text:
    COX vs. REES ET AL.
    Western Dist.
    September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The surety in a mortgage for specified sums, consisting of a principal debt and the interest accruing on it, is not liable for a private account owing the same person by the principal debtor.
    Where the creditor receives funds of his debtor, he has a right to apply them to the debts that are due and payable, in preference to others more onerous, but which are not due.

      So a mortgage debt, which the debtor had a greater interest in paying, but not being due, is not entitled to imputation or preference over one less onerous, and already due and payable.
    This suit is instituted to recover from David Rees, as principal, and John H. Thomas, as surety, the sum of one thousand four hundred and ninety-eight dollars and fourteen cents, as a balance due on the following account; and also a small balance on another account.
    « Col. David Rees,'
    “ 1827. • ; To N. Cox, Dr.”
    June 16. To amount of judgmeht in favor of N. Cox,.$1498 14
    « “ To 10 per cent, interest, from 3d April, 1816, to this day — 11 years, 2 months, and 13 days, - 1678 32

      “ « Amount of all costs, - - - 35 50
    $3211 96”
    « Received of Col. David Rees, the amount of ■ the judgment as above stated in an act of mortgage, passed this day, before the honorable Paul Briant, judge of the parish of St, Martin. St. Martinsville, 16th June, 1827.”
    «JOHN BROWNSON,
    Attorney for N. Cox.”
    The mortgage was executed of even date with the foregoing receipt, on a tract of land and several slaves-, with J. H. Thomas, who intervened in it as surety.
    The above debt was divided into two parts of principal and interest accrued. The interest part, amounting to one thousand seven hundred and thirteen dollars and eighty-two cents, was made payable in the act of mortgage in one and two years from its date. The principal was also divided into two parts or instalments, payable in three and four years, with ten per, cent, per annum interest, from the date until paid.

      In the year 1829, and before any of the instalments were pai^ Rees subscribed for shares of stock in the Consolidated Association Bank of Louisiana, and applied to the plaintiff’s agent in St. Martinsville to postpone the mortgage, and allow him to mortgage the same property to the bank to secure his stock, on condition that the two first instalments (embracing the interest of the original debt, as above,) should be paid out of the first moneys received from the bank.
    The plaintiff’s agent agreed to this arrangement; and Thomas, the surety, assented in the following terms:
    “ St. Martinsville, April 24, 1829.”
    “ Mr. J. Brownson,
    “ Dear SirCol. David Rees having proposed to pay off the entire interest on the Cox claim, which now amounts to more than the original debt, upon our agreeing to release his negroes, mortgaged in part for the payment of that debt, I beg to state that I am willing to that arrangement, provided the land already mortgaged continues to be mortgaged for the original debt, and the claim of Cox to have the preference against the land over all others.”
    In accordance with the arrangement made with the plaintiff’s agent, and the assent of the surety in the foregoing letter, the slaves in the mortgage were released in favor of the bank, but retained on the land. On the 19th March, 1830, before the two last instalments of the old debt secured by the mortgage became due, the plaintiff received Mr. Rees’s check for three thousand five hundred and ninety dollars, on the bank. The former applied this sum in payment of the two first instalments, being the interest of the old debt, and the remainder to an account for supplies and advances made for Rees. There was still a balance of this last account, and the principal of the mortgage debt unpaid.
    The District Judge rendered judgment against both defendants, (Rees, and his surety, Thomas,) for the sum of one thousand four hundred and ninety-eight dollars and fourteen cents, and the interest, at the rate of ten per cent. per annum, as stipulated in the mortgage, and for the further sum of two hundred and two dollars and fifty cents, balance of the private account, with legal interest, and ordered the mortgaged premises to be seized and sold to satisfy said judgment. The defendants appealed.

      Brownson and C. Voorhies, for the plaintiff.
    1. The appellant, Thomas, cannot be discharged from his suretyship on the ground that the plaintiff has released or postponed the mortgage which he had on the slaves in favor of the Consolidated Association Bank, because he consented to it under certain conditions, which have been complied with on the part of the plaintiff.
    2. The sum of nineteen hundred and twenty dollars and twelve cents, arising from the funds obtained from the Consolidated Association, which the plaintiff received from David Rees, was imputed, according to the understanding of the plaintiff with the appellant, to the payment of the two first instalments due on the act of mortgage to the former, being for the interest which had accrued on the original demand.

      Simon and Brent, for defendants.

    1. The plaintiff has released his mortgage without the surety’s consent, which discharges him from all liability under his suretyship.
    2. The assent of the surety was given conditionally, that the mortgage should be retained on the land, and a part of the other debts be paid off, which has not all been done.
    3. The sum of money received by the plaintiff was sufficient, if it had been properly applied, in payment of the whole debt.
    4. The payment by Rees should have been imputed to the most onerous of his debts, even those not actually due. 12 Duranton, No. 195.
   Martin, J.,

delivered the opinion of the court.

The defendants and appellants complain that the district judge erred in stating the plaintiff’s claim, and striking the balance. Rees, the principal debtor, owed the plaintiff thirty-two hundred and eleven dollars and ninety-six cents, which he. secured by mortgage and the security of his co-defendant. The latter consented that Rees should transfer his mortgage to the Consolidated Association Bank, and release it as to the slaves, the mortgage still remaining on the land, on condition that the sum of seventeen hundred and thirteen dollars , and eighty-two cents, which was due for interest and costs, and was part of the said claim, should be discharged out of the money to be obtained out of the Consolidated Association Bank.

The surety in speeífiefISsum^' consisting of a and the interest is notlfabie for a private account owing the same person, by the PU

creditor receives debtor, he has a them toto apt¿e debts that are in preference to nerous morebut which are not due.

So, a mortgage debt, which the debtor had a greater interest in paying, but not being due, is not entitled to ijmpufatiop, or preference over one less onerous and already due and payable,

The district judge rendered judgment against both defendants for the amount of the principal debt of fourteen hundred and ninety-eight dollars and fourteen cents, with interest, as stipulated in the mortgage, and for two hundred and one dollars and fifty cents, the balance of an account due by Reee alone to the plaintiff.

The defendant, Rees, has not shown that he is injured by the judgment. His co-defendant argues that he is improperly charged for the balance due by Rees on his private account, ag his-suretyship is confined to the sum stated in the mort-J r gage. He further urges that the balance of, the money rece^ve(^ by the plaintiff from the Consolidated Association Bank, on Rees’s check, after deducting the amount of the interest and costs on the original debt, should have been dnputéd to the principal of the mortgage debt, and not applied to the reduction of the private account of the plaintiff &gtUíl3t xiees.

^ *s c^ear t^iat the defendant, Thomas, is not chargeable for the balance of this account.

payable.. The plaintiff, not being restrained' by any stipulation of either of the defendants as to the money received from the bank, except as to the interest on his claim,, had an undoubted right to apply it to the only debt of Rees, then due and payable. The mortgage debt, which Rees had a greater interest to pay, not being as yet payable, was entitled to no preference over a debt less onerous, which was then

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and, proceeding to give such judgment as in our opinion ought to have been given in the court below, it is ordered, adjudged and decreed, tha,t the plaintiff recover from the defendant, Rees, as principal, and John H. Thomas, as surety, the sum of fourteen hundred and ninety-eight dollars and fourteen cents, with ten per cent, interest per annum, from the 16th of June, 1827, until paid; and it is further ordered, that the plaintiff do recover from the defendant, Rees, the further sum of two hundred and one dollars and fifty-one cents, with interest at five per cent, per annum, from the 7th of October, 1834, until paid; it is farther ordered, that the land specified in the petition as mortgaged for the security of the original debt be first seized and sold to satisfy the said sum of fourteen hundred and ninety-eight dollars and fourteen cents, the plaintiff and appellee paying the costs in this court, and the appellants paying those in the court below.


source: Caselaw Access Project

author: Bullard, J.,

license: Public Domain

text:
    HUTCHINGS vs. FIELD ET AL.
    Western Dist.
    September, 1836.
    APPEAL PROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE 'JUDGE OF THE SEVENTH PRESIDING.
    Where A, in consequence of’several persons endorsing his notes in bank, sells, conveys and delivers, by an authentic or notarial act, several slaves to them, to be holden until they shall be fully satisfied for their endorsement; that A shall have the power of redeeming said slaves on paying said notes as they fall due: Held, that this is a mortgage for the security of the endorsers, and not a sale which vests the property with the right of alienation.

