text:
    Humphreys v. Caraway.
    A deed of trust made by a citizen of Mississippi, to lands situated in Louisiana, authorizing the trustee to sell the lands on the request of the beneficiaries, should they have to pay anythin*» on account of the grantor, is not such a form of trust as our laws repudiate.
    ^^PPEAL from the District Court of the parish of Bossier, Jones, J.
    The following extract from the deed shows the precise character of the “ trust.”, — [Rep.]
    To have and to hold the aforesaid tracts or parcels of ground, and their ap- ■ purtenances, and the said slaves unto them, the said parties of the second part, their heirs, executors and administrators forever, upon trust and confidence for the following purposes hereinafter expressed, and for none other: That is to say, if all the above-mentioned debts, on which said parties of the third part are held and bound as security for said White Turpin & Nephew, and White Turpin, shall be paid off, discharged and fully satisfied in any way without said parties of the third part, or any or either of them, sustaining any loss or damage in consequence of their being bound as security aforesaid, then, and in that event, the estate hereby created, granted and conveyed, shall be defeated and fail. But in the event that any of the said parties of the third part having to pay any of the aforesaid debts, on which they are bound as security for said White Turpin, or White Turpin & Nephew, or in the event that any one or more of said parties of the third part having to pay and paying any debt for said White Turpin & Nephew, or for said White Turpin, or in the event that any or more of the parties of the third part having to pay or paying any debt for said White Turpin & Nephew, or White Turpin, not herein mentioned and described, or in the event of any one or more or all of said parties of the third part sustaining any loss, damage, costs and expenditures of money by reason of having become bound as security as aforesaid for said White Turpin & Nephew, or for said White Turpin, then it shall be lawful far said parties of the second'part, or the survivor of them, his executors or administrators, and they are hereby empowered and fully authorized, (if required so to do,) by any or more of said parties of the third part, who at the time of making such requisition, shall have paid any sum or sums of money as security as aforesaid, to enter upon said lands and take possession thereof, and also of the said slaves, without hindrance, prevention or delay of any one*, and to expose to sale by public vendue, and outcry, to the highest and best, bidder for cash, so much of the said lands and slaves, or either of them, as. may be deemed necessary to satisfy the claims of said party or parties, making the requisitions of sale, proportionally to the whole amount for which said parties of the third part are jointly and severally bound as security for said White Turpin & Nephew, or said White Turpin, and the surplus remaining after making such proportionable payment, as aforesaid, to the party or parties making such requisition of sale, and defraying the costs and expenses of' publication, sale and passing titles, which cost tho said parties of the second, part, or the survivors of them, his executors and administrators, are authorized and fully empowered to do, to be held in trust by said parties, of the second part, or the survivor of them, his executor or administrator, for the propor-tionab le payment of such other of the above-named debts, as may, at the time of said sale, remain due and unsatisfied; and in all cases of sale the said parties of the second part shall give six months previous public notice of the time, place, and terms of sale, by publication, in some newspaper published in the county of Claiborne. And it is further expressly understood and provided, that the property herein conveyed shall, when sold, if sold at all, and reduced to money, be applied pro rata upon and to the payment of the several debts, which the said parties of the third part may have paid or are liable to pay by reason of their being bound and held as security aforesaid ; and it is further provided, with a view to make the property herein described serve as valuable a purpose as possible, that the said parties of the second part, trustees as aforesaid, may make sale of the said property, or portions thereof, upon a credit, by first obtaining in writing the consent of that number of the said parties of third part who are held and bound as security for more than one-half of said above-mentioned debts, that is to say more than one-half of the gross amount of said debts, and said credit is to be regulated at the discretion of the said parties giving their consent; and it is further provided, that the said parties of the first part may, at any time, sell the property, or portions thereof, by first obtaining the consent of the parties as expressed in the last proviso above, and the proceeds arising under such sale shall be applied pro rata to the payment and liquidation of the debts for which said parties of the third part are bound as securities. And the said parties of the second part, trustees as aforesaid, after disposing of the proceeds of said sale or sales as above contemplated, passing title and giving possession, are required to render a full account of their actings and doings to said parties of the first part, their heirs, executors or administrators, and to avoid all unnecessary suits, or costs, or difficulties that may arise hereafter. It is hereby declared and understood, that upon its appearing that the sale or sales, and the application of the money arising therefrom, have been made as is above specified and directed, well and faithfully, and the title executed by said trustees, as is above authorized, then shall the purchaser or purchasers be and remain in full, quiet and undisturbed possession of the aforesaid property, both real and personal, or such part thereof as may be sold, without claim of said parties of the first part, or any person or persons claiming by, through or under them.
    In witnes whereof, the said parties of the first part have hereunto set their hands and affixed their seals the day and year first above written.
    Signed and sealed in
    the presence of: WHITE TURPIN, [Seal.]
    LAVINIA TURPIN, [Seal.] SAML. COBURN. [Seal.]

      Roysclon, for plaintiff:
    Cited, 4th L. 213. Young v. Templeton, 4 An. Ohewning v. Johnson, 5th An. 679.

      Looney, for defendant and appellant:
    This brings us to the consideration of the deed in trust offered in evidence by the plaintiff. In the first place, if this deed in trust did not show a contract forbidden by the laws of Louisiana, and if our courts had not repeatedly refused to recognize such documents as transferring any property in this State, and as a matter of comity our courts would give them the effect sought for in this case, then the deed now under consideration could not bind the defendant unless it were clearly proven that the suspensive or resolutory conditions had actually happened and transpired. It certainty is incumbent on the plaintiff to show that these very debts which the deed in trust was given to secure, were not only not paid by the said White Turpin, but that they were paid by said party or parties of the third part, or at least that said party of the third part, some one, more, or all of them, did suffer some expenditure of money in consequence of their becoming bound as surety to said White Turpin & Nephew and the said White Turpin. These debts have long since been paid or they are prescribed, and the law certainty presumes that they were discharged by the original debtor, unless the contrary be shown; and if so discharged, the deed is defeated by its own terms, and the property thus suspended reverts to White Turpin or his representatives, if any title ever passed out of him. And if our law could give the contract, the credit of being a transfer at all, we submit to your honors that it was a transfer to Coburn and Dunbar jointly — ajoint interest, though it may have been for others, still, it was a transfer jointly, and to bo received jointly and disposed of jointly, and Ooburn as vendee could not transfer a greater interest than was vested in him, and if he could transfer any title whatever it could only be one undivided half of the entire property of which he was the joint vendee with said Dunbar. Our law abhoring contracts of substitutions, could only consider him in the light of an ordinary vendee.
    But defendant contends that the deed in trust conveyed no title or property out of White Turpin, but was at most a mortgage given to secure David H. Humpreys and others against certain liabilities they were under, as sureties for said White Turpin & Nephew arid the said White Turpin. There is nothing in said deed to show that the parties of the third part ever accepted the stipulations made in their favor. Yates v. Phipps, 5 An. 124; O. 0. 1794, 1796, 1803.
    And further, the property mortgaged could not be sold extra judicially, even if White Turpin had been alive at the time said mortgage was closed by the sale at public auction. But White Turpin was dead nearly two years before said mortgage sale took place extra judicially, and it seems that they were condemned without any notice whatever, without any account having been rendered to them; and as a mortgage, it cannot support the plaintiff in his petitory action.
    Said deed in trust also contains the substance of a mandate, and is a power of attorney given by Turpin and wife, appointing two attorneys — Coburn and Dunbar — to sell certain property therein described, upon the happening or fulling of certain conditions in a specified manner, and under said mandate, Co-burn, one of the attorneys, purports to have made a sale of the land in controversy, with other lands in this State, amounting together to about three thousand one hundred and sixty acres, at public auction, in the State of Mississippi, to D. C. Humphreys and Hamilton, for the sum of two hundred and forty dollars. Said deed if it is to have effect here as a mandate, the sale made under it, is void, because it is a mandate for two attorneys to act, and gives no power for one to act if the other be alive: It is not pretended that Dunbar is not alive, but merely that he declined to act. It is a well established principle of our law, that when a mandate is given to two or more persons, they must all join in acting. See 2 La. Rep. 276, Sample v. Lamb.

