text:
    The Union Bank of Louisiana v. Guillotte.
    Where the report made by a sworn surveyor, appointed by the court having cognizance of an action of boundary, is defective, and the plan annexed to it is not in conformity with the titles, the report should be rejected and a new survey ordered. C. C. 837. The surveyor is but an expert, and his operations are always under the control of the court. The defectiveness of the report is no ground for non-suiting the plaintiff.
    from the District Court of Jefferson, Clarice, J.

      Denis, for the appellants.

      Soulé, for the defendant.
   The judgment of the court was pro-

Rost, J.

This is an action of boundary, and for the removal of certain fences erected around property alleged to belong to the plaintiffs. The prayer of die petition is that surveyors be appointed to inspect the adjacent estates, and report according to tiro titles of the parties; that the boundary lines between said estates be fixed, so as to divide proportionally the over extent of land found in the original tract of which these estates are parcels. There is also a prayer that the fences complained of be removed. The defendant has joined the plaintiffs in the prayer that surveyors be appointed to oxamine the premises in dispute, nnd report; but he denies the allegations in the petition having a tendency to establish the dividing line of the property held by them at the point therein specified. He further avers that the fences complained of do not cover the lines of the lots sold to him by the Ursulino Nuns, in 1811.

An order of survey was granted by the court, and a commission issued to Louis Bringier, a sworn surveyor of the State, who made a survey and report, in all respects favorable to the pretentions of the defendant. The district judge being of the opinion that the survey was not made in conformity with the titles of the parties, and that the surveyor should have ascertained the location of tho fixed boundary called for by the defendant’s title, rejected both the survey and the report; and being farther of opinion that, in actions of boundary, art. 829 of the Civil Code imperatively requires the limits to be fixed by a sworn surveyor, and that, without the report of the surveyor duly homologated, no judgment can be rendered, he non-suited the plaintiffs. Both parties have appealed, and ask that the case be considered on its merits.

We are of opinion that the district judge erred, in dismissing the petition. The article of the Code declaring that limits in actions of boundaiy must bo fixed by a sworn surveyor of the State, is to be taken in connection with art. 837, which makes it the duty of the judge in those cases to appoint surveyors to inspect the premises, and to decide on their report, according to the titles of the parties and the plans which shall be presented to the court. If the reports thus made are defective, and the plans annexed to them not in conformity with the titles, the court ought to reject them, and order a new survey to be made according to law. The surveyor is but an expert; and his operations are always under the control of the court.

Before going into an examination of the merits of this case, it is necessary to state the facts upon which it rests. In 1810, the Ursulina Nuns divided their plantation adjoining faubourg Annunciation, into eleven lots, numbered from one to eleven, and caused a plan of this division to be made and deposited in the office of N. Broutin, a notary public of this city. On this plan two streets called St. Andrew’s road and Felicité road were laid out at the side lines of the plantation ; a third street called St. Mary’s road was opened through the middle of it, and extended in the rear until it reached lot no. 1, which remained undivided, and included all the rear of the plantation. All these streets converged from the front to the rear of the plantation. Shortly after this division the Nuns sold to Teinturier the lot no. 1, measuring 522 feet 6 inches front on the side of the river, 900 feet on the side of the widow Pañis, and 1078 feet on the side of and adjacent to the suburb Annunciation, being, says the sale, part of the plantation which the Nuns have divided into lots, in conformity to the plan deposited in the office of N. Broutin. After this sale, to wit, on the 21st. of October, 1811, the defendant purchased from the Nuns two parcels of ground, one situated within the lines of lot no. 2, in the plan of the faubourg, measuring 239 feet 6 inches front to the road which divided it from the property acquired by Teinturier, and 300 feet in depth and front on St. Andrew’s and St. Mary’s roads; the other situated within the lines of lot no. 3, and measuring 250 feet front on said road along Teinturier’s property, and 300 feet in depth and front on St. Mary’s and Felicité roads. On the 9th of December, 1811, the defendant purchased from the Nuns two other parcels of ground situated in the same lots, nos. 2 and 3, contiguous to the land already acquired by him, and extending from the roar lines of said land 300 feet front on St. Andrew’s, St. Mary’s and Felicité roads. The defendant liad thus a title to two tracts of land, extending 600 feet in depth from the line, of Teinturier road, these dimensions being in french measure.

In the subsequent year, TJrbain Gaiennié purchased from the Nuns a parcel of ground situated in lot no. 3, adjoining the property acquired by the defendant in said lot, and measuring 266 feet along the line of the defendant’s property from Felicité to St. Mary’s road, 281 feet on the opposite and parallel side, and 370 feet in depth. Afterwards Gaiennié purchased from the Nuns 68 feet front on St. Mary’s and Felicité roads adjoining his previous purchase; and René Théard became the purchaser of the balance of lot no. 3, without warranty as to the deficiency in the measures marked on the plan of division. The property acquired by Gaiennié was subsequently purchased by Martinstein, who failed, and surrendered it to his creditors. It was divided into building lots and sold by his syndics, when a lot adjoining in the rear, the property of the defendant, was adjudged to George Green, under whom the plaintiffs claim. The proper location of the boundary line between this lot and the property of the defendant, is the subject of the present suit.

The plaintiffs contend that Teinturier street as it now exists is the former Teinturier road, mentioned in the sale to Guillotte, and that, taking that street as his boundary, his fence encloses a larger portion of land than his title calls for. They further allege that, admitting, which they fully do, that Teinturier street at its present location measures only from Felicité to St. Mary’s road, on the side of the defendant’s property, 244 feet instead of 250 called for by Lafon’s plan and the defendant’s title, and even supposing, which they deny, that the said Teinturier road is out of its original location, yet by the defendant’s own judicial admission, and by his solemn ratification made with full knowledge of the deficiency, Teinturier street as it now stands, is the fixed lower boundaiy of his land.

The defendant insists, on the other hand, that Teinturier road is an imaginary boundary, which did not exist at the time of the sale, and that the location of his land cannot be ascertained with reference to it; that he purchased under a plan in which were two main roads called Felicité and St. Mary’s, the lines of which were then, have ever since been, and are still, well ascertained and known; that there is also on the plan another road, crossing the two roads just named, called Chemin des Religieuses, the lines of which were also and are still well ascertained and known; and that following down the two lines of St. Mary’s and Felicité roads from the chemin des Religieuses, the point at which the distance between those two lines gives the front mentioned in the sale from the Nuns to him, to wit, 250 feet french measure, must be taken as the front of his lot; the consequence of this location being to advance his land more than 134 feet further up towards the river, thus overrunning the whole of the plaintiffs’ lot, and the greater part of the ground surrendered by Martinstein to his creditors.

In the sale from the Nuns to the defendant, he acknowledged himself to be fully acquainted with the land sold and its limits, and stipulated to take it in the state in which it then was. This sale was made thirty eight years ago, and the defendant, who lived on the land, has never before claimed the location now contended for. His allegation, in the answer to this suit, that the fences complained of do but cover the lines of the lots sold to him, when coupled with the admission in the record that the distance from those fences to Teinturier street is over 600 feet, cannot well be understood otherwise than as a declaration that those fences do cover the lines of the property sold to him.

In August, 1831, the defendant sold to McNeil the front of this lot on Teinturier street, it being 244 feet french measure; This land is described in the act as part of that which the defendant purchased from the Ursuline Nuns, by act passed before Narcisse Broutin, notary public, bearing date the 21st of October, 1811. In the same year he made three other sales of lots fronting on Teinturier street, between St. Andrew’s and St. Mary’s roads, and described those lots to be portions of the ground acquired from the Nuns by the same act. The dimensions in those sales were given by reference to a plan of the faubourg, as it is now laid out, made by Joseph Pilié, in 1829, and on which the land sold to the defendant by the Nuns is represented as fronting on Teinturier street.

After the long acquiescence of the defendant in the adverse possession of those claiming under Urbain Gaiennié, and the acts .on his part seeming to recognize their title, if he was in error as to the proper location of his land, it was incumbent upon him to place that error beyond all reasonable doubt. We are of opinion that he has not done. so.

The sale of the Nuns to Teinturier, in 1810, refers to the plan of division of their plantation. It is urged that the defendant purchased under a plan made by Lafon, posterior in date to the sale to Teinturier, and that the plans under which he and Teinturier bought were different. Both sales refer to the plan of division of the faubourg, and there is no evidence to show that that plan was ever changed by the Nuns; it represents the plantation as bounded in the rear by the bayou Des Cannes, and it is proved that the length of the side lines of Teinturier’s land from Teinturier street to the centre of the bayou Des Cannes, is precisely the distance mentioned in his title. The bayou Des Cannes not being navigable, the back line of course runs through the middle of it. This fact goes far to prove that Teinturier street, as it now exists, must have been the road separating lot no. 1 from the property of the defendant.

The defendant acquired from the Nuns 239 feet 6 inches front on Teinturier road, between St. Andrew’s and St. Mary’s roads, and is shown to have sold 244 feet 6 inches front on the said Teinturier road; so that while there appears to be a deficiency of 6 feet in the front, between St. Maiy’s and Felicité roads, an excess of 5 feet is found between St. Maiy’s and St. Andrew’s roads. The witness Grant, who is a surveyor and has measured the ground, testifies that the quantity of land presently found between St. Andrew’s and Felicité roads on the line of Teinturier street, is only 9 inches less than what is called for in the original plan of the faubourg. He and D’Hemécourt farther state that, the difference between the measures in the original plan and those found by actual survey is, as they believe, owing to the fact that the lines of .St. Maiy’s road have been altered from their original direction, and made to converge towards Felicité road, so as to leave a greater space than was originally given on the side of St. Andrew’s road. They also testify that the line of St. Andrew’s road has not been changed. The defendant maintains that the reverse is the truth; that the direction of St. Andrew’s road alone has been changed, and that road made to converge with St. Mary’s road less than it originally did.

