text:
    James McCloskey v. The Central Bank of Alabama.
    Where the entire furniture of a dwelling was sold but not delivered, and the key of the building was not given up to the vendee, or any equivalent act done — Held: That there was no constructive delivery, although the policy of insurance on the furniture was transferred.
    The consent to transfer vests the property in the obligee; yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should by a second contract transfer the property to another person who gets the possession before the first obligee (purchaser), the last transferee is considered as the proprietor, provided the contract be made on his part bona fide and without notice of the former contract. In like manner if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor (vendor) to seizure and attachment in behalf of his creditors. C. C. 1914,1915,1916,1917.
    Sales or charges of personal property are void against bona fide purchasers and creditors, unless possession is given before such bona fide purchaser or creditor acquire his right to possession. What is delivery of possession depends on the nature of the property ; it may be constructive or actual; the delivery of the key of the store in which it is contained ; or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery. C. C. 2243.
    The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. The tradition or delivery of movable effects takes place either by the real tradition or by the delivery of the lcoys of the building in which they are kept, or even by bare consent of the parties if the things cannot be transported at the time of sale, or if the purchase" had them already in his possesion under another title. C. C. 2452, 2453.
    In all cases where the thing sold remains in the possession of the seller because he has reserved the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons the parties must produce proof that they are acting in good faith, and establish the reality of the sale. C. 0. 2456. This article is exceptional to articles 1917 and 2243.
    That possession is called precarious, which one enjoys by the leave of another and during his pleasure. . C. C.3522,No.27. The title which excludes the ownership, such asa lease, is also called precarious. Other definitions of precarious title will be found in this decision from various authorities).
    The sum of damages for the wrongful suing out of an injunction must be ascertafned by the amount, enjoined, and when that amount docs not appear of record, none will be allowed on appeal, b’-t reserved to the party enjoined.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      C. A. Taylor, for plaintiff. T. J. & A. G. Scmmes, for defendants and appellants.
   Merrick, C. J.

This suit was commenced by injunction. It presents one of those frequently recurring questions in regard to the delivery of movables. The facts shown by the record are these: William E. Starke, the owner of a house in this city, finding himself in embarrassed circumstances, advertised his property for sale, and proposed a transfer of it to his creditors. If his proposition should not he accepted, he informed them he should make a surrender by a certain day. The plaintiff, among others, was desirous of purchasing the furniture in the house, and consulted a lawyer to know whether he conld do so in safety. He was informed by Lis advocate that he might purchase, provided it was done in good faith, and he obtained a delivery of the goods. Thereupon, it seems he bought the furniture in the house for the sum of $5,000, which was receipted for on the 11th day of May, 1860, and he also took a transfer of the policy of insurance upon the same on the 28th day of the same month. It seems, promissory notes were given for the price of the furniture, but their delivery is not proved, but may be inferred from the declarations of the parties, which must be considered as in evidence, notwithstanding defendant’s bill of exception ; because the latter does not slate the particular grounds of objection to the testimony.

Starke continued in the possession of the house and furniture up to the date of its seizure by the Sheriff under the fi. fa. at the suit of defendant, the Central Bank of Alabama.

The District Judge was of the opinion that the sale was bona fide, and that there was a constructive delivery, and relying on Art. 2456 C. C., he made the injunction perpetual. The Central Bank of Alabama appeals.

The District Judge at the commencement of the suit ordered the plaintiff, McClosJcey, to give a bond for the injunction in the sum of $6,000, but we find no evidence in the record showing the precise amount of the execution injoined.

On the the facts of the case, we are unable to concur with our learned brother of the District Court in his conclusion that there was a constructive delivery. The key of the building was not given up, and there was no equivalent act. The policy of insurance had nothing to do with the title to or possession of the property. It was entirely collateral to the title and possession, and might exist or not without any influence on either, although an interest in the property insured is essential to the validity of the policy.

The following articles of the Civil Code have a bearing on the question to be decided, viz:

“ Art. 1916. With respect to personal effects, although by the rule referred to in the last two preceding articles, the consent to transfer vests the property in the obligee,” (purchaser)' “ yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor being in possession should by a second contract transfer the property to another person, who gets the possession before the first obligee,” (purchaser) “ the' last transferee is considered as the proprietor, provided the contract be made on his part bona fide and without notice of the former contract.”

“ Art. 1917. In like manner, if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor ” (vendor) “ to seizure and attachment in behalf of his creditors.”

“Art. 2243. Sales or exchanges of personal property are void against bona fide purchasers and creditors, unless possession is given before such bona fide purchaser or creditor acquires his right by possession. What is a delivery of possession, depends on the nature of the property; it maybe constructive or actual; the delivery of the key of a store in which it is contained ; or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery.”

“ Art. 2452. The tradition or delivery is the transferring of the thipg sold into the power and possession of the buyer.”

“ Art. 2453. The tradition or delivery of .movable effects takes, place either by the real tradition or by the delivery of the keys of the buildings in which they are kept, or even by bare consent of the parties if the things cannot br transported at the time of sale, or if the purchaser had them already in his possession under another title.”

“ Art. 2456. In all cases where the thing sold remains in the possession of the seller because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith and establish the reality of the sale.”

By recurring to articles 1917 and 2243, above recited, it will appear manifest that the seizure of the defendant must prevail over the plaintiff’s contract of sale unaccompanied by delivery, unless the latter is aided by the last article cited, viz., 2456.

In the cases of Williams v. Franklin, 7 N. S. 675, and Gautier v. Thomas, 4 Rob. 435, the last named article was held to be exceptional to articles 1917 and 2243, and we do not see very well how the articles in question can be construed without adopting this construction.

• The only question, then, remaining to be considered, is, whether the facts bring the plaintiff within the exception. We have said that the furniture was not delivered into the power and possession of the plaintiff, either actually or constructively. The furniture in the different rooms of the house was susceptible of transportation, and the keys of 'the building, as we have already said, were not delivered, and the furniture was not removed.

To hold that the Iona fidesoi the purchaser without delivery was equivalent to a delivery itself, would bo to deprive articles 1917 and 2243 of all force; for the articles in question evidently refer to sales in good faith as well as all others, and delivery is made essential to the transfer of title as to creditors and third persons.

In order, therefore, to avoid the virtual repeal of articles 1917 and 2243 of the Code by article 2456, it is necessary to take the distinction contended for by defendant’s counsel, viz., that the latter article applies only to cases where the vendor retains possession under a title, that is, some contract, such as usufruct or lease, giving the vendor a right temporarily to detain the property, and that a mere neglect to deliver on the part of vendor, or to take possession on the part of the vendee, is not the case contemplated by the article, although the vendor’s possession may be said, in. some respects, to be precarious.

This distinction between precarious possession and precarious title, is recognized by No. 27 of Art. 3522, C. C. It says : “ That possession is called precarious, which one enjoys by the leave of another, and during his pleasure.”-

The title which excludes the ownership, such as a lease, is also called precarious. . '

The article 2456 appears to have been incorporated into the Oode from the Spanish'law, and rests upon the feigned delivery also formerly recognized by the French jurists. Thus it is declared by Partida Third, Tit. XXX, Law 9, “ A man sometimes alienates his estate with a reservation of usufruct; or after -he has alienated it, and before he delivers possession, leases it of the purchaser. In either of these cases, we say the purchaser will acquire the possession or property of the thing in the same manner as if he had been put in corporal possession of it. And so we say it would be, if he who alienated the thing had said,” 11 consent hereafter to hold possession in your name.’ 1 Moreau, Partidas, p. 398; see also Code 1808, p. 350, Arts. 29 and 30.

Pothier says : “ Every mode of causing the possession of a thing to pass to any one without the intervention of an actual delivery, is called a feigned delivery. For example : when in donating an estate to any one, I retain it under a title of lease, it is a feigned delivery, because, remaining on the estate, and consequently without any real delivery intervening, I do not suffer the estate to pass to the do-nee. In fact, as M e possess not only the things which we hold by ourselves, but those even which we hold by our tenants and lessees, and as an estate is not, properly speaking, possessed by him who holds under a lease, but by him who holds the title, it follows that the donor, in making himself, by a clause in the act of donation, the tenant or lessee of the donee, on account of the estate which he donates without vacating the same, ceases to possess it, and transfers its true possession to the donee."

It is the same with the clause of reservation of usufruct, either in a contract of sale or a contract of donation.” 7 Pothier, ed. 1835; Dupin, p. 453; 8 ibid, p. 203 ; Bousquet, Dictionaire de Droit, verbis Constituí et Précaire, Dig. .Lib. 50,1'. 27, L. 23 ; ibid, Lib. 43, Tit. 26.

Ye conclude, therefore, that the vendor, William E. 8tar7ce, did not remain in possession under a precarious title, and that the sale is invalid as against the seizing creditor, the Bank, for want of delivery. See Hall v. Hill, 6 An. 753; Munday v. Wilson, 4 L. R. 340; 1 An. 61.

There is no basis for a judgment for damages on the dissolution of the injunction, because we have not the means of ascertaining the amount injoined, and there must be a judgment of nonsuit on that part of the reconventional demand.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed ; and that there be judgment against the plaintiff’s demand, and in favor of the defendant, and that the injunction be dissolved, and that the Sheriff proceed to make the money under the said seizure; and that the defendant’s right to damages, if any such have been sustained on account of the wrongful suing out of the injunction, be reserved to said Central Bank of Alabama; and that the plaintiff pay the costs of both Courts.