    The sale made by Coburn, -as trustee or attorney in fact, under said deed, was executed on the 13th day of November, 1843, and passed titles to Hum-phreys and Hamilton, on the 16th November; 1843, [Trans. 38 to 41.] When White Turpin died, on the 4th day of April, 1842, [Trans. 89] nearly two years before the time of said sale, -when all authority to act had expired by the death of White Turpin, his principal, all his acts then must be void, and he could convey no title whatever out of the heirs of White Turpin. See 0. 0. 2996.
    It is well known that the question as to what weight and validity our law would give to those deeds in trust has frequently been a matter of deliberate consideration of our Supreme Courts, and in the case of Bides v. Ooodridi, 3 An. R., the points then presented are precisely the same as are submitted in this cause, with the exception that in that case the defendant had notice of the outstanding title, as evidenced by the deed in trust, which was recorded as a deed in “ book of deeds,” in the office of the recording officer in the parish where the land sought to be conveyed in said deed in trust was situated, and in this case defendant had no notice whatever, for the deed in trust was never recorded as a transfer in this State, and only as a mortgage in the office of the parish Judge and Recorder of Mortgages of Claiborne parish, Louisiana. But in the case referred to, after very able and elaborate argument by counsel of first eminence, the court decided : The effect of a deed of trust executed in another State, conveying land situated in this State, and recorded in the parish where the land lies, must be determined by our laws. C. C., 10. Such an instrument being an agreement by which mortgaged property is authorized to be sold extra judicially, is not valid under our laws, so far as third persons are concerned, whatever may he its effects between the parties. 3 An. R., 212.
    Also, in the case of Chewning v. Johnson, (5 An., 678,) the court held: An assignment made in good faith by the laws of another State in favor of creditors domiciliated in that State, by a party also domiciliated there, willbe enforced on the property of the debtor in Louisiana which has been actually transferred to tho assignee ; provided, no injury arises to our own citizens, and not otherwise.
    And, before dismissing this part of the subject, the defendant respectfully submits to your Honors, that even if our courts had not refused to give effect to deeds in trust as transfers of property in this State, and this deed in all other particulars formed a perfect link in the chain of plaintiff’s title, still it is absolutely void, although the nullity be not formally directed, because it shows a contract made in contravention of a prohibitory law. See C. C., 12 and 11. That said deed in trust shows a contract entered into in the State of Mississippi, authorizing Coburn and Dunbar to sell lands situated in the State of Louisiana at public auction, when neither Coburn or Dunbar-were regularly appointed auctioneers for this State, and at a time when the laws of this State prohibited such sales of property situated m this State, except done by an auctioneer of the State, under the penalty of five hundred dollars for each offence. Bul. & Cur. Digest, p. 32, art. 1, p. 33, art. 6; Greiner’s Digest, 120, 128. It shows a contract, the palpable effect of which would be to defeat the revenue laws of this State, and derogate from the force of the law enacted for the purpose of securing to the revenues of the State the sum of one dollar for every hundred dollars of the value or price of the lands, tenements, etc., in this State, sold at public auction. See Bullard & Curry’s Digest, p. 32, art. 2; Greiner’s Digest, 121.
    The deed of Coburn to Humphreys and Hamilton could convey no title, nor could the deed from Humphreys and Hamilton to plaintiff, because the parties making transfers to them were without title, and those deeds were not proven and not recorded until long after the defendant, Caraway, was in possession in good faith, and holding by a perfect title of record in himself.
    On the 24th day of November, 1.846, it appears that the Tax Collector of the parish of Bossier and State of Louisiana, sold one undivided half of the lands in controversy as the property of John Stamps, to satisfy State and parish taxes due said parish and State from the said John Stamps, when Andrew Lawson became the last and highest bidder, and the lands were adjudicated to the said Lawson as the purchaser, for the sum of $28 17, which said land the said Lawson permitted John B. Evans to redeem, as the agent of John C. Humphreys. But this deed is void, and can have no effect whatever, because there is no evidence that John Stamps ever owed the said State or parish any taxes whatever. There is no showing that said lands were ever assessed, or that any property of John Stamps was ever assessed in said parish by any lawful assessor of State or parish taxes, and consequently no forced sale, without strict proof that all the requirements of the law have been complied with, can bind John Stamps. Therefore, the redeeming of the said land by the plaintiff’s agent, passed no title out of said Stamps, because said tax sale passed none. And if any title passed from said Stamps, the redemption could only take place for the benefit of said Stamps and his legal representatives, and if it can have any effect at all in law, it can only strengthen,the original title in said Stamps, which inures to the benefit of the defendant, Caraway.

    Further, the consideration expressed in the deeds of plaintiff, and under which he seeks to set up title, shows that they were never intended to be serious, or translative of property. The sum of one hundred and seventy-five dollars, given by the plaintiff for an undivided half of three thousand one hundred and sixty acres of land, worth four thousand two hundred dollars at the Land Office of the United States, and part of the same lands costing the defendant the sum of two dollars per .acre, must strike the court as a consideration fictitious and nominal, and sounds of bad faith and simulation.
    For all of which measures the defendant prays your Honors to annul, avoid, and reverse the judgment of the District Court, and render judgment in his favor, dismissing plaintiff’s claim and suit, quieting him in his title and possession, and for all costs in both courts, and for general relief, etc.
   Buchanan, J.

(Spoffokd, J., having been of counsel, recused himself.)

This is a petitory action for land. Plaintiff claims title under White Turpin, in his lifetime a resident of Mississippi, who, on the 7th of May, 1840, conveyed to Samuel Coburn and Joseph Dunbar, also residents of Mississippi, hy deed executed and recorded in that State, this land, with other tracts, situated in Louisiana, in trust, for the security of sundry persons named in the deed, who were endorsers and sureties of said Turpin; the import of the deed being, that if any of the persons, named as beneficiaries, should have to pay anything, on account of the grantor, and should require a sale, then the two trustees named, or the survivor of them, should sell the property conveyed, or as much of it as they should deem necessary, at public auction, to the highest bidder, after six months previous advertisement.

On the 16th November, 1843, Samuel Coburn, made a deed of conveyance of the land to David G. Humphreys and Charles D. Hamilton, in which deed it was recited that the said Samuel Coburn, in his capacity of trustee, aforesaid, had advertised and sold the said land, at public auction, to the said Humphreys and Hamilton, as the highest bidders. David G. Humphreys and Charles D. Hamilton conveyed their title to plaintiff, on the 9th October, 1845.

A good deal of discussion has arisen at bar, upon the legal validity of deeds of trust made in Mississippi, to affect lands in Louisiana; and some decisions of our predecessors, upon that point, have been quoted, which do not appear to be very easily reconcileable. See 3 An., 216; 4 An., 259; 5 An., 679.

But we think that this question does not embarrass.the decisionof the present case. Trusts, as we learn from the writers who have treated the subject ex professo, are extremely various in their objects. That which is presented to us in this record may, without the least violence, be viewed as a power of attorney to sell lands, which, assuredly, is not such a form of trust as can be supposed to conflict with our peculiar jurisprudence.

Viewed in this light, the objection urged by the counsel of defendant against the conveyance from Coburn to Humphreys and Hamilton, appears to be well taken. The mandate was joint, and could not he effectually exercised by one of the co-mandataries alone. 2 L. R., 276.

In the deed of trust under consideration, the power to sell is given to two persons, or to the survivor of them. Now, not only was the co-mandatary or co-trustee of Ooburn, Joseph Dunbar, not dead, when Ooburn took upon himself to make the sale alone, but it is proved, as well by the recitals of the deed, as by the testimony of Ooburn, examined as a witness for plaintiff, that Dunbar declined to act under the deed of trust.

This defect in the title of plaintiff, might possibly have been cured by some subsequent act of Turpin, which would have amounted to a ratification. But nothing of the kind appears. On the contrary, the heirs of Turpin afterwards sold this land to another party.

And it is proper here to observe, that under the circumstances of the case, there is very little room for surprise at the heirs of Turpin having treated this land as their own, notwithstanding the sale by Ooburn. The deed of trust specifies liabilities of Turpin nominally to the very large amount of one hundred and thirty thousand dollars. Yet it is not stated that one dollar of this amount is due to any of the beneficiaries. They figure merely as security for the payment of notes, held by different banks.

The property conveyed in trust, embraced large quantities of land in Louisiana and Mississippi; besides many slaves and much other personal property in the latter State. The trustees had only the right to make sales of this property upon the requisition of the beneficiaries. And the beneficiaries had only the right to make such requisition in case of having made payments for Turpin under their fidejussory obligations. The deed of Ooburn to Hum-phreys and Hamilton recites, indeed, that a requisition had been made for the sale. But this fact is shown in no other manner. And it certainly appears strange, that all the Louisiana lands contained in the trust, and amounting to several thousand acres, described by section, township and range, should hav e been knocked down in the presence of Turpin's creditors, to Hwmpreys & Hamilton, as the highest bidders, for a lumping price of two hundred and forty-two dollars and forty cents.

Judgment of the District Court reversed, and judgment for defendant, with costs in both courts,


source: Caselaw Access Project

license: Public Domain

text:
    E. E. Kelly v. D. Kelly, et als.
    An action will lie against one who by force and violence has prevented a person from making a will in favor of him who brings the action.
    ^^PPEAL from the District Court of Morehouse.
    The following copy of a judgment was among the Monroe records. There is an endorsement in pencil on the judgment. “ Transcript, with Clerk of Supreme Court, New Orleans.” But that Clerk informs the reporter that he has no such record; he cannot, therefore, state authoritively, by what District Judge the case was tried; what lawyer appeared in it, or which of the Judges rendered the judgment in the appellate Court.' — [Rep.]
   Monday, Jan. 17th, 1853. — Present: Their Honors, Geoiige Edstis, Chief Justice; P. A. Rost, Thomas Slidell and Wm. Dunbae, Associate Justices.

In this cause the Court this day delivered their opinion, in writing, in the words and figures following:

The widow of Elias Kelly, claims from his mother and his brother, who are his only heirs at law, damages equal in amount to his entire succession, on the ground that he was prevented by their threats and violence from instituting her his universal legatee.

The case was before us last year on an appeal from the judgment dismissing the petition, rendered upon the exception of the defendant, that the said petition discloses no cause of action. The question being a novel one, and having no books at hand to which we could refer, at Munroe, we remanded the cause to be tried on the merits without passing definitely upon the exception. It has since been tried before a jury, and a verdict rendered against both defendants, for a part of the sum claimed. They prosecute the present appeal.

Actions of this kind were admissible under the rules of the civil law, with the difference however, that the amount recovered inured to the fisc and not to the party aggrieved. Qui dum capiat haereditatem legitiman vel ex testa-mento prohibuit testamentarium introire volente eo facere testamentum vel mutare; divus Hadrianus constituit denegare ei debere actione, denegatisque ei actionibus fisco locum fore. D. & O. Signis aliquem test, proba.