      When there is no price stipulated, and the words of the act or instrument of conveyance, are, that the persons to whom it is made, shall hold the property until their endorsements are satisfied, it repels the idea of a r r J r contract of sale.
    , . , , T „ , . . , . , Such a conveyance is not a sale with the power of redemption. A right to refund the price and take back the property, necessarily supposes a price has been stipulated. There was no determinate price, and the party was not divested of title.
    A mortgage is valid even if the possession of the property effected is given to the mortgagee. It is not of the essence, though of the nature of the contract of mortgage, that the mortgagor should remain in possession.
    This is a petitory action in which the plaintiff seeks to recover several slaves in the possession of' the defendants, J. N. Field, J. Brownsoñ, J. Y. Saunders and H. Carlin, together with their hire at fifteen dollars per month; and also to recover damages from James Plaisted, who he alleges sold these slaves to the defendants, without right or title to them.
    The defendants pleaded a general denial; and averred that by a notarial act passed the 16th of February, 1828, the negroes claimed in the petition were sold, transferred and delivered, with other property, by the plaintiff, to James L. Johnson, Evan Bowles, George Singleton, Isaae L. Baker and William Sterling, by whom the said negroes have been regularly sold and transferred to these respondents. They pray to be quieted in their possession, and that the suit be dismissed.
    The defendants further pleaded,- that they purchased the negroes referred to, with warranty, and for a valuable consideration, and cite their vendors, Johnson and others in warranty.
    The vendors answered and set up title to the slaves, under the notarial act of the 16th of February, 1828, in which they aver the plaintiff sold and transferred them, with other property, for and in consideration of having endorsed three several promissory notes, amounting to three thousand seven hundred and twenty dollars, which notes were discounted in the bank at Opelousas, and the proceeds received by the plaintiff. That to secure them against their endorsements, the plaintiff sold and delivered the said property to be held by them until they be fully satisfied. They aver they had to pay all of said notes when they became due, and thereby acquired a full and complete title to the slaves in question. Plaisted averred that he acted as the agent of the vendors in selling said slave, and set up the act of the 16th of February, 1828, as the authority under which they were sold.
    Upon these issues and pleadings the parties went to trial.
    The act of the 16th of February, 1828, by which the plaintiff conveyed the slaves to the vendors of the defendants contains the following clauses.
    “Whereas, at the suit of sundry persons against William Hutchings, in the parish of St. Landry, the following property has been seized, to wit: a plantation and tract of land, etc., lying and adjoining the town of Opelousas, also ten negroes, all of which are in the hands of the coroner of the parish of St. Landry, and now offered for sale.”
    “ And whereas, in order to release said property, and aid the said William Hutchings, James L. Johnson, E. Bowles, G-. Singleton, Isaac L. Baker and W. Stirling, etc., did on the 9th of February, 1828, endorse for the said William Hutchings, three several promissory notes, for the entire sum of three thousand seven hundred and twenty dollars, in the Bank of Louisiana, at Opelousas. Now to secure the aforesaid endorsers for their said endorsements, the said William Hutchings has bargained and sold, and does by this act grant, bargain, sell, set over and deliver to them, the said endorsers, all and singular the above described property, to be holden by them, (said endorsers) until they shall be fully satisfied for their said endorsements. And it is agreed, that the said endorsers shall have the right of selling the above described tract of land, for such price as to them may seem right, and upon such terms of credit as will meet the payments of the above notes; provided the terms of sale of the land shall not be less than one, two and three years. It is also agreed, that the said William Hutchings shall have the privilege of redeeming said negroes, on his paying up said notes as they fall due, and fully discharging said endorsers from all fespon-sibility on account of their said endorsements, etc.”
    The same property, included in the aboye act, had been previously mortgaged to the bank, by Hutchings and wife, to secure a loan of two thousand dollars. This formed part of the debt for which the new notes were given and endorsed, by the persons above mentioned.
    The agent of the endorsers in writing to one of them, explains the object and nature of the foregoing act, in the following manner:
    “To James L. Johnson, Esq.
    “ Sir, I have been obliged, in order to carry into effect your wishes and those of your co-endorsers, to wit: to aid Mr. Hutchings, and at the same time to secure you, .to take from Mr. H. a sale and conveyance of the land and negroes to the endorsers, which as their agent and attorney in fact, I have accepted. The notes could not be discounted on yesterday the 16th instant, because the bank was not in funds; and no assurance could be had that they would ultimately be discounted, because a board of directors could not be had. It was then with no small difficulty-that I prevailed on their creditors to relinquish even momentarily their lien on the property. They finally consented to accept the notes as collateral security, provided the negroes be taken entirely out of the possession and control of Hutchings; and so distinct and positive was this proviso, that it was requisite that they should not remain even one night in his hands. They consent to wait until the first of May, to see whether the notes can be discounted; if they are discounted then the creditors who receive their money will immediately subro-gate you to their rights. The bank will subrogate you as the renewals are paid up, and in 'the mean time they retain their lien, which renders you as safe as if they were transferred to you. If, on the 1st of May, the notes are not discounted, the land and negroes will not be subject in your hands to the executions, which are suspended until then, and you will be answerable for the delivery of the negroes. I have engaged a man to take the negroes down to you, and you will consider them yours. Duty to yourself and to the gentlemen who have lent you their names, will teach you the importance of having a watchful eye to them.
    “Your friend, etc.,
    “R. N. OGDEN.”
    “ It is expressly understood that the negroes are to remain in your hands. “R. N. O.
    “Opelousas, February 17tb, 1828.”
    The evidence showed that the endorsers for whose security the negroes in question were mortgaged, paid into bank the sums, and took up their notes for which they were bound.
    The negroes were then sold by James Plaisted, Esq., as agent of the endorsers of Hutchings, in 1831, for their benefit, and the present defendants were purchasers at said sale. The district judge decided that the sales were legal and gave judgment for the defendants. The plaintiff appealed.

      Simon, for the plaintiff.

      Brownson, for the defendants.
    1. The instrument executed between the plaintiff and defendants is a sale; the price is the amount which the endorsers agreed to pay for him in bank; the terms used are those of a sale; plaintiff sells and delivers, and the condition of defeasance only makes it a sale on condition. In such a case the property is acquired to the purchaser, unless the seller complies strictly with the condition stipulated. Louisiana Code, article 2545. Ibid., 2547. The fruits belong to the purchaser. It is not an antichresis, because it contains no stipulation that the fruits shall be deducted annually from the interest and afterwards from the principal debt. Louisiana Code, article 3143. Nor is there any thing to show that such were the intentions of the parties. On the contrary, the stipulation that the plaintiff should have a certain limited time to redeem the slaves, by repaying the money, is inconsistent with such an idea.
    2. But whether the act be a mortgage or a sale, the plaintiff has no right to recover; the defendants have paid the debt stipulated, and the plaintiff has shown no return of the money, or offer to return it. He agreed by the act to put the property in possession of the defendants, and gave up the possession accordingly. There is nothing against good morals in that stipulation, therefore it ought to be enforced. How then can he be permitted to retake the property without paying the amount as agreed 1 In authorizing this the court would violate the positive and expressed intentions of the parties. If the plaintiff had tendered a restoration of the price, the case might have a different appearance.

      3. It was not stipulated, whatever may be said to be the character of the act or the contract in question, that the defendants should account for the services of the negroes ; they were lawful possessors, as owners, in case the conditions were not complied with, and they neither expressly nor impliedly stipulated to account for the services of the negroes. Johnson, one of the defendants, agreed, it is true, to divide the profits of his sugar plantation with the plaintiff, but it is in evidence that Johnson made no profits. '
   Bullard, J.,

delivered the opinion of the court.

The plaintiff sues to recover certain slaves in possession of the defendants severally, which he claims as owner. The defendants set up title under a sale made by James Plaisted, who, they allege, was duly authorized to sell them; and that the plaintiff, by an act passed before James Ray, Notary Public, on the 16th of February, 1828, sold and conveyed said slaves, together with other property, to J. L. Johnson, E. Bowles, G. Singleton, I. L. Baker, and W. Stirling, by whose assent they were sold> to the defendants.

The title of the defendants depends, therefore, upon the character and constitution of the instrument passed before Fay, which, the plaintiff contends, created only an antichresis or a mortgage, but which, the defendants insist, amounts to a sale of the slaves in question.

Where A,1 in consequence of several persons endorsing his notes in hank, sells, conveys and delivers, by an authentic or notarial act, several slaves to them, to be hol-den' until .they shall be fully satisfied for their endorsement that A shall have the power of redeeming said slaves, on paying* said notes as they fall due: Held, that this is a mortgage for the security of the endorsers, and not a sale which vests the property, with the right of alienation.

When there is no price stipulated, and the words of the act or instrument of conveyance are, that the person to whom it is made, shall hold the property wi-til their endorsements are satis-jied, it repels the idea of a contract of sale.

That instrument recites, that a certain tract of land in Opelousas, and the slaves now in controversy, had been seized in execution as the property of Hutchings; that Johnson, Bowles, Singleton, Baker, and Stirling, in order to release the property from seizure, endorsed for Hutchings three promissory notes, one for seven hundred and seventy dollars, one for five hundred and fifty dollars, and one for two thousand four hundred dollars, payable twelve months after date, in the Bank of Louisiana. “ Now, in order to secure the aforesaid endorsers for their said endorsements, Hutchings sells, sets over, conveys and delivers to his said endorsers, the aforesaid property, to be holden by ¿hem. until they shall be fully satisfied for their said endorsements. It is further agreed, that the endorsers shall have the right to sell the tract of land upon such terms of credit as will meet the payment of the above notes, not to exceed two and three years. It is further agreed, that Hutchings shall have the right of redeeming the slaves on paying the notes as they fall due, and fully discharging his endorsers from liability on account of the same.”

