heirs, and being represented in this Stale, no attorney for absent heirs could have been legally appointed. C. C. art. 1204. Robouam v. Robouam's Executor, 12 La. 73. Addison v. New Orleans Savings Bank, 15 La. 530.
    An attorney of absent heirs does not represent the succession, but the heirs. He is the guardian of their interests against the illegal acts of the curator, who particularly represents the succession in all suits baought against it by creditors. Civil Code, art. 1146. Code of Practice, arts. 986, 984 , 945. Pratt v. Peets, 3 La. 276. No doubt he cou.ld intervene in a suit to prevent the creditors and curator from colluding together to injure the succession. But he is not to be made a party defendant by the creditor — but the curator alone. He is simply designed as the protector of those he represents, against the ‘Voluntary and discretionary acts of the curator as to the succession. When the curator attempts to act, he must make an issue with the attorney; upon that issue a judgment is rendered. Civil Code, arts. 1156, 1157, 1208. But the creditors of the succession do not, and could not, legally make him a defendant in a suit against the succession for a debt of the deceased.
    The third objection urged against the rule is, that the property had not been appraised within a year next preceeding the sale. A sufficient answer to this is that, no law requires it, and as it is nowhere stated at what time the appraisement of the property of a succession, sold for the payment of debts, shall be made. Code of Pract. arts. 990, 991. There are two Cases inwliich appraisements are required to be made within the year. One where the property of a succession is offered at first on a credit. Civil Code, arts. 1203, 1202. This is to prevent the property from being sacrificed; and the other, in case of a partition among the heirs. C. C. arts. 1247,1248,1249. Both in probate and in sheriff’s sales, the appraisements are required for the protection and interest of the debtor. The creditor cannot get his money in cash unless the property brings the amount required ; otherwise he must aubmit to a delay of twelve months. Now, if a sale for cash is not made, it matters not what might have been the appraisement. C. P. art. 990. The property of this succession was appraised at $48,583 25. This appraisement served as a basis at the offer to sell for cash; when so offered there was no bid to that amount, and it was then advertised on a credit. All this was in favor of the succession and adverse to the mortgage creditor. The appraisement completely affected the object intended by law, i. e. to prevent the sacrifice of the property by a forced sale for cash. 16 La. 555.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment confirming a sale under the monition act of 1834. The proceedings under this act coyer merely questions of form udicial sales. City Bank v. Walden, 1 An. Rep. 46.

There is nothing in the objection raised, concerning the title which the judge appended to his signature. The proceedings were in the Court of Probates, and the judge acted as the’ judge of that court, which is a part of the functions of his office as parish judge. Nor was there any necessity for the ministry of an attorney of absent heirs.

We consider this as an ordinary case in which an administrator was bound to sell mortgaged property of a succession for the payment of debts, and the judgment of the plaintiff against tlio succession rendered the sale indispensable. The objection to the original appraisement as the basis of the sale, we consider untenable. The advertisements appear to have been made in conformity with law.

We are of opinion that there is no defect of form in tho sale which renders' it invalid, and that the court below did not err in confirming it.

Judgment affirmed.


text:
    Rowly v. Rowly et al.
    Where a wife sues to establish herright to have the proceeds of property applied' to tho sa tisfaction of certain mortgages in her favor, in preference to a mortgage executed by her and her husband in favor of a third person to seeure the payment of their joint and several notes, onthe allegation “that her renunciation was not binding, because she was notinstruefced by the notary, before whom the act was passed, of the nature of hor rights and of the contract, and that the requisites of the law to render such renunciation valid were not complied with, and that she acted in ignorance of her rights,” the plaintiff cannot recover on the ground that, the debt for which the mortgage was executed was one for which sho was not hound. The ground of nullity should have been specially alleged.
    Laws intended for the protection of married women will not be extended to their assignees, who have no- claim on the equity of the court by reason of their personal incapacities.
    APPEAL from the District Court of Concordia, Curry, J.

      E. D. Farrarf and R. N., and A. N.- Ogden, for the appellant, Stacy and Sparrow, for the defendant, Cox.

   The judgment of the court was pronounced by

Eustis, C. J.

This is an action in which tho plaintiff claims precedence, resulting from her legal mortgage, and a special mortgage as established byjudgment against her husband, and reported in 19 La. p. 557. The appellee, Daniel W. Cox, and the minor heirs of the late James Kemp, whose mortgage rights are sought to be postponed to those of the plaintiff, are the defendants. The judgment was in their favor, and the plaintiff has appealed, so far as relates to the precedence given by the judgment to Cox. The court came to the same conclusion which we have adopted in the case of the heirs of James Kemp, as to the right of precedence claimed for their benefit.-

The ground on which the plaintiff rests her right of precedence over the mortgage of Cox is, that “ her renunciation is not valid and binding on her, because she was not instructed by the notary, before whom the act was passed,of the nature of her rights and of the contract she was entering into, and that the requisites of the law to render such renunciation valid and binding were not complied with; that she acted in ignorance of her rights,- and that such renunciation is altogether irregular, null and void, as will appear by said act.”