The fiscal laws of Rome, operating as purnishments for private wrongs have not been adopted by us, and the only remedy known to our jurisprudence in such cases is given to the injured party by an action sounding in damages. We incline to the opinion that a sufficient ground of action has been alleged. A case in point has been reported by Ricard, in which the chapter of Vezelay was admitted to prove that Anne de Siron, during her last illness, had often de-dared to her servants that she desired to make a will, and give three thousand livers to the church of Vezelay; that she had one day demanded the attendance of the Notary, hut that her father had prevented it, forbidding the entrance of any Notary in his house. 1 Ricard, Traite desDou. 470.

But conceding that the action will lie, it is clear that it cannot be maintained without positive evidence, that the execution of the will was prevented by the threats and violence charged. We are constrained to say, that the record contains no evidence whatever of that fact, and that the verdict of the jury is manifestly erroneous. It is alleged that a will had been prepared at the request of Elias Kelly, and that persons had been sent for to witness it, but that they were forcibly driven from the house by the defendants before it could be read and signed. It is shown that the defendant, James Kelly, left the house when the witnesses came, without making any threats, and that he did not return until after their departure. I)icy Kelly, the other defendant, remained in the house; she is an old woman, whose threats, if she had made any, could not have put in fear the six or seven men then present. But in truth, she used no violence, made no threats, and did not, so far as the record shows, attempt to prevent the execution of the will. The witnesses say that they left the house because they perceived that there was dissatisfaction in the family, but that they heard nothing at the time, which caused them to retire. Admitting that dissatisfaction to have existed, it was not manifested in a manner that can be considered as amounting to threats and violence. The facts of the case are, simply, that the attending'physician of the deceased had written at his request a noncupative will, by which he instituted his wife his universal heir; that the requisite number of witnesses was sent for, but, before the will was read to them in the presence of the testator and acknowledged by him, they left the room and retired, of their own free will.

The plaintiff has entirely failed to make out his case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed; it is further ordered and decreed, that there be judgment against the plaintiff, and in favor of the defendant, with costs in both Courts.


author: Voorhies, J.

text:
      W. Terrill v. T. Gamblin, et als.
    The estate of Nicliolson held a note due to it by Gambling which the administrator assigned to the estate of Sheldon, to pay a debt which Nicholson's estate owed it. Held: that this could in no sense be considered as an extinguishment of Gamblin's note, and that the transfer carried with it every thing which was accessory to the note, such as suretyship, privileges and mortgages.
    The maker of a note can not enquire into the validity of the transfer unless he has some interest in so doing.
    C. 0. 2615, 2625, 2185.
    ^PPEAL from the District Court of the Parish of Caddo, Zand, J.
    The following statement of facts is from the judgment of the District Judge. —[Rep.]
    The facts of this case are as follows, to-wit: Peter Nicholson, late of the Parish of Caddo, sold to Thomas Gcmblin, a track of land, and to secure the payment of the purchase money, took from him his promissory notes, payable at different dates, and secured by special mortgage on the land sold. The note now in suit was one of those notes. Thomas Gamblin afterwards sold the same land to B. A. Nott, who is sued in this action as the third possessor of the mortgaged property.

      Peter Nicholson died, and Bodericlc Nicholson was appointed his administrator, at the time of Peter Nicholson's death. He was indebted to the succession of Seth Sheldon, on a promissory note in the sum of $1861. It is admitted that Mnlc was the curator of this succession; that Boach was his agent and William Terrill, the plaintiff, was his attorney at law.
    The note given by Gamblin to Peter Nicholson, came into the hands of the administrator, Bodericlc Nicholson, to be administered as part of the effects of Peter Nicholson's succession.

      Boach and the plaintiff agreed with the administrator of Peter Nicholson’s estate, to credit the note due to the succession of Sheldon, from the succession of Nicholson, with the amount of the note 'due by Thomas Gamblin to Peter Nicholson's succession; and to take an assignment or transfer of the note due by Thomas Gamblin to William Terrill, plaintiff, together with a subrogation of all the rights of action and of mortgage which existed in favor of the succession of Nicholson.

    This agreement was executed by the parties named, by giving the credit to the succession of Nicholson, and by transferring the note sued on to plaintiff, and subrogating him to ali the rights of action and of mortgage, in favor of Peter Nicholson's estate.
    The plaintiff by virtue of this transfer and subrogation, has instituted this action, and claims to be the owner of the note sued on in his own right.

      B. A. Nott, the third possessor, answers the plaintiffs demand, and alleges that the note sued on was paid and extinguished by the execution of the agreement between Boach, the plaintiff and the administrator of Peten' Nicholson's succession; and that the mortgage given to secure the payment of the note, was consequently also extinguished. He also alleges that the note sued on was the property of the succession of Nicholson, and could not be legally trans-fered by the administrator, without an order of Cour; and specially charges that plaintiff has no such right, title or interest, in or to the note sued on, as enables him to maintain an action thereon.
    Those are the material facts and the substance of the pleadings in the case.
    The note sued on and the transfer were as follows:
    $1128 69£. Caddo, Parish, January Ith, 1845.
    On or before the the first day of January, eighteen hundred and forty-seven, I promise to pay to the order of Peter Nicholson, eleven hundred and twenty-three dollars 69J-100 cents, for value received, with interest after maturity, until paid, at the rate of eight per cent, per annum.
    Thos. Gamblin.
    Endorsed on the back of the note is the following, to-wit:
    Shreveport, June 2d, 1849.
    I hereby transfer to W Serrell or bearer, all the right, title and claim to the within note, and subrogate him to all actions of mortgage or other actions to collect the same, he having paid the same.
    Roderick Nicholson, adm’r.

      Hodge, for plaintiff and appellant.

      Crain & Nutt, for defendant.
   Voorhies, J.

(Spoitord, J., recused himself.)

The facts of this case, as exhibited by the record, appear to be correctly set forth in the opinion of the Judge aguo.

We regret our inability to concur with our learned brother of the District Court in the view which he has taken as to the applicability of the law on which his opinion is based to the state of facts thus presented.

It appears clear to us that the transfer or assignment of GambUn's note by the estate of Nicholson in payment of its liability to the estate of Sheldon, cannot, in any point of view, be considered as an extinguishment of the note due by Gamblin. Admitting for the sake of argument that the administrator had no legal authority to make the transfer, then it is obvious the succession of Nicholson would not bo affected by it, and the position of Gamblin, the maker of the note, remains unchanged. Hence we are unable to perceive how the defendant’s position can he affected, whether the transferree, or the estate of Nicholson be considered the legal owner of the debt. We think the transfer should be considered as a donation in paiement, which our code defines to be “ an act by which the debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.” Art. 2625. Was the debt due the estate of Sheldon, by the estate of Nicholson, extinguished ? If so, how was it extinguished ? Surely not by payment. Then it must have been by novation. One of the ways in which novation takes place under our code, is, “ when by the effect of a new engagement, a new creditor is substituted to the old one, with regard to whom the debtor is discharged.” Art. 2185. Applying this rule to the parties before the court, it follows that Sheldon's estate must be considered as substituted to Nicholson's estate as a new creditor, and Oamblin its debtor. The plaintiff being considered transferree, it is clear, under these circumstances, that the sale or transfer of the debt included everything which was an accessory to it, such as suretyship, privileges and mortgages. Art. 2615.

In relation to the transfer from the estate of Nicholson under whom the plaintiff claims to hold, it is perfectly clear that the defendant is without any interest to contest it. 5 R. R., 275.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiff recover of Thomas Oamblin the sum of six hundred and fifty-nine dollars and fifty-nine cents, with interest thereon at the rate of eight per cent, per annum from the 2d of June, 1849, until paid, and to secure the payment thereof that the plaintiff’s mortgage on the property described in his petition, be recognized; that on the failure of the payment of this judgment ten days after the same shall have been notified to the defendant, B. A. Nott, then execution shall issue and the property described in the plantiff’s petition, seized and sold to satisfy said judgment, with interest and costs; and it is further decreed that the defendants and appellees pay the costs of both courts.


text:
    T. L. Terry v. A. Harris, Sheriff, et als.
    A concordat entered into between a firm and its creditors extinguishes only the debts due by the firm —not those due by the individual members of it.
    from the District Court of the parish of Claiborne, Spofford, J.

      Jones, for plaintiff and appellant.

      Egan, for defendant.
   Voorhies, J.

The questions presented in this case appear to have undergone a. careful and critical examination by the Judge a quo. We think his conclusion is fully borne out by the decision in the case of Hodge v. Whitall, 15 L. 506, in which Judge Martin said : “It is clear that the parties of the second part acted in this concordat in no other capacity than as creditors of the firm.” Here it is also perfectly clear that the debt claimed by the plaintiff was not a debt due by the firm of Thomas L. & Thomas 0. Terry, and consequently could not be extinguished by the concordat entered into between the latter and their creditors.

In affirming the judgment of the Judge a> Quo, we also adopt his reasons.

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

The following is the judgment of the District Court:

It is not shown that the judgment against which plaintiff sued out this injunction, was filed on the bilan of Thomas L. & Thomas 0. Terry, in their surrender, nor that the lawful holder of this identical debt was any party to the compromise, assignment or concordat entered into between the said Terrys and their creditors. Of course, then, the present holder cannot be bound by any agreement entered into between those parties.