The weight of evidence upon this part of the case is decidedly with the plaintiffs. One of their witnesses testifies that in running the lines he found on the line of St. Andrew’s road ancient stakes and marks, which in all probability had been placed there before th.e plan of Pilié was made. The evidence of the defendant does not go to establish the location as it really was, but as it should have been. It does not rest upon actual knowledge of the fact at issue, but upon calculations of distances deduced from the direction of the side -lines, as they are given in the original plan of division. In the two plans which have' been produced the direction of those lines ia not the same* and the results of the-calculations made from them show the mistakes of the surveyors much more satisfactorily than the alleged error in the location of the defendant’s land. But,, besides this, the defendant has availed himself of the alleged change of direction of St. Andrew’s road, by selling 5 feet front more than he says he was entitled to on Teinturier street. These sales must be viewed as a ratification on his-part of the plan in reference to which they were made.

If Teinturier street is not the true boundary, and the mode proposed by tho defendant to ascertain it be adopted, the front of his property between St, Mary and Felicité roads will be advanced 134 feet from Teinturier street towards the river. But the same rule must also be applied to the lots between St. Andrew’s and St. Mary’s streets, and their front carried beyond Teinturier street upon lot no. 1, at the place where the distance between tiróse two roads is only 239 feet, 6 inches. This location cannot be reconciled with the description in the-act of sale, and the plan to which it refers, giving the said front to lots- nos. 2- and 3.

For the reasons assigned it is ordered, that the judgment in this case be-reversed, and the case remanded for further proceedings according to law, and in conformity with the foregoing opinion; the costs of this appeal to be equally divided between the parties.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Succession of Girod.
    Where there are different administrators of a succession, succeeding each other, each administrator will be entitle d to commissions on such portions of the estate as have been admin-v isfcerqd by him.
    The fact that some time after the opening of a succession, a large portion of the property included in the inventory and apparently belonging to it, was claimed by the heirs of another person, and, after a protracted litigation, adjudged to belong to them, will not deprive tho executors, who had, for several years, administered the property, by providing tenants, collecting rents, paying taxes, and making the repairs necessary for its preservation, of the right to charge the usual commissions upon the property. Per Curiam: It would be unjust to permit the real owners of the property to enrich themselves at the expense of the executors. If this equitable view be correct, it is immaterial whether they be considered as strictly clothed with seizin of the entire estate, or not—whether the compensation be granted as commissions, eo nomine, in the technical sense of the Code,, or as a just remuneration for services which have enured to the benefit of the parties who have recovered the property.
    Decision in Succession of Mylne, 1 Rob. 400, as to the allowance of commissions to an executor on unproductive property of the succession, affirmed.
    The reason of the rule refusing the allowance of commissions to an executor on uproductive property of the succession is, that its administration gives them little or no trouble. Thus* the mere payment of the taxes on uncultivated lands, will not authorize the allowance of a commission on their value. But there are cases in which commissions should be allowed on such property; as where a suit had been instituted to evict the executor,, and he defends it successfully, thus saving its value to the succession; or where the proper public authorities require the erection of a levee to protect the uncultivated lands from inundation, which w;ould impair their value, while that value would, on the other hand, be-enhanced, in a greater ratio than the expeiiditure, by its construction.
    Whore a tract of land, fronting a bayou, opposite to a sugar plantation, has been used to supply timber and fuel for the purposes of the plantation, it cannot be regarded as waste and unproductive land, on the value of which the executors cannot charge a commission.

      from tlie Second District Court of New Orleans, Canon, J.

      £,. Janin, for the opponents and appellants.

      Soulé and Poselius, contrá.
   The judgment of the court was pronounced by

Slidell, J.

The subject of controversy upon the present appeal is, the extent of the commissions to which the executors are entitled. There was a question raised by the appellants as to two due bills, alleged to be due by one of the executors. But this point has been abandoned since the submission of the cause.

We concur with the appellants that a deduction of $426 90 should be made, that being the amount of commissions allowed to the predecessors of the present dative executors. See the Succession of Mylne, 1 Rob. 400.

The principal contest is with regard to .the right of the executors to charge a commission upon the entire estate inventoried, it having been adjudged, since the inventory, that five- eighths of an important portion of it really belonged to the heirs of Claude Francois Girod.

When the present succession was opened, all the property inventoried apparently belonged to it. But some time after the dative testamentary executors had entered upon the discharge of their duties, proceedings in chancery were instituted in the United States Court by Pargoud and others, as heirs of Claude Girod, who died a long while ngo, for the purpose of recovering a portion of this apparent property of Nicolas Girod’s succession, on the ground that Nicolas acted fraudulently in the settlement of the succession of his brother Claude, of which he was executor, having bought portions of the estate by persons interposed &c. After a protracted litigation, a decree was rendered in favor of the complainants, and was affirmed by the Supreme Court of the United declaring the ownership of a certain interest in certain property to bt^n heirs of Claude. v

But it is not disputed that, during the pendency of this litigation, asjWell m previously, the executors of Nicolas Girod had the superintendence anii Laih of this property. They attended to its administration, provided tenants, collected the rents, paid the taxes, preserved it by necessary repairs, &c. All thi^ to the benefit of all parties interested. There would be no justice in peri the heirs of Claude to enrich themselves at the expense of these executors, have rendered their services in good faith, under the command of a court of competent jurisdiction,in the administration of property apparently belonging to their testator. And if this equitable view be correct, it is quite immaterial whether they are to be considered as strictly clothed with the seizin of the entire estate or not—whether we grant them the compensation as commissions, eo nomine, in the technical sense of the Code, or in the nature of a just remuneration for services which have enured to the benefit of Claude’s heirs. It is very certain that we should have found those hems taking veiy different ground, if the executors, upon the institution of the chancery proceedings, had abandoned the care of the property, neglected the collection of the rents and revenues, and suffere d it to fall into dilapidation. The commissions of two and a half per cent are nothing more than a fair quantum meruit under the evidence, even if not allowable as executor’s commissions strictly speaking. If the heirs of Claude are controlled by this reasoning, a fortiori, the legatees of Nicolas are.

It is next said that, the commissions are not allowable upon the unproductive lands.

In the case of the Succession of Mylne it was held that, the executors could not have commissions .upon the value of certain lands described in .the opinion of the court as “waste lands, not cultivated, and a part not susceptible of cultivation i” and the court there remarked : “We cannot regard that species of property as the productive properly of a succession, upon which the executor is entitled to charge a commission. The best evidence that it is unproductive is' that, in' the hands of the present executor, it has produced nothing.”

We certainly are not disposed to depart from the principles recognized in that opinion. But we think that they ought not to be taken without qualification, and extended beyond their fair and reasonable import. The reason of the rule is that, an executor should not receive a commission upon that which gives him little or no trouble to administer; and, in this sense, we do not agree with the counsel of the executors in the assertion that the mere trouble of paying taxes on property entitlesi'an executor to his commissions upon uncultivated land. In Mylne’s case no doubt the lands were taxed, and the executors probably had tire trouble of paying the taxes.

But there may be other circumstances which would, under a reasonable interpretation of the rule, and without any conflict with the spirit and fair intendment of Mylne’s case, entitle the executor to a commission upon uncultivated land. Suppose a suit is brought to evict the executor by an adverse claimant, and he defends the suit with success, and thus saves the estate the value of the land, this, we think, a fair ground for charging a commission, even on uncultivated land.

Again, take the case which (as asserted by counsel, and not denied by the opposite party,) occurred here with regard to a portion of the lands on the Lafourche. The proper public authority commands, or necessity requires, that a levée should be erected to protect the uncultivated lands from an inundation which would impair their value, while that value, on the other hand, would be enhanced in a greater ratio than the expenditure by the construction of a levée. This would impose trouble and responsibility upon the executor, which would justify a charge of commissions. The law on this subject should be construed with a due reference to its spirit and the intention of the law giver; and such reasonable construction will redound to the true interests of heirs and creditors.

We may remark that some of the lands which figure in the inventory as uncultivated, may, in point of fact, not come fairly under the designation of the Code. For example, the tract fronting the bayou Lafourche, opposite a sugar plantation of the deceased, may have been used for the supply of timber and fuel for (he plantation purposes; and, if so, could not be fairly classed as waste and unproductive land.

As we have not the full means of closing the present controversy, we think the ends of justice will be promoted by remanding the cause; and if the parties, who are no doubt fully acquainted with all the material facts, do not choose to make an amicable settlement, the views we have expressed will, at all events, facilitate the future judicial proceedings.

It is therefore decreed that, the judgment of the court below be reversed, and that this cause be l’emanded for further proceedings, the appellees paying the costs of the appeal.


author: Smdeli,, J.

text:
    Hart et al. v. Lauve et al.
    Decisions in Knight v. Lauve, 3 An. 64, M'Alpin v. Lauree, 2 An. 1015, and Harrod v. WoodrViif\ 3 Hob. 335, affirmed.

      from tlie Fourth District Court of New Orleans, Strawbridge, J.