We are of opinion that this is not evidence of a sale of the slaves. No price is stipulated. It is true, a consideration for the contract, such as it existed, is stated, to wit: that the other contracting parties had become his endorsers, and bound themselves to pay certain sums of money if he did not, upon demand and notice. And the declared intention of the parties, was, to secure and indemnify the endorsers in the event of their being rendered liable, and on their payment of the notes. It is also true, words of conveyance, such as are usual in contracts of sale, are employed. But we. are to look at the substance and essence of contracts, rather than their form. The expressions used in the act, that the parties are to hold the property until they shall be fully satisfied on account of their endorsements, repels the idea of a sale. The agreement, as to the sale of the land on credit, is evidence of a mandate accepted by the endorsers. Instead of sening the land, whicbj we think, stands on the same footing -witli the slaves as to the title of the endorsers, they sold the slaves. It is contended that this is a sale with the right of redemption. A right to refund the price and take back the property, necessarily supposes that a price has been stipulated. In this case we think there was no determinate Pr*ce* The intention of the parties evidently was to affect the property which formed the object of the contract to the payment of such sums as the endorsers might be obliged to Pay to the bank; and the contract contains all the essentials 0f a mortgage, according to the definition of the Code, Articles 3245, 3249. It is true, possession of the slaves was given to the endorsers, but it is not of the essence though of the nature of the contract of mortgage, that the mortgagor S^0UM remain in possession.

Such a convey-with the power Arightforefund take Pbaek ale property, neees-aanlpricePP has Therewasncfdel terminate price, was not divested of title.

is vaiid™evenSif the propertyaf-fected is given to the morlga-gee. It is not of though TX nature of the contract of mortgage, that shouidrenminin possession.

We conclude, therefore, that the plaintiff did noi divest . . ¶ . himself of title.

We have doubted whether the defendants ought not to be maintained in possession until the money paid in bank by x " * * the endorsers shall have been refunded. But we are, upon whole, of opinion, that the defendants are not subrogated to the rights of the original endorsers, and that the action to be exercised by them or their representatives, to enforce payment out of the property, is one which could not be divided so as to be exercised by the defendants severally. They must, therefore, be left to their recourse on the vendors in warranty and the rights of the endorsers under the original contract reserved.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further adjudged and decreed, that the plaintiff recover of the defendants, severally, the slaves named in the petition, to wit: of John N. Field, the slave Simonson ; of John Brownson, the slave Isaac; of Jared Y. Saunders, the slaves Jessee and Thorn; and of Hilaire Carlin, the other slave, named Tom: and it is further ordered, that the case be remanded to the District Court for further proceedings, as between the said defendants and their warrantors, and that the defendants pay the cost in both courts; reserving, however, to the original endorsers, or their representatives, their rights under the original contract with the plaintiff, to be paid out of the property therein specified, such sums as they may have paid on account of the plaintiff.


text:
    HUTCHINGS vs. JOHNSON’S HEIRS.
    Western Dist.

      September, 1836.

    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    When, from the circumstances of the case, justice requires it, the cause will be remanded for a new trial.
    The plaintiff claims a sum of money for the services of certain slaves of his, which were put on the plantation of the late' James L. Johnson. See the preceding case of Hutchings vs. Field et al.

    He alleges that he was entitled to part of the crops of said plantation for his own and the services of his slaves, the proceeds of which, he says, amounted to considerable sums, and were received by the defendants’ ancestor. An account is made out and annexed, showing the sum claimed.
    The defendants pleaded a general denial. They also set up the act of sale to Johnson and others, as the endorsers of the plaintiff, made in 1828, and averred that the said slaves were kept on the plantation in pursuance of said sale, and their maintenance and clothing amounted to nearly as much as the one half of the crops, and that the plaintiff had long since received such balance as was due to him. They also pleaded two separate demands against him in reconvention. On hearing the evidence of the parties, the district judge was of opinion the claim of the plaintiff was fully compensated by the defendants. The suit was dismissed, and the plaintiff appealed.
    When, from the circumstances of the case, justice requires it, the cause will be remanded for a new trial.

      Simon, for the plaintiff.

      Brownson, contra.

   Bullard, J.,

delivered the opinion of the court.

This case is intimately connected with the one just decided between the same plaintiff and Fiéld et ah, as the controversy grows out of the same contract. We think that, considering the change in the condition of the parties which may be produced by that judgment, justice requires that this should be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, that the case be- remanded for a new trial, and that the appellees pay the costs of the appeal.


text:
    ARCENEAUX vs. BERNARD.
    Western Dxst.
    September, 1836.

      APPEAL PROM THE COURT OF PROBATES FOR TIIE PARISH OF LAFAYETTE.
    Where a testator bequeathed the usufruct of all his property to his brother and the brother’s wife, “ during their lives” and after both their deaths “ the property to return to those that may be legally entitled to the same ”: Held, that no part of the usufruct ceases until the death of both the usufructuaries.
    This suit was instituted in the Court of Probates by the plaintiff and her minor child, who, she alleges, are the only legal heirs of Toussaint Arceneaux, deceased, to recover from the defendant the property of his succession.
    The defendant is .the surviving widow of a brother of the deceased. She claims the usufruct of the succession under his will, in which he bequeathed to his brother and Dame Aspasie Bernard, his wife, “ all his property, of whatsoever nature the same may be, during their natural lives, without their being obliged to give security to my other heirs; and after the death of my brother Joachim, and his wife Aspasie, my property will return to those that may be legally entitled to it.” This brother has since died, and his widow is the present defendant, and claims the right to continue in possession-of the property of the succession under the said will.
    The judge of probates maintained the possession under the will, and gave judgment for the defendant. The plaintiff appealed.

      Mouton, for the plaintiff.
    1. This suit is brought by the heirs of Toussaint Arceneaux, to recover his estate from the defendant, who claims the usufruct of it during her life, under the last will and testament of the deceased.
    2. The plaintiff contends, that said will only gives the defendant the usufruct of one half of the estate. Louisiana Code, articles 529 to 531.

      Crow, contra.

   Bullard, J.,

delivered the opinion of the court.

This case has been submitted to us on points, and presents the single question, whether the plaintiffs, as heirs at law of Toussaint Arceneaux, deceased, are entitled to recover the whole or any part of his succession. The defendant claims as usufructuary under the testament of the deceased. It appears that she is the survivor of her husband, to whom, jointly with herself, the usufruct was bequeathed “during their lives.”

Where a tes-tatorbequeathed all his property and his brother’s 7hSr üvef”!Sí after both their deaths4‘thepro-perty to return be^legaííy^ntí-.tied to the same HpJd that no part of death of both the usufructuaries.

The plaintiffs rely upon articles 529 to 531 of the Louisiana Code to prove that usufruct is divisible, and that in this case, at least as to one. half, it terminated at the death of the husband, and that their right then altached. These articles seem to establish the principle that there may be a joint usufruct terminating at different periods, as to the several usufructuaries. But in this case we are to be guided by the probable intention of the donor, as expressed in the testament. The expression “during their lives” would perhaps leave it doubtful whether the testator meant to create a right of survivorship in favor of one of the persons named as legatees. But this ambiguity appears to us to be clearedi up by other clauses in the will. The testator goes on to say, cc after the death of my brother Joachim, and the death of his wife Aspasie aforesaid, my property will return to those that may be legally entitled to the same.”

We are of opinion that these expressions indicate, on the part of the testator, his intention that his other heirs, the , . , . . , plaintiffs, shall have no right to enter upon the enjoyment bis estate until the death of both the usufructuaries, Having failed to show that their right has yet attached, we U O •! s think the court did not err in rendering judgment against

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


text:
    COOPER vs. COOPER.
    Western Dist.

      September, 1836.
    Al'PEAL FROM THE COURT OE THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The fact that the husband, and wife lived unhappily together, and sometimes-cursed and abused each other; and where the husband even went so far as to push the wife out of the door, but without any hurt, will not authorize the wife to obtain judgment of separation of bed and board, with a view to a final divorce.
    In an action for a divorce by the husband, on the ground of adultery of his wife, the fact of adultery must be fully proved. It will not suffice that her conduct be extremely suspicious to entitle him to judgment.
    Even where the husband knows of the adulterous conduct of his wife, but continues to live with her, and becomes reconciled to his own dishonor; and takes upon himself to punish or to reform her without appealing to> the law, it is questionable if he can afterwards be permitted- to comjdain.
    This is an action by the wife for a separation of property, and from bed and board, with a view to a divorce.-
    The plaintiff alleges she intermarried with the defendant in January, 1832, and has continued to demean herself towards her husband in a proper and affectionate manner -t but that he commenced a course of treatment towards her, by abusing and maltreating her in such a manner, as renders their living together as man and wife any longer, insupportable. She therefore prays for judgment of separation from bed and board, and for her half of the community, and for her separate property.
    The defendant denied the allegations of bad treatment, and averred that his wife’s conduct had become so notoriously lewd and immoral, in her adulterous intercourse with other men, even by her own acknowledgment, that he was entitled to a divorce a vinculo matrimonii.