Again there is an insuperable objection to the position now assumed by the plaintiff; that is, that the cession or assignment of Thomas G. & Thomas L. Terry was a joint affair, and only purports to give up their partnership property to the partnership creditors. A partnership is an ideal being distinct from the individuals that compose it. The partnership may go into bankruptcy, without affecting the relation that subsists between the individual members and their individual creditors. Eor aught that appears to the contrary, J. P. M. Puprée, assignee, holder of the judgment enjoined, is an individual creditor of Thomas L. Terry, and it does not appear that any composition was ever entered into between them as to this individual debt. The injunction must, therefore, be dissolved. It is for the above reasons, ordered and decreed that the injunction sued out in this case be set aside and dissolved, and that the defendants be allowed to proceed with their execution, for the amount appearing to be due at the date of the injunction. It is further ordered, adjudged and decreed, that the defendant, J. P. M. Puprée, recover of the plaintiff, Thomas L. Terry and his sureties, J. £. Wilder and A. Pyer, in solido, interest at the rate of eight per cent, upon the principal amount enjoined, from the date of service of the writ of injunction, and also the sum of ten per cent, upon said principal amount as general damages in this case; it is further ordered that the plaintiff pay the costs of suit to be taxed.


author: Spofford, J.

text:
    L. Meyer v. Eckless & Fellows.
    Where the answer alleges that another party owns the note sued on, who had warned defendant no t to pay any one else, interrogatories propounded by defendant to prove by the Plaintiff ys own oath that he was not the bonajide holder of the note, and had no interest in it, are relevant to the issue, and the court should order them to be answered.
    PPEAL from the District Court of the parish of Union, Richardson, J.
    The following answer was filed by defendants: — [Rep.]
    The defendants in the above entitled cause, for answer, deny all and singular the allegations in plaintiff’s petition contained, and aver that the note sued upon does not belong to the plaintiff, but to the late firm of Levison, Traylor & Co., composed of Abraham Levison, John Traylor and Samuel Traylor, doing a commercial business in said parish up to about February, 1850, when Samuel Traylor died, and the firm was dissolved, and neither of the parties were authorized to transfer its effects or rights; that John Traylor was appointed by your honorable court receiver for said firm, who alone could collect for it or pay debts due by it. Respondents aver that the debt for which the note sued on was given was due to said firm, but said A. Levison induced them to make the note payable to him, as bearer, and they have been notified by said receiver not to pay them to any person but to him. Respondents are afraid that if they paid to plaintiff, they might be forced to pay again to said receiver.

      Matthews & Henderson and Garrett & Luieling, for plaintiff.

      McGuire & Ray, for defendants and appellants:
    The general rule is, that a party in possession of a note payable to a bearer may recover upon it, and the maker would be protected by payment to the holder. But there are no general rules without exceptions. Defendants knew the notes were given for a debt they owed the firm: they knew Levison had been the managing member of the firm; they knew the firm had been dissolved, and that the court had appointed John Traylor receiver for the firm, and he had notified them not to pay this debt to any one but him. 6. An., 114, Moranv. Leblanc; 8 L. R., 131, Hudson v. Perry. There never was any consideration for a note from defendants to Levison, as they allege, and they deny there was a transfer. To prove these facts, plaintiff was interrogated, and should answer. Bowen v. Viel, 6 N. S., 565.
   Spofford, J.

The District Judge erred in refusing to order the plaintiff to answer the interrogatories propounded to him by defendants.

They were quite relevant to the defence set up, which, if true, would exonerate them from liability to the plaintiff. See Questi v. Griffe, 3 L., 307; Burns v. Hayes, 13 L., 13.

They were propounded to prove by his own oath that he was not a bona fide holder of the notes sued on, and that he had no interest in them. The answer alleged that another party really owned the claims, and had warned them not to pay any one else. They had an obvious interest in having this matter judicially investigated before they were condemned to pay, and the court, under its equitable powers, might perhaps have been called upon to cite in the other party to interplead in the case. He afterwards came in voluntarily, and he should be heard. See Moran v. Leblanc, 6 An., 113.

It is therefore ordered that the judgment of the District Court be reversed, and the cause remanded for a new trial between the plaintiff, the intervenor and the defendants, the costs of this appeal to he borne by the plaintiff and appellee.

Re-hearing refused.


author: Buchanan, J.

text:
    M. Talley et al. v. Alexander, Administratrix, et al.
    The lessee cannot make repairs at the lessor’s expense, unless he complies with the Art. 266é of the Civil Code, and puts the landlord in default.
    The lessee can convey no greater rights to the under tenant, than he himself possesses.
    C. C. 2668, 2664, 26DT.
    from the District Court of Caddo, Spofford, J.

      Land & Oooh, and B. G. Harper, for plaintiffs and appellants.

      Young, curator ad hoe, for defendants.
   Buchanan, J.

The plaintiffs are appellants from a judgment rendered against them by the court below, in favor of the defendants.

We have carefully examined this case, assisted by an elaborate opinion of the Judge a quo, in which we fully concur for the reasons assigned by him, which we adopt as our opinion.

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

Opinion of Spofford, Judge of the District Court:

The plaintiffs allege that in June, 1848, Samuel Bennett and M. D. 0. Gane, herein represented by ilL B. G. Álexander, as executrix and administratrix, leased to Durham & Harris, certain warehouses in Shreveport, described in the lease as “ our warehouses, together with lots 11 and 12, in block 60, on which the buildings stand,” for the term of three years, at the rate of $600 per annum; that afterwards, on the 11th of November, 1848, the said lessees, Durham & Harris, underlet to the petitioners a portion of said buildings and lots, described as follows, to wit: “ The cotton shed situate on Commerce street, in front of the large warehouse now in the occupation of Durhmn & Harris, 70 feet front, &c., by 70 feet, &c.,” for the term of three years, at the rent of $300 per annum.

They aver that the said cotton shed was an open shed, and that they converted the same into storehouses, by weatherboarding, flooring, partitioning, and ceiling the same, and making doors and skylights, and building chimneys, all which improvements cost them $1200, and enhanced the value of the premises to that amount; that in June of the next year, Durham & Harris failed, and shortly afterwards, the plaintiffs were called upon by Bennett, to deliver possession of the said leased premises to him, on the ground that Durham & Harris had neglected to pay their rent and left the country, whereupon, the petitioners gave up the premises to the owners, who have since been in the enjoyment thereof, including the improvements, wherefore they have become liable to pay them $1200 for the improvements so retained, with five per cent, interest from August, 1849.

The defendants pleaded a general denial; and a joint note of $300, signed by Tally & Miller, to the order of Durham & Harris, and by them endorsed, is pleaded in reconvention.

Why the plaintiffs delivered possession without making this claim, and have slept over it for nearly five years, till the original lessor is dead, is not explained.

They urge in argument, that they occupy the position of third persons, who have made constructions and works upon the owner’s soil, and that he having kept the same, is obliged by Article 500 of the Civil Code, to reimburse them for the value of their materials and the price of the workmanship, and they have cited the case of Miller v. MeCloude, 11 Rob. 22B, in support of this position.

That case does not go to the extent of saying that the doctrine contained in Article 500, applies without modifications to improvements made by a lessee, for if it did, it would not be sound in law. The argument is merely, that Supposing such to be the case, the position of the appellant with regard to his mortgage rights, could not be maintained.

The rights of lessees, touching their improvements, are regulated in another portion of the Code.

Art. 2663 : “ The lessee is bound to deliver the thing in good condition and free from any repairs. He ought to make during the continuance of the lease, all the repairs which may accidentally become necessary, except those which the tenant is bound to make as hereafter directed.”

Art. 2664 : “ If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to do it. If he refuse or neglect to make them, the lessee himself may cause them to be made, and deduct their price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”

Art. 2697 : “ The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leave it in the state in which he found it. But .if these additions be made with lime and cement, the lessor may retain them on paying a fair price.”

Now, in the present case, a cotton shed was converted by the under tenants into two store rooms. It is not pretended that this comes under the head of indispensable repairs. Nor is it pretended that any demand was ever made of the lessors to have the job done themselves, or that they were even consulted about it. It is not shown that the plaintiffs ever sought to remove the repairs, or were prohibited from doing so. For aught that appears to the contrary, the cotton shed itself might have been as useful to the owners for their purposes, as the weatherboarded rooms into which it was converted without their license or privity.

The lessee cannot make repairs at the lessor’s expense, unless he complies with the Article 2664, and puts the landlord in default. Hennen v. Hayden & Kelly, 5 An. 713.

It was well said by the Supreme Court, in Shull v. Banks, 8 Rob. 171, that “the owners of houses would soon be ruined, if it were permitted to every tenant to make such repairs as his fancy or caprice might dictate, without notifying the owner of the property of their intention.”

So much for the case, as it stands upon the face of plaintiffs’ petition.

But upon the trial, the plaintiffs themselves have adduced evidence, which completely bars their claim to relief.

The first evidence they offered, was the original lease from Bennett & Gane to Durham & Harris, which contains this remarkable clause: “ And whatever improvements they (i. e. the lessees) may choose to make, they have the privilege of doing, by leaving the same upon the premises, free of charge.” “ Oon-nentio nineit legem." The contract is the law of the parties, if not contrary to law itself. But such a contract as this, has been recognized as legal and binding in the very case on which the plaintiffs rely. Miller v. McCloud, 11 R. 225, already cited.

The only question then that remains, is, are the sub-lessees controlled by this contract between the original parties.

They seem to have considered themselves as so bound, for, although they hada lease for three years from Durham & Harris, they gave up possession at the end of one year without a murmur, when the defendants demanded possession on the ground that Durham & Harris had forfeited their lease by failure to pay the rent. It is equitable, that they should be so bound, because they were notified of the contents of the original lease when they hired a portion of the premises from Durham & Harris, as appears by the reference to that document in their own written lease, which they have produced in evidence.

And finally, it is legal, that they should be so bound, because the lessee, although not interdicted, from sub-letting the premises, can convey no greater rights to the under-tenant than he himself possesses. It makes no difference in this matter whether the original lease was recorded or not.