      T. R. Wolfe, for the plaintiffs.

      Sigur and Bonford, for the appellants.
   The judgment of the court was pronounced by

Smdeli,, J.

On the question of competency, and on the merits, we consider this case as covered by the cases of Knight v. Lauve, 3 An. 64, and M’Alpin v. Lauve, 2 An. 1015.

The question of prescription is settled by the caso of Harrod v. Woodruff, 3 Rob. 335, and the cases there cited.

Judgment affirmed.


author: King, J.

text:
    Succession of Bringier.
    Decision in Succession of Fitzwilliams, 3 An. 489, as to the share of the surviving spouse, and the nature and extent of the usufruct, under sec. 3 of slat, of 25 March, 1844, affirmed.
    The fact of a surviving spouse having taken out letters of administration on the estate of the deceased, does not in any manner affect her usufructuary rights under the stat. of 25 March, 1844, s. 2. By the terms of the statute the survivor takes the usufruct of so much of the share of the deceased in the community property as may be inherited by the heirs. That share consists oi the one half which belonged to the deceased, subject to the debts. With that encumbrance it descends to the heirs, from the instant of the ancestor's death. The right of the survivor to the usufruct attaches at the same moment that the right of property accrues in favor of the heirs. Per Cur. The usufructuary is permitted, in such a case, to retain the whole property and receive its fruits; on making the necessary advances to discharge the debts, which are to be reimbursed, without interest, at the termination of the usufruct; or he may sell property to an amount sufficient to discharge the debts, unless the heirs will make the necessary advances; and he may exercise his right upon the residue. C. C. 578, 579. Nor is the exercise of the right of the usufructuary inconsistent with that of the heirs, or of the creditors, to insist on a speedy adjustment of the debts of the community, and on a sale of property for that purpose, if necessary.
    4 PPEAL from the District Court of Ascension,.Nicholls, J. 1A.

      Preston and Rsley for the opponents.
    The questions for solution are: First. Can a surviving widow, or.the heirs of the deceased, claim from an administrator any portion of the community property, or of the revenues derived therefrom while the same is under administration, until all the debts and charges thereof are paid, and the same is fully liquidated ?

      Second. Can a usufructuary under the act of 25th March, 1844, claim any greater rights than the owner would have enjoyed, if no such law existed 1 If anything be settled by the jurisprudence of this court beyond all controversy, it is that neither a widow nor heirs can claim anything but a residuum of an estate; that is, whatever may remain after its final liquidation.
    The propositions assumed by the appellees, and finally concurred in by the lower court, were : 1st. That some of the heirs accepting unconditionally, and others with the benefit of inventory, the succession must be administered. C. C. 1031, 1040. 2d. That the duties and responsibilities of administrators are the same as those of curators of vacant successions. C. C. 1042. 3d. That the fruits and revenues of a succession must be administered and accounted for by the administrator. C. C. 1140. 4th. That the sale of succession property'cannot be made without absolute necessity. C. C. 1158. 17 La., 503. 5th. That neither the widow in community, nor the heirs of the deceased have more than a residuary and eventual interest, which can only be ascertained and claimed after a full administration and final settlement of the affairs of the succession. Civil Code, 1066. 1 Rob. 407. 17 La. 502, 288,. 104. 8 La. 409. 17 La. 246. 10 Rob. 459. 11 Rob. 51, 75. 12 Rob. 43, 217. 9 Rob. 200. 4 Rob. 414, 459. 5 La. 386. 7 Rob. 404. 6th. That this residuum is the portion inherited by the heirs, and to that shai'e, so ascertained, alone, does the act of 25th March, 1844, apply.
    To test the correctness of these propositions we must suppose that the administration of Bringier's estate was in other hands than in those of his widow, and then inquire whether the act of 25th March, 1844, would present any legal obstacle to the settlement of the succession, in conformity with the legal rules previously laid down for his government. The usufruct given by the act of 1844 to die surviving spouse, operates “on so much of the share of the deceased as may be inherited by such issue.” And the question that here arises is, when does this usufruct commence 1 Suppose that the widow herself claimed from the administrator the revenues of her half of the community property during the administration, would he not be sustained by the law, and by the repeated decisions of this court, in replying that she was only entitled to one half of the balance found due after a full administration and payment of all the debts and charges of the estate. See Succession of Thomas, 12 Rob. 217. In the case of Arthur vs. Cochrane, 12 Rob. 43, it was ruled that “ a succession cannot be said to be the property of the beneficiary heirs, and does not legally come into their possession until it has been administered upon in due course of. law.” After having paid the creditors, deducted Ms commissions and other lawful expenses, if a balance remains in Ms hands, the administrator shall pay it over to the heir. C. C. 1066. The fruits and revenues must be administered and accounted for as the other effects of the succession. C. C. 1141. And without necessity the real estate cannot be sold. C. C. 1158. 17 La. 502.
    If, then, the widow could not legally require another administrator to account to her at once for the revenues of the estate, by what authority can she, because she is the administratrix, legally retain it ? Should the position contended for by the widow be sustained, it would lead in many instances to the greatest injustice. It might happen that a large estate, encumbered with mortgages and privileges, would not suffice to pay ordinary 'creditors, when, by applying the revenues of the estate to that purpose, while the same is under administration, the assets would be ample to meet at once all liabilities. And yet if the surviving spouse could at any time claim the revenues from the administrator, the creditors might often seek in vain to coerce the reimbursement of the fand so paid to be applied to the debts, and the unconditional heir would be bound for .their payment. Such a construction cannot be given to the law, without violating principles that have been long firmly established upon the highest authority.
    If it were necessary to suggest any other authority in support of the doctrine contended for by the appellees, it is that while the law authorises a surviving spouse to have property in common between him and his children adjudicated at the price of estimation, no, such adjudication can be made before a liquidation of the community, showing the real amount of the acquests, and until the debts of the community are paid. ITall v. Foley, 17 La. 378.
    We contend, then, in the language of the judgment appealed from, to which we refer, that the right of the applicant, as surviving partner in community, commences only after the estate is finally settled by the payment of the creditors of the estate; and that the usufruct is restricted to the residuum belonging to the estate, the amount, nature, and character of which can be determined only on such final settlement; that the revenues in the hands of the applicant are assets belonging to the succession of M. D. Bringier; and that these assets, constituting, as it is admitted, a cash fund abundantly sufficient to meet the liabilities of the succession, there is therefore no legal necessity for a sale of any portion of the properly of the estate to effect that object.

      Berault, for the appellant.
    This case presents two questions growing out of sec. 2 of the stat. of 25 March, 1844, relative to community property. Of those two questions the one involving the constitutionality of the act above recited will be first disposed of, as on its fate depends that of the second, concerning the rights of the usufructuary.
    The legislature can certainly claim the right to regulate the order of descent, and to new-model and fashion, for the future, the law of successions. It can, if it thinks fit, exclude the son from the estate of the father, and vest the inheritance in any one else. As regards the rights of the surviving partner in community, they, resulting from a contract, must be governed by the law in force at the time of the celebration of the marriage, because she holds by purchase, whereas the rights of the heirs to tire share of the deceased in the acquets which form a part of his succession are to be regulated by the law in operation at the opening thereof, notwithstanding it may have been different at the time the property was acquired. The right of the heirs cannot be vested until the ancestor is dead, and this on the strength of the maxim, “memo est hares viventis.” Seó Dixon, v. Dixon, 4 ,La. 191. 2 Blackstone, 208.