Land, J., absent, concurring.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Joseph Ouliber v. His Creditors.
    A party cannot claim the payment of his demand out of the proceeds of the sale and also require that the sale shall he set aside and the land sold de novo for informalities in the sale. The plaintiff is not allowed to cumulate several demands in the same action, when one of them is contrary to or precludes another. C. P. 149.
    The parent cannot retain the usufruct of the estate of the minor which he may acquire by his own labor and industry, or which is left to him under the express condition that the father and mother shall not enjoy such usufruct. O. C. 242.
    Appeal from the District Court of the Parish of St. Tammany, Wilson, J.

      Alfred Hennen, for plaintiff. H. Griffin, for appellants.
   Merrick, C. J.

Since the return of the new citations of appeal, there have been filed motions to dismiss the appeal, by A. Hennen, Penn and Martin and Louis J. Ouliber.

. It does not appear to us important to consider the numerous grounds upon which these motions rest.

Among other grounds of dismissal, Penn and Martin and A. Hennen, respectively, aver that they are not creditors upon the tableau of distribution, and that the judgment of the lower Court is neither for nor against them. If this be so, and they have been cited out of abundant caution, it is manifest that they cannot demand a dismissal of the entire appeal between other parties who have an interest in the judgment from which the appeal is taken.

It will be sufficient, on their own showing, to render a judgment in their favor for costs.

As to the motion of L. J. Ouliber to dismiss, we are of opinion it cannot be considered, so long as the former answer to the appeal stands in the way.

On the merits, we observe that the oppositions of 11. V. Ouliber, of A. llennen and Penn and Martin, are withdrawn.

The case, then, stands upon two oppositions of L. J. Ouliber; one to the sale of the land, and the other to the tableau of distribution.

But as the proceeds.of the land are proposed to be distributed by the tableau, it is evident that the two demands are inconsistent. Defendant cannot claim the payment of his demand out of the proceeds of the sale, and also require that the sale shall be set aside and the land sold de novo for informalities in the sale.

As the opponent offered - evidence of his demand for wages, and took judgment for the same out of the proceeds of the sale, we must conclude that he has elected to prosecute his opposition to the tableau of distribution. C. P. Art. Í49.

We shall, therefore, treat the opposition to the monition as withdrawn, and it will be unnecessary to consider the arguments addressed to us on that branch of the case.

In a suit brought by the opponent upon the same demand against Norbert Vignie, as a partner in the firm of J. Ouliber <& Co., we held in June, 1859, that the claim set up in the opposition was antedated and unfounded.

The District Judge was of the opinion that the additional testimony in this case justified a different conclusion, and ordered the syndic to pay the demand out of any money in his hands. The effect of this judgment seems td be to deprive the mortgage creditors of their mortgage to the exi.ent of this claim upon the proceeds of the land. The mortgage creditors and syndic appeal.

The appellee objects strenuously to the examination of the case of Louis J. Ouliber v. Norbert Vignie, on file in this Court, on the ground that the District Judge did not- have the testimony before him, and that we cannot try the case on original testimony. There is nothing to show that the District Judge was not in possession of, or conversant with that record, and we do not see any necessity of adding anything to what we said on the first motion to dismiss, in reference to the agreement of counsel there recited.

It seems the insolvent and Norbert Vignie were partners in a steam saw and planing mill in the Parish of St. Tammany. The opponent was a minor son of Joseph Ouliber, the insolvent, and during the period of the partnership was employed a part of the time, at least, as an engineer.

The father made a surrender on the 4th of February, 1857, and placed his son on the bilan as a creditor for a balance due upon a note of $1,990.

The opponent produces the note (ás he did in the suit against Vignie) purporting to be signed by Joseph Ouliber & Co. per pro. Joseph Ouliber, and dated 25th day of October, 1855, for $2,840, “for services rendered as engineer and foreman of the Liberty Saw and Planing Mill, from November 1st, 1852, to November 1st, 1855.”

There is no credit endorsed upon -the note.

Iu the case of the opponent against Norbert Vignie, besides being satisfied of the want of merit in the claim upon the note, we were satisfied that damages to some extent were due Vignie on account of embezzlement of property, and unfaithful conduct as keeper of property sequestered, and we reserved to Vignie his right of action against L. J. Ouliber, to claim damages on this account. The appellee insists upon the plea of prescription to these damages, and contends that they cannot be used to compensate the claim set up by him in his opposition. '

By consent of parties, the testimony in the case of L. J. Ouliber v. N. Vignie is evidence in this case. It therefore remains necessary to consider, in connection therewith, the additional testimony offered in this case on the opposition. It consists of the testimony of W. Stein, Thomas A. Morse and Wm. Duncan, whose testimony is to the effect that the opponent was employed at the mill from the time it was put in operation until it was seized by the Sheriff, and that his services were worth from $75 to $80 per month. He was seen acting as engineer and manager, hiring and discharging workmen; and he was industrious and attentive.

The testimony of Bartlielmy, however, shows that the opponent and his father both stated in 1853 that he was receiving no wages, and it leaves it probable that his capacity as an engineer extended to nothing further than ability to run the saw-mill.

A letter of N. Vignie is also in evidence, in which he proposed to Joseph Ouliber, the father, that the firm should give Louis and his brother, who was, it seems, two years older, $30 per month ; but this proposition was not shown to have been accepted.

A statement shows that in 1854 the firm was paying another engineer $50 per month.

In view of these facts, we see no reason to change our views as to the date of the note. We think it was antedated, and that if anything were due, it was for a sum much smaller than that claimed. But the conduct of the party is such that a suspicion is thrown upon- his whole demand.

It is contended, however, that the action is given the minor under Art. 242 of the Civil Code. That article declares that “ the usufruct shall not extend to any estate which the children may acquire by their own labor and industry, nor to such estate as is given or left to them under the express condition that the father and mother shall not enjoy such usufruct.”

This suit, it must be borne in mind, is for a claim against the father of the minor during his minority. It has been judicially determined that the claim does not exist against his father’s partner.

If it be conceded that the father can legally bind himself for the wages of his son during minority, yet the opponent must fail in this action, because it is not shown that there was such an agreement between them when the services were rendered, and any subsequent agreement would be but a donation, which could not bind the creditors. The opponent not being shown to be a creditor himself, cannot question the right of those upon the tableau.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed; and that there be judgment against the said Louis J. Ouliber upon his said opposition, and that the same be rejected, and that the account filed by said syndic be homologated. And it is further ordered, that said Louis J. Ouliber pay all the costs of the opposition in the lower Court, and the costs of the appeal, except the costs of the citations to A. Hennen and Penn and Martin, which are ordered to be paid by the appellants.

Voobiiies, J., absent.


author: Duffel, J.

text:
    Robina E. Collins, Widow Ilon, v. Frances Babin et al.
    TIio paraphernal property, which is not administered hy the wife, separately and alone, is considered to he under the management of the husband, &c. 0. 0. 2362, 2363.
    The wife who took an active concern in the effects of the community cannot renounce the same.
    Acts which are simply administrative or conservatory, do not come here under the denomination of active concern. C. C. 2381, and authorities herein cited.
    Where the wife takes an active part in the effects of the community — JETeld : That she has shown a tacit acceptance of the same, and the consequence of her acts is to render her responsible for cnc-half of the claims on the •community. Neither can she, after having thus fixed her liability, bo exonerated by sinvply producing letters of tutorship and an inventory.

      Appeal from the Dist. Court of the Parish of ~W. Baton Rouge, Robertson, J.

      Thomas Gibbs Morgan, for plaintiff. Barrow & Pope, for defendants and appellants.
   Duffel, J.

The judgment appealed from rescinds the sale of certain slaves, as having been made by the plaintiff, during minority, by and with the authorization of her husband, who received the price; and decrees the payment, by the defendants, of $200 per annum, as an equivalent for the services of said slaves from the date of the sale, March 31st, 1852, till paid.

The defendants do not in this Court question the justice of the rescission of the sale, but contend :

1st. That their ancestor having been a purchaser in good faith, they are only liable for hire from the time they were put in default by the inception of the suit.

2d. That judgment should have been rendered in their favor, as prayed for in their answer, against the plaintiff, as widow in community and as natural tutrix of the only heir of her deceased husband, for the return of the price paid for said slaves, $1,400, with legal interest from the date of such payment, January 4th, 1853, till paid.

On the first point. There can be no doubt as to the good faith of the purchaser ; and such being the case, the liability of the defendants, as the legal representatives of their father, Pierre Paul Babin, the purchaser of the slaves in question, is fixed by the Code. Arts. 3414, 3416. Besides, the plaintiff does not aver that she had the separate administration of her paraphernal property, but, on the contrary, that her husband received the price of the slaves. It is therefore clear that the plaintiff could not have claimed, in a suit against her husband, hire for her slaves, or the interest on their purchase money, had she ratified the sale (0. C. 2362, 2363) ; and this being the case, it would be a gross injustice to sanction a proceeding which would allow the plaintiff to obtain indirectly, against an innocent purchaser and victim of her presumed passive act, a pecuniary favor which would otherwise be denied her.

On the second point. The evidence shows that the plaintiff qualified as tutrix of her minor child, and caused an inventory to be made a few days after the death of her husband; the assets being, as per thg inventory, as follows : Merchandise, $5,817 90 ; rights and credits, $4,307 80; cash on hand, $400 ; total, $10,525 70. It does not appear that the plaintiff has, as yet, formally accepted or renounced the community of acquests and gains.

The defendants have proved, in order to show a constructive acceptance of the community, that the plaintiff sold at private sale, and by simple delivery unaccompanied by any written act, the merchandise, or stock of goods, to W.D. Phillips and H. T. Waddill, who both testify to the same effect. The witness Waddill adds : “ She (the plaintiff) assumed the collection of the debts due, and paid such liabilities as were presented to her, except one.”