The only statute upon the registry of leases to which I have been referred, was intended solely for the protection of lessees against being evicted on a sale of the premises by the owner.

The Act of March 26th, 1806, merely provides, “ that no lease of any lands, houses or tenements, of any description, shall be avoided by sale of such lands, houses or tenements, so leased or otherwise, but shall remain in full force for and during the time specified in such lease: provided, however, that every such lease shall be in writing, signed by the proprietor, &e., and acknowledged and recorded in the same manner as is or may be provided by law for absolute deeds of sale of real estate.” Bui. & Our. Dig. 539.

Under the evidence before me, I should feel justified in giving judgment in favor of the defendants on the note pleaded in reconvention, if I could see any necessary connection between the main action and that demand; as it is, there must be judgment of non-suit upon that claim.

It is, for the foregoing reasons, ordered and decreed, that there be judgment against the plaintiffs in favor of the defendants, in the main action. It is further ordered, that there be judgment as in case of non-suit, on the demand in reconvention, and that the plaintiffs pay the costs of this suit to be taxed.


text:
    Goodloe & Co. v. Rogers.
    The rule for the measure of damages for the inexecution of contracts, is found in Art. 1928 C. 0.
    The rules of the civil and the common law, as to the measure of damages for breach of contracts, do not differ materially.
    The principles of the cases of Lóbdéll v. Parker^ 3 L. R., 832, and Rugety v. Goodloe, 7 An. R., reaffirmed. '
    One who has sustained loss and damage by the defective manner in which a contract for the erection of a sugar mill and engine has been executed, is entitled to a privilege on the mill and engine erected for the reimbursement of his losses.
    from the District Court of St. Landry.

      T. H. Lewis and Porter, for plaintiffs and appellants.

      8wa/yze & Porter and Dupré & King, for defendant.
   Buchanan, J.

The contract of plaintiffs was to build and put in operation on the plantation of defendant, a sugar mill and steam engine. The contract was made on the 8th January, 1849, and the plaintiffs agreed to deliver the mill and engine at the Plaquemine Landing on or before the 18th June, 1849. On his part, the defendant bound himself to haul the said machinery to his sugar-house ; to furnish the necessary brick work and timber for putting up said machinery, and a suitable number of hands to assist in putting up the same, within thirty days from the delivery of the same at Plaquemine.

The law of Louisiana on the measure of damages for the inexecution of contracts, is found in Arts. 1928, 2294, 2295 and following of the Civil Code.

“ Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Art. 2295.

“ When the object of the contract is anything but the payment of money, the damages due to the creditor for its breach, are the amount of the loss he has sustained and the profit of which he has been deprived, under the following exceptions and modifications:

1st. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” C. C. 1928.

It appears to us evident that it entered into the contemplation of the plaintiffs as well as of the defendant, that the sugar mill and steam engine in question were to grind the crop of sugar cane of 1849 on the defendant’s plantation. The plaintiffs were extensive manufacturers of these articles in Cincinnati for the Louisiana market, and the contract was made by James Goodloe in person, on a plantation in Opelousas.

This being conceded, it follows that the parties must have contemplated that the making of the crop of 1849 might be delayed or frustrated by a failure to fulfil the contract. . The damage therefrom resulting, might, therefore, amount to the total loss of the crop, or to a partial loss.

For such loss we consider the plaintiffs, under their contract, would be liable, according to the law cited.

Applying this law to the facts of this case, we find it in proof:

1st. That plaintiffs were guilty of negligence in executing their contract, by making a right hand engine instead of a left hand engine, which their written contract called for.

2d. That they failed to execute their contract, in this, that the castings had defects, which caused breakage, when the mill was put in operation.

3d. That the plaintiffs were guilty of want of skill, in putting up the sugar mill out of line, by which it was strained and broken.

4th. That the alterations and repairs, necessary for changing the engine from right hand to left hand, and for repairing the breakage, &c., caused a delay of twenty-one days, in the grinding of defendant’s crop.

5th. That defendant was compelled to windrow his crop, to preserve it from the frost, by reason of the above delay; occasioning a deficiency of sugar, estimated by witnesses at from ten to forty per cent, of the crop.

6th. That defendant paid, in consequence of the delay, twenty-one days extra wages of six hired hands, at $1 per day each, as well as extra time of an engineer.

Under the law and evidence, we consider the defendant entitled to recover damages for his loss of crop, and extra wages paid, in consequence of the delay for alterations and repairs, in putting the sugar mill and steam engine in operation; said delay being caused by plaintiff’s fault, and by their failure to execute their contract.

The measure of damages for the inexecution of contracts, as we have seen, by Article 1928, of the Louisiana Oode, is the amount of loss sustained by the obligee, and profit of which, he has been deprived, subject to the modification, that when there is no bad faith or fraud, the obligor is liable only for damages that may reasonably be supposed to have been contemplated by the parties at the time of the contract.

The rule, with its modification, is taken verbatim from the Code Napoleon, Articles 1149 and 1150. And those Articles of the French Code in turn were borrowed from Pothier on obligations, .No. 159 and 160. It must not be supposed, however, that Pothier was the author of the rule. He tells us, himself, that it is as old as the Roman law, and gives us the text of the Pandects in which it was expressed. It is known to American jurists by the name of consequential damages; and those are distinguished into proximate and remote. Mr. Sedgwick, in the third chapter of his Treatise on the Measure of Damages, has collected authorities on this subject from many different quarters. From his researches it appears that the doctrine of the Civil and Common law is not materially different. In the case of Armstrong v. Percy, 5th Wendall, the language of the Supreme Court, of New York, was as follows: “ Consequential damages may naturally arise from the mere breach of a contract, but they often depend on the peculiar circumstances of the case. Such are allowed without being stated in the pleadings, as are the fair, legal and natural result of the breach of the defendant’s agreement. If they do not thus result, the jury cannot allow them, unless they are stated in the declaration, and established by proofs.” And in Greenleaf, on Evidence, vol. 2, p. 210, it is said: “ The damage to be recovered must always be the natural and proximate consequence of the act complained of.”

It seems to us that the loss of the defendant’s crop, and the extra wages of hands, hired by him, were, in the language of these authors, the natural and proximate results of the failure of plaintiffs to comply with their obligation j or, as an authority from the Scottish law, cited by Sedgwick, expresses it, a certain resulting damage. Lord Kait’s Principles of Equity, book 1, part 1,. chapter 1, § 5.

Our own Reports contain a case where the facts were precisely similar to. the present one, with the exception that the sugar mill was not contracted to be put in operation by the manufacturer.

The language of Judge Martin, in delivering the opinion of the Court, was as follows: “ In the present case, as no fraud or bad faith is alleged against the defendant, his liability must extend to such items as arc to be presumed to. have entered into his contemplation at the time of the contract. These are,, the price of the mill — expenses of removing it to the appellants’ plantation,, and of putting it up and taking it down. — of attempts to render it available.. These are the losses which must have been contemplated as attending the delivery of an insufficient mill. Next, the sugar and molasses,, which the appellant failed .to make ; these are the profits of which he was deprived. Lobdell v. Parker, 3d L. R. 332.

In that case, the remedy sought and awarded, was the rescission of the eon-, tract and damages in addition, for a defective sugar mill. The authority of' Pothier was quoted in support of the views, of the Court,, which appear to be-conclusive of the right of the defendant to recover upon the proof adduced by him ; and as the point is of great importance to the planting interest of this State, we think it unwise to disturb a precedent of more than twenty years’ standing; especially when we find a decision in conformity thereto, made by our immediate predecessors. See case of Rugeley v. Goodloe, 7th Annual.

It is proper to observe, that doubts have been entertained by some members of the Court, as to the measure of damages ■> but they have been yielded to the considerations of the repeated decisions with regard to this particular class. of contracts, in which the rules as to conventional obligations in general, are to be taken in connection with the provisions of the Code pertinent to the subject matter.

A calculation which we have made of the losses suffered, and of the profits of which the defendant has been deprived, in the present case, based upon the elements laid down in Lobdell v. Parker, has resulted in a less sum than was allowed by the District Judge.

We also think the plaintiff entitled under his contract to a privilege upon the mill and engine.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended : that the damages of defendant be assessed at the sum of twenty-one hundred and seventy-four dollars; and that plaintiffs recover of defendant the difference between that sum and the price of the contract sued upon, to-wit: fifteen hundred dnd twenty-six dollars, with interest at eight per cent, per annum, from the 1st February, 1851, with costs in both Courts, and privilege upon the sugar mill and engine made by plaintiffs for defendant.


author: VooimiES, J.

text:
    Succession of Victor Lataste, on the Opposition of Widow E. Poiret.
    The wife has a tacit mortgage on the property of the husband for the reimbursement of her par-aphernal funds received by the latter, and this, although there may have been a marriage contract, by which the wife reserved the exclusive administration of her separate property.
    from the District Court of St. Landry.

      B. E. Linton, for administrator and appellant.

      Garland & Lastrajes, for opponents.
   VooimiES, J.

The claim of Elodie Poiret, widow of the deceased, having been classed on the tableau of distribution for the sum of $2,180 as a privilege, was opposed by Lastie Dupre, one of the creditors of the estate. His opposition was sustained and she appealed.

By the marriage contract, between the appellant and her husband, it was stipulated that there should be no community of acquets and gains between them, that she should have the exclusive administration of her separate property and effects, and the right to alienate the same as prescribed by the Code. Hence, it is contended, that the deceased hereby acted as her agent and his estate cannot be held liable.