      The second question of law is, when does the right of usufruct under the act of 1844 accrue?
    Before discussing this point, let us examine the first of the propositions assumed by the counsel of the opponents and adopted by the court below in its judgment."
    That some of the heirs accepting unconditionally, and others with benefit of inventory, the succession must be administered. C. C. 1034, 1040.
    "Were the provisions of our Civil Code, and the numerous decisions of the late Supreme Court, (with the exception of the case of Irwin vs. Orillan,) to be taken as our sole criterion, the above rule might be considered an inflexible one. But such is not the case. Those provisions are controlled and modified by art. 976 C. P. which renders the appointment of an administrator imperative only when the creditors of the succession require it. This point was directly made and passed upon in the case of Bryan v. Atchison, 2d An. 465. The court, in commenting upon the principles of the two Codes, said: “ It is true that, under the dispositions of the Civil Code, when the heirs claimed the term to deliberate, an administrator was to be appointed in all cases; and when the succession was afterwards accepted under the benefit of inventory, the administrator was to continue in his functions, and to settle and liquidate the succession. But the Code of Practice, subsequently adopted, provides that an administrator shall bo appointed in such cases, if any of the creditors of the succession require it; and this we take to be the rule now in force, as being the last expression of legislative will, and having, moreover, the advantage of being founded in reason, and harmonizing with the other provisions of the Code of Practice regulating the administration of successions. C. P, art 976.” 2 An. 465. In that case the heirs were all minors, and their natural tutrix, as such, could legally administer the succession and sue for a sale of the property. The principle is thesame when the heirs of age have accepted unconditionally, and the minors under the benefit of inventory. In such a case, when no administrator has qualified, the heirs of age concur with the tutor of the minors, in the prosecution of suits to recover debts due the estate, and are joined with the latter in all actions against it. Irwin v. Orillon, 8 La. 213. From'Jhese two decisions we chaw the conclusion that, the appointment of an administrator is not legally indispensable to the settlement of a succession.
    The second proposition, that the duties and responsibilities of an administrator are the same as those of curators of vacant successions (C. C. 1042), and the third, that the revenues and fruits of succession property must be administered and accounted for by the administratrix (C. C. 1140) are not denied ; the administratrix accounts for those fruits and revenues to those entitled to them, be they the survivor, heirs, or legatees. The fourth proposition: “that the sale of succession property cannot be made without absolute necessity (C. C. 1158),” will not be discussed, as it is admitted that the debts of the succession would require the sale of the property described in the petition, if the proceeds of the crops, or the fruits and revenues made since the opening of the succession, are not first applicable to the payment of those debts.
    The fifth proposition is, “ that neither the widow in community, nor the heirs of the deceased, have more than a residuary and eventual interest, which can only be ascertained and claimed after a full administration and final liquidation and settlement of the affairs of the succession.”
    By the act of 1844, the survivor shall “hold in usufruct, during his or her natural life, so much of the share of the deceased in said community property as may be inherited by such issue.” The community, which formerly existed between Bringier and his surviving wife, was dissolved by the death of the former. The survivor was then seized of one undivided half thereof, which she holds by purchase, and the heirs of the deceased of the other half, which they take by descent. One half of said community,'at its dissolution, fell into the succession of the late M. D. Bringier. A succession is defined to be “ the transmission of the rights and obligations of the deceased to the heirs.” C. C. 867. It “ becomes open by death, or by presumption of death caused by long absence, in the cases established by law.” C. C. 928. It is acquired by the lawful heir, who “ is called by law to the inheritance immediately after the death of the deceased person to whom he succeeds.” “This rule refers as well to testamentary heirs as to instituted heirs and universal legatees, but not to particular' legatees.” C. C. 934. “ The right mentioned in the preceding article is acquired by the heir by the operation of law alone, before ho has taken any step to put himself in possession, or has expressed any will to accept it.” “Thus children, idiots, those who are ignorant of the death of the deceased, are not the less considered as being seized of the succession though they be merely seized of right, and not in fact.” C. C. 935. The instant the breath departs from the body of the ancestor, the heir is seized of his succession. C. C. 936, 938, 940, 941. “It is at the moment of the opening of the succession that the capacity or incapacity of the heir is considered.” C. C. art. 944. The above provisions are emanations of the well known principle, “ Le mort saisit le vif.” Bringier’s heirs, at his death, wore seized of and inherited that half to which the usufruct granted to the widow by the act of 1844 attaches, at the very instant it was inherited by the heirs of her deceased husband, to wit, the period of his death.
    We will now examine the survivor’s rights as usufructuary, and ascertain in what manner they may be affected by the claims either of the creditors or heirs. Bringier died leaving the appellant as his surviving wife, and nine heirs, five of whom are of age, and four minors, under the natural tutorship of appellant. A community of acquets and gains existed between the deceased and his surviving wife, the value of which amounts to more than a million of dollars, and the debts to $88,309 94 ; and to the question of law we will assume that the crops,revenues, etc., of the community, accruing since its dissolution, amounts to the like sum of $88,309 94. The widow, qualified as administratrix of his estate, and has always been in the possession of all the property belonging thereto and to the community. Under the act of 25th March, 1844, she is to be viewed as an usufructuary under an universal title. C. C. 1604, 580. The law which governs her rights, as such, is to be found in arts. 577, 578, 579, 580, 581 C. C.
    Suppose that the widow should come forward, and, out of her own funds, pay those debts. How would she then stand towards the heirs of her husband ? As a creditor for the sum of $44,154 97, to be reimbursed at the termination of tire usufruct, without interest, as by that advance she prevents the sale of so much of the property subject thereto as would be necessary to extinguish that amount of debt, and thereby reaps the profits etc. thereof. If the heir makes the advance, interest is due to him, as by means of that advance the usufructuaiy enjoys the fruits etc., of the property, the alienation of which the advance has avoided. If neither the heir nor usufructuaiy furnish the funds necessary to pay the creditors, a sale then takes place of so much of the property subject to the usufruct as may be requisite to extinguish the contribution under art. 580.
    Let us suppose another case : A dies in the month of September, leaving several heirs, and a sugar plantation worth $200,000. He bequeaths the usufruct of one half of his property to B. A lew days after A’s death, his heir qualifies as executor; B immediately demands the delivery of the estate subject to the usufruct. Within three months from this demand of delivery, a crop of sugar worth $20,000 is made, which belongs to B, according to art. 538 C. C., which provides that “ the natural fruits, or such as are the produce of industry, hanging by branches or by roots at the time when the usufruct is open, belong to the usufructuary ; and fruits in the same state at the moment when the usufruct is at an end, belong to the owner.” The amount of the debts of A’s succession is $20,000. The executor pays these $20,000, with the proceeds of the crop. B dies a short time after. What can his heirs claim from the estate of A? Why the reimbursement of the half of the revenues, to wit, $10,000, without interest, which sum the executor appropriated to the payment of the debts, such appropriation being equivalent to an advance on the part of B, the return of which, at the termination of the usufruct, is dictated by art. 581.
    A third example can be put: A dies, leaving a surviving wife in community, and an heir of age, and a minor heir. The community is entirely free from debt. The succession is accepted unconditionally by the heir of age, and under benefit of inventoiy for the minors. There are debts due the estate: the heir of age qualifies as administrator, and proceeds to reduce them to possession. During the interval between the death of A and the rendition of the final account of administration, the fruits of the community properly received by the administrator amount to $10,000. To whom is the administrator to account for those revenues ? Why, to the widow of A, most assuredly, who is entitled to half of that sum in her own right, as owner of one half of the acquets, and to the other half as usufructuary, under the act of 1844. Yet, according to the doctrine contended for by appellees, the half of that sum would belong to the heirs, and would constitute merely a fund, to the civil fruits of which only the survivor would be entitled. Such a doctrine is at variance with the provisions of our Code, and would, were it to obtain, defeat the very object of the act of 1844, which was not passed solely with a view to protect the surviving parent from the demands of heirs who may become emancipated by marriage, or attain their majority after the dissolution of the community, but also for the purpose of affording the surviving husband or wife a respectable maintenance out of that property, which the law considers “as the produce of the reciprocal industry and labor of both.” C. C. ait. 2371.
    To show the consistency and equity of the principle urged by the appellant, and the harmlessness of its operation, either as to the heirs or creditors, I will introduce another example. A’s succession consists of community property, valued at $100,000. The debts of the community amount to $10,000, with eight per cent interest from his death. The revenues for the first year amount to $10,000, which the administrator paid over to his surviving wife. The creditors, at the end of the year, press their claims, which amount, in principal and interest, to $10,800. To avoid the sale of any part of the property, the surviving wife and usufructuary advances that sum. She contracts a second marriage, which, by the proviso of the act of 1844, puts an end to the usufruct. "What can she, as usufructuary, claim from the heirs of A? Only the sum of $5000, without the interest of $400, the other $5400 having extinguished half of the debts for which, as partner in community, she is personally liable. The reason is obvious: the right of the heir to sell a part of the property subject to the usufruct, sufficient to meet the sum for which that property is liable, and the obligation of the usufructuary to submit to that sale, or make the advance required by articles 580, 581, were coeval with the opening of the succession. The usufructuary having enjoyed the Bruits and revenues of so much of the property as might have been sold at that period, at the instance of the hem, and not having at that time made the advance, which would have prevented the accumulation of interest, her claim for $400 is compensated by the fruits of that portion of the property, of which, had she refused at the first of the year to make an advance, she would have been dispossessed by a forced sale.
    It is evident, from arts. 577, 578, 579, 580, 581 of the Civil Code, that the right of usufruct conferred by the act of 1844, accrued at the very moment of the dissolution of the community, and that there is nothing incompatible between the existence of debts due by it, and the exercise of that right from that period. The articles cited expressly and amply provide for such a case, and the fallacy of the appellees’ proposition consists in the idea that the interest of.the usufructuary cannot be placed under the charge of the administrator, accountable for the revenues and fruits received by him, and that nothing, save what may enure to the benefit .of the heirs, can be the object of his solicitude. This, I apprehend, would place the surviving usufructuary under an universal title, in a worse position than a legatee under a particular one, who can claim the proceeds, and interest, of the thing bequeathed, from the day the demand of delivery was formed, C. G. 1619 ; and, if it be the legacy of an annuity or pension bequeathed by way of maintenance, from the day ef the decease, without having brought suit for the same. C. C. 1624. To the latter bequest the act of 1844 can be assimilated, as its object, as has been already stated, was to afford a proper maintenance to the surviving spouse.
    The issue before the court is one between the appellees, heirs of Bringier, and the widow, as usufructuary under an universal title, and is confined to them. The question is, as regards the heirs, what are the lights of the usufructuary to the revenues etc., of that half of the community by them inherited? The solution of that question is found in the Code, art. 577 to 581. The ownership of the heirs of Bringier in said property is an imperfect one. They possess the mere ownership (la nue propriété) of half the community, of which half the surviving partner has the domaine utile. C. C. arts. 481, 482. The demand of the heirs that the revenues of the community be applied to the payment of die debts, is based upon the assumption that they were seized of the perfect ownership, the jus duplication or droit droit to one half of the community property; when, in fact, between them and the appellant, they inherited the mere ownership, la nue propriété, to one half of the acquets, the act of 1844 vesting the domaine utile in the surviving partner at the dissolution of the community.
    To conclude: It is contended on behalf of the appellant: 1. That, at the death of Bringier, his heirs were seized of, and inherited one half of, the community. 2. That to that half the usufruct of the surviving partner attached, at the dissolution of the community. 3. That, as regards the surviving partner, the heirs have but a mere right of ownership to the half of the community. 4. That, as between the( surviving partner rind heirs, the latter have no right to- demand that the revenues of tíre community, received since its dissolution, be applied to the payment of the debts. 5. That the heirs can only demand a sale of the property to pay the debts, when the usufructuary makes no advance. 6. That that advance is not obligatory on the part of the usufructuary, and that,- in the absence of that advance, the heirs must make it, or submit to the sale. 7. That the revenues of the community since its dissolution are to be accounted for to the usufructuary.
   The judgment of the court (Eustis, C. J. dissenting,) was pronounced by

King, J.