It is not pretended that this informal sale was made by an order of Court. The mortuary proceedings are in evidence, and show that no further steps were taken after the close of the inventory, nor can we infer, from the testimony of the purchasers of the goods, that they treated with the plaintiff as tutrix of her child.

It seems to us that the plaintiff has, by her deliberate acts, placed herself completely within the scope and meaning of the 2381st article of the Code, which says : “ The wife who took an active concern in the effects of the community, cannot renounce the same. Acts which are simply administrative or conservatory, do not come here under the denomination of active concern.” See commentary of Duranton on Art. 1454 of the Napoleon Code, which is embodied, verbatim, in our Code, Art. 2381, vol. 14, p. 556 et seq., and particularly || 438,439 and 440.

Duranton, \ 439, remarks : The payment of funeral charges of the husband made by the widow, although with the funds of the community, does not either carry with it an active concern. The same remark applies to debts commonly styled trifling or clamorous, dettes criardes.” Sec. 440 : If, on the contrary, she performs acts which go beyond those of a simple administration, — for example, if she sells effects of the community without fulfilling the prescribed formalities, she becomes thereby an acceptor, elle se porte par cela méme acceptante; and, in general, what we have said under the title of successions, on the acceptation of the heirs, vol. 4, chap. 5, sec. 1, par. 1, is applicable to the wife.”

The plaintiff is not charged with having fraudulently suppressed or disposed of any part of the community property (O. 0. 2387), but with having accepted the community; and the evidence fully justifies a tacit acceptance by reason of her active concern in the effects of the community. The consequence of her acts is to render her responsible for one-half of the claim of the defendant. Lynch v. Martha A. Benton et al. 12 R. 113; Cox v. Hunter’s Heirs, 10 L. R. 427; C. C. 2381, 2378.

The plaintiff cannot, after having thus fixed her liability, be exonerated by simply producing letters of tutorship and an inventory.

The reasoning, in the two strongest authorities which, under our State jurisprudence, can be invoked by the plaintiff, Selby v. Bass et al. 19 L. R. 499, and Bonner v. Gill, 5 An. 629, leads to no such conclusion, and is based on a totally different state of facts.

The defendants did not in their answer, or reconventional demand, make the plaintiff party, as tutrix of her minor child, and as such, administratrix of the succession of her deceased husband; hence we are without authority to render any judgment in their favor against the succession of Charles A. Bon. We will, in this respect, make a reservation in their favor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court rescinding the sale of the slaves in controversy remain undisturbed, and that it be otherwise avoided and reversed. It is further ordered, that the plaintiff have judgment against the defendants, Frances Babin, wife of Lafayette Caldwell, and Magloire C. LeBlanc, as tutor of the minors, Franklin Babin, Thomas Babin, and Harriet Babin, for the sum of two hundred dollars per annum from judicial demand, 19th February, 1858, till paid.

It is further ordered and decreed, that the above-named defendants have judg ment against the plaintiff for the sum of seven hundred dollars, with legal interest thereon from February 19th, 1858, till paid.

It is further ordered, that the right of action which the defendants may have against the succession of Charles A. lion, be reserved to them.

It is further ordered, that the costs of the lower Court be paid by the defendants, and those of the appeal by the plaintiff.

Vookhies, J., absent.


author: Duefel, J.

text:
    Spiller & Allen v. Their Creditors.
    Provisional syndics are entitled to ono per cent, on tlio appraised value of the goods and efleets confided to thorn as such.
    The syndics of an insolvent estate may be entitled to an allowance for the hire of a clerk employed by them, where they allege and prove that extraordinary skill as an accountant was required to unravel complicated accounts, left in confusion by the insolvent. In the absence of such allegations and proofs, the hire of a clerk employed by them must bo paid for by the syndics themselves.
    A mortgage granted by the maker of a note, to ono who endorses the note for the maker’s accommodation, to secure him against liability, is not an accessory to the principal obligation, but simply a porsonal indemnity depending on the payment of the note by the endorser. The decision in the case of jBowman v. McElroy <& Bradford, 15 An. 646, re-afllrmed.
    Subrogation takes place of right for the benefit of him who, being himself a creditor, pays another creditor, whoso claim is preferable to his, by reason of his privileges or mortgages. C. C. 2157 ; 9 R. 476.
    When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due, otherwise to tho debt which has fallen due though less burthensome than those which are not yet payable.
    If the debts be of a like nature, the imputation is made to the less burthensome; if all things are equal, it is made proportionally. C. C. 2162.
    No amendment can be allowed in an answer to an appeal, which is not made in the Court a quo.

    Appeal from tlie District Court of the Parish of St. Helena, Me Vea, J.

      S. W.Martin, for plaintiffs. B. J. Hamilton, for defendants. MeVea & Hunt, for opponents and appellants.
   Duefel, J.

This is an opposition to a provisional account filed by the syndic, Amos Kent.

The appeal was brought up by the commercial firm of Harris & Levi of the city of New Orleans.

I st. The claim of John M. Putnam, as provisional syndic, for one per cent, on the appraised value of the goods and effects confided to him as such, was properly allowed under the 10th section of the act, approved March 15th, 1855, relative to voluntary surrender, &c., p. 432. The fact that the bond furnished by the provisional syndic was not signed by sureties residing within the jurisdiction of the court, cannot be inquired into for the sole purpose of defeating this claim.

2d. The claim allowed by the lower court to Charles H. Allen, for services rendered at the request of the syndic, as bookkeeper &c., was fully proved, independently of the testimony of Allen. The evidence, we think, makes out the case required in Pandelly v. Creditors, 1 An. 22.

3d. Patton, Smith & Putnam, were classed by the syndic as mortgage creditors for $10,228 52, and the oppositions to said claim were rejected by the judgment of the District Court.

It appears from the evidence, that the insolvent debtors, Spiller and Allen, by act dated March 27th 1858, gave to the commercial firm of Patton & Smith, domiciliated in New Orleans, and composed of J. F. Patton and Isaa A. Smith, a special mortgage on certain property, to secure and indemnify them against certain contemplated acceptances, &c.

Patton & Smith, from the date of this act to the end of the following month, accepted largely for the accommodation of the mortgagers.

On the 1st of May 1858, the style of the firm of “ Patton é Smith ” was changed into the name of “ Patton, Smith & Putnam,” by reason of the addition of John M. Putnam and John B. Murrell as members of the firm. The paper of Spilhr & Allen, bearing the name of Patton <& Smith, having matured after the formation of the new firm and the fusion of the old firm with it, was taken up and charged by Patton, Smith & Putnam to the credit of Spiller & Alim, together with other charges and advances made after May 1st 1858.

These acceptances, and this account current, are in evidence, and show, after making all the deductions, a balance of $10,256 63 against Spiller <& Allen.

The opponents, Harris & Levi, contend in their brief: 1st. That as the, mortgage was granted to Patt n <£• Smith, and as their acceptances were taken up by Patton, Smith <& Putnam without requiring any subrogation, they can only be classed for the amount allowed, as ordinary creditors. 2d. That the proceeds of the shipments made to Patton, Smith & Putnam, by the insolvents, should have been applied first to the payment of the liabilities of Patton and Smith, and that, had such imputation been made, the mortgage would have been fully satisfied.

On the first point:

It is clear that if Patton & Smith have suffered no damage, the mortgage is inoperative, for its primary object was to indemnify them, and not to secure the payment of the bills drawn by the mortgagers, in the hands of the holders. This point was especially made and decided by us in the case of Elam Bowman v. McElroy & Bradford, 15 An. 646.

The evidence shows that all the assets and charges of the old firm were transferred to the new association ; the indemnities held by Patton & Smith were, therefore, necessarily included in the transfer.

The acceptances of Patton & Smith became, as a consequence of the contract, changeable to Patton, Smith <& Putnam, and when the latter took up the same, they became, by effect of law, subrogated to the mortgage of Patton & Smith, for they were under obligation to them to honor their acceptances, and hence had, in the sense of the Oode Art. 2157, an interest to discharge the debt, as they were bound to do so under their contract with Patton & Smith, who were, as acceptors, primarily liable to the holders.

The payment extinguished the original obligation, but gave simultaneously birth to an action in indemnity secured by a special mortgage ; and had no mortgage been granted, the claim for reimbursement would then have been an ordinary one. Nicholls v. Creditors, 9 Rob. 476.

On the question of imputation.

It appears from the debit side of the account current, that the aggregate amount of the indebtedness of Spiller & Allen is, exclusive of interest, 44,978 99 ; of this sum $13,739 98-100, exclusive of interest and commissions, may be said to bo guarantied by the mortgage.

The credit side exhibits $34,722 36, besides the difference of interest on ihe debit and credit sides, thus showing a balance of $10,256 63 still due by the insolvents.

By computing the dates of the receipts and disbursements, and applying the funds received, by preference, to the payment of the drafts which were the cause of the mortgage, as on the date of their respective maturity, we find that all said drafts were paid, with the exception, however, of the three last ones, which matured on the 17th, 29th and 30th of March 1859, and which amount in the aggregate to $2758 64.

The question which now presents itself is, should not the above imputation be made, in the absence of any agreement between the parties ? We find an affirmative answer in the Oode, Art. 2162. See to the same effect, Dunbar v. Bullard, 2 An. 817.

The facts which controlled the decision in Wilson & Co. v. Lewis & al. 6 An. 774, not cited by the appellees, are totally different from those presented in the case at bar.