    Wherefore, he prays, by way of reconventional demand, that he be divorced from his said wife, and that her suit be dismissed.

      The evidence showed many suspicious circumstances to prove that the plaintiff was extremely loose and immoral in her conduct, and particularly' with a certain person who visited her by day and by night, and at unseasonable hours. It appeared her and her husband were frequently quarrelling, and both abused each other very much.
    Testimony was also introduced as to the amount and situation of their property. From the whole case, the district judge concluded that the plaintifí was entitled to a ■ separation from bed and board, and that the parties retain the control of the property that each had in possession. Judgment was rendered accordingly; from which the defendant appealed.

      Lewis, for plaintiff.

      Swayzé, for defendant.
    1. The ;evidence does hot sustain the demand' for a separation of bed and board, instituted by plaintiff
    2. Admittin,g plaintiff was abused by defendant, yet it was provoked by the former, and the abuse was mutual. This is not good cause for a separation. 4 Martinis Reports, 174.
    3. Judgment should have been rendered'in behalf of defendant on the ground of the adultery of the wife. The evidence shows her conduct to be lewd and suspicious.
    1 Moreau’s Digest, 412. Roscoe on Evidence, page 362. 2 Star Me, 439. ■
   Bullard, J.,

delivered the opinion of the court. -

The plaintiff, who sues for a separation from bed and board, represents in her petition, that she intermarried with the defendant in 18,32, and that they lived together for some time pretty well; but that notwithstanding her affectionate and proper conduct, he some time afterwards commenced a course of mistreatment towards her, which continued to grow worse and worse, frequently cursing and abusing her in the most shameful manner, insomuch that it has rendered their further cohabitation utterly insupportable, and that he at last'ordered ber out of his house, and she has taken refuge at the house of her mother.

The fact that the husband and wife lived unhappily together, and sometimes cursed and abused , each other, and where the husband even went so far as to push the wife out of the door, but without any hurt, will not authorize the wife to obtain judgment of separation of bed and board, with a view to a final divorce.

In an action for a divorce by the husband, on the ground of adultery of his wife, the fact of adultery must be fully proved. It will' not suffice that her conduct be extremely suspicious to entitle him to judgment.

The defendant, in his answer, alleges, that he always treated the plaintiff in a kind and proper manner, until her conduct became' so openly and notoriously lewd, immoral and improper, that it was no longer supportable, and, he admits, that he may on some occasion, when excited by the bad conduct of the plaintiff, and her unblushing avowal of her own dishonor, have expressed himself in indignant and harsh terms of her. He further alleges, that his wife has been guilty of adultery with one William McDaniel, and that she has, on many occasions, gone about the neighborhood both by day and night, to balls and other places of amusement, with different men, contrary to his express wish and command, sometimes absenting herself from home for two or three days and nights at a time. He therefore claims in reconvention a divorce a vinculo matrimonii.

The evidence to prove the cruel treatment on the part of the husband is very vague. The parties appear to have quarrelled and abused each other a good deal, but it is not so clear who was to blame. The only personal violence shown, consists in his pushing her out of the door on one occasion, but he appears to have been provoked by an insinuation on her part that he was not a gentleman, and that the owner of the house in which they lived was. It further appears that she went back into the house through the same door, and that the husband then walked off. On this occasion she cursed and abused her husband for threatening a negro girl for having told lies about the plaintiff’s own daughter.

According to the principles upon which this .court proceeded, after much consideration, in the cases of Fleytas vs. Pigneguy, 9 Louisiana Reports, 419, and of Tourné vs. Tourné, Ibid., 450, we are of opinion the plaintiff has totally failed to make out a case for relief.

With respect/to the demand in reconvention for a divorce, on the ground of adultery, we are of opinion, that the fact of adultery is not sufficiently established by the evidence, although the circumstances are extremely suspicious. Her avowal, as alleged by the defendant, is certainly not proved. If it had been, and he continued to cohabit with her and become reconciled to his own dishonor, and took upon himself to punish or to reform her, instead of appealing for re(jregs to |-qe iaws 0f the country, it is questionable whether he could afterwards be permitted to complain. Upon the r V r whole, we conclude, that the prayer of neither party ought he granted. The question with this court is not whether ^ ^01' ^le parties, or for society, that a separation should take place in cases like the present, but whether the parties have brought their case within the law which regu-^ates khe most important relation of social life,

Even where the husband ^nows ™u.s. conduct ot his wiie, but continues to live comes ’ dishonor118 and takes upon Mm-to' rfonm'te” ing'to'theTawflt is questionable wardsbepermlt-ted to complain.

It is, therefore, ordered, adjudged and decreed, that the jU(jg.ment D¡strict Court be annulled, avoided, and reversed; and it is further ordered, that the suit be dismissed, and that the plaintiff pay the costs in both courts.


author: Martin, J.,

text:
    SMITH ET AL. vs. VANHILLE ET AL.
    Wester* Dist.'
    September, 1836.
    APPEAL PROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The execution of an appeal bond, in the sum required by the order granting the appeal, is a condition precedent, and is required before the right of appeal becomes absolute, or before the appellee is bound to take any steps to have his judgment affirmed.
    If the appeal bond is defective, for want of the amount or sum fixed by the judge, the appellee may have the appeal dismissed.
    The appellant cannot deprive the appellee of his right to a dismissal of the appeal by any apt posterior to .service of citation.

      0f^happeaibond in the sum required by the order granting* the appeal, is a condition prece-^“¿dandbefore the right of ap-solute?orbeforé íhe appellee is bound to take any steps to have firmed.Sment 8 ”
    In this case the plaintiffs took an appeal from the judgment of the district court rejecting their demand, returnable “on the fourth Monday in Jlugust. The sum fixed by the judge, for which an appeal bond was to be executed, was two hundred dollars. The bond was given in the sum of one hundred and fifty dollars only, and made payable to but two of the appellees, when there were several more.
    On the first day of the court the appellant deposited fifty dollars with the clerk to make up the deficiency in the appeal bond.

      Lewis, for Vanhille and O. Guidry,
    two of the appellees, moved to dismiss the appeal, on account of the insufficiency of the appeal bond.
    1. Because the appellants have not executed such a bond as the law requires.
    2. The bond is not given for the amount fixed by the judge in granting the appeal, but for a much smaller sum.

      Brownson, for the plaintiffs and appellees,
    contended, that the mistake in not taking the appeal bond for the whole sum fixed by the judge was committed by the clerk, and ought not to prejudice the rights of the appellant, as it was not through his fault or negligence.
    2. The sum sufficient to make up that required in the bond was promptly deposited with the clerk, at the beginning of the term or session of the court, which ought to answer the demands of law and the justice of the case.

       This is the day fixed by law for the annual commencement of the sessions of the Supreme Court at Opelousas.

   Martin, J.,

delivered the opinion of the court. 1

B. Vanhille and Onezime Guidry, two of the defendants and appellees, have moved the court to dismiss the appeal, on a suggestion that the bond is given for a less sum than that fixed by the judge. J J °

# t The motion is resisted on an allegation, that, on the day preceding the one on which the court met, the appellant paid into the hands of the clerk a sum, which, added to the penalty of the bond given, makes it equal to the entire sum fixed by the judge in the order of appeal.

If the appeal Rond is defective amount or sum fucile,theappei-lee may have the appeal dismissed.

cannot deprive the appellee of his right to a dismissal of the ao^posterLnvto service of citation.

The execution of a bond in the sum required by the order of the judge is a condition precedent, the performance of which is requisite before the allowance of the appeal becomes absolute. If it be not performed, the party, in favor of whom the judgment was rendered, need not take any steps to have it affirmed. He may content himself with pursuing the necessary means to have the appeal dismissed, J rJr

It is not in the power of the appellant to deprive the appellee of this advantage by any act posterior to the service 0f citation,

It is, therefore, ordered that the appeal be dismissed,


text:
    TURNBULL, TUTOR, &c. vs. TOWLES’S EXECUTRIX.
    Westbbk Dist.
    September, 1836.
    APPEAL PROM THE. COURT OP PROBATES POR THE PARISH OP ST. MARY.
    Where the community was dissolved by the death of the wife, and no inventory or steps taken towards its liquidation, and it appears to have been indebted to a greater amount than that of the property exhibited as having belonged to it at its dissolution: Held, that the only child by the first marriage will not be entitled to take any part of this community by inheritance, in right of his mother.
    Where the husband gives a receipt for money received from the estate of his wife’s ancestor, the funds will be considered as part of the wife’s inheritance, and received on her account, for which he will be liable to her heirs.
    But where the husband gives a receipt for a tract of land and slaves, received from his wife’s ancestor, at specified sums, it will not give him any legal title to them, and his succession will not be responsible for these articles, or the price at which they were estimated in the receipt, to the heir of his wife.