M. D. Bringier died in 1847, leaving a large succession, the-greater part of which consisted of community property. His widow, who is the administratrix, applied for a sale of a part of the moveables, slaves, and lands of the succession, for the purpose of paying the debts of the community, amounting, as it is-alleged, to a sum exceeding $88,000. Two of the heirs opposed the sale as being unnecessary, and alleged that the revenues derived from property of the community, since the opening of the succession, have been sufficient to discharge all the debts, and should be applied to that purpose. To this opposition the surviving widow answered, that one half of the crops, fruits, and revenues yielded by the community property since the death of her husband, belong to her in her individual right, as the surviving partner in community, and the other half, in-virtue of her usufructuary rights under the act of the 25th March, 1844, and cannot be appropriated to the payment of the community debts. The opposition of the heirs was sustained; and, from the judgment dismissing the prayer for a-sale, Mrs. Bringier has appealed.

It is conceded, for the purposes of this suit, that the debts amount to the sum stated in the petition, and that the revenues from the community property, since1 the death of M. D. Bringier, have been sufficient to discharge them. It is also admitted that, iftherevenw.es be not applicable to the payment of the debts, a sale of the property specified in the petition will become necessary.

The question presented is, whether, under the act of 1844, the surviving widow is entitled to the usufruct of the share of the deceased in the community property, from the moment of the husband’s death, and previous to paying the debts ; or whether the debts must be first discharged, and the right exercised upon the residue. The second section of the act provides, “that in all cases where the pre-deceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed, by last will and testament, of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life; so much of the share of the deceased in said community property as may be inherited -by such issue ; provided, however, that such usufruct shall cease whenever the survivor shall enter into a second marriage.” Acts of 1844, p. 99.

The provisions'of this section were considered in the case of the Succession of Fitzwilliams, lately deided. 3 An. Rep. 489. We there said that: “The usufruct created by the statute was to be governed by the rules established by the Code on the same subject. At the death of the wife, the rights of the parties respectively were fixed by law. The survivor had his election either to sell community property to a sufficient amount to discharge the debts promptly, and to exercise his usufructuary right upon one half of the residue; or, if he preferred to preserve the property unsold-, he could do so, on paying the debts himself, or on assuming them, thereby relieving the heirs from the burthen of interest, which might ultimately absorb their entire inheritance. In the latter event, the tisúfructuary is entitled to.the entire fruits produced by the property; the fruits of the property preserved from sale being deemed equivalent to the interest on the sums advanced. C. C. arts. 578, 579. But he cannot retain the property, leave the debts unpaid, to the prejudice of the heirs, and return it to them at the expiration of the usufruct, encumbered with the additional burthen of interest which may have accrued in the mean time.”

We do not think-that the fact of the surviving wife having taken out letters of administration in any manner affects her usufructuary rights. Those rights depend upon the statute, and upon the provisions of our laws regulating usufructs. By the terms of the statute, the survivor takes the usufruct of so much of the share of the deceased in .the community property as may be inherited by the heirs. That share consists of the one half which belonged to the deceased, subject -to the debts. With that encumbrance it descends to the heirs, from the instant of the ancestor’s death. The right of the survivor to the usufruct of that inheritance attaches, at the same moment that the right of property accrues in .favor of the heirs. Both rights spring out of the same event, and attach to the same property—that is, to half of the community subject to its debts; and, with this burthen, the survivor takes it.

The interpretation contended for by the appellees would suspend the exercise of the usufructuary right until the debts were discharged, and then limit it to the residue. This position is not supported by the terms of the statute, and conflicts with .the rules which govern usufructs. It could only be maintained on the ground that, the existence of debts was incompatible with the exercise of the usufruct; but no such incompatibility exists. On the contrary, our laws provide amply for that contingency, and permit the usufructuary in such cases to retain the whole property, and receive its fruits, on making the necessary advances to discharge the debts, which advances are to be reimbursed without interest, at the termination of the usufruct; or to sell property to an amount sufficient to discharge them, unless the heirs will make the advances, and to exercise the right upon the residue. C. C. arts. 578, 579.

Neither the statutes, nor the enactments of the Code in relation to usufructs, present any impediment to the survivor’s right attaching fully from the momera of the death of one of the parties; nor is the exercise of the right inconsistent with that of the heirs, or of the creditors, to insist on a speedy adjustment of .the debts of the community, -and on a sale of property for that purpose, if it be necessary.

Under our view of the law, Mrs. Bringier, as surviving widow, is entitled to the fruits produced by the community property since the death of her husband, and is only answerable for such interest as may have accrued in the mean time from unnecessary delays which she may have caused in discharging the debts with which it is encumbered.

We think, therefore, that the oppositions of Kenner and wife, and of Trist and wife, should have been overruled, and that the judge should have proceeded to order a sale.

It is therefore ordered that the judgment of the District Court be reversed, and that the opposition of D. F. Kenner, and his wife Nanine Q. Bringier, and of H. B. Tiist, and his wife Elizabeth R. Bringier, be dismissed. It is further ordered that the cause be remanded, for such further orders and proceedings as may be necessary to effect sales of property belonging to the succession in community between the widow and heirs of the late Michel D. Bringier, deceased, to an amount sufficient to pay the debts of said community! reserving .the question of Mrs. Bringier's liability for the interest which may have accrued on said debts, since the dissolution of the community; the appellees paying the costs of this appeal.


author: Eustis, C. J.

text:
    Player v. Tarkington, Sheriff, et al.
    Whore the right of parties who represent a corporation is not contested in the court below, it cannot he examined on appeal.
    Where a mortgage is not re-inscribed on the books of the register of mortgages -within ten years from the date of the first inscription, the inscription will cease to have effect.
    from the District Court of Madison, Selby, J.

      Amonett, for the plaintiff.

      Stacy and Sparrow, for the appellants.
   Tne judgment of the court below was pronounced by

Eustis, C. J.

The plaintiff had an injunction against further proceedings under an order of seizure and sale of a tract of land, situated in the parish of Carroll, issued in the suit of the Bank of the United States against James Erwin. The latter appeared in the district court, and joined the plaintiff in his action. The district court made the ..injunction perpetual, and decreed the judgment against Erwin and the mortgage which it enforced, to be annulled. The parties representing the bank of the United States have appealed. Their right to represent the bank was not contested in the court below, and we think, cannot be examined on the appeal.

The plaintiff alleges himself to be a purchaser from Erwin, of the land on which the mortgage was originally given. The bank had obtained judgment against Erwin, as a third possessor of it, ordering the land to be seized and sold to satisfy the debt due to the bank from the mortgagor. Pending this litigation, Player, the plaintiff, made his purchase, and to prevent the sale of the land under this judgment, the present injunction was granted. The mortgage and note which it secured bear date on the 4th February, 1836; the latter is payable on the 1st January, 1839. The mortgage has lost its effect for want of reinscription within the ten year’s. See the case of Hyde v. Bennett, 2 An. R. 799.

We see no sufficient ground for annulling the judgment rendered against Erwin, and the judgment of the district court must be changed in that respect.

It is therefore decreed that, the part of the judgment of the district court, annulling the judgment against James Erwin, mentioned in the pleadings in this case, be reversed, and, in other respects, that said judgment of the district court, be affirmed; the defendants paying the costs in the district court, those of the appeal to be paid by the defendants and James Erwin, each for one half.


author: Rost, J.

text:
    Reynolds et al. v. Rowley et al.
    By the common law, as with us, powers of attorney are subject to strict interpretation; and the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into full effect. Language, however general, when used in connection with a particular subject matter, is presumed to be used in relation to that matter, and must he construed and limited accordingly.

      A general power to buy property for the principal, or to make any contracts and do any other acts whatever which he could if personally present, by the common law, as well as by our law, must he construed to apply only to buying or contracting in connection with his ordinary business, and will not authorize the making of any contracts of an extraordinary character.
    A power of attorney executed by a single woman, so far as it confers powers beyond the administration of a plantation belonging to her, with the management of which the agent was charged, will be revoked by her subsequent marriage.
    Advances for the principal, made to one who had acted as an agent, but subsequently to the termination of his agency, cannot be recovered from the principal, unless shown to have inured to his benefit.
    by the plaintiffs from a judgment of the District Court of Concordia, Barry, J., rendered on the verdict of a jury.

      Elam and Thomas, for the plaintiffs.

      Sparrow, A. N. Ogden, Prentiss and Finney, for different defendants.
   The judgment of the court was pronounced by

Rost, J.