The appellees have, in their answer to the appeal, asked an amendment by the allowance of the attorney’s fees stipulated in the act of mortgage. This demand is now made for the first time, and we cannot therefore entertain it, for the very obvious reason that our jurisdiction is appellate and not original.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by reducing to the sum of two thousand seven hundred and fifty-eight 64-100 dollars, the amount allowed Patton, Smith & Putnam as a conventional mortgage; and by placing the said Patton, Smith & Putnam, as ordinary creditors, for the excess of their demand, that is to say, for seven thousand four hundred and sixty-nine 88-100 dollars ($7469 88); the judgment being otherwise hereby affirmed. It is further ordered that Patton, Smith & Putnam pay the costs of this appeal.


author: Buchanan, J.

text:
    Pérosine LeBlanc v. Eugène Bertant et als.
    An error of fact, whether proceeding from fraud or not, is alwajrs subject to re-examination at the instance of the party aggrieved by the error.
    Any remission made to heirs Js an advance on their portion in the succession, and is, therefore, subject to collation. C. 0.1307,1308,1309,1310,1311.
    A debt to the succession, not yet due, is susceptible of partition.
    APPEAL from the District Court of the Parish of St. James, Lawes, J.

      Geo. S. Lacey and /. K. Gaudet for plaintiff and appellant. J. H. lllsley, Berault & Legendre & Mills, for defendants.
   Buchanan, J.

Plaintiff is the sole surviving issue of the first marriage of Madelaine Dubon by her first marriage with Sil vain LeBlanc.

Defendants are half-brothers of plaintiff, issue of the second marriage of her mother with Auguste Bertant.

Plaintiff sues for a partition of the succession of her mother; she prays that the basis of said partition, and the interests of the several heirs, be fixed by judgment of the court; that the defendants Eugene Bertant, Auguste Philibert Bertant, and Trasimon Bertant, be jointly and severally decreed to be indebted to the succession of their deceased mother, in the following amounts, and be hold to collate the same in the partition, to wit:

1st. $19,000, (nineteen thousand dollars), with 8 per cent, interest from 1st April 1855 until paid.

2d. $50,000 (fifty thousand dollars,) payable fifteen years from March 10th 1854, or sooner, if the law will permit, with 8 per cent, interest from 1st January 1854, until paid.

3d. $10,266 66-100 (ten thousand two hundred and sixty-six dollars, sixty-six cents), with 5 per cent, interest from 10th March 1854.

4th. $500, (five hundred dollars) for £ family coach, &c., appropriated by them.

Plaintiff further prays that Augustus Philibert BertaM be decreed indebted to the succession in the sum of eight hundred dollars, price of slave Lucie, purchased by him from his mother on the 26th July 1858, with 8 per cent, interest on in-stalments of price from maturity; that widow Bertant’s succession be decreed to be indebted to plaintiff in the sum of eleven hundred and fifty dollars, for interest of plaintiff in the succession of her deceased brother, Jean Baptiste LeBlanc, with interest of 5 per cent, from the date of her mother’s decease (the usufructuary), August 11th 1858 ; that plaintiff be charged with the price of the slaves Celestine and Philippe ($1000,) bought of her 'mother, on the 26th July 1858 ; that after fixing the basis of the partition and the collations to be made, the whole matter be referred to the Recorder of St. James parish to make the partition according to law, and the legal rights of the parties, and for general relief.

The answer of defendants denies their liability to collate the four first items above stated. The last of those items, the family coach, is not insisted on in this court.

-Defendants had judgment in the District Court, and plaintiff appeals.

The 'decision of the cause involves three principal facts.

1st. Have defendants paid a note subscribed by them in favor of their mother, for the sum of nineteen thousand dollars, price of property purchased by them from her on the 18th October 1853 ?

2d. Did defendant really pay in cash to their mother, the sum of ten thousand two hundred and sixty-six dollars, sixty-six cents, on account of sale of property by their mother to them of date the 10th March 1854 ? Or did not this amount enter into the amount of the loan of the same date' by their mother to them, and was there not an error committed therein to the prejudice of their mother, caused by a fraudulent concealment and advantage taken of their mother’s ignorance, on the part of the defendants ?

3d. Was the sum of sixteen thousand dollars, aggregate amount of four receipts for interest on the loan of fifty thousand dollars, really paid by defendants to their mother ?

I. The affirmative of this question is maintained by the counsel of defendants, firstly, upon the presumption arising from the possession of the pote by them. But this presumption is of little or no weight in the present case, in view of the position of the parties. The note was made on the 18th October 1853, payable in all the month of March 1855. The payee, Mrs. Widow Bertant, was a very aged person, and illiterate. She lived with her sons, the makers, from the time this note was made, until her death, three years and four months after its maturity. She necessarily depended upon her sons for the transaction of her business, and her papers have always been within their reach, if not in their custody.

Secondly, defendants rely upon a certificate of the Recorder of the parish of St. Jamesj showing that the mortgage to secure the payment of this note, was erased and cancelled upon his registers on the 12th December 1856. But this certificate does not state that this erasure was made upon a formal acquittance and release of the mortgage. Therefore, we must presume that it was erased by the Recorder upon the production of the note to him by the makers (he being also the notary before whom the act of mortgage was passed,) in accordance with the 3346th article of the Civil Code. 'This certificate, therefore, proves nothing more, in regard to the payment of the note, than that defendants were in possession of the note on the 12th December 1856 ; and adds nothing to the presumption desirable from their possession of it on the trial of this cause.

Thirdly, the counsel of defendants argue, that the payment and satisfaction of the note in question must be inferred from the certificate of mortgages annexed to, and copied in, the notarial act of mortgage granted by the defendants to Lobit & Charpentier, on the 15th January 185V ; to which act the widow Bertant was a party. But it will be found, that there is nothing in this act, nor in the certificate of mortgages, which necessarily implies an acknowledgment of payment of the $19,000 note on the part of the widow Bertant.

This certificate of mortgages, indeed, makes no mention, (among the numerous mortgages which it recites,) of the mortgage granted on the I8th October 1853, to secure the payment of this note. We- have already seen that that mortgage had been erased about a month previous to the certificate. But nothing more, can be inferred from this, even supposing the Widow Bertant to have been particularly informed of the contents of the certificate, than that she was aware that her sons had caused the mortgage to be erased, that the auxiliary obligation of mortgage had been released, but by no means, that the principal obligation evidenced by the note, had been satisfied. The act itself, to which the certificate was appended, affords almost a conclusive presumption of the contrary. For the defendants, August Philibert Bertant, Eugene Bertant, and Trasimon Bertant, appear before the notary, and declare that they are engaged in the cultivation of sugar, and that in conducting the said business they require the aid of the firm of Lobit & Charpentier, merchants in New Orleans, in mahing them advances in money and supplies, and in accepting their drafts on said firm, and to secure the said firm in making them the said advances to the amount of fifty-five thous- and dollars, they give Lobit & Charpentier a mortgage on their two plantations, in St. James and Assumption, with the slaves, &c., thereupon. And in order to facilitate her sons in obtaining these advances, the widow Bertant intervenes in the act and consents that a mortgage held by her upon the same property, for the security of a loan upon interest for $50,000, having many years to run, recorded 10th May 1854, shall be postponed to that granted by her sons to Lobit & Char-pentier. Her other and earlier mortgage to secure the note of $19,000 did not figure upon the certificate of mortgage, having been cancelled a month previously. But the cancellation of this mortgage, bearing as it did upon a debt, past due and exigible, was perhaps essential to the defendant, for procuring the accommodations from their merchants, of which they stood in need. The same motive which influenced their mother to give a lower rank to her other mortgage security, namely, the desire to aid her sons’ in their business, would naturally account for her consent to the release of the mortgage securing a note, which she had not pressed at its maturity, against the makers.

Against the presumption of payment attempted to be drawn from the circumstances above mentioned, it is urged that the evidence renders it incredible, if not impossible, that the defendants should have really and truly paid the nineteen thousand dollar note. The defendants are found in possession of this note, for the first time, on the 12th December 1856, one year and eight months after its maturity. If they paid it on that day, it amounted, with eight per cent, interest from maturity, to twenty thousaud and forty-five dollars. Now, it is proved that all the resources of the defendants were derived from their two sugar plantations ; and that all their crops went through the hands of their factors, Lobit <& Char-■pentier. We have in evidence all their accounts wuh those factors during the whole period embraced in those transactions ; and those accounts furnish no trace of this large sum which is said to have been paid. Ou the contrary, at the very time that the mortgage is released, we find the Bertunts declaring themselves to bo in need of large advances from their factors, and mortgaging their property to 'obtain such advances. The conclusion which we have drawn from the whole of this evidence is, that the first question of fact should be answered in the negative.

TI. On the 10th March 1854, three largo cash transactions, evidenced by as many notarial acls, took place between the widow Bertant and her sons, the defendants. First, she sold her iuterest in the community of acquests of her second marriage, to them, for thirty-eight thousaud and thirty dollars, cash. Second, she sold to them her undivided half of certaiu lands and slaves, for ten thousand two hundred and sixty-six dollars, sixty-six cents, cash, (exclusive of the assump-l.on of certain debts due by her.) And third, she lent to her sons a sum of fifty thousand dollars (cash,) to bo repaid in fifteen years, they paying in the mean time interest yearly for the use of the same. It would thus seem that forty-eight thousand two hundred and ninety-six dollars were paid over by the defendants to their mother, who immediately paid it back to them with the addition of seventeen hundred and four dollars, to make up a round sum of fifty thousand dollars. It is not likely that these large sums actually changed hands twice on this occasion. The true state of facts would rather seem to be, if there were no other outstanding transactions between the parties, that the cash price of the property sold had been invested, by consent of parties, in a simultaneous loan of a like or similar amount to the purchaser. But plaintiff has proved, (and it is not denied,) that the defendants had at that time in their hands an additional sum of twelve thousand dollars belonging to their mother, being so much loaned to them by her, two weeks previously, (24th February 1854) to pay for the plantation bought by them in assumption of the succession of Barilleau.