      The tutor is entitled to ten per cent, commission on the amount of the revenues of his pupil, arising from five per cent, interest on the pupil’s funds in his hands, and from the hire of his slaves and other sources of revenue. The commission must be calculated on the amount of the revenue, and the interest of five per cent, is to be calculated on the remaining sum, after deducting the commission and expenses of education.
    This is an action by the tutor of the minor son and sole heir, by the first marriage, of the late Dr. John Towles, to recover from the administratrix of his succession sundry sums, which it is alleged the .said Dr. J. Towles received on account of his first wife, and which he never paid over to his said son, after the dissolution of his first marriage.
    The plaintiff alleges, that at the death of his first wife, in 1817, Dr. J. Towles became the natural tutor of his only son and child and administered his property; that he kept the negroes brought in marriage and made large profits with them, which he appropriated to his own use. He also retained the community property, sold several tracts of land in the parish of Rapides for the sum of twelve thousand dollars, and negroes in St. Mary to the amount of two thousand dollars, all of which he received. On the 8th of June, 1818, he signed a receipt to the mother of his,deceased wife, stating that he had received, at different times, on account of his deceased wife, eleven thousand three hundred and seventy-five dollars. That property of the community acquired by said John Towles, during his first marriage, was found in his succession and put on the inventory, sold as community effects, and as such amounting to twenty-six thousand six hundred and seventy dollars.
    The plaintiff further states that the administratrix has retained the negroes brought into the first marriage, since the death of her husband in 1833, with the other property of the succession, and had the benefit of their labor, and that the succession is indebted for the value of their services, both before and since Dr. Towles’s death; that it owes interest at five per cent, on the sums which came into Dr. Towles’s hands after the death of his first wife, from the respective periods when they were received by him. The plaintiff alleges that the minor, whom he now represents, has a legal mortgage on all the succession property of Dr. John Towles, as his former tutor, for the reimbursement of the several sums owing by him. He therefore prays judgment for the amount that may be found due to him, with interest and mortgage allowed.
    The defendant admits there may be some of the property acquired by her deceased husband, during his marriage with the mother of said minor, in the succession, but that most of what is comprised in the inventory belonged to the late community existing between her and Dr. Towles. She further avers that the first community was insolvent, but that its debts were paid by Dr. Towles, after the dissolution of the first community, or by his succession since his death. She specifies a number of old debts, to a very large amount, paid since the dissolution of the first marriage, and which caused the second community, together with other losses, to be much embarrassed -with heavy debts. That as to the slaves claimed as the paraphernal property of the first wife, they have long since been taken away. She avers there is nothing due to said minor from the succession she administers, and prays that the plaintiff’s demand be dismissed.
    The evidence and accounts produced on the trial, and the calculations made, are fully stated and recapitulated in the opinion of the court.
    “Dr. John Towles received of the estate of John Turnbull, deceased, viz.:
    Received of C. Norwood, cash as per receipt, $3,400
    Do. CC CC CC CC CC CC 1,075
    Do. CC CC CC CC CC cc 1,500
    Do. CC CC CC CC CC cc 1,800
    Do. CC CC Cc cc cc cc 913 38
    Do. of Mrs. Turnbull, “ “ 842 31
    $9,530 69 Carried forward,

      -Brought forward,.9,530 69
    Family of negroes from Mrs. Turnbull, (Bob, Riner and three children,)
    ) )
    „ ’ .
    Two negroes of Mr. T-, (Emelie and Jerry,)
    1,000 00
    A tract of land near Pincknevville, in the state or Mississippi,
    ) 5
    , . „„ „„
    Sundries of Mrs. Turnbull,.315 00
    5,470 69
    Credit by cash refunded,.2,470 69
    $14,000 00

      Dated June 8, 1818.”
    The probate judge decided that the community existing between Dr. Towles and his first wife was insolvent, and dismissed the further consideration of it. He deducted the value of the land and negroes in the receipt of Dr. Towles .to Turnbull’s estate, and allowed the minor to take the property in kind, which left seven thousand three hundred and seventy-five dollars, which was allowed. The further sum of seven thousand one hundred and seventy-five dollars, with interest at five per cent, was allowed for the hire of slaves, and a deduction of one hundred dollars per annum, from 1817 to 1828, for the maintenance and education of said minor; and a further deduction of ten per cent, from the interest, for each and every year, to the 20th August, 1833; tWQ hundred and fifty dollars for 1829, and five hundred dollars for each of the years from 1830 to 1832; and judgment was rendered accordingly. The defendant appealed.

      Brownson, for the plaintiff,
    offered some calculations to show that the judgment was erroneous as respects the amount due the plaintiff.
    1. He showed, by calculations drawn from the evidence, that the succession of Dr. Towles was indebted to the plaintiff in the sum of eight thousand seven hundred and thirty-five dollars, for the use and hire of ten slaves belonging, to the succession of his first wife, from the year 1817 up to 1834.
    2.He then contended that the succession administered by the defendant was responsible for the minor son of her late husband for the amount of his receipt in 1817, being for cash and negroes received from C. Norwood, administrator of John Turnbull’s estate, the father of his first wife, and which she inherited. At least he is indebted for the balance, after taking out the negroes in kind.

      Conrad and Simon, for the defendant.
    1. The court erred in decreeing payment to the plaintiff of the hire of the negroes claimed by him. There is no legal evidence of these negroes being the property of the minor. The inventories were introduced for a different purpose, and are no proof of title ; neither is the fact of then-being taken away from the place, as there is no proof that this was done with the consent of the defendant; and besides, the plaintiff was one of the heirs of Turnbull, and might have taken them away as heir, as well as in his capacity of tutor. The administratrix could not, by any act of, or omissions of hers, affect the rights of creditors of the estate to the property belonging to it.

      2. At all events, there is no proof whatever that the sums of money mentioned in the receipt given by the deceased belonged exclusively to the minor. He is only entitled to his virile share thereof as one of the heirs of John Turnbull, to wit: to one fifth part. There is greater danger in the court’s decreeing the whole of this debt to the minor, as it appears, by a receipt given by Mrs. Turnbull some time afterwards, that there was a general settlement of all accounts between her and the deceased. See receipt signed by Mrs. Turnbull, dated in 1823, referred to in deposition of N. Cox.
    3. The calculations of interest were clearly erroneous, as also the allowance of commissions 'to the tutor.
    4. The court should have deducted from the amount decreed to be due the plaintiff, one half of the interest on the loan made from Surget on the joint account of the deceased, and of the minor. This loan was made on the recommendation and by the authority of a family meeting, who judged it for the advantage of the minor. It was undoubtedly binding on the minor, and the creditor could have collected it from him. Since the opening of the succession it has been paid by the administratrix. See tableau of distribution under the head “mortgage creditors.” We do not claim the principal, because the deceased received it as tutor, and was bound to account for it; but he never did receive the interest, and therefore the minor could not claim it. At all events, the court should deduct the difference between the interest on this loan and that due to the minor, that is, five per cent, per annum on eleven thousand dollars for upwards of two years. Thus the deceased received on account of the minor eleven thousand dollars; on this he owes say five per cent. But the minor owes ten per cent, to the estate, which has paid that amount of interest for him.
    Where the community was dissolved by the death ofthewife, and no inventory or steps taken towards its liquidation, and it appears to have been indebted to a greater amount than that of the property exhibí-ted, as haying its^dfssoiuti'on: oniyehiMbythe first marriage ■will not be enti-tied to take any munitythbyC°h!l heritanee, in right of his mother.

      5. The decree should have been to pay in due course of administration, and not absolutely.
   Bullard, J.,

delivered the opinion of the court.

The claim set up by the plaintiff in this case, against the succession of his father and tutor, may be considered by us, as it has been in the argument, under three distinct heads.

First. For an alleged amount due on account of the community formerly existing between the deceased and the brothers of the plaintiff, which never has been liquidated.

Second. For certain sums of money and the value of a tract of land in Mississippi, received by the deceased from the estate of John Turnbull^ the plaintiff’s grandfather. .

Third. For the revenues of the minor, consisting principally of the hire of certain slaves, alleged to be the separate property of the plaintiff, and employed by his father after the death of his first wife.