Our attempt, when this case was last before us (2 An. 890 ), to arrive at a final decision of it, by settling in advance the legal principles on which it turns, and remanding it to be tided before another jury on the issues of fact, has signally failed. An inquiry into the causes of that failure will make the errors of the last verdict apparent, and enable us to replace the parties in their true position towards each other.

We stated in the opinion then delivered, the probability of there being something due to the plaintiffs over and above the proceeds of the crops which they had received. The case was remanded to ascertain the amount of this indebtedness, and the rules we laid down had exclusive reference to what we considered the sole issue to be tried. The verdict of one cent in favor of the defendants, had been immediately remitted, and it was not pretended on the appeal that they had any claim in reconvention. Under that state of facts, we said that, in order to bring the advances made by the plaintiffs -within the power of attorney given to Sprague, it was necessary that they should have been made, in good faith, for the Marengo plantation, and not for Sprague or any one else. We considered farther that, if it was not shown that the advances claimed had inured to the benefit of the defendants, the want of good faith might be inferred, if they were too large, under the true intent and meaning of the mandate.

These rules were applied, because we took as true the allegations upon which this action is based, that the plaintiffs were the factors of the defendants and of the Marengo plantation, and not of Sprague ; that they acted in that capacity before the appointment of the latter as agent, and had made to the Marengo plantation large advances; and that they continued to act as such after his appointment, and to keep their accounts with the Marengo plantation as before. Under those allegations, we could not view them as third persons dealing on the faith of the agent’s authority. We held them to be factors, having a minute knowledge of the wants of their principals, and making advances to the agent of those principals for the purpose of supplying those wants.

On the return of the case to the district court the claims in reconvention were first seriously urged by the defendants, and the rules laid down by the court were applied to this new issue, and thus carried beyond their legal import. This defence succeeded with the jury, and the case is now before us on the appeal of the plaintiffs from a judgment in reconvention, rendered in favor of the defendants for large amounts. The advances to which we had reference were those made over and above the proceeds of the crops which the plaintiffs had received, and, in relation to them, we do not know that there was error in our view of the law. But that view was not intended to apply, and was not applicable, to the claim in reconvention. After the appointment of Sprague as agent, the plaintiifs were bound to account to him every year for the proceeds of the crops; and, in whatever shape he received them, those proceeds cannot be considered as advances. They were payments made by the factors, for which Sprague’s powers of attorney would be a full guarantee to them, even if the funds had been misapplied. But we are satisfied that they were not. If they had been, the defendant, Mrs Rowley, would not have alleged in her answer, as she did, that the plaintiffs received from Sprague $20,000 and upwards, to be credited on their account. If, through the mismanagement of Sprague, the plaintiffs have beeome indebted to this defendant in the sum now claimed, it is not to be believed that Rowley would have paid Sprague, his wife’s share of the price of the Marengo plantation when he purchased it, and that the defendant herself would have borrowed money on mortgage to make that payment. The remittitur entered by the defendants in the former trial, cannot be viewed otherwise than as an admission that nothing was due them. These facts are utterly inconsistent with the claims in reconvention now set up, and we have not changed our opinion that there is no serious issue in the cause except that which involves the indebtedness of the defendants. That issue mast, in a great measure, depend upon the extent of Sprague’s authority. Tne counsel of the defendants contend that Sprague’s agency was limited to the administration of the affairs of the Marengo plantation, and that, in estimating the reasonableness or otherwise of the advances made by the plaintiffs, the necessities of the plantation must be taken as the standard; while those for the plaintiffs maintain that Sprague had all the power necessary to a general administration of the property of his constituents, including the Marengo plantation, and also full power and authority to sell, mortgage or pledge the crops, to obtain advances of money or other things on the same, to give notes, draw bills, sign receipts or acquittances, to sell, loan, borrow, buy, or in any other way contract, in the name of his principals, and for their individual uses.

We have already stated the peculiar position in which the plaintiffs stood towards the defendants. But we will examine this question without reference to that circumstance. W.e take it for granted that, under the common law as with us, powers of attorney are subjected to a strict interpretation, and that the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into full effect; that language, however general in its form, when used in connection with a particular subject matter, will be presumed to be used in subordination to that matter, and therefore is to be construed and limited accordingly ; that a general power to buy property for the constituent, or to make any contracts, and do any other acts whatever, which he could if personally presenf, must be construed to apply only to buying or contracting connected with his ordinary business, and would not authorize any contracts of an extraordinary character to be made. Story on Agency, sec. 68, 62, 21.

The ordinary business of the defendants was planting. Their main object was undoubtedly to secure supplies for the Marengo plantation, and to provide for its administration and the payment of its debts. This was the subject matter of the powers of attorney, and the presumption is that the general language used was to be understood in subordination to that matter. It is shown that the Marengo plantation owed, at that time, a debt of about $15,000. We must presume that it was principally in relation to that debt, that those extensive powers to make financial arrangements were given; and the power to buy must be limited to buying for the uses of the plantation.

The plaintiffs’ counsel contend that the words, "to do and perform for us and in our names, or in his own name, as agent for Marengo plantation,” do not import a restriction of his agency to that plantation, but must be understood, as they were used, to designate the name in which he should conduct the affairs of the agency; and that he had ample authority to raise fnnds for the private use of his principals, as well as for the use of the Marengo plantation. He contends that the defendants have thus understood and executed the mandate, by raising funds for them individual use through the agency of Sprague.

On the former appeal we thought that the power of attorney would, to a limited extent, bear that construction, and that if any part of the advances claimed were shown to have been made for the private use of any of the constituents, they would be bound to reimburse the plaintiffs, under the limitations stated in the opinion.

It is urged that the defendants had private debts which were paid out of the funds advanced by the plaintiffs, and that their family expenses during the continuance of the partnership were also defrayed out of those advances. This is probably true. But the difficulty which this case presents arises from the fact, that the amount advanced for the private use of each of the defendants is not shown, and that there is nothing in the powers of attorney which authorized the plaintiffs to charge those advances to the partnership, as they have done.

The power of attorney of Jane Rowley was executed in the State of Mississippi,, and that of James Kempe, in the State of Kentucky. They were distinct acts, showing ’"no privily between the mandators. The authority in both was the same, so far as it related to the Marengo plantation. But the authority given by each to borrow for the private use of the constituent, could not make the loans obtained under it partnership debts. The taxes and other expenses incurred for the lands of James Kempe, in Mississippi, for instance, could not be charged to the Marengo plantation, though they might have been included in the general account, provided the entry showed who was responsible for them. The largest sense in. which the powers of attorney can be understood is, that Sprague Was to act in his own name, as agent of the Marengo plantation, in all matters relating to the partnership, and, in the individual names of the constituents, when attending to their private affairs. This was the only authority which the mandators could give, without an express'agreement that the Marengo plantation should be responsible for all their private debts.

There is another difficulty in the way of the plaintiffs’ recovery, upon the accounts filed in this suit. The power of attorney of James Kempe expired by his death, in February, 1835, and that of Mrs. Rowley, so far as it conferred powers beyond the administration of the Marengo plantation, was revoked by her marriage, in April, 1834. After the agent ceased to have authority, the advances made to him, on their behalf, must be shown to have inured to their benefit, before they can be charged with them.

The proceeds of the crops being much more than sufficient to pay all the expenses of the plantation, and the items stated in the accounts as being due by the defendants individually, the plaintiffs are placed in this dilemna: if the amount of the accounts is claimed for advances made to the Marengo plantation, the amount is so unreasonable as to justify the belief that the advances were not made in good faith; if, on the other hand, that amount is claimed as advances made for the private use of the individual partners, and the powers of attorney when in force were sufficiently ample to authorize them, we have no means of ascertaining the separate indebtedness of each of the defendants on that account; and it is not shown that the advances made to Sprague, after the expiration of the powers of attorney, inured to their benefit.

After an anxious examination of the evidence, and notwithstanding our impression that the equity of the case is with the plaintiffs, we have come to the conclusion that they have failed to substantiate the allegations of their petition, and that, as there is no reason to believe that further evidence can be obtained, the case should now be closed.

The tutrix of the heirs of James Kempe has alleged-that Sprague placed in the hands of the plaintiffs the sum of $8,000 to be credited to the heirs of Kempe on their account, which the plaintiffs received and converted to their own use ; she prays a judgment in reconvention for that sum. It is not shown that Sprauge had in his hands any funds belonging to James Kempe, at the time of the alleged payment. The evidence, on the contrary, goes to show that the $20,000 deposited by him with the plaintiffs his exclusive property; and, as it is admitted that he received from the plaintiffs the advances claimed for which he is personally liable, if the defendants are not, the plaintiffs had a perfect right to convert that sum to their own use. When it was paid to them, Sprague was no longer the agent of the heirs of Kempe, and could do no act for them.