Plaintiff contends that the fifty thousand dollar loan is made up of

1st. The interest of widow Bertant in the community.$38,030

2d. The Barilleau loan. 12,000

$50,030

And the petition charges that it was the effect of error on the part of her mother, produced by fraud on the part of the defendants, that the item of $10,266 66, which is the subject of our present inquiry, was not included in the loan on mortgage, which would have been thus swelled up to the amount of $60,296 66 instead of $50,000. The District Judge has rejected this portion of plaintiff’s petition, on the ground of its being tantamount to a plea of non ■numerata pecunia, which Mrs. Bertant would not be allowed to make without a counter letter, and which plaintiff standing in the rights of her mother, cannot make. We do not concur in this view of the case. An error of fact, whether proceeding from fraud or not, is always subject to re-examination at the instance of the party aggrieved by the error. In the present case, we are not satisfied that defendants have practised any fraud or wilful concealment in their settlement 0f accounts with their mother, on the 10th of March 1854. But there certainly has been an error, to an amount about equal to the amount mentioned in this question. "We conclude that the defendants ought to collate that amount in partition.

III. The mortgage loan of $50,000 bore interest at the rate of 8 per cent., or $4000 per annum from the 1st January 1854, payable yearly. There are four receipts for the payment of this interest given in evidence, each for four thousand dollars. Throe of them are dated on the same day, the 3d April 1857, and are for the interest of the years 1854,1855, and 1856 respectively ; and the fourth is dated 1st June 1858, and is for the interest of the year 1857. They are signed with the ordinary mark of the widow Bertant, and by several witnesses. Two of the subscribing witnesses of these receipts have proved that the amount specified in them was counted to widow Bertant, who took the same into her possession In their presence. These large sums have disappeared without leaving auy trace. Mrs. Widow Bertant is proved to have been very economical, living entirely at home, and having no expenses. It appears reasonable to expect that' so large a sum as twelve thousand dollars, received on the 3d April, 1857, would have been put in some safe place of deposit. The evidence forbids the belief that it has been spent by the old lady; and if she had lost it, it would certainly have been missed, and would have been the subject of search and enquiry. Then, as to the smaller sum of four thousand dollars paid on the 1st of June, 1858, about two months before the death of the widow Bertant, this also disappeared ; for there was no money whatever found when the inventory was made, in the month of September following. Other evidence shows that Mrs. Bertant kept little or no money about her. The only reasonable inference from all this is, that the formality of counting down on a table the sums expressed in those receipts, and putting them into the hands of the widow Bertam, in the presence of witnesses, was only intended to cover a remission of the debt for interest for the years expressed. Her age and infirmities made it necessary that the persons with whom she lived, her children, in whom we cannot doubt she reposed all her confidence, should be the depositaries of her funds.

If she intended, as we presume from the facts just alluded to, to make a remission to the defendants of this interest, such remission is considered as an advance on their portion in her succession, (O. C. Art. 1307); and is therefore subject to collation (1308). See also articles 1309,1310,1311.

A question of law remains — -whether the debt of fifty thousand dollars, for money lent by wjdow Bertant to her sons in 1854, payable the 1st January 1869, is susceptible of partition between the heirs of widow Bertant, before the maturity of the debt.

No reason is perceived by us why this partition may not be made at once.

The allegations of the petition in relation to the indebtedness of the plaintiff, and of Auguste Philibert Bertant, defendant, to the succession of their mother for slaves purchased by them from her, on the 26th July, 1858, and in relation to the indebtedness of the succession to plaintiff for her rights as heir of her deceased brother, Jean Baptiste IjeBlanc, are not disputed. Those claims will therefore be allowed in partition.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and that the parties be referred to the Kecorder of the parish of St. James, to make a partition of the estate of their ancestor, Mrs. Widow Au- guste Bertant, upon the basis, and salvecl t.i the collations prescribed in the foregoing reasons for judgment; and that the costs of this appeal be paid by the defendants and appellees; the costs of the court below to be paid by the mass.

Land, .1., absent, concurring.

Duffed, J., rec.usecl himself.


text:
    Martha A. Gardner v. Robert A. Montagne.
    In caso the debtor refuse or neglect to accept an inheritance, to the prejudice of his creditors, they may accept the same, and exercise all his rights in the manner provided for under the title of successions ; and they are authorized, by virtue of the action given by this section, to exorcise all the rights which the debtor could do for recovering possession of the property to which he is entitled, in order to make the same available to the payment of their debts. C. C. 1985.
    An heir who subsequently accepted the succession of his mother, after his creditors had boon substituted, cannot be received to inquire, at least as against a third innocent possessor, into the legality of the proceedings which transpired before the acceptance. C. C. 1014,1024.
    APPEAL from the District Court of the Parish of Madison, Farrar, J.

      M. Wallace, for plaintiff and appellant. A. JR. Hynes, for defendant.
   Duffel, J.

The plaintiff, as tutrix of her minor children, issue of her marriage with Ashiel Gardner, is appellant from a judgment rendered, on the verdict of a jury, adversely to her pretentions.

Jemaima Gardner, the mother of said'Ashiel Gardner, made a will disposing of all her property to the exclusion of her son, but bequeathing to his wife, the plaintiff, an amount which would have been equal to the share of her son, had she died intestate. This will was duly admitted to probate. Prior to the date of said will, Robert Ingram, Jasper Ingram, and Mary Ingram, wife of Clerman J. Ingram, had obtained a judgment against Ashiel Gardner; and after the probate of the will of Jemaima Gardner, they instituted an action against said Ashiel Gardner and wife, and all the legatees and legal heirs of the testatrix. They averred that their debtor had no apparent property to satisfy their judgment; that he had neglected to accept the succession or to demand his legitime, and they concluded by asking the reduction of the legacies to the disposable portion, and to be allowed to claim the legitimate portion.of Ashiel Gardner in his stead.

All the defendants joined in an answer denying the right of the plaintiffs to attack the testamentary dispositions, or to claim a reduction. On the above issues, the District Judge rendered a judgment on the 5th of May, 1852, recognising the judgment of the said Robert Ingram et al. against Ashiel Gardner, and decreeing “ that plaintiffs be substituted to the rights of Ashiel Gardner in the succession of his mother, Jemaima Gardner, for the above mentioned sums, and that the will of Jemaima Gardner attacked in this ease is null and void. ”

This judgment was satisfied, in part, by the seizure and sale on the first Saturday of February, 1853, of all the right, title and interest of the debt- or, Ashiel Gardner, in the property of the succession of Jemaima Gardner, his deceased mother.

The object >oi the present snit is to evict the defendant, who is a third possessor, of a portion of the property thus transferred by the Sheriff in February 1853, because the sale was not made at the time and placo required by law, and because the undivided fifth interest of Ashiel Gardner was adjudicated to the administrator of the succession of Jomaima Gardner.

The judgment of the 5th of May 1852, had, before the death of Ashiel Gardner, and as against him, acquired, by the lapse of time, the force of the thing adjudged, and it is not, therefore, within our province to inquire into its soundness.

This last mentioned judgment was, evidently, based on the articles 1014 and 1985 of the Code, and hence carried with it all their consequences, one of which was to put the plaintiffs in the place and stead of their debtor until they had obtained a full satisfaction of their claim.

Ashiel Gardner, it is true, might have subsequently accepted the succession of his mother; but such an acceptance could not have affected his substituted creditors, and still less the rights already acquired by third persons on the property of the succession under proceedings provoked by those who had been judicially substituted in his place; from whence we conclude that Ashiel Gardner could not have been received to inquire, at least as against a third innocent possessor, into the legality of the proceedings which transpired before the acceptance. Such, it appears to ns, is the inevitable effect of the articles 1014 and 1024 of the Code.

And as the children of the plaintiff claim through.their father, Ashiel Gardner, they cannot be placed in a more favorable position.

For the reasons assigned the judgment of the District Court is affirmed, with costs in both courts.

Yooehxes, J"., absent.


text:
    Robert K. Walker v. James H. Wingfield.
    Where answers to interrogatories are not responsive, they will be taken for confessed.
    Appeal from the Dist. Court of the Parish of St. Helena, J.

      Pond, Taylor é¡ Hunter, for plaintiff and appellant. Thompson <£■ Pussell and (?. W. Martin, for defendant.
   Duffel, J.

The plaintiff having endorsed a draft drawn by the master of the steamer Iroquois, paid it after protest, and now seeks his payment from the defendant as owner of the vessel.

The plaintiff was at the date of the execution of the bill and of his endorsement, the clerk of the steamer, and it may be -assumed that he was a surety or guarantor.

The defendant propounded certain interrogatories to the plaintiff, the fourth of whichTis as follows:

“Did you not know that at the time of the transfer, and at the time you endorsed said bill of exchange, said boat belonged to and was the property of James A. Trice, or of Wingfield, Trice & Co? ”

The word transfer, in the above interrogatory, alludes to the transfer of the steamer Iroquois from C. M. Blackman to the defendant.

Tlio plaintiff answered: “I was requested, shortly previous to my endorsing the bill of exchange sued on, by defendant to have the boat insured as his property, if I could get it done at Nashville.”

This answer not being responsive, the interrogatory was, on a regular rule, taken for confessed, and the District Judge, considering no doubt that the defendant was, to the knowledge of the plaintiff, only the nominal owner of the steamer, rendered judgment in favor of the defendant.

It is evident from the above expose, that the plaintiff has no cause of action against the defendant.

Judgment affirmed.