I. At the dissolution of the first community no inventory appears to have been taken, nor any steps towards a liquidation of it. Its situation, either as to property or debts, is but imperfectly known. The defendant has shown, however, was greafjy indebted, and the amount of property exhibited on the other side, most of which was disposed of by Dr. Towles, appears insufficient to pay the debts. We therefore concur with the ■judge of the Court of Probates in his conclusion, that on this head the plaintiff has failed to show that he is entitled to any thing, jo,

Where the husband gives a receipt for mo-from tim "estate of his wife’s ancestor, the funds will be partofthewife^s inheritance, and received on her account, for be Hahle'to her lieil's-

II. The evidence under the second head consists of a written acknowledgment or receipt signed by Dr. Towles, aftei'- the death of the plaintiff’s mother, by which he acknowledges that he had received from the estate of John _ . T , , , . • - Turnbull, deceased, certain slaves, certain sums of money, and a tract of land in the state of Mississippi, estimated at four thousand dollars. The plaintiff, who has already . t . . . . \ , . T received the surviving slaves, claims in this suit the amount of money thus alleged to have been received on his account, as one of the heirs of John Turnbull, together with the value of the tract of land.

it has been strenuously contended by the counsel for the _ _ . . . _ . . , . 1 defendant that this document íurmshes no evidence in supPort °f tfo® pretensions of the plaintiff; that it does not show on whose account, the money was received, that all the heirs 4 , of John Turnbull have as good a right as the plaintiff to recover the amount, and that a judgment in favor of the plaintiff would be no bar to their claim. We cannot yield r . , J our assent to these propositions. The evidence in the record shows that Mrs. Towles was one of the heirs of Turnbull, and the plaintiff sues as her heir. Dr. Towles, when he received this amount, possessed a quality or capacity either as the husband or tutor of one of the heirs of Turnbull, which entitled him to receive-it. We must presume he did receive it in that capacity, unless negatived by the terms of the receipt itself. The money does not purport to have been received on deposit, and the receipt per se does not furnish evidence to authorize the heirs to recover it back without showing it was paid in error.

But the plaintiff, in our opinion, is not entitled to recover the four thousand dollars for a tract of land in Mississippi. It does not appear that the land was conveyed to Dr. Towles for that price, nor that he has disposed of it. The title to the land, and to the slaves specified in the receipt, rests on the same ground. It will not be pretended that the slaves, acknowledged to have been received by him, were at his risk, and that if they had died he would have been liable to his pupil for.the value specified in the receipt. We cannot distinguish between the slaves and the land ; both appear to have fallen to the share of the plaintiff, or his mother, in the distribution of the estate of Turnbull, and we are not autho-3 rized, by any evidence in the record, to conclude that they . , . . thcit hlS CSt8/l6 is It is contended, howéver, to presume that Towles disposed of the land .. _ . , , , , , before his death. If the title had been in him, we might, perhaps, fairly presume it had been sold, inasmuch as no became the property of Dr. Towles, and responsible for the price or value, that we are But we cannot pre-1 notice is taken of it in the inventory, sume that he sold the property of his pupil.

But where the Jrasbp.nd gives a traot of land and from ’¡11S w¡fe>s a?oe®tor>at SP®: cmed sums, it win not give him any legal ti-tie to them, and ^ sponsible for these articles, or the price at eaimateñn the receipt, ,t0 heir of his wile.

III. In relation to the third branch of the case, which relates to the time of the slaves and the allowances to be made to the tutor for the expenses of the education of the plaintiff, an attentive examination of the evidence satisfies us that the Court of Probates came to a just conclusion.

The defendant and appellant has filed various grounds, upon which she asks a reversal of the judgment below, some of which, relating to the title of the plaintiff to the slaves, and, consequently, the hire which has been allowed, and to the right of the plaintiff to recover the sums of money specified in his father’s receipt, have already been disposed of substantially. She further contends, that the court erred in allowing to the plaintiff interest on those sums; in allowing to the tutor for his commissions only ten per cent, on the interest of his revenues, instead of that per centage on the revenues themselves; and further, in not charging the plaintiff with one half of the interest paid on a loan of twenty-two thousand dollars made by them jointly; and, finally, in making an absolute decree for the payment of whatever amount might be due to the plaintiff, instead of it to be paid in the regular course of administration.

The tutor is entitled to ten per cent, commission on the amount of the revenues of his pupil, arising from five per cent, interest on the pupil’s funds in his hands, and from the hire of his slaves and other sources of revenue. The commission must be calculated - on the amount of the revenue, and the interest of five per cent, is to be calculated on the remaining sum, after deducting the commission and expenses of education.

The question here raised, as relates to the interest on the loan of twenty-two thousand dollars, does not appear to have been agitated in the court below, and the answer to the original petition is silent as to that matter. No offset is claimed on that account, and we think the defendant has failed to show any liability on the part of the plaintiff, to pay any part of the capital or interest.

The tutor is by law authorized to retain, as his commission, ten per cent, upon the revenues of the minor. In this case the revenue must be considered as composed of the interest of five per cent, on the moneys in the hands of the tutor, and of the annual hire or value of the services of the plaintiff’s slaves. On the amount of the hire, after deducting the ten per cent for each year, the tutor owes an interest of five per cent., as well as upon other sums which came into his hands; but we are not aware of any law which obliges him to pay interest upon interest. The interest must be calculated on the amount after deducting the commission and the expense of education. The judgment rendered in the Probate Court allows for expenses of education, different sums, increasing with the age and advancement of the plaintiff, which appears to us reasonable and supported by the evidence. But from the phraseology of the decree, it is not apparent that all allowances were made for interest and commissions, according to the principles abovementioned. With respect to the number of hands belonging to the plaintiff at different periods, and the value of their services, the evidence in the record does not satisfy us that the court below erred. But the judgment, for the reasons-above stated, must be reformed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed and annulled; and it is further adjudged and decreed, that the plaintiff recover of the defendant, as administratrix, to be paid in the course of administration, as hypothecary creditor from the year 1817, first, the sum of seven thousand three hundred and seventy-five dollars, together with an accruing annual interest of two hundred and twenty-seven dollars and thirty-eight cents, for each and every year from the 8th of June, 1818, until the 24th February, 1834, and after that period an interest of ten per cent, on said sum, until paid, according to the agreement in the record; and that he recover secondly, for the hire of slaves, after deducting commissions and expenses of education not already allowed above, the sum of one hundred and thirty-five dollars, with interest at five per cent, from the 19th April, 1818, till paid; the slim of two hundred aud seventy dollars, with like interest from the 19th April, 1819; the further sum of two hundred and seventy dollars, with interest from the 19th April, 1820; the sum of three hundred and thirty-eight dollars and fifty cents, with interest from same day, 1821, and of three hundred and thirty-eight dollars and fifty cents, with interest from April 19th, 1822; of four hundred and five dollars, with like interest, from April 19th, 1S23; the like sum of four hundred and five dollars, with interest from same day of April, 1824; ihe like sum of four hundred and five dollars, with like interest from the 19th April, 1825; the like sum of four hundred and five dollars, with iuterest from April 19, 1826 ; the same sum of four hundred and five dollars, with interest from April 19, 1827; the same sum of four hundred and five dollars, with interest from April 19, 1828; the further sum of three hundred and ninety dollars, with interest from the 19th April, 1829 ; the sum of one hundred and forty dollars, with interest from the 19th April, 1830 ; the further sum of two hundred and seven dollars and fifty cents, with interest from April 19th, 1831; and the same sum for each of the years 1832 and 1833, with interest on each from the same day of each year, respectively; and it is further-ordered, that the costs of the Court of Probates be paid by the estate, and those of the appeal by the plaintiff and appellant, reserving to him any right he may have to the tract of land in Mississippi.


author: Bullard, /.,

text:
    COLLINS vs. COLLINS'S ADMINISTRATOR, ET AL.
    WESTERN DlST.

      September, 1836.
    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF ST. LANDRY.
    The nullity resulting from the want of a rendition of an account previous to the release or extra-judicial settlement between the tutor and his ward is relative, and the act must have its effect until annulled by a direct action, at least so far as third persons are concerned.
    In a direct action of nullity, to annul and set aside a settlement between the tutor and his ward and for restitution, the latter can only be relieved by placing the party in the same situation in which he was before the contract.
    The ward is restricted in his direct action of nullity against his tutor to four years after his arrival at the age of majority.
    This is an action against the administrator of the estate of the late Murtough Collins, and against Joseph and Jesse Andrus, as sureties in two several curator bonds, given by said Murtough Collins.
    The plaintiff alleges that he is the only surviving child and heir of John L. and Elizabeth Collins, deceased, who died when he was a minor, leaving a large property. That his tutors, W. L. Collins and J. Baldwin, rendered an account, acknowledging themselves indebted to him and his brother in the sum of six thousand two hundred and seventy four,dollars. That his brother, J. L. Collins, was appointed his curator ad bona in May, 1820, and died the year following, without rendering an account. M. Collins was appointed curator of J. L. Collins’s succession, and gave bond, with the defendants as sureties, who, he alleges, was negligent and unfaithful, never having made an inventory or rendered an account, by which negligence and illegal conduct his bon,d became forfeited. That in 1822, said M. Collins was appointed his curator ad bona, and gave bond, with the defendants (Andrus’) as his sureties. The plaintiff further alleges, that he inherited his brother, J. L. Collins’s estate, besides what he is entitled to receive on account of his father and mother’s succession. That M. Collins died, insolvent, in November, 1827, without rendering an account of either of his curatorships, and that his bonds are forfeited in both cases and the sureties liable.
    He further shows, that M. Collins’s estate inventoried eighteen thousand eight hundred and sixty-eight dollars, and the privileged debts, amounted to about forty-nine thousand and odd dollars, and that William Moore was appointed administrator; the widow and heirs having renounced. That in October, 1828, the administrator filed a tableau of distribution of said estate, without placing his claims thereon as a mortgaged and privileged creditor; he therefore requires that the order homologating the tableau be reconsidered and altered, so as to give him his proper place thereon for the amount of the two curators’ bonds thus forfeited.
    He further shows, that in consequence of said M. Collins’s failure to pay over the sum due to him, he has suffered damages to the amount of seven thousand dollars, for which he is entitled to judgment.
    He prays that William Moore, administrator, &c., and Joseph Andrus and Jesse Andrus, be cited, the former to place him on the tableau, as a privileged creditor for the amount of the two curators’' bonds aforesaid, and that the two latter, together with the administrator, be condemned to pay the amount of his several demands, &c.
    The defendants pleaded an exception to the jurisdiction, and averred that the District Court had exclusive cognizance of the matters in controversy. The Court of Probates sustained the exception, so far as respects the sureties in the curators’ bonds, and ordered the administrator to answer to the merits.
    The administrator pleaded a general denial, and specially averred, that on the 14th July, 1825, the plaintiff then being an emanéipated minor, and authorized to act for himself, had made a final settlement with M. Collins, his curator in his life time, and gave him a full receipt, with a release of all mortgages and pretensions; and in passing the act of settlement, Luke Lesassier aided him as his curator ad hoc.