The premises considered, it is ordered that the judgment in this case be reversed. It is further ordered that the claim of the plaintiffs, and that of the defendants in reconvention, be both disallowed; and that there be judgment in favor of the defendants, with costs in both courts.


text:
    Flynn v. Moore.
    The acknowledgment by the purchaser, in an act of sale of real estate, of possessiomof the land sold, refers exclusively to the possession which the vendor had. If a third person were in possession at the time, and the vendor conceals that fact from the purchaser, he is guilty of a fraud, which will entitle the purchaser to relief, notwithstanding his acknowledgment.
    That the law (C. C. 2455) considers the delivery of immovable property as always accompanying tbe public act which transfers it, is trae, so far as the vendor is concerned, and every obstacle afterwards interposed by him to prevent the corporeal possession of the purchaser is a tresspass; but this does not release him from the obligation of actual delivery of the thing sold, when in possession of another at the time of the sale.
    The vendor of a lot of ground who was aware, at the time of the sale, that a part of the lot was claimed by, and in possession of, a third person, though he subsequently offers to take back the property, refund the price, and pay for the improvements, has no claim against the purchaser before delivering the entire thing sold. O. C. 2450. The latter is not bound to accept his offer to take back the property, and refund the price, and pay lor the improvements.
    from the Distict Court of Jefferson, Clarice, J.

      Michel, for the appellant.

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

Rost, J.

The defendant had sold to the plaintiff a town lot, for twelve hundred dollars; $300, cash, and the remainder in three notes, of $300 each. The plaintiff having failed to pay those notes at maturity, the defendant, took out an order of seizure and sale, which the plaintiff enjoined on the .following grounds: That one-half of the lot was at the time he purchased it in the possession of John H. Martinstein, who claimed it as owner, to the knowledge of the defendant, who fraudulently concealed that fact from him; that the city surveyor, having knowledge of the title and possession of Martinstein, has refused to put him, the plaintiff, in possession of the lot, and that the defendant has acknowledged the existence of an adverse claim. The prayer is that the injunction prated for be made perpetual, and the plaintiff dispensed from paying his notes, until the defendant shall put him in possession of the portion of the lot claimed, and occupied, by Martinstein. The answer is a general denial, and a.n averment that, when the defendant was informed of the claims of Martinstein, he offered the plaintiff to take back the property and refund the price, and also to pay for the improvements. The defendant prays that the injunction be dismissed, with damages. There was judgment in his favor in the first instance, and the plaintiff appealed.

We think this judgment unauthorized by law. Although Martinstein did not enclose the portion of the lot in controversy till after the purchase by the plaintiff, it is proved that he was in possession of it, to the knowledge of the defendant, through his agent Samuel Moore. The defendant, therefore, has not delivered the thing sold as, under art. 2450 C. C. he was bound to deliver it! The district, judge erred in holding the plaintiff bound by his acknowledgment in the act of sale, that he considered himself in possession; that acknowledgment referred exclusively to the possession which the vendor had; if a third person was in possession at that time, and the defendant concealed that fact from the plaintiff, he was guilty of a fraud, which entitles the plaintiff to relief, notwithstanding his acknowledgment.

It is urged that the law considers the tradition or delivery of immovable property as always accompanying the public act which transfers the property. C. C. ,2455. This is true, so far as the vendor is concerned; and every obstacle which he afterwards interposes to prevent the corporeal possession of the buyer, is considered as a trespass. But he is not dispensed from the actual delivery of the thing sold, when it is in the possession of another at the time of the sale.

The plaintiff was not bound to accept the offer of the defendant. He has a right to insist upon the specific performance of the contract; and the defendant has no claim against him, before the delivery of the entire thing sold.

It is therefore ordered that, the judgment in this case be reversed. It is further ordered that the injunction sued out by the plaintiff be reinstated, and that it remain in force until the defendant shall put the plaintiff in possession of the portion of ground sold to him, and now claimed and occupied by John H. Martinstein. It is further ordered that the defendant pay tire costs in both courts.


text:
    Linton et al v. Stanton.
    The act of Congress of 19 August, 1841, establishing an uniform system of bankruptcy, does not require that an appellant should file, after the decree declaring him a bankrupt, a separate petition for a discharge, under the penalty of nullity of the subsequent action of the court, as against creditors. A prayer for a discharge, in the original petition of the bankrupt, is sufficient. Sec. 4.
    A plea that defendant had been discharged from his debts, under the stat. of 1841, as a bankrupt, will not be affected by the fact that no order appears in the transcript from the bankrupfe court,-designating the Lime and place at which tlie creditors were required to appear, nor the newspapers in which the publication of notice was to be made. Per Curiam : The act requires that the newspapers shall be designated by the court, but not that the designation shall be made by a formal order of record in the case. It might have been made-by a general order applicable to all bankrupt notices.
    Where the judgment of a court, sitting in bankruptcy, declares that the notices-required by the statv of 1841 were published in proper form, such publication must be assumed to bo, true, by another court called upon to question collaterally the validity of the decree.
    Sec. 4'of the stat. of 19 August, 1841, which gives the right of personal notice to a creditor whose residence is known,- does not require a formal judicial process, and a return of service by the marshal; the service might have been by letter. The modo-of service was a matter to be prescribed by the court, in its discretion.
    Though a transcript of the proceedings under the bankrupt act of 184-1,. offered in. evidence by one who sets-up her discharge under the statute in defence to- an action,, does not show personal service on a creditor entitled to it under the act,, the decree discharging him will' nofbe declared-null on that account.
    A-promise to-pay a debt, from-which the party had been discharged as- a bankrupt, must be-express, distinct, and unequivocal. The intention of the bankrupt to bind himself, must be clear.
    A plea that certain notes sued upon,, having been executed before the bankruptcy of the. party, were secured by a deed of trust of real estate, and that plaintiff had received payment'by purchasing the property and paying lor it with the notes,, is not inconsistent with a plea by defendant of his discharge as a bankrupt.
    ©n an application for a new trial, on the ground of newly discovered evidence, itmust clearly appear, not only that the discovery has been made since the trial, but that the party “-had. used every effort and diligence in his power” to procure the necessary testimony previously. C. P. 561.
    from the Third District Court of New Orleans, Kennedy, J-

      Stockton' and Steele, for the- appellants.

      Benjamin and Micou, for the defendant.
   The judgment of the court was pronouced by

Slidell, J.

This suit is brought upon two promissory notes of the defendant’s, due in 1841 and 1842. The prominent' ground of defence is, a discharge in bankruptcy' under the act of Congress.

I-n support of this plea, the defendant offered' in evidence a transcript certified by the clerk' of the district court of the United' States for the southern district of Mississippi. The certificate declares that the transcript is a full, true and complete one, “of the petition in bankruptcy of Frederic Stanton, of Adams county, filed by him in this court at the date above stated, with all schedules and inventories, and all amendments to schedules and inventories, thereunto annexed, and of all proceedings thereupon had in this court, as the same remain on file and of record in my office.” To this certificate is appended the usual certificate of the United'States district judge.

By the transcript it appears that, on the 21st July, 1842, Stanton, a resident of that district, filed, in the said' United States district court, his petition in bankruptcy. It is in the usual form, and concludes with a prayer that he may, by decree of the court, be declared a bankrupt according to the provisions of the act of Congress in such case made and provided, and that such further order and proceedings may be taken as are provided for; required', or directed, in and by the said act of Congress. To this petition were appended the usual oath and schedules. Then follows a decree in the cause, rendered and signed by the judge, on the 8th November, 1842, of the following tenor:

“Present: The honorable Samuel Gholson, district judge. In the matter of the petition of Frederic Stanton, to be declared a bankrupt, and to be discharged from his debts. No. 396.

Upon reading tlie petition, with the schedules and inventories thereto annexed, of Frederic Stanton, of the county of Adams, in this district, filed the 21st day of July, 1842, and upon reading and filing due proof of the publication of notice of the presentation of said petition, pursuant to the act of Congress, entitled “An act to establish a uniform system of bankruptcy throughout the United States,” approved August 19th, 1841, and upon motion of Messrs. Quitman and, McMurran, solicitors for the petitioner, it is ordered that the said Frederic Stanton be, and he is hereby, declared, adjudged, and decreed a bankrupt, according to the provisions of the said act of Congress.”

Next follows a decree rendered and signed on the 21st day of February, 1843, of the following tenor:

“Present: The honorable Samuel J. Gholson, district judge.

In the matter of the petition of Frederic Stanton, of Adams county, a bank-rapt, to be discharged from his debts. No. 396.

Whereas, on the 21st day of July, 1842, the above named Frederic Stanton, individually, and as a member of the firms of Buckner, Stanton Sf Co., Stanton, Buckner Sf Co., and IkT. B. Hamer Sf Co., filed his petition in this court, praying that the said Frederic Stanton might be declared a-bankrupt and be discharged from his debts ; and was, on the 8th day of November, 1842, by decree of this court, duly declared a bankrupt.

Now at this day, to wit, on the 21st day of February, 1843, upon reading the said petition, with the schedule and inventory thereunto annexed, together with the said decree above mentioned, -and due proof of publication of notices of the final hearing of said petition, it appearing that the said Frederic Stanton has fully complied with the provisions of the act of Congress, entiled “ An Act to establish a uniform system of bankruptcy throughout the United States,” approved August 19th, 1841, and is entitled to be discharged from his debts. It is therefore ■ordered, adjudged, and decreed, that the said Frederic Stanton be, and he is hereby, by virtue of the act aforesaid, fully and entirely discharged from all his debts.

In testimony whereof, I, Samuel J. Gholson, judge of the district court [l. s.] of the United States for said district, have signed these presents, and caused the seal of the court to be hereunto .affixed.

(Signed) S. J. Gholson, district judge.