VooRnxES, J., absent.


text:
    A. A. Laforest v. W. D. V. Downing.
    In 1S44, the Secretary of Iho Treasury, Judge Bibb, decided that patent-! ought to Issue to those holding the Houmas claim for the lands between those already patented and the Manchac ; hut on the 7th of January following, Congress, by a Joint Resolution of both Houses, prohibited the issuance of evidence of title upon that “Spanish land claim.” For a history of this class of cases, vide Foley v. Harrison, 5 Annual, 75.
    In the case of Carroll v. Sajford, 3 Howard, 46, the Supreme Court of the United States decided that laods when sold, are no more the property of the United States than lands patented'

    Appeal from the Dist. Court of the Parish of Point Coupee. Me Ven, J.

      Adam Beatty, for plaintiff and appellant. Jl. IT. Fenner cC F. .77. .Bradford, and F. H. Farrar, for defendants.
   Merrick, C. J.

This suit is brought to recover of the defendant 161.80 acres of land, forming a part of his plantation, which has been in,the possession of himself and vendors since 1840, if not since 1835, the date of the original entry at the Land Office.

The land is situated upon the eastern bank o£ the Bayou Eordoche, in the Parish of Point Coupee, and is lot No. 60, in township No. 5, S., range 8, east. It was entered for Henry Turner and John M. Pelton, as assignees of Marie Dugas and Alexis Brasset, on the first day of September, A. D. 1835, and the price, §202 32, having been paid, a patent certificate issued in tlioir favor. Turner and Pelton sold to John A. Quitman, May 29th, 1840, several lots of land, including the one in controversy, for the sum of $20,000. Gen. Quitman sold, on the 17th of February, 1842, the land in question with certain other lands, a part of the lands bought by him of Turner and Pelton, for $11,334 80, to the defendant, Wm. D. V. Downing. The patent never issued in favor of Turner and Pelton, and the entry was canceled at the Land Office, on thebooku of the office, under the following circumstances:

The original preemption claim of Dugas and Brasset was for 148.08 acres, lying upon Bayou Manchac, and supposed to be within tlio Houmas grant.

In 1829 Mr. Graham, Commissioner of the General Land Office, decided that the lands lying upon the Amite river and Bayou Manchac were public lands, and not within Houmas’ grant, which was considered as confirmed to the depth of one and a half leagues only, and patents issued accordingly. Thereupon, the lands on the Manchac were deemed to be public lands.

On. the fonrtli o± July, 1805, Mario. Dag'ar¡ and Alexis Brasset entered the 148 acres, in virtue of a settlement made tliereon in 1833, prior to the passage of the Act of Congress of 19th dune, 1834, which authorized the preemption. They became entitled (having both settled upon the same quarter section) to “afloat,” or sufficient land elsewhere to make the complement of a quarter section to each. This float, which was located upon the land in dispute, was transferred to Turner and Pelton in September, 1835, and the patent certificate above referred to issued to them and in their names on the 17th of October, 1835.

In 1844, the Secretary of the. Treasury, Mr. Bibb, decided that patents ought to issue to those holding the Houmas claim, for the lands between those already patented and the Manchac, but on the 7th day of January following, Congress, by a Joint Resolution of both Houses, prohibited the issuance of evidence of title upon that “Spanish land claim.”

Brasset, notwithstanding the previous sale by himself and Marie Dugas of the float to Turner and Pelton, sold for the sum of $30 to George W. Waterston, his right both to the float and the primary claim, and the money, notwithstanding the outstanding patent certificate in the names of Turner and Pelton, seems to have been refunded, or rather paid to George W. Waterston, and the entry on the books at the Land Office was canceled.

The plaintiff, availing himself of this state of. things, obtained, in 1855, a patent for the land from the State of Louisiana, as swamp land.

The District Judge was of the opinion that the purchase of the land by . Dugas and Brasset was valid, not only because it was uncertain that their primary claim was within Houmas’ grant, but also because the land bought under the float was subject to private entry at the Land Office. He gave judgment, consequently, for the defendant; aud plaintiff appeals.

In this Court a great variety of intricate questions have been discussed in the .elaborate briefs filed by counsel; but, with the exception of the return of the money to Waterston, and the want of a patent by defendant, the case is analogous to the case of Foley v. Harrison, 5 An. 75. As the Acts of Congress are referred to, and the history of this class of oases is given in that decision, we shall refrain from repeating what is there said, and spare ourselves the labor of swelling this opinion by incorporating into the same an analysis of the complicated matters involved in the Hou-mas grant; and we shall abstain also from expressing any opinion further upon the validity of that title as it now exists.

We think it is clear, that after the patent certificate issued to Turner and Pelton for lot 60, in townslfip 5, range 8, east, Brasset (who had only been part owner) could not deprive them of their equitable right by any transfer he could make to a third party. *

In the ease of Carroll v. Safford, 3 How. 46, the Supreme Court of the United States said: “Now, lands which have been sold by the United States, can in no sense be called the property of the United States. They are no more the. property of the United States than lands patented. So far as the rights of the purchaser are. considered, they are protected under the patent certificate rs fully as under the. patent. Suppose the officers of the Government had sold a tract of land, received the. pinchase money, and issued a patent certificate, can it be contended that they could sell it again, and convey a good title? They could no more do this than they eonlcl sell land a second time which had been previously patented. When sold, the Government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser, and any second purchaser would take the land charged with the trust.”

In the case of Foley v. Harrison, 5 An. 90, this Court said: “We are not prepared to concede that the entries were originally made in violation of law. The proviso of the Act of 1811 is, that until the filial decision of Congress thereon, no tract of land shall be offered for sale, the claim to which has in due time and according to law been presented to the Recorder of land titles in the District of Louisiana, &c. It is true that the Houmas claim had been thus presented. But the plaintiff admits that it was acted upon and confirmed by the Act of 18th of March, 1814. This confirmation satisfied the proviso of the Act of 1811.”

The District Judge has decided, and we concur with him in his conclusion, that the proof does not satisfactorily show the primary claim of Du-gas and Brasset to have been within the Houmas_ grant, as confirmed by Congress prior to their entry.

» As a consequence, the patent certificate of Turner and Belton, which has never, as we perceive, been canceled in the hands of defendant, will protect the latter against the plaintiffs’s title.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, and that the plaintiff pay the costs of the appeal.

Voobhies, J., absent.


author: Dtjpbel, J.

text:
    W. H. Nelson v. E. Beard et als.
    The failure of the clerk to issue, or of the Sheriif to make, the service of citation of appeal, or the neglect of the latter to make his return, cannot be attributable to the appellaul; who, in such a case will be allowed further time to cite the appellee.
    Appeal from the Fifth District Court of New Orleans, Flcjyleslon, J.

      Cutter & Thomas for plaintiff. T. A. Bartlett, for defendant.
   Dtjpbel, J.

The appellee complains that he was not cited to answer the appeal.

The appeal was regularly _taken, the bond was given in due form, the citation issued in time, and the transcript was seasonably filed.

The failure of the Sheriff to make the service of the citation, or his neglect to make his return, cannot be attributable to the appellants. Lewis v. Hennen et al., 13 An. 259.

It is, therefore, ordered, adjudged and decreed, that the rule be discharged, and that this cause be continued until the fifst Monday of November eighteen hundred and sixty-one, in order that the appellee may be cited to answer the appeal on the day last named.

Voobhies, J., absent.


text:
    Succession of Joel Foster.—S. R. Corkern, Adm’r.
    The Act of 1855, section 9, prescribes that 11 no account shall bo homologated by the Clerk of the Court, until it shall have been duly notified, at least thirty days in the manner required by law.” For which manner in all judicial proceedings, vide Revised Statutes, p. 4.
    Appeal from the District Court of the Parish of St. Helena, Wilson, J.

      M. M. Smith, for appelllaut. B. P. Bilis, contra.
   Buchanan, J.

This is an appeal from a judgment of homologation of an account of administration. The appeal is taken by one of the heirs. The judgment of homologation was rendered by a clerk of court.

Applicant complains that the homologation of the account was not preceded by the thirty days’ notice required by the Act of 1855.

The account was filed 25th November, 1859. On the samo day, an order was made by the Clerk of the District Court, “that due and legal advertisement bo made, and legal notice be given of the filing of the account.” It is in proof that a notice was made out and signed by the deputy clerk of the court on the first December, 1859; and that a copy of said notice was handed to the editor of a newspaper published in the parish on the same day. But there is no proof that this notice was over published.

The Act of 1855, page 50, section 9, (Phillips’ Revised Statutes, p. 80) prescribes that “no account shall be homologated by the cleik until it shall have been notified, at least thirty days, in the manner proscribed by law. ”

The first section of the act relative to judicial advertisements, of 1855, pago 80, (Phillips’ Revised Statutes, page 4) provides that “in all cases in which advertisements are required to be made in relation to judicial proceedings, &e., they shall be published in a newspaper printed in the parish in which the judicial proceedings are carried on,” &c.

The law in regard to notice does not appear to have been complied with in this instance.

It is, therefore, adjudged and decreed, that the'judgment of homologation of the account of administration filed heroin, be reversed and avoided; and that the cause be remanded to the District Court, for notice by publication, and for other proceedings according to law; and that the costs of this appeal bo paid by the appellee.

Land, J., absent, concurring.


author: Buchanan, ,T.

text:
    Robert W. McRae v. His Creditors.
    Debts clue for necessary supplies furnished to any farm or plantation, aro privileged on the product of tho last crop, and the crop at present in the ground.
    A repairer of carts, wagons, &c., has no privilege upon the proeoods of tho sale of a plantation on which they were used.
    An overseer has no privilege on the crop of tho year subsequent to his sorviocs, unless the crop was in the (/round.