It is immaterial in our opinion whether the deceased acted as agent or not, in receiving the paraphernal funds of. his wife ; he is clearly bound to account to her for them, and for the reimbursement she is entitled to a legal or tacit mortgage on his property.

The record shows that the only thing sold susceptible of mortgage, was a lot of ground, for the price of $115. As the tableau exhibits no other mortgage on this property than that of the .appellant, we are of opinion she is entitled to its proceeds. As the appellant is not entitled to a privilege, she must, therefore, be classed as an ordinary creditor for the balance of her claim.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the appellant, Eloide Poiret, be classed as a mortgage creditor, that she be paid by preference, the sum of one hundred and seventy-five dollars, the proceeds of the sale of said lot, and for the balance due her, she also he classed as an ordinary creditor, and that the appellee pay the costs of this appeal.


author: 'Spoefokd, J.

text:
    Atalanta Ferguson v. J. A. Glaze.
    A surety, on the official bond of an administrator, being sued at his domicil, and answering to the merits, cannot, thereafter, maintain a plea to the jurisdiction of the Court, on the ground that the Distrtct Court of the parish where the succession was opened, had exclusive jurisdiction by the Act of March 16fch, 1842.
    from the District Court of St. Landry.

      J. E. King, for plaintiff and appellant.

      T. E. Lewis and Porter, for defendant.
   'Spoefokd, J.

In 1851, the defendant was sued in the District Court of St. Landry, the palish of his domicil, as surety on the bond of Patríelo H. Glaze for the faithful administration of the succession of Silas E. Thomas, deceased.

The plaintiff alleged that she had previously, to-wit, in 1850, obtained a final judgment against Patríelo H. Glaze, for the sum herein claimed, after calling him to account in the District Court of the parish of Avoyelles, where, we presume, the succession was opened and-administered.

The defendant answered to the merits and proceeded to the testimony in support of his defence.

In December, 1858, nearly two years after filing his answer, the defendant excepted to the jurisdiction of the District Court, of St. Landry, on the alleged ground that the District Court, of Avoyelles, had exclusive cognizance of the cause, by reason of the subject matter.

The plaintiff appeals from a judgment sustaining this exception and dismissing the suit.

The appellee relies upon the 6th Section of the Act of March 16th, 1842, (Sess. Acts, p. 302)to sustain this ruling. The Section referred to, declares: “ That the Courts of Probate, shall have exclusive cognizance of all suits or actions against sureties' on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants, and administrators, tutors, 'curators and testamentary executors generally;' and no such suit shall be instituted against the security, until the necessary steps have been taken to enforce payment against the principal.”

The jurisdiction vested in the old Probate Courts- By this Act, was exclusive of the other courts then existing in the State-; the Courts of Probate having-been abolished in 1845, there was nothing in the Act of 1842 which rendered the District Court, of St. Landry, incompetent to try the present cause rations materias, after' the defendant had answered to the merits in that Court.

The defendant also, excepted that the plaintiff had failed to take the necessary steps to enforce payment against the principal. This exception raises an issue of fact which appears never to- have been tried, as the cause was dismissed on the plea to the jurisdiction alone.

It is, therefore, ordered that the judgment appealed from be avoided and reversed, the plea to the jurisdiction of the District Court overruled, and the cause remanded for further proceedings according to law, the defendant to pay the costs of this appeal.


author: Lea, J.

text:
    Salina E. Wafford, Wife, &c. v. J. W. Wafford, et al.
    A defendant cannot be allowed to object on appeal, that a supplemental petition was inadmissible, because it changed the character of the original demand, when no exception was taken in the Court a quo.

    An objection to the admissibility of testimony will not be noticed in the Supreme Court, when no exception was taken in the District Court.
    from the District Court of St. Mary.

      J. W. Walker, for plaintiff.

      Olivier & Gibbon, and Gonnelly, for defendant and appellant.
   Lea, J.

The litigation in this case arises out of the conflicting claims of the heirs of W. W. Wafford, upon the succession of their father.

The heirs and representatives of the first wife of the deceased, sue the heirs of the second wife, for the partition of his succession, alleging a fraudulent sale of all the property and effects belonging to the deceased, to J. N. Wafford, one of his sons, for the purpose of defeating the just rights of the plaintiffs in his succession. They ask that the said sale to the said J. W. Wafford, be set aside and annulled, and that he be compelled to account for the fruits and revenues arising therefrom, and that a partition thereof be made according to law. In a supplemental petition, the plaintiff alleges that the stipulated price of the property sold as above stated, was donated to the heirs of the second wife, in the following proportions, viz :

To Josephine Wafford, the sum of - - - - $8,000

To Tellina, wife of D. 0. Wallis, - - . - 4,250

To Irene,.4,500

They further aver that the defendant, J. U. Wafford, was favored in the purchase sought to be annulled, to the extent of $12,000, that being the difference between its real value and the price paid by the vendee, which several sums the said defendants should be held to collate respectively in the partition prayed for, if the sale should be maintained and not set aside as a nullity. It is not material to recapitulate all the pleadings, except so far as it may be necessary to refer to them as affecting the issue presented on appeal. After a trial had, the District Judge decreed that the sale from William W. Wafford be declared valid, and that a partition be made in the mode prescribed by law, based upon collations set forth in the reasons for judgment as follows, viz :

James N. Wafford, in the sum of $4442 13-100 ; the representative of Josephine Wafford, in the sum of $8,000 ; Tellina Wafford, in the sum of $8564 75, it appearing that the said Tellina had received the share intended by her father for her sister, Irene. No judgment was rendered against Irene, inasmuch as she answers, when interrogated under oath, that she received no part of the price thus set apart for her.

From this decree, Tellina Wafford, wife of O. O. Wallis, has alone appealed, It is, therefore, unnecessary to examine the merits of this decree, except so far as the appellant is affected thereby. She complains that she has been condemned to collate a sum which, in her answers given under oath, she admits she received, on the following grounds :

1st. That the supplemental petition was inadmissible, because it changed the substance of the original demand.

2d. That the evidence on which the judgment was based, was irrelevant and inadmissible under the pleadings, as they stood on the day when the evidence was taken.

3d. That the judgment gives more than the petition calls for.

On the first point it may be sufficient to say, that no exception was filed to the supplemental petition, the objection; therefore cannot be considered on appeal.

As respects the objections to the irrelevant and inadmissible character of the evidence, it does not appear from any bill of exceptions that objection was made to the introduction of the evidence; and so far from being irrelevant, it is conclusive upon the subject matter, with reference to which it was offered ,to-wit: the amount received by the defendant from her father.

As respects the third objection urged, that the judgment was for a Larger amount than that claimed in the petition, it appears that the answers to the interrogatories upon which the judgment was based, were filed in Oourt nearly a year prior to the rendition of the judgment. There was ample time, therefore to amend the pleadings before the trial of the case, and had the pleadings set forth a demand for the increased sum shown to have been received by the appellant, she might have been prepared to show, that, at the time of trial, or before the receipt of the money was made the basis of a claim against her, she had paid it over to her sister, and was no longer chargeable with it in the proceedings for a partition.

Nevertheless, as the proceedings in partition are undetermined until the final decree of homologation, we think the equity of the case may be attained by remanding it for further proceedings, reserving to the plaintiffs the right to amend their pleadings, by setting up a claim for the additional amount allowed in the decree.

It is, therefore, ordered that the judgment appealed from, be reversed, so far as it effects the rights of the appellant, and not otherwise ; that there be judgment as between the parties litigant herein, decreeing that the defendant, Tollina, Wafford, be ordered to collate the sum of $4,200, in the partition to be made between the heirs of W. W. Wafford, as prayed for in the plaintiff’s petition, and that the case be remanded for further proceedings to be had thereon, according to law, reserving to the plaintiffs the right to claim from the appellant, by amended petition, the additional sum of $4,500, specified in the answers of the appellant, as the amount of a note received by her for her sister, Irene.

It is further ordered that the costs incurred in the District Oourt, incident to this litigation, be paid by the appellant, and the costs incident to this appeal be paid by the appellee.


text:
    Helen O’Hara, Administratrix, v. Mary C. Conrad, Tutrix, et al.
    W. W. made a donation to B. W., a legitimate son, of the disposable portion of his estate ; and the latter, by a contemporaneous act, made his notes, to the amount donated, payable to 0., who stipulated to pay the principal and interest of said notes, when collected, to the illegitimate children of the donor. ITeld: That the act of donation and the making of the notes being parts of the same act, and B. TV. and 0. being persons interposed for the purpose of carrying into effect an illegal donation, the notes were null under Art. 14T8 0. 0.
    PPEAL from the District Court of St. Mary.
    Xjl E. Simon, for plaintiff and appellant.

      J. 0. Olivier and T. H. Lewis, for defendants.
   Buchanan, J.

This action was instituted in June, 1847, upon a bond of defendants’ ancestor, made in 1817, for the sum of four thousand dollars, payable in December, 1880, and bearing six per cent, interest from April, 1819. The suit is instituted for the principal and interest.

