text:
    STAFFORD ET UX. vs. VILLAIN ET AL.
    Westehn Dist.
    October, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    Where a will is in the mystic form, and it does not state in the superscription on the envelope that the paper containing the will was either closed, sealed or presented by the testatrix to the notary, it will be considered as defective and null, as not possessing the formalities required by law.
    All the formalities required by law in making wills must be complied with, on pain of nullity.
    The presence of the under tutor is indispensable at a family meeting provoked to deliberate on the expediency of a sale of minor’s property, or of the separate property of a deceased partner of the community in which minors are interested.
    The sale and purchase by the surviving widow, of the community and separate property of the deceased husband, is illegal and null when there was no under tutor present at the family meeting which advised the sale.
    Where a tutor renders an account of his tutorship, even, contradictorily with the'under tutor, the Court of Probates is not authorized to homologate it by a decree making it conclusive upon the minor, and to discharge the former from his responsibility. The court can in no case relieve and discharge a tutor while the law makes him responsible to his pupil.
    The proceedings in the present case originated in a suit for the partition of the succession of Madame Celeste Rogers, deceased. The decedent had successively been the wife of N. Villain, E. Kirkland, and Mr. Rogers, ail deceased. There were two children, Nicholas and Rose Emma Villain, by the first, Jeannette Kirkland by the second, and none by the last marriage.
    In November, 1834, N. Villain instituted suit against his co-heirs, the sister and half sister, in- the Probate Court for a partition of the common mother’s succession. The action of partition was based on the will of Mrs. Rogers. One pf the' defendants, Jeannette, now wife of J. S. Stafford, by her counsel made opposition to a partition under the will, as unequal and unjust.
    While these proceedings were pending, Stafford and wife, filed their petition, alleging that Mrs. Stafford as one of the children was entitled to an equal share of Mrs. Rogers’s succession, but that her co-heirs have set up an exclusive claim to one fifth of said estate under the will of the deceased; that said will is null and void, not having been opened and proved according to the provisions of law relating to mystic wills, nor has it been ordered to be executed by the proper authority.
    The wife (Mrs. Stafford,) further alleges, that after the death of her father, Edward Kirkland, in 1825, her mother, (who subsequently intermarried with Mr. Rogers,) as widow in community and her natural tutrix, obtained a decree of the Probate Court in 1826, to sell all the property in community, at which sale she (widow) became the purchaser.
    The wife further shows, that she was the sole heir of her-. father, Edward Kirkland,' and inherited his half of the community and his separate property, and that'he'had brought into marriage a large property of his own in land and slaves, and at his death there was a large community property, all of which, under said decree, was purchased by her mother. She expressly alleges, that all the proceedings in obtaining said decree are null and void, as also the decree itself and sale under it, which should be cancelled and annulled, and that she be restored to her rights in relation to all the movable and immovable property of her deceased father; that this property is now in the succession of her deceased mother, and forms the largest portion of that which is sought to be partitioned.
    She further alleges, that the decree of the Probate Court in 1829, having for its basis the aforesaid proceedings, decree and sale, improperly and illegally homologated and confirmed the account rendered by her mother, as her natural tutrix, when she was about to marry her last husband. She expressly alleges, that said decree and the account which it purports to confirm and homologate, are null and void.
    She prays that the will be declared null and void; that the proceedings under the decree of 1826, and the act in pursuance of it, be set aside; and that, in like manner, the subsequent decree confirming the account of her mother as her natural tutrix, be annulled and set aside, and that she have such judgment, and for such sum as may be just and proper in the premises.
    The defendants pleaded a general denial.
    The cause was tried on these pleadings and issues.
    The evidence showed that Edward Kirkland, the husband of Mrs. Rogers and father of the present plaintiff, Mrs. Stafford, died in 1825; that his widow in community provoked a family meeting and probate sale of all the property of the community, and of every kind found in the succession, and became the purchaser thereof at the estimated value in the inventory. She was, at the same time, the tutrix of her minor child, Mrs. Stafford.
    The family meeting which was convoked on the occasion, to advise the sale of this property, was held without an under tutor being appointed or present.
    In 1828, the widow in contemplation of a third marriage, provoked the appointment of an under tutor, and contradictorily with him, rendered an account of her tutorship, which was homologated by a decree of the Probate Court, the 7th january) 1829. This account is opposed as unjust and illegal as regards the minor, Mrs. Stafford ; and the decree discharging the tutrix from further responsibility relating to her trust, is also denounced as a nullity.
    The will under consideration, by virtue of which the children of the first marriage claim the ascendancy, and an exclusive portion, is attacked on the ground of nullity resulting from defect of formality in the execution and probate.
    The will is in the mystic form, written by a person at the desire of the testatrix. The superscription on the will reads as follows:
    “This paper contains my mystic testament, written by J. B. Henno, at my request and under my direction, and subscribed with my proper hand.”
    “ CELESTE KIRKLAND.”
    “Witnesses, Thomas Hooper, S. Fulton, Y. Callahan, J. W. Hackwav, John Crawford, James Stapleton, J. J. Goucii.”
    “THO. C. SCOTT, Parish Judge.”
    “Probate. On this day, in open court, was presented the mystic testament of Celeste.Kirkland, deceased, and thereupon came T. Hooper, S. Fulton, J. Stapleton and J. J. Gouch, four of the subscribing witnesses to the superscription, who being duly sworn according to law, depose and say, that they recognize the sealed packet now presented to them to be the same that Mrs. Celeste Kirkland delivered to Thomas C. Scott, Parish Judge, in their presence, declaring to him that it contained her testament, and recognize their signatures and that of the said Parish Judge at the last of the superscription.”
    (Signed by the above witnesses.)
    (Signed) “THO. C. SCOTT, Parish Judge.”
    “Whereupon the court proceeded to open said will, and the same being read in an audible and distinct voice, and signed ne varieter at the beginning and end of each page, in presence of the said witnesses and other persons, it is ordered to be recorded and the provisions thereof executed ; and, it is further ordered, that this testament be deposited in the office of the Parish Judge of the Parish of Rapides.” “Done in open .court, this 6th day of December, 1829.”
    “THO. C. SCOTT, Parish Judge.”
    After hearing the evidence and arguments of counsel, the probate judge overruled and disallowed the petition of Stafford and wife, sustained the will and other probate proceedings'sought to be annulled, and ordered the cause to a notary for a partition on the basis of the will and the decrees of the Probate Court, and ordered that the costs be paid by the succession of Mrs. Rogers. Stafford and wife appealed.

      Dunbar, for the plaintiffs and appellants,
    contended that the probate sale of the property of E. Kirkland, and purchase by the widow in community, who was at the same time natural tutrix of her minor daughter, (the plaintiff,) was illegal and void. This succession consisted of the community and separate property of the deceased, which was inherited by the plaintiff as his sole heir, and could only be sold pursuant to the provisions of law. Louisiana Code, 302, 334-5.
    2. The law guards the rights and interests of minors with a parental solicitude and care, and vitiates all proceedings where their interests are not strictly guarded and the law strictly pursued. In this case there was no under tuton appointed, and none present' to represent the minor at the family meeting which advised the sale of Kirkland’s succession. Louisiana Code, 300, 301, 302.
    3. There was in fact no under tutor appointed to the minor from the death of Kirkland in 1825, until 1828. The family meeting was illegally convoked. The members were without legal notice; many did not attend, and the judge supplied the places of those that were absent, which was not authorized as the law then stood. Louisiana Code, 305 to 311.

      4. The community could only be sold to effect a partition or adjudication to the surviving partner. The requisites of the law have not been complied with, either for a partition or a sale to the survivor. La. Code, 338, and also, 1235 to 1239.
    5. The tutrix could only have provoked this sale with the authority of the judge and by the advice of a family meeting, at which the under tutor must and should have been present. But the property ought to have been divided in kind, or it should have been shown to the judge by the report of experts, that it was impossible without a diminution in value. Louisiana Code, 1260-61.
    6. The decree of the Probate Court, in 1828, homologating the tutrix’s account and discharging her, is illegal, having been obtained on the basis of the other illegal proceedings. Code of Practice, 604 to 616.
    7. The under tutor had no right to institute a suit against the tutrix and compel her to account. His duty is to defend suits; but, at any rate, had he provoked a settlement, the minor would not have been precluded by it, and prevented from calling her tutrix to account, at any time within four years after becoming of age.
    8. There is one fatal error which pervades and vitiates the whole of these proceedings, from the decree of 1826 to 1828; and that is, the purchase of the separate property of Kirkland which was inherited by her pupil and daughter. A tutrix, or tutor, is positively forbidden to purchase the property of the minor. Louisiana Code, article 327.
    9. The property of minors cannot be' alienated in any other mode than that prescribed by law. 1 Martin, N. S., 324. 2 Ibid., 612. 5 Ibid., 625. 2 Louisiana Reports, 328.
    10. The mystic will of Mrs. Rogers (then Mrs. Kirkland,) is null; because the formalities prescribed by law have not been complied with. There was no procbs verbal or act of superscription made by the notary on the paper or envelope enclosing the will, stating that it was closed and sealed before it was handed to the notary. Every formality must be complied with, under pain of nullity. Louisiana Code, 1.577-8, and 1588.

      11. The basis of the partition must allow the plaintiff (Mrs. Stafford,) all the separate-property of her father, and its increase and revenues. 2. One half of the community property, its increase and revenues, from the death of her father. 3. The increased value of the separate property arising during the .marriage. La. Code, 2371, 2375, 2377.
    12. The mother, while tutrix, and, indeed, after dissolution of marriage, is hot entitled to the usufruct of the property of the minor. Louisiana Code, 239, 267, 338,'532, 518, 3285.

      Spaulding and Winn, for the appellees,
    contended, that the will of the deceased, Mrs. Rogers, was valid, as having been made in accordance with the formalities of law, and regularly admitted to probate, and ordered to be executed. Its provisions should, therefore, be carried into effect, and made the basis of the partition of the testator’s estate. Louisiana Code, articles 1577-7S, 1648. Code of Practice, 940-41.
    2. The proceedings of the family meeting, and the decree of the Probate Court ordering the sale of all the community and other property of the succession of E. Kirkland, are legal and regular, except the absence of the under tutor from 'the family meeting, but they cannot be annulled or set aside for want of this formality. The Act of 1811, and the Civil Code of 1808, requiring the presence of an under tutor when the immovable property of minors is to be sold, are repealed by the Louisiana Code and the great repealing act of 1828. That the provisions of the Louisiana Code, requiring presence of an under tutor at some family meetings and not at others, shows that his presence is not indispensable, upon the principle, that inclusio unius est exclusio alterius. The interest of the minor and tutrix did not conflict as respects the sale of this property, so as to require the advice of an under tutor at a family meeting. To have required it would have been perfectly useless, and lex neminem cogit advana dut utile. Session’s Acts of 1828. Civil Code of 1808, article 68, page 68. Louisiana Code, 301, 334-38.
    3. There is no law denouncing a sale of minors’ property as a nullity, if made without the advice of an under tutor at the family meeting which authorized it. The court should then be slow to rescind and annul a decree and sale of ten years standing, made by a competent tribunal on the implied defect, and doubtful at least if it be one.
    4. The ultimate object of the decree of 1826 was to effect a partition, which, in fact, supersedes the necessity of complying strictly with the ordinary forms of alienating minors’ property. Louisiana Code, 339, 1263. Civil Code, article 67, page 70. 8 Louisiana Reports, 179. 7 Ibid., 312. 2 Martin, 185.
    5. By the decree of the Probate Court of 182S, the mother and natural tutrix of the minor, on rendering an account of her tutorship, it was homologated, and she released from further responsibility. This account had been regularly provoked by an under tutor, by whom the minor was represented, and which was deemed satisfactory by the judge, and homologated contradictorily with the under tutor. This was fulfilling the requisites of the law, and the minor must abide by them.
    6. The decree settled the amount due to the minor, and for which the tutrix was responsible, which concludes the former, and she cannot now, after having received the price, recover the property also. It stands as res judicata against her. 2 Martin, JV. S., 612. 5 Ibid, 625.
    7. The action of nullity cannot be sustained by minors against proceedings in which they have been properly represented. Session's 1lets of 1826. Code of Practice, 516.

      Hyams, for the plaintiff,
    urged, as an additional ground to sustain the action of nullity, that the judgment homolo-gating the tutrix’s account in 1828, was rendered on false documents or erroneous accounts. This part of the proceedings must be set aside on these grounds. Code of Practice, 607. 7 Martin, N. S., 605.
    2. The plaintiff, while