    An engineer has no privilege by the Code, and a seizure gives him nono. Tho croditor of an insolvont cannot litigate his demand for a privilege in a separate suit against tho syndic. See cases cited.
    The creditor cannot ho allowed two privileges on the same thing, so as to draw a double dividend from two different funds. Workmen, and persons furnishing materials, have no privilege when their claim is over $500 and the agreement has not been reduced to writing and registered with the Recorder'of Mortgage.
    Novation does not take place unless by the torms of tho agreement, or a full discharge of the original debt. Vide cases and articles cited.
    The declarations of tho parties to a public act cannot be contradicted by parol testimony introduced by the party who has made those declarations, unless upon allegation and proof of fraud, duress or error.
    Appeal from the District Court of the Parish of Point Coupee, Far-rar, J.

      Clarice c& Bayne, for syndic, appellee. P. IT. Farrar, P. A. Boy, and T. J. & W. H. Cooley, for appellants and others.
   Buchanan, ,T.

This is an appeal from a judgment upon oppositions to a tableau of distribution.

I. McKleroy & Bradford, appellants, object to the allowance of a privilege to Louis Eabre, on the crop of 1867, for barrels furnished and made to contain molasses.

The privilege is claimed under the amendment to the first paragraph of the article 3184 of the Civil Code (Phillips’ Rev. Stat. 80), which reads as foEows: ‘ Debts due for necessary strpphes furnished to any farm or plantation, are privileged on the product of the last crop, and the crop at present in the ground.”

The privilege appears to have been properly aEowed.

XI. The same remarks apply to the claim of Thomas Claycomb. The supply being provided, and being not unreasonable, the presumption was in favor of the claimant; and the burden of proof that they were not used was on the opponent.

III. John Donner repaired carts, wagons, &e. He is aEowed a privilege on the proceeds of the sale of the plantation. We have been referred to no law granting such a privilege. Gayarré v. Trennard, 9 An. 254.

IV. Newsom has judgment with privilege on the crop of 1868, for the hire of slaves in 1857. This should be reversed, under the decision of this Court in 12 An. 483.

V. T. C. Dial has judgment, with privüege on the crop of 1858, for overseer’s wages on the plantation of the insolvent in the year 1857. Under the expressions of the article 3184 of the Code, as interpreted by us in the cases in 12th and 13th Annual, Mr. Dial is not entitled to the privilege. His year of service as overseer expired on the 1st January, 1858. At that time, the crop of 1858 was not in Che ground.

VI. Gr. A. Garrón, engineer, has been aEowed privilege for sixty doEars for his wages, upon two hogsheads of sugar. He has no privilege arising from the nature of his claim, and the seizure which he caused to be made gave him no privilege, for the reasons stated in Tenny v. Provosty, 14 Annual, 221.

VII. Thompson, Hieronymus & Co. sold the insolvent a lot oí mules for $8,580 in August, 1857. These mules have been sold sejjarately by the syndic, and their proceeds ($1,416) have been allotted to T., H. & Co. tuider the privilege of vendors. For the balance of the price, the claimants have been allowed the privilege of “necessary supplies” upon the crop of 1858. Of this allowance, the appellants complain, and we think, with reason. The creditor cannot be allowed two privileges on the same thing, so as to draw a double dividend from two different funds. The separate sale at his instance, and his appropriation of the price, exhausted his privilege. Besides, these mules were sold in 1857, and gave no privilege bylaw upon the crop of 1858; supposing them to be supplies under the article 3184.

VIII. Henry Teuny claims $952 for timber furnished and labor done on the sugar-house of R. W. McRae. But he has no privilege for this work, which exceeded $500, inasmuch as his contract was not reduced to writing, nor registered. C. C. 2746, 3239.

IX. Ward & Co. sold lumber to McRae in October and November 1857, .to the amount of $363 79, which was used in rejjairing the sugar-house of the insolvent. They oppose the tableau, and ask a privilege upon the sugar-house, which has been granted them. C. C. 2743, etseq; 3239,3216. Prescription of Ward & Co. ’s privilege interrupted by the stay of jrroceed-ings of McRae, and the privilege was properly allowed.

X. G. B. Miller sold lumber to McRae the insolvent in 1857, which was used for repairing buildings and making coolers. The coolers are a part of the building (a sugar-house). Privilege was properly allowed for the portion of this claim which was not prescribed by the lapse of six months from date of supplies.

XI. It is contended by appellants, that Brady, Gorman & Co., appel-lees, were incorrectly ranked by the judgment of the District Court as creditors, by judgment, of the insolvent. They urge that this judgment was novated by certain drafts, of about an equal amount, drawn by the insolvent on Brady, Gorman & Co., which were negotiated, and, at maturity, taken up and paid, by the latter. The evidence of this alleged novation is supposed to be found in the following letter:

“ New Oeueans, June 11, 1856.
“B. W. McBae, Point Coupee:
“Dear Sir, — We will thank you to sign the enclosed drafts on us for •$13,000, at seven and nine months date. We wish to negotiate them, and reimburse ourselves as far as they go, for moneys advanced on your account. This course you supported when our Mr. Brady last saw you, and as it will not in any manner increase your liability to us, as the proceeds will be credited to your account, we will ask you to forward them to us immediately. Very respectfully, yours,
“Brady, Gorman Go.”

We do not perceive, in the expressions of this letter, such distinct acknowledgment or admission that the drafts in question were to be taken by the writers in payment and discharge of their judgment against their correspondent, as was held in Gails v. Schooner Osceola, 14 An. 55, to be the test and criterion of a novation. See also the cases at pages 93, 361, and 484 of the same, volume; arid articles 2181 to 2186 of the Civil Code.

XII. A. Miltenberger & Go., appellants, complain of the allowance by the District Court of a subrogation in favor of Colin F. McRae to a mortgage held by Zenon Porche upon the Crescent Park plantation and the Glen Mary plantation. From the record it appears, that in the act of mortgage in favor of Porche, both Robert W. McRae, the insolvent, and Colin F. McRae, boruid themselves to pay the debt, and declared that to secure, its payment, the Orescent Park plantation and slaves were the first mortgaged, the Glen Mary plantation and slaves being also mortgaged as u further security.

Parol evidence was offered and received to contradict the authentic act, and to show that the mortgage of the Crescent Park was auxiliary to that of the Glen Mary.

An exception was reserved to the admission of this evidence.

The court erred. The declarations of the parties to a public act cannot be thus contradicted by the very party who has made the declarations, unless upon allegation and proof of fraud, duress, or error. C. C. 2266.

R. W. & C. F. McRae owned the Crescent Park plantation as partners at the time of the mortgage to Porche. R. W. McRae subsequently sold his share to C. F. McRae, stipulating that the latter would assume the payment of all the claims against that property sold. Tenon Porche,’* mortgage was the first recorded claim bearing upon that property. It was therefore assumed to be paid and satisfied by C. F. McRae individually; and if his brother had been compelled to pay it or any part of it, he would have had a clear right to indemnification from C, F. McRae, under-the stipulation in the sale contained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, allowing a privilege to ¿John Donner, to-Newsom, to T. C. Dial, to G. A. Garrón and to Henry Tenny, be reversed, and that those parties be respectively classed as ordinary creditors for the amount of their several claims; that the allowance by the District Court to Thompson, Hieronymous & Co. of the privilege for “ necessary supplied ” for the balance remaining due them after exhausting the proceeds of the mules by them sold to insolvent, be also reversed, and that, for such balance, the said Thompson, Hieronymous & Co. be classed as ordinary creditors; that the allowance, by the judgment apjiealed from, of a subrogation in favor of Colin F. McRae to the mortgage of Zenon Porche upon the land and slaves of insolvent, be also reversed, and that the claim of said Colin F. McRae against this insolvent estate, by reason of the satisfaction of the Porche mortgage, be disallowed and rejected; that in all other respects the judgment appealed from be affirmed, and that the tableau of distribution filed by the syndic be homologated and confirmed, as amended by the present decree; and lastly, that the costs of this appeal be paid by the parties cast upon the appeal.

Merrick, 0. J,, recused himself.

Vooehies, J., absent.


author: Doteeu, J.

text:
    The State of Louisiana v. Hooten.
    The decision in the case of The Slate v. Parker, 15 An. 231, re-affirmed. •
    This Court will not examino cases of mixed law and fact in criminal matters. The decisions in the cases of State V. BasS) 11 An. 478, and State v.lYard, 14 An. 673, re-affirmed.
    Appeal from the Dist. Court of the Parish of EastFeliciana. Mo Vea, J.
    ÍT. J. Semines, Attorney General, for plaintiff. J). B. Sanford, for defendant and appellant.
   Doteeu, J.

The accused was indicted, tried and convicted, under the 94th section of the Act approved March 14th, 1856, entitled: “An Act Relative to Crimes and Offences.” The section reads: “That whoever shall keep a grog or tippling shop, or retail spirituoiis liquors, without previously obtaining a license from the Police Jury, town or city authorities, on conviction, shall be fined not less than one hundred, nor more than five hundred dollars, and in default of payment, shall be imprisoned not less than fifteen days, nor more than four months. ”

The accused was fined $301 for the offence of retailing sjiirituous liquors without license, and failing in his endeavors to obtain a new trial and an arrest of judgment, he took this appeal.

The record does not contain any bill of exceptions, nor the charge of the Judge as given to the jury, but the defendant relies on his assignment of errors for relief.

It is contended, in the first place, and on this ground was the. motion in arrest of judgment made, that the authorities of the town of Jackson having passed an ordinance absolutely inhibiting the selling of spirituous liquors in said town, (the offence is charged to have been committed within its limits]) under a fine not exceeding fifty dollars, that therefore, the 94th section above copied remains inoperative under the second section of a the act also approved March 14th, 1855, entitled “An Act relative to drinking houses,” p. 178.