    That the plaintiff, on arriving at the age of maturity, confirmed said release, by appearing and claiming to be a creditor of the estate of M. Collins, deceased, and being, at his own instance, placed on the tableau as a creditor, &c., which was homologated without opposition. A detailed statement of the administrator’s account was also included in the answer.
    Judgment was rendered in favor of the defendant, from which the plaintiff appealed.

      Linton, for the plaintiff,
    made the following points.
    1. No legal account of the estates of John Collins, senior, the father of the plaintiff, nor of John L. Collins, has ever been rendered by the executors in the first instance, nor by Baldwin and John L. Collins, tutors of the plaintiff, nor by Murtough Collins, the curator ad bom.

      2. The appointment of a curator or tutor is a judicial proceeding. Code of Practice, articles 924, 958, 960, and 961. The surety becomes voluntarily a party. The minor, when he attains the age of majority, can sue either or both in the same tribunal. Louisiana Code, article 3020. 4 Martin’s Reports, 214.
    3. No partition of the property of John Collins, senior, was ever made between John L. Collins and the plaintiff. The basis of the settlement, then, of Murtough Collins, curator ad bond of the plaintiff, was the amount of the inventory made in 1810. Code of Practice, 54 to 68. Code Napoleon, 451. 2 Toullier, Nos. 1189, 1190. 2 Martin, N. 8., 75. 2 Toullier, Nos. 1246, 1264, and 1191. Domat, book 1, section 3, No. 43, page 182.
    4. The defendant relies on a receipt in full, or release, executed by plaintiff to Murtough Collins, dated 15th July, 1825. To the validity of this act we oppose the minority of the plaintiff, and that, as an agreement between tutor and ward, it should have been preceded by the rendition of an account. Louisiana Code, article 355. 2 Louisiana Reports, pages 184 and 523. Toullier, 1248, 1297, 1250. Code Napoleon, 480 and 472.
    5. The act or release in question is absolutely void. Louisiana Code, articles 19 and 2252. 8 Toullier, Nos. 503 and 505.

      Garland, for the defendant.
    1. It is admitted, or at any rate shown, that the plaintiff is the heir of John Collins and wife, deceased, and also of John L. Collins, deceased; the allegations in the petition and the express statement in the act of release to M. Collins show it. •
    2. If, then, the plaintiff is the heir of John.L. Collins, he cannot claim to make the defendant responsible for his negligence, whilst the said John L. was acting as his curator ad bona; the rights of the plaintiff, if he had any, are extinguished by confusion; at any rate, the second curator ad bona is not responsible for the property wasted by the first. 2 Martin, N. Si, page 78.' Louisiana Code, article 2214.
    3. John L. Collins, whilst he was curator ad bona of plaintiff, received, by himself or his agent, the sum of three thousand seven hundred and ninety-nine dollars and sixty-six and one half cents, and settled finally with Baldwin, and took his note for all that was coming from him, the amount of which note was all ever received by M. Collins, except the interest which John L. Collins had in the store of A. C. and L. and the proceeds of two horses sold; this we have to account for, and it is done by the different sums paid for the plaintiff and his deceased brother.
    4. Defendants are not liable for what was lost by the insolvency of William L. Collins.
    5. The release given by the plaintiff to M. Collins may not be good as a discharge to him as curator ad bona, but it is good as evidence of a payment of what was coming to him.
    6. The presumption of payment is irresistible when all the evidence is examined. 6 Martin, N. S., 541. 4 Louisiana Reports, 452.

      The nullity resulting from the want of a rendition of an account previous to the releas'e or extra-judicial settlement between the tutor and his ward, is relative, and the act must have its effect, until annulled by a "direct action, at least so far as third persons are concerned.
    7. The plaintiff is precluded from setting up this claim now, because, when the administrator of the estate of M. Collins made a tableau of distribution of the estate, the plaintiff presented himself as a creditor, but did not set up the present demand, but was placed on the tableau for another sum he claimed, which tableau has been homolo-gated by the Court of Probates and affirmed by the Supreme Court. 4 Louisiana Reports, 44, 174. 2 Ibid., 155,205. 7 Martin, N. S., 566. 6 Ibid., 131. Louisiana Code, articles 1056-7-8-9 and 1060.
   Bullard, /.,

delivered the opinion of the court.

The conclusion to which we have come upon one of the peremptory exceptions pleaded by the defendants in this case renders it superfluous to investigate the complicated facts disclosed in the record.

The plaintiff seeks to render the estate of Murtough Collins, administered by the defendant, liable to him for mal-administration as his curator ad bona, while a minor, and of the estate of his deceased brothers, of whom the plaintiff is the heir, alleging that Murtough CoIIíds died without rendering any account of his administration.

The exception to which we allude is, that the plaintiff, on the 14th of July, 1825, being then an emancipated minor, had a final settlement with the deceased, M. Collins, and gave him a receipt in full on account of those several administrations, and a release of all mortgages and pretensions resulting from the same, and that he was assisted in the act by his curators ad hoc.

The act of release is in the record, and appears to have been passed before the parish judge and two witnesses, and the plaintiff was assisted by L. Lessassier, his curator ad hoc.

To this it is answered, that the act is null, because the plaintiff was a minor at the time, and because not preceded .by a rendition of a detailed account and exhibition of vouchers, according to article 355 of the Louisiana Code.

We had occasion to consider the question here presented in the case of Foutelet et al. vs. Murrell, 9 Louisiana Reports, 291, 299, and we then held that the nullity resulting from the want of a rendition of account previous to the release or extra-judicial settlement between the tutor and his former ward is relative, and that the act must have its effect until annulled by direct action, at least so far as third persons are concerned. The plaintiff, in his petition, makes no allusion to this act, but treats it as an absolute nullity, and contents himself with endeavoring to show its nullity, when it is set up as a defence to this action. Even in a direct action for restitution, he could be relieved only by placing the party with whom he contracted in the same situation in which he was before the contract. But then his direct action would be limited to four years after arriving at the age of majority. The estate of Collins is insolvent, and administered as such. The creditors may have acquired rights under that release which cannot be affected indirectly, as is attempted in this case.

In a direct action of nullity, to annul and set aside a settlement between the tutor and his ward, and. for restitution, the latter can only be relieved by placing the party in the same situation in whichhe was before the contract.

The ward is restricted in his direct ‘action of nullity against his tutor, to four years after his arrival at the age of majority.

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


text:
    ANDERSON vs. CADE ET AL.
    WESTERN DlST.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The appeal must be dismissed when there is no appeal bond taken in favor of the appellee.
    Where the warrantors have assumed the defence of the action instituted against the defendant, and judgment is rendered in favor of the plaintiff, against the defendant, and for the latter against the warrantors: Held, that the plaintiff must be made a party to the appeal, in order that the judgment between the defendant and warrantors may be revised on the appeal.

      This case came before the court on a motion to dismiss the appeal.
    The plaintiff obtained judgment for five hundred and sixty-seven dollars against the defendant, Cade, and that a certain slave, which the latter had purchased from John Compton and Joseph Walker, as executors of an estate, should be seized and sold to pay said judgment.
    Cade cited Compton and Walker in warranty, and had judgment over against them for the .value of the slave, from which he was evicted. They appealed.
    The appeal bond was only executed to the defendant, Cade, although the atlornies of the plaintiff acknowledged service of the petition and waived citation of the appeal.

      C. Voorhies, for the plaintiff,
    moved to dismiss the appeal, because the appeal bond was not made payable or in favor of the plaintiff and appellee.