The defence to this claim is substantially, that the consideration of the bond was a donation to a person incapable by law of receiving a donation. The evidence shows that one William Weelcs, by act before the parish Judge of Feliciana, on the 2d October, 1817, gave to his son David Weelcs, a sum of sixteen thousand dollars as an advantage and extra portion in his inheritance, being the disposable portion or one fifth of his estate. On the same day and before the same notary, David Weelcs executed his bond. in favor of Hercules O' Oonnor and others for a sum of sixteenjhousand dollars for value received, payable in four installments of $4000, in the years 1829, 1831, 1833 and 1836, with interest at 6 per cent, per annum from the 1st April, 1819. And the obligees in the bond promised to pay the interest annually for the boarding, clothing and schooling of certain free persons of color, and the installments of the principal to those colored persons severally, at the respective dates of maturity. The bond is signed by Da/oid Weeks and by Hercules O' Oonnor, one of the obligees, alone. /

The evidence of witnesses examined for plaintiff, taken in connection with the other evidence and circumstances disclosed in the record, leaves no doubt in the mind, that Wellington Gurtis and the three other persons of color mentioned in the bond of David Weelcs, were illegitimate children of William Weelcs, the father of David ; and that the donation' to David was really intended for the benefit of those illegitimate children, who were legally incapable of receiving a donation of that amount from their father. O. O. 1470. And the District Judge, considering the act of donation from William Weeks to Devoid, and the bond of David to O' Oonnor for the benefit of the colored children of Willimn Weelcs, under the circumstances, to be portions of one continued act, declared the nullity of the latter under Article 1478 of the Civil Code. The counsel of plaintiff has argued with great ingenuity and force, that the donation from William to David Weelcs, supposing it to have been made for the benefit of the illegitimate children of the donor, imposed, not the less, a natural obligation upon the donee, which could form the valid basis of a legal obligation on the part of David Weelcs towards O' Oonnor. And he relies upon the Article 1781, clause 1st, Civil Code, which defines natural obligations to be such as the law has rendered invalid (in the French text — celles que la loi a défendues ou déclarées nuiles) for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust. Without deciding the very delicate and important question whether the prohibition of donations to illegitimate children by those who have legitimate children existing at the time, be not founded in principles of morality no less than of general policy, we agree with the District Judge, that the two contracts, thus simultaneously made, and among the same parties, (Hercules O' Oonnor, the obligee in the bond, being a witness to the donation,) are parts of one and the same illegal act; and that the bond can no more be enforced by an action at law, than could have been the donation for the benefit of the illegitimate children in question. David Weeks and Hercules O' Oonnor were alike persons interposed, and the only parties to either instrument, were William Weeks and the offspring of his illicit connexion with his slave. It would truly be an easy mode of evading the effect of the 1478th Article of the Code, if parties could accomplish their illegal aims by making a double interposition of fictitious parties, in the place of a single one. Such seems to have been the experiment of William Weeks in 1817. The Code in force at that time contained Articles identical with the Articles 1470 and 1478 of the present Code.

Old Code, p. 210, Art. 12, and p. 218, Art. 17.

Judgment affirmed, with costs.


author: Spoppoed, J.

text:
    Offutt, Brothers, v. T. H. Scribner.
    Where it would seem from a receipt, that the owner of a building has paid his contractor for repairs in anticipation of the time when due, the burden of proof is on him, when sued by a furnisher of materials on an attested account, to show that at the time of the service of the attested account upon him, he had not really paid in anticipation, and that he did not then owe the contractors.
    from the District Court of St. Landry.

      J. H. Lewis & Porter, for plaintiffs.

      J. K. King, for defendant and appellant.
   Spoppoed, J.

The language of the contractors’ receipt which the defendant adduced in evidence, would seem to imply that the payment was made by the latter “ in anticipation,” and “in advance of the sum due.”

If so, the case falls within the intendment of Article 2745 C. 0., and the 6th Sec. of the Act of March 18th, 1844.

But, it is contended that the owner is only liable, under the statute, for the amount that would have been due to the contractors at the lime of the service of the attested account, in the same manner as if no such payment had been made, and that, therefore, the burden was on the plaintiffs to prove a positive anticipation of payment, and that the amount of their claim would have been due but for the anticipated payment. The defendant concludes that the plaintiffs should be non-suited because they have failed to show the terms of the contract and how much would have been due but for the receipt.

We think, rather, that the burden in this case was upon the defendant to show that, although he appeared by the receipt to have paid in anticipation, he did not in reality do so, or that he did not owe the contractors, then or subsequently, the amount of the plaintiffs’ claim. The contract he actually made with the undertaker, was particularly within the knowledge and power of the proprietor; he should have proved its precise terms, if they would have exonerated him from the consequences of the payment apparently made in advance. But he did not attempt to show that he contracted to pay anything before the work was completed, or that he owed less than the plaintiffs’ claim.

Judgment affirmed.


text:
    E. Davis et al. v. T. Wilcoxon.
    A l)ona fide possessor of land who is evicted by judicial partition, is entitled to recover the value of improvements which he has put upon the land.
    from the District Court of St. Mary.

      M. Gibbon, for plaintiffs and appellants.

      J. G. Olivier, and T. H. Lewis, for defendant and appellee.
   Buchanan, J.

This case has been twice before our predecessors. See 5 An. 583, and 7 An.

The only question presented for our decision at this time, is the measure of compensation to be allowed defendant for the improvements put by him on the land which plaintiffs have recovered in the judicial partition. The plaintiffs and appellants contend that they have the option, under Article 500 of the Code, of paying defendant the value of the improvements, or the enhanced value of the soil, caused by such improvements.

•We do not regard this as an open question, under the decision of the Dis- • trict Court, as affirmed by the Supreme Court, in 5 An. In rendering judgment, the District Judge used these words: “ The defendant, as a bona fide possessor, is entitled to recover the value of his improvements on the part of the land from which he may be evicted” ; and the decree was “ that a partition be made according to the rights of the parties, as settled by this decision.” The Supreme Court, on appeal from this judgment, say: “ The District Judge has made the proper disposition of the claim for improvements ; and we are of opinion his judgment is correct in every respect.” And the judgment of the District Court was accordingly affirmed.

The subsequent decision of our predecessors in October, 1852, merely remanded the cause for further proceedings. In the reasons for judgment, the court speak, it is true, of there being a possibility that the plaintiffs may have a right to elect to pay the enhanced value of the land, instead of the value of the improvements. But the suggestions they throw out, followed by no decree upon the point, cannot be taken as overruling what had already been solemnly and finally decided in this cause.

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


author: Spofeobd, J.

text:
    Thomas Maskell v. Horner, Receiver, &c.
    The fact that a plaintiff in a judgment, is not shown by evidence to be authorized to stand in judgment, is not a ground for the action of nullity. The proper remedy is by appeal.
    Where the first day of a term of court as fixed by law, is a holiday, the court should be opened on a succeeding day. The term does not lapse.
    PPEAL from the District Court of St. Mary.

      B. 0. Brent, for plaintiff and appellant.

      B. H. McMillan, for defendant.
   Spofeobd, J.

The plaintiff sued to annul a judgment obtained against him by the defendant, in the District Court of St. Mary, upon the following grounds:

1. That the record furnishes no evidence that Charles W. Horner, who sued as the receiver of the Mutual Benefit Life and Eire Insurance Company of Louisiana, was authorized to stand in judgment in behalf of said company.

2. That the petitioner was not legally cited in the former suit, there being-no qualified Judge of the District Court of St. Mary, on the day when citation issued.

8. That the day fixed by law for the commencement of the term of court, at which the judgment sought to be annulled was rendered, was dies non jurí-dicas, and therefore the term lapsed.

The District .Judge dismissed the plaintiff’s action of nullity, and he has appealed.

If there was any defect of evidence to sustain the judgment in the suit of Horner, Receivoer, v. Maskell, the latter had his remedy by appeal.

There was personal service of a citation in due form upon the defendant, MasTcell; there was judgment by default against him, after the expiration of the legal delay; the resignation of the Judge does not put a stop to all the ministerial proceedings of the subordinate officers of the court, or paralyze them in'the exercise of the duties imposed upon them by law, until his successor os qualified.

The first day of the term being a holiday, court was properly opened on the second day, and all the proceedings in the suit complained of, appear to have taken place on judicial days.

There seems to be no equity in the plaintiff’s case; and we think the ap-pellee’s prayer for damages, as for a frivolous appeal, should be granted.

It is therefore ordered, that the judgment appealed from be affirmed, with twenty-five dollars damages, and costs.


author: Spojtord, J.

text:
    B. Hayes v. I. Hayes.
    The act of the Legislature of 28th April, 1853, authorizing trials before a member of the bar, in certain cases where the judge recuses himself, is unconstitutional, and judicial proceedings taken under and by virtue of said act, are null.
    The nullity of a judgment, apparent on the face of the record, may be decreed by the Supreme Court, on appeal from such judgment. C. P., 608-9.
    PPEAL from the District Court of St. Landry.
    -CV. T. H. Lewis and Porter, for plaintiff and appellant.

      J. E. King, for defendant.
   Spojtord, J.

This is an action of slander.

The District Judge before whom it came up for trial having been of counsel for one of the parties, the cause was referred for trial to B. A. Martel, Esq., a member of the bar, in pursuance of the act of 28th April, 1858. Sess. Acts, p. 211.

A jury was empanelled, who rendered an informal verdict, upon which a judgment was entered dismissing the suit, and decreeing the costs to be divided between the parties. The judgment was signed by the recused Judge, in conformity to the act of 1858.

The plaintiff has appealed, and in this court he assigns as a cause for annulling the judgment, that all the proceedings are vitiated by reason of the unconstitutionality of the Act of 1853, under which they took place.

In the case of the State v. the Judge of the Sixth Judicial District, 9 An., 62, the act aforesaid was held to be unconstitutional, null and void.

The nullity of a judgment may be demanded from the court of appeal before which the appeal from such judgment was taken, while the appeal is still pending, and when the nullity is apparent on the face of the record. C. P., 608-9.