The first section of said act gives to the police juries of the several parishes, the municipal authorities of the several towns and cities, and the board of aldermen and assistant aldermen, together-with the mayor of the city of New Orleans, the exclusive power to make such laws and such regulations, for the. sale or prohibition of the sale of intoxicating liquors, as they may deem advisable, and to grant or withhold licenses from drinking houses and shops, as the majority of the legal voters of any city, &c., may determine by ballot. And the second section provides: ‘1 That the State relinquishes all right to grant licenses in any town, city or parish, in which it is not granted by the authorities. Whenever any license may be granted, the State shall have power to collect the tax coming to the State, for such licensed drinking houses or shops. ” ■

This point was submitted to uslastyeai’, when we held that the two acts were not inconsistent, but might well be construed together. See the case of The State v. Parker, 15 An. 231. Our opinion remains unchanged.

In our sense, no one, who has sold or retailed spirituous liquors without 'a license, can escape the penalty imposed by the 94th section of the act first cited.

It is contended, in tlie second place, tliat the testimony taken on the trial of the motion for a new trial, and which was before the jury on the first trial, and is annexed to the bill of exceptions taken to the refusal of the Judge to grant the new trial, does not disclose any sale.

This is evidently a mixed question of law and fact, which we cannot examine. State v. Bass, 11 An. 478; State v. Ward, 14 An. 673.

Judgment affirmed.

Yoobhies, J., absent.


author: Dupeei,, J.

text:
    R. H. Draughon v. Octavia A. Ryan.
    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. C. C. 2412.
    Where from the evidence it appears that a note was not given for the improvement or benefit of the paraphernal property of the wife, but simply to enable the husband to work a plantation which did not belong to her — Held: That the debt is a community obligation.
    The circumstance that the husband had no separate property of his own, does not create an obligation on the part of the Wife to satisfy such a claim. See Bariingtm, AcXm}r, v. A. Bradley, infra, page 310.
    Appeal from the District Court of East Feliciana, MoVea, J.

      MoVea c£ Jhmter, for plaintiff. Jl. J. Bowman, for defendant and appellant.
   Dupeei,, J.

This suit is instituted to recover the amount of the following note with interest and attorney’s fees:

“Clinton, March 4th, 1858. On the 1st day of December next we promise to pay to the order of R. H. Dranghon, the sum of four hundred dollars, with interest at the rate of eight per cent, per annum from maturity till paid, for value received. (Signed) Octavia A. Ryan, J. A. Ryan, (Paraphed) Ne varietur March 4th 1858, James 0. Jackson, Recorder/’

On the same clay, the said defendant and her. husband, J. A. Ryan, since deceased, gave jointly to the plaintiff, a special mortgage on the slaves Polly, Till and Andrews, to secure the payment of the said note, of all supplies to be made in 1858, acceptances, commission and interest, and in case of suit to coerce payment five per cent, attorney’s fees, the whole liability not to exceed $800.

It was admitted on the trial below that all the property in the possession of the defendant and her husband at the date of the act consisted of slaves who were the separate property of the wife; and it was further admitted “that O. O. Coff, were he on the stand under oath, would state that the amount of the note was furnished them in plantation supplies and advances for the benefit of the plantation, upon which the slaves of defendant were worked during the year 1858, a part for rent and a part for necessary supplies. The place was rented from a third party by her husband. ”

The District Judge, on the above evidence, rendered judgment against the defendant, for the amount of the note, with interest, and 5 per cent, as attorney’s fees, on the amount of the judgment, and made the mortgage executory to satisfy the judgment.

It is evident that the note, 011 its face, is a- debt of the husband, or of the community, for which, as such, the defendant cannot bo held responsible. O. 0. 2412.

It is equally clear, from the evidence, .that the note was not given for the improvement, or benefit, of the paraphernal property of the wife, but simply to enable the husband to work a plantation which did not belong to the defendant; hence the string of authorities cited by the appellee on this branch of the case have no application; whence we conclude that the debt is a community obligation. C. C. 2373; Moussier v. Zunts, 14 An. 15; Lee v. Cameron, 14 An. 700.

The circumstance that the husband had no separate property of his own, does not, under the state of facts of the present case, create an obligation on the part of the defendant, to satisfy the claim set up by the plaintiff. Lobit & Charpentier v. C Harman et al. 13 An. 593.

For the reasons assigned, it is ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the defendant have judgment with costs in both courts.

Voorhies, J., absent.


text:
    Robert Bartington, Administrator, v. A. Bradley et al.—David Taylor, Intervenor.
    _ This case was decided upon the same grounds as that of Drauglicn v. Ryan.

    A married woman may, with the authorization of her husband, become a surety for a third person when the debt for which she becomes surety is neither the debt of the community nor of the hn--band. Decisions in 5 An. 307 and 9 An. 903 re-affirmed.
    Appeal from the Dist. Court of the Parish of Livingston, Wilson, J.

      W. F. Wallcer, for plaintiff and appellant. Henry Duncan, for defendant. M. T. Carter, for intervenor.
   Merrick, C. J.

This case was before us in 1859 on an appeal by plaintiff, and was remanded for further x>roeeedings.

The xilaintiff and intervenor had judgment against one of the defendants only, and they (xilaintiff and intervenor) appeal a second time.

- The suit is brought against the sureties only uxion two promissory notes signed by J. P. Wall as principal, and Alfred Bradley, Ann M. Wall, and D. W. Wall as sureties.

Judgment was rendered in favor of xilaintiff and intervenor, as just said, against Bradley and in favor of the defendant Ann M. Wall, on the ground that she was a married woman and could not bind herself conjointly with her husband for a debt due by the community during the existence of the marriage. D. W. Wall was not made a party, except through a curator ad hoc, he being an absentee. The notes were given for property bought by J. P. Wall at a probate sale.

The case, therefore, presents the legal question, whether the wife can bind herself conjointly with her husband as surety for another ?

On the part of the plaintiff our attention is called to the cases of Far rell v. Yoe et al., 9 An. 903, and Roberts v. Wilkinson, 5 An. 307, wherein it was held that a married woman might, with the authorization of her husband, become a surety for a third person.

These cases, it -must be observed, were decided upon the ground that the debt for which the wife contracted the suretyship was neither the debt of the community nor of the husband, and therefore, the husband could have no interest in subjecting the wife’s estate to the payment of the surety-debt for the advantage of the community or of his owu estate.

In the case at bar, during the existence of the marriage, the husband and wife conjointly contracted the obligation of suretyship. The husband became by the contract interested in making his wife’s separate estate responsible for the debt in order to relieve his own or the community.

The case therefore, is not only within the letter, but the spirit of Article 2112 C. 0., which says the wife, whether separate in property by contract, or judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.

The judgment of the lower court, therefore, rests upon the x»'ecise and clear language of the Code, and cannot be disturbed.

Judgment affirmed.

Voobhies, J., absent.


author: Land, J.

text:
    C. Yale Jr. & Co. v. P. Hoopes & Co.
    Where intervenors gave a bond conditioned to satisfy any judgment that should be rendered against them, where they bonded property attached by the pjaintitfis, on which they claimed a privilege as vendors — Held : That the plaintiffs cannot recover unless they show a breach of the condition of the bond j and they cannot show a breach of the condition, unless they show a judgment against them.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Emerson & Huntington, for x>laintiffs and apjaellants. Bonforcl, Singleton <& Glctek, for appellees.
   Land, J.

This is a proceeding on a rule against Seaman, Peck & Co. and their sureties, on a bond given by them for the release of certain property attached at the suit of the plaintiffs, to make them liable for the amount of the judgment obtained against the defendant.

The plaintiffs commenced suit against the defendant by attachment, and caused certain merchandise to be seized, as his property, under the writ.

Thereupon Seaman, Peck & Co. intervened in the suit, and claimed to be the vendors of the goods attached, and prayed that the sale to the defendant be annulled, and the goods returned to them, or that they be decreed to have the vendor’s privilege upon the proceeds, for the unpaid price, and a preference over the plaintiffs.

They also made application to bond the goods attached, and on a rule taken and .tried contradictorily with the plaintiff's, the intervenors were permitted to bond them, upon tlio condition expressly mentioned in the rule on the plaintiffs, that is to say, to pay and satisfy whatever judgment might be rendered against them, on the trial of the sirit.

The plaintiffs proceeded to try the main action and to obtain judgment against the defendant, regardless of the intervention of Beaman, Pock & Co.; and afterwards filed an exception to the intervention, and caused it to be dismissed, on the ground that an intervention could not be heard and tried after the trial of the main action between the original parties. See 12 An. 460.

The only question in the case is, whether Seaman, Peck <fc Co. and their sureties can be made liable on their bond for the amount of the judgment rendered in favor of the plaintiffs against the defendant P. Hoops & Co.

The condition of the bond is in these words: The condition of which is such, that if the said intervenors shall satisfy such judgment as may bo rendered against them (intervenors) in the suit pending as above mentioned, then this obligation to be void, or else to remain in full force.

The bond was taken by the Sheriff in pursuance of an order of court, which determined the condition of the bond before its execution by the intervenors.

This order of court, which lias never been disturbed, and is now in full force and effect as between the parties to it, concludes the plaintiffs from questioning the sufficiency of the bond, and the liability of the interve-nors,'beyond its express condition.

The plaintiffs cannot recover unless they show a breach of the condition of the bond; and they cannot show a breach of the condition, unless they show a judgment in their favor against the intervenors, either for the return of the goods, or the payment of their value, in satisfaction of the judgment against the defendant. They have no such judgment against the intervenors, and cannot recover on the bond.

The judgment of dismissal was only one of nonsuit, and decided nothing, on the merits, as between plaintiffs and mtervenoi's.

The plaintiffs may yet have the question of their right to the proceeds of the goods attached, determined.in a suit instituted for that purpose against Seaman, Peck & Co.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.

Voobhies, J., absent.