Before considering the objections raised by the plaintiffs to the validity and binding force of these proceedings, rt is proper briefly to notice the prominent provisions of the act of Congress pertinent to this controversy, premising that the plantiffs’ counsel does not question the constitutionality of that law, nor'the jurisdiction of the district courts of the United States to entertain the application of Stanton. The statute contemplates that the jurisdiction should “ be exercised summarily,” and without the rigorous observance of the formalities incident to proceedings at common law. It also enacts'that the proceedings in all cases of bankruptcy shall be deemed matters of record ; but the same shall not be required to be recorded at large, but shall'be carefully filed, kept, and numbered, in the office of the court, and a docket only, or short memorandum, thereof, with the numbers, kept in a book by the clerk of the court. It also vests in the district judges a very large discretionary power, authorizing the district court in each district, from time to time, to .prescribe suitable rules and regulations, and forms of proceedings, in dll matters of bankruptcy; directing them, in all such rules, regulations and forms, to make them as simple and brief as practicable, to the end lo avoid all unnecessary expenses, and facilitate the use thereof by the public at lai'ge. It directs that the discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts etc., of such bankrupt, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud, or wilful concealment of the property, on the part of the bankrupt. It directs that a copy of any decree in bankruptcy, and the appointment of assignees, shall be recited in every deed of lands belonging to the bankrupt conveyed by the assignees under this act, and that such recital, together with a certified copy of such order, shall be full and complete evidence both of the bankruptcy and assignment therein recited. It directs petitions for the benefit of the act to be published in one or more newspapers of the district, to be designated by the court, and contains a similar direction for the publication which is to precede the discharge, calling upon all persons in interest to show cause against its being granted. It provides that in all cases where the residence of the creditor is known, a service on him personally, or by letter addressed to him at his known usual place of residence, shall be prescribed by the court, as in their discretion shall seem proper, having regard to the distance at which the creditor resides from such court.

This brief review of the statute will serve to indicate the policy and spirit of the law with regal'd to the mode of proceeding, and the power of the district courts of the United States in matters of bankruptcy. It is not our province to question tho wisdom of this legislation, by which so lai'ge a grant of power is made, and so wide a departure from the ordinary rules of proceedings is directed, or sanctioned.

With these preliminary observations, we proceed to consider the objections made at bar to the validity and binding force of the proceedings under which the plaintiffs demand the rejection of the defence.'

It is said that, by the terms of the 4th section, the bankrupt was bound to present a petition to the court, praying for his discharge and certificate, and that no such petition was ever filed by Stanton. An examination of the 4th section of the statute has not satisfied us that it is indispensable that the petition for a discharge should be filed after the decree, under the penally of nullity of the subsequent action of the court, as against creditors. Such a conclusion is not necessarily deducible from the language of the law. It is inferrible from the record, which we have quoted in detail, that the district judge construed the broad language of the original petition as containing a prayer, not only to be decreed a bankrupt, but to be allowed the full benefit which the statute contemplates, and which was its main object; and it is not for us to say that'the district judge of the United States erred in so holding, and pronounce an absolute nullity, which is not declared in the terms, and is inconsistent with the spirit, of the statute.

The next objection is that, no order appeal's of record, designating the time and place at which the creditors should be required to appear, and the newspaper in which the publication should be made.

The act of Congress states that the newspaper shall be designated by the court, but it does not in terms require that the designation shall be made by a formal order of record in the cause; and the strictness which is invoked by counsel seems to us inconsistent with the provisions of the 13th section, already noticed.

There is nothing inconsistent with the terms and spirit of the statute, in supposing that the district court, under its power to make rules and regulations, may have designated, by a general order, one or more newspapers in which bankrupt publications should be made. Such general order would not of courso form part of the record in this cause, and would not be inserted by the clerk in his transcript.

That notices were published, and in proper form, must be assumed as true, unless the solemn judgment of a court of competent jurisdiction, which declares that they had been, be pronounced false by another court, calledupon to question collaterally the validity of the decree.

But it is said that the proviso of the 4th section gives the right of personal notice to the creditor whose residence is known, as was the case in this instance. It is clear that, under the proviso', a formal judicial process and a return of service by the marshal, were not necessary. The service might be by letter, and the mode of service was a matter to be prescribed by the court, as in its discretion should seem proper. It would be inconsistent with the general spirit of the statute, the peculiar nature of the proceedings as contemplated by it, the large discretionary power vested in the district judges, and especially the strong language of the act respecting the effect of the certificate, to pronounce the nullity of the decree in question, upon the ground that the transcript of the record does not show a personal service made on Duncan.

The opinions we have thus expressed are corroborated by numerous authorities. The importance of the subject makes it proper to refer briefly to some of these decisions.

In White v. How, 3 McLean’s United States Circuit Court Rep., 294, the question was whether a plea of bankruptcy was defective, because it did not set out the proceedings under which the bankruptcy was decreed. Mr. Justice McLean, after quoting the 4 th section of the bankrupt law, observes: The plea is substantially good. It is not necessary to set out in such plea more than the certificate and discharge duly authenticated. The above provision makes these evidence, and conclusive evidence, unless the proceedings shall be shown to have been fraudulent.

In Burnsids v. Brigham, 8 Metcalf, p. 77, the question was as to the effect of the omission of the name of a creditor from the list. It was held that the mere omission of the name of a creditor, is not made by the statute a substantive ground for preventing or avoiding the ' discharge of a bankrupt. The plaintiff must show that the omission was wilful and fraudulent, and that, contrary to his oath, the bankrupt did know or believe that the plaintiff was a creditor, and wilfully or designedly omitted his name, because he apprehended opposition from the plaintiff, or from some other motive. To the same effect was the opinion of the Chancellor of New York, in Hubbell v. Croup, reported in Western Law Journal, vol. 2, p. 240; and of the Court of Common Pleas in New York, Ib. vol. 1, p. 479.

In Strader v. Lloyd, the Supreme Court of Ohio held that, where the defendant pleads a discharge in bankruptcy, such plea is proved by the certificate alone, without an exemplification of the record. 1 Western Law Journal, p. 396.

In Shelton v. Pease, 10 Missouri Reports, it was held that failure to give notice to a creditor will not vitiate a certificate of discharge in bankruptcy. Cited in 5 Western Law Journal, p. 473.

In Fox v. Paine, 10 Alabama Reports, the court said: “We think the omission to include the debt in the schedule, and the neglect to notify the creditor of the application, is not fraudulent in itself; nor, in the absence of circumstances evincing the intention to deceive, is it evidence from which fraud may be inferred.

It is also proper to observe that, in point of fact, one of the plaintiffs was well aware, before the discharge, that the defendant had instituted proceedings under the bankrupt act; and, in answer to the defendant’s letter announcing the fact, the motives for so doing and the hopes of future advantage, the plaintiff replied with an expression of approval of the defendant’s course, in terms indicating a willingness that he should obtain his discharge. “ I have no idea that your recent course will have any injurious effect on your business ; on the contrary, I think its effects are more likely to be beneficial.”

As the certificate has not been impeached for fraud, and as the debt in question is not of that fiduciary class which is saved from the operation of the act we may here dismiss the question of the validity of the proceedings and decree of the bankrupt court.

The plaintiffs rely upon a new promise to pay the debt, for which the suit is brought, which they say is contained in a letter of the defendant, addressed to Duncan, one of the plaintiffs, after the bankrupt proceedings were commenced, and before the decree of bankruptcy. It has been often held that a new promise to pay a debt discharged by certificate, must be express, distinct, and unequivocal. The intention of the bankrupt to bind himself must be clear. "W e have carefully weighed the terms of the defendant’s letter; and, even if it could be considered as containing a promise to pay that portion of his debts upon which Duncan was committed as his endorser, we are of opinion that it cannot be considered as covering the debts now in controversy. The subsequent letters cannot aid the plaintiffs, as they, on the contrary, exhibit a continued refusal on the part of the defendant to acknowledge himself bound, and give new obligations. See Bach v. Cohn, 3 An. 103, and cases there cited.

After pleading the discharge in bankruptcy, the defendant further pleaded, in a supplemental answer, that the notes sued upon, being executed before the bankruptcy, were secured by a deed of trust of certain real estate, and that the plaintiffs had received payment by purchasing the trust property and paying for it with the notes. This plea was not inconsistent with the plea of discharge, and therefore was not a waiver. Both allegations might be true, and the truth of either would bar the action. If the defendant was a duly discharged bankrupt, the personal liability was gone. If a sale of the trust property had been provoked by the cestui que trust, and its proceeds had been paid him, the claim itself was extinct.

After the rendition of the judgment, which was for the defendant, the plaintiffs moved for a new trial, upon the ground, among others, that the plaintiffs have discovered since the trial that the defendant, a short time previous to the filing of his petition to be declared a bankrupt, and in contemplation of bankruptcy, had given a fraudulent preference to one of his creditors. This application was supported by the affidavit of the attorney, his clients being non-residents and absent from the State. A portion of the plaintiffs are minors. The new trial was refused.

Applications for a new trial upon the ground of newly discovered evidence, are always received with great caution. It must not only clearly appear that the discovery has been made since the trial, but also, in the stringent language of the Code of Practice, that he had previously used every effort and diligence in his power. “ Elle devra faire serment qu’elle ne les a découvertes que depuis le juguement, quoiqu’elle efitfait toutes les diligences nécessaires pour se procurer des preuves pour sa defense.” In the present case the showing is loose and defective on the score of diligence. C. P. 561,560. ° ’

Judgment affirmed.