It is therefore ordered that the judgment appealed from be annulled, and the cause remanded for a trial before the District Court, according to law, the defendant and appellee to pay the costs of this appeal.


text:
    Victor David v. Alphonse Neveu.
    Defendant made a partial payment on an account, and gave his note, payable to plaintiff, to the agent of the latter for the balance. The note was endorsed by the agent, professing to act for the plaintiff; and was subsequently paid by defendant. jB&d: That, in the absence of proof of the agent’s authority to endorse the note, or that the payment made was received by the plaintiff, the defendant is not discharged.
    1 PPEAL from the District Court of Lafayette.
    A J. 0. Olivier, for plaintiff.

      T. H. Lewis, for defendant and appellant.
   Lea, J.

The plaintiff claims a balance alleged to be due on an account for goods and merchandize furnished the defendant, to which the defence is, substantially, as follows;

The defendant admits a former indebtedness to the plaintiff in the sum of $638 78, but alleges that he made a final settlement with the plaintiff’s son and duly authorized agent, Alphonse David, by which he paid the said agent the sum of $50 in cash, and gave his note for the remainder of the debt due to the plaintiff, say $588 78, which note defendant alleges that he has paid.

The evidence establishes the payment of the $50, and the giving the note as alleged. The note was paid hy the defendant, it being at the time of payment in the hands of one E. J. Guignon. The only question to be determined is, whether this payment was properly made. The note given by the defendant is as follows:

“ Vermillionville, May 6th, 1852.
On demand, I promise to pay to Mr. Vicior David, or order, five hundred and eighty-three dollars and seventy-eight cents, value received, with interest until paid at 8 per cent, per annum. ($583 78.) A. Neveti.
“ Endorsed, Victor David, per A. David.”

It is not shown that A. David had any authority to endorse the note as the agent of his father, and we think it is affirmatively shown that the sum received by the son was not paid over to his father. The payment was, therefore, improperly made, and cannot be credited on the account.

There was judgment in the District Court in favor of the plaintiff for the balance due on the account, with interest as shown by the note itself. We think this judgment was correct.

Judgment affirmed, with costs.


text:
    S. Deuil v. B. A. Martel et al.
    The prolongation of the terra of payment of a note, made without the consent of the surety, discharges his liability.
    The consent of the surety will not be inferred from his declaration that he would agree to any arrangement made for him by the principal debtor, in the absence of proof that the principal pro-« fessed to act also as agent of the surety in making the new terms.
    from the District Court of St. Landry.

      T. if. Lewis and Porter, for plaintiff.

      King & Mar lei, for defendants and appellants.
   Voorhies, J.

On the 13th January, 1842, Luke Hollier sold to B. A. Martel„ one of the defendants, by notarial act, his claim to certain buildings and im-. provements. For the price, the purchaser and his co-defendant, Widow Martel,. signed, in solido, three promissory notes, payable to the order of the vendor,, Luke Hollier, one for $300, on the 1st of May, 1842; one for $250, on the 1st:, of May, 1843 ; and one for $250, on the 1st of May, 1844; all of which. QoUr. ditioned to bear 10 per cent, interest from the 1st of May, 1842. To. secure the-payment of these notes, as surety in solido, Widow Martel made herself a party, to the act of sale, and mortgaged in favor of the vendor, as her property, a lot of ground situated in the town of Opelousas.

This suit is brought by the plaintiff for the recovery of the balance alleged, to. be due him on the first and last mentioned of these notes, and for the recognition of his right of mortgage.

Widow Martel claims her release as surety on the ground that the plaintiff has. granted to B. A. Martel, the principal debtor, a prolongation of the term. The question, then, presented, is a question of fact. The following agreement is endorsed on both notes sued upon, viz :

“Received on the within note fifteen dollars. It is agreed that this note is to be paid in three equal payments, to wit, one, two and three years from this date, and to draw 8 percent, interest from this date, instead of 10 percent.— this 8th June, 1849. Stephen Dedil,

B. A. Martel.”

This is clearly a prolongation of the term, and unless shown to have been granted by the plaintiff to B. A. Martel, the principal debter, with the consent of Widow Martel, the surety, it is obvious that the latter must be considered as released. To meet this objection, the plaintiif relies on his own answers to interrogatories propounded to him by the defendants on facts and articles, in which hegives the declarations of Widow Martel in a conversation with her.

In answer to the interrogatory : “ Did you not grant said extension without the knowledge or consent of Widow Emelie B. B. Martel?” he says: “The time that the arrangement was made, the extension given that is specified on the notes, I think that the Widow EmüieB. B. Martel was not present, but previous to that, when her son was in France, I called on her (the Widow B. B. Martel) to see if she could arrange the debt in some way. She told me that she could not, but that her son, B. A. Martel, done her business; that she expected when he returned he would arrange it; that any arrangement that her son, B. A. Martel, made, she would agree to.”

To the interrogatorry, “ Did you ever make any arrangement relative to said notes in which the said Emelie was consulted ?” the answer is : “I consulted her, and she gave me to understand that any arrangement that her son, B. A. Martel, made, would be satisfactory.”

From this, it is urged, that the consent of the Widow Martel may be inferred. To destroy or weaken the effect of these answers, the defendants introduced in evidence the former answers of the plaintiff to the same interrogatories taken under commission, and which, it appears, had been rejected for informality.

The first answer is: “I do not know whether she had any knowledge of it or not.” And to the second: “ I called on her, while her son was in France, to pay these notes. She said she could not pay them, but I must arrange it with her son, B. A. Martel, when he returned from France.”

These answers appear to have been given upwards af a year previous to the other answers. We are not informed by the record when this conversation took place between tbe plaintiff and the Widow Martel, nor when B. A. Martel was in France. Neither is it shown what was the nature of the arrangement proposed, or that B. A. Martel ever pretended to act as the agent of his mother in making the agreement evidenced on the back of the notes sued upon. We do not think the consent of Widow Martel to the alleged prolongation of the term can be deduced from her declarations to plaintiff.

Since this appeal was taken, it appears that a written agreement has been entered into between the plaintiff, and tho defendant, B. A. Martel, whereby the former has acknowledged the receipt of $421 'TO on account of the judgment rendered in his favor in this case, and for the balance due him thereon has consented to suspend its execution, etc. This agreement has been filed by consent of both parties, and we consider it as amounting to an abandonment of the appeal.

It is therefore ordered and decreed, that the judgment of the District Court, so far as it relates to the appellant, Widow Emelie B. B. Martel, he avoided and reversed, and that she he released from all liability as surety or otherwise on the notes sued upon, the appellee to pay the costs of both courts ; and, as to the other defendant, B. A. Martel, it is ordered that his appeal he dismissed, at his eosts.


text:
    Walter Brashear v. H. C. Dwight.
    There can be no valid adjudication of property by the Sheriff on a bid which is less than the amount of the special mortgages on such property in favor of persons other than the seizing creditor.
    Where the nullity, which vitiates the title to the purchaser, is apparent, from an inspection of the title itself, the purchaser will not be considered as in good fa,ith, and be relieved from accounting for the rents and profits while he was in possession.
    from the District Court of St. Mary.

      Walker, for plaintiff.

      Olivier, for defendant and appellant.
   Lea, J.

The plaintiff alleges that, on the 9th December, 1844, the Sheriff of the parish of St. Mary, in virtue of an adjudication made under a writ of fieri facias, issued from the First District Court of New Orleans, in favor of Jas. C. Wilkins, and against the plaintiff, sold the property described in the petition to H C. Dwight.

The plaintiff alleges that it was a condition of said sale that the purchaser should, in addition to the amount of his hid, pay a sum sufficient to discharge the privileges and special mortgages on his property, amounting to the sum of $8063 41.

Petitioner avers that he has paid and extinguished the aforesaid special mortgages and privileges, and that the defendant is therefore liable for the remainder of the price, with interest; hut should thp court consider that the hid was for no more than $555, and that the adjudication was made for that amount, then plaintiff avers that such adjudication was null, having been made in violation of a prohibitory law forbidding any adjudication of property seized in execution, whenever the amount bid is insufficient to discharge the privileges and special mortgages thereon. The plaintiff, therefore, prays, in this alternative, that the sale he declared null, and that the defendant he held to account for the fruits and revenues derived from the property, at the rate of $550 per annum from the commencement of his possession until he shall have delivered the same to petitioner.

For answer, the defendant avers that the extent of his bid was $555, denies that he can be subjected to payment of any surplus, and pleads the prescription of five years; hut, should the title be declared null or avoided, then respondent claims the amount paid by him as the price of the adjudication, with interest from the date thereof, and also the sum of $400, expended for necessary repairs. And respondent further avers, that, being a possessor in good faith, he is not able for the fruits and revenues of the property, and further pleads prescription.

It is clear that the adjudication in this case must be set aside. The amount bid by the defendant was far below the amount of the special mortgages resting on the property at the time. Article 684 of the Code of Practice is explicit on this point. It says that, in such case, there shall be no adjudication.

The only question to b,e determined is, whether the defendant was such a possessor in good faith, as released him from the obligation to account for the fruits and revenues received by him. We have given this point a careful consideration, and are of the opinion that where the nullity which vitiates the title to the purchaser is apparent, from an inspection of the title itself, he must be considered a purchaser with notice, and cannol, therefore, shield himself under the provisions of Article 495 of the Civil Code.

The defendant is, therefore, liable to account for the fruits and revenues of the property, as prayed for in the petition, receiving credit, however, for the money expended by him in necessary repairs, and also for the amount paid by him as the price of the adjudication, with interest as before stated, which accrued to the benefit of the plaintiff.

In the decree of the District Court, the defendant is credited with those sums, so far as they are supported by proof; nor does it appear that there was any error in the estimate, made by the District Judge, of the amount realized by the defendant from the rents and-profits of the property.

It is ordered, that the judgment appealed from be affirmed, with costs.