There is no objection other than this stated to the validity and binding effect of the mortgage of Cox. In that act, Rowly and wife acknowledged themselves to be justly and tru]y indebted to the mortgagee in the amount of the mortgage, and gave their notes jointly and severally therefor. If the debt was one of those for which the wife is not bound, she ought to have alleged it. In t-lie case of Dumartrait v. Deblanc and wife, 5 Mart. N. S. 38, in which a married woman, separated of property but authorized by her'husband, was sued on a note, executed by her, jointly and severally, with a third person, the court excluded evidence offered to prove that the debt did not inure to her benefit, but was given for the advantage solely of her co-obligor, on the ground that tho special defence ought to have been made in the answer, that the plaintiffs might have been prepared to gainsay it. In the cases which have come before us of this kind, we have only given the wife relief agaist her contracts, on express allegations of the grounds on which it is claimed.

The obligation of Mrs. Rowly, by the notes and mortgage, is not attempted to be invalidated, except on the alleged defective and void renunciation in the act. But to give effect to that obligation, the postponement of her mortgage rights is necessarily implied and forms a part of the agreement of the parties, for she virtually binds herself that there is no mortgage to the prejudice of that which she executes, except one in favor of a bank, which is released in the act. It would be to carry into effect a fraud, to enable a married woman to setup a tacit mortgage to defeat her own act, the validity of which is- not otherwise impugned.

We could remand this case for the purpose of enabling the parties to amend their pleadings, and receive evidence of the true appropriation of the loan from Cox, but the justice of the case forbids such a course; the mortgage was made in 1835, and time enough has been given to invalidate it, if any just cause existed in the conscience of the party supposed to be injured. The plaintiff has transferred her rights; and no principle requires the laws intended for the protection of married women to be extended to assignees, who have no claim on the equity of the court by reason of their personal incapacities.

Judgment affirmed.

      R. N. and A. N. Ogden, for a rehearing. Art. 2412 of the Civil Code declares that, “ the wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage." Art. 12 of tho Codo deciaros that, “ xohat

        ver is done'in contravention of a prohibitory law, is null and void, although the nullity be not formally directed Tho mortgage in this case imports, on the face of it, that it is given to secure a debt contracted by the husband during the marriage, and for which the wife binds herself conjointly with him. The mortgage, it is true, statos that it was for a loan made to them jointly. It was, however, not the less a debt contracted by the husband during the marriage ; he gave his notes, by which he bound himself in solido with his wife, for the whole amount, and she could not, therefore, bind herself conjointly with him. The court say: “ If the debt was one of those for which the wife is not bound, she ought to have alleged it.” The mortgage, on its face, shows that the debt was that of the husband, and contracted by him to the extent of one-half of the loan. It appearing on the face of the act itself, that it was a debt of the husband for that half, it was unnecessary for her to allege that it was a debt for which she was not bound. Sho sued for tho sole purpose of having the mortgages classified, and their priority so established and determined, that a sale of the property might be effected. She alleges that Cox claimed precedence over her, on the ground that she had renounced her rights in his favor, but that the renunciation which she had made was informal, and consequently null and void. Cox joins issue with her on the validity of that renunciation, but does not attempt to strengthen it by any averment that the debt was contracted for her separate use and benefit, which would have been contradicted by the act itself. The issue then in the court below, was exclusively as to the validity of tho renunciation and the effect of subsequent acts between the parties. The mortgage itself, which contains tho renunciation of which Cox claims the benefit, is the strongest evidence to prove that at least one-half of the debt was that of her husband, for which the plaintiff could not bind herself. A wife has never been held liable for a debt contracted jointly with the husband, except when there was an averment that the debt was contracted for, or had inured to her separate use and benefit. 8 Mart. N. S. p. 407. The case of Rawle v. Skipwith and wife, 8 Mart. N. S. p. 407, was that of a notarial act, executed by the wife conjointly with her husband, and she was held liable; but this act'expressly stated that the debt was converted to the benefit of tho wife. In Davidson v. Stuart, 10 La. 146, where the wife had hound herself conjointly with her husband, and where the consideration of tho obligation was a conveyance made to tho wife alone, tho court decided that it was a debt of the community, and that the wife could not be liable. A loan made to a husband and wife jointly, becomes a debt of the community, unless, perhaps, where the wife has the administration of her paraphernal property, and borrows the money in the course of administration ; though even in that case it would probably come within the prohibition of the art. 2412 of the Code. Hero the wife did not have the administration of her paraphernal property at the time the debt was contracted* The case of Dumartrait v. DeBlanc, 5 Mart. N. S., does not sustain the decision made in this case. It wasThe case of an obligation contracted by the wife, separated from the husband, and alleged to have been authorized by him. On the face of the obligation she was liable, and if there were any facts which destroyed that liability, it was incumbent on her to allege and prove them in her defence, and the court so decided. Here the case is different; the pleadings on neither sido present an issue as to the liability of the wife for the debt; and the act on the face of it shows that she was not liable, making it necessary for Cox-, to aver and provo that the debt had been converted to her use and benefit. If Cox should bring a suit against her on that mortgage, to* make her personally liable, without averring that the debt, although contracted by the husband jointly with his wife, was in fact for her use and benefit, without making any defence, she could, in case of judgment against her, relieve herself in this court by assigning, as error apparent on the face of the record, the absence of that indis-pensable avermont. If judgment be not rendered in favor of the plaintiff, the cause should be remanded. The fact that the judgment has been assigned to a third person, is immaterial. All the rights of the plaintiff are vested in the assignee.

        Rehearing refused.