      Srownson, for the defendant,
    joined in the motion made by the plaintiff’s attorney, because it was impossible to try the case on its merits, as between all the parties. If the defendant’s judgment against the warrantors is to be called in question, he must have the right, at the same time, to resist the judgment of the plaintiff against him.

      Lewis, for the warrantors,
    contended that the judgment was erroneous as respects them, because it was rendered against them personally, instead of being in their representative capacity as executors.
    2. The correction of the judgment was only required as respects the defendant. He alone is concerned as to the judgment between him and the warrantors. It does not affect the plaintiff.
   Martin, J.,

delivered the opinion of the court.

The defendant, in this case, having called his vendors in warranty, they came in and contested the plaintiff’s right to the slave, sought to be made subject to his mortgage, and also that of the defendant against them as warrantors. They are now appellants from the judgment which supports the plaintiff’s claim, and that of the defendant against them in warranty.

The appeal must be dismissed ■when there Is no appeal bond taken in favor of the appellee.

Where the warrantors have assumed the de-fence* of the action instituted against the defendant, and judgment.is rendered in favor of the plaintiff against the defendant, and for the latter against the warrantors: Held, that the plaintiff must be made a party to the appeal, in order that the judgment ■ between the defendant and war-rantors may be revised on the appeal.

The plaintiff and appellee has prayed the dismissal of the appeal, on account of the absence of any appeal bond in his favor; this being the case, the motion to dismiss, as to him, must prevail.

This party being thus out of court through the 'laches of the appellants, they still insist on the reversal of the judgment obtained by the defendant against them, not on account of the absence of any right in the plaintiff to the slave in question, but on account of the absence of any right in the defendant against them as warrantors, because the sale at which he acquired the slave was effected by them in autre dróit, i. e., as representatives of a succession.

The vendors might have avoided contesting the claim of the plaintiff on the slave, and contented themselves with denying their liability in warranty. They have, however, thought it safer to assume the defence of their vendee, and thus relieve him from the necessity of undertaking it himself. It is useless to inquire whether, on failing in the attempt to defend him, they were bound to contest the plaintiff’s claim before this court; they have made their election, and the defendant was informed of it by the citation, which made him and the "plaintiff both appellees. Had this been otherwise, the defendant must have considered whether it was his interest to suspend his right or the judgment he had obtained against his vendors, by appealing from that of the plaintiff, decreeing the sale of the slave, which was the basis of his own.

He was relieved from this consideration by the conduct of his vendors, who, having undertaken his defence in the court below, determined on continuing it in this. Through their own laches, it now appears that the error, which they allege the District Court committed, cannot be corrected.

Their appeal being now dismissed, as to the plaintiff, and the year having elapsed, the defendant cannot appeal. The judgment is, therefore, final both against the defendant and ^ appellants, through the laches of the latter. Can they now be heard in disclaiming any interest in a defence which they have assumed, and thereby relieved the defendant from the obligation of undertaking 1 It appears to us it is now too late. In, undertaking to defend their vendee in both courts, if they .have not waived any exemption from the obligation of doing so, resulting from the character in which they effected the sale, they have incurred the obligation to indemnify him from the consequences of their negligence.

„ The appeal must, therefore, be dismissed.


text:
    DELAHOUSSAYE'S HEIRS vs. BIENVENU ET AL.
    WesternDist.

      September, 1836.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    Where a family meeting consent to mortgage the property of minors, to obtain a loan, to enable the tutor to discharge a judgment against them, and the loan not being procured, but the tutor pays the amount of the judgment with other funds of the minors’ in his hands, It will be valid.
    The tutor has a right to dispose of the funds in his hands on his responsibility; and where he pays a judgment obtained against his pupils, the judgment cannot be rescinded and the amount recovered back from the owner who received payment. If the tutor paid without proper authority, the minors must look to him, as in case of maladministration of their estate.
    This is an action to annul a judgment obtained by the defendants against one Hany, as the natural tutor of the plaintiffs, who are the minor heirs of C. E. Delahoussaye. The latter inherited a singar plantation and slaves from their deceased mother, and, in the course of administration, the tutor and father (Hany) contracted the debt on which this judgment was obtained, for a sugar mill and other things furnished the plantation. The tutor let judgment go by default. This judgment was assigned to another. When pressed for payment, the tutor convoked a family meeting of the relations and friends of the minors, who recommended mortgaging the plantation, with a view to procure funds to pay off this judgment and other debts. The loan was not procured, but Hany, the tutor, paid off the judgment in question with other funds of his pupils, in his hands, to the assignee.
    The district judge gave judgment for the defendants, from which the plaintiffs appealed.

      Lewis, for the plaintiff.
    1. The judgment is null, because the debt on which it is founded was illegally contracted by the tutor, to the disadvantage and injury of his pupils. The suit was not properly defended; there was, in fact, no defence, but judgment went by default. Code of Practice, 615. Louisiana Code, 301, et seq.

      2. This judgment was paid illegally from the capital and with the funds of the plaintiffs, which was received by the assignee, and should be refunded.
    3. The contract made by the tutor was not binding on the minors, because not being for their benefit, but through the mismanagement of their estate. Louisiana Code, 327, 340.
    4. The consent of the family meeting to pay this judgment could not, by a subsequent ratification, make good what was null and void. Louisiana Code, 334-5.
    5. The tutor had no power to contract the debt on which the judgment is rendered. He is forbidden to spend more than the revenue of his minors, without the advice of a family meeting; and a fortiori he could not enter into contracts which would have the effect of squandering their capital by means of suits. 5 Louisiana Reports, 490. Louisiana Code, 343.

      6. The judgment is illegal, because it is general against tutor as such, and authorizes the seizure and sale of the minors’ property. It should, at least have been restricted to the revenues. 8 Marlin, JV. S., 272.
    7. It jg illegal, and should be set aside because it authorizes the alienation of the property of minors contrary to law, and forbidden by it. 1 Martin, JV. S., 324, 628. 2 Louisiana Reports, 328.

      Brownson and Simon, for the defendants.
    This is an action of nullity or rescission, by which the plaintiffs, who were all minors at the time the judgment was rendered, seek to have it set aside, on several grounds; but no fraud or collusion is alleged.
    1. As to jurisdiction. The District Court had jurisdiction; it was not a suit against a succession, but only to recover a debt which had been contracted by the tutor for his minors, after the death of their ancestor. Code of Practice, article 924. 5 Louisiana Reports, page 26.
    2. The minors were duly represented in the suit in which said judgment was rendered, and it cannot now be rescinded. JLct o/1826, as amending article 615 of Code of Practice.

      3. Moreover, a meeting of the family of the minors, convened after the judgment had been rendered, recognized the same to be justly due, and provided means to pay its amount. They had a right to do so. Civil Code, 339, 343. The object of the family meeting was to provide for the payment of such debts, contracted by the tutor, as had turned to the benefit of the minors, and particularly for their maintenance and education, and this is one of those debts.
   Bullard, J.,

delivered the opinion of the court.

The plaintiffs sue to rescind a judgment rendered against them and ordered to be satisfied out of their property, while minors, on various grounds, as set forth in the petition; and, among others, that the suit against their tutor was not well defended, and that they were aggrieved by the judgment. Code of Practice, article 615. The assignee of the person in whose favor the original judgment was rendered is made a party defendant.

Where a family meeting consent to mortgage the property of minors to obtain a loan, to enable the tutor to discharge a judgment against them, and the loan not being procured, hut thetutorpaysthe amount of the judgment with other fpnds of the minors in his hands, it will he valid.

The tutor has a right to dispose of the funds in his hands on his responsibility; and where he pays a judgment obtained against his pupils, the judgment cannot be rescinded, and the amount recovered back from the owner, who received payment. If tire tutor paid without proper authority, the minors must look to him as in case of mal-adminis-tration of their estate.

The defence relied on is, that the judgment was paid by the tutor of the plaintiffs to the assignee, out of funds of the plaintiffs, in his hands, and that there is no nullity in the judgment.

It is shown by the evidence in the record, that, after the rendition of the judgment, the father and tutor of the plaintiffs provoked a family meeting, composed of the nearest relatives of the minors, some of whom figure in this case as parties, and that the family meeting authorized the tutor to procure a loan, by mortgage of the minors’ property, for the purpose partly of paying the judgment in question, together with other debts, which they say on oath had been contracted for the sustenance and education of the plaintiffs and for the better administration of their property. The loan was not procured, but it appears that afterwards money came into the hands of the tutor, in consequence of the sale of some property of the minors, which was not provoked by him, and that out of that fund he discharged the judgment in question.

If the family meeting consented to create an incumbrance on the property of the plaintiffs to pay the debt in question, they may fairly be said to have authorized the payment by means less onerous to the parties. The tutor had a right to dispose of the money in his hands,- under his responsibility, and we are of opinion that, under such circumstances, the plaintiffs must look to their tutor, if he has mal-administered their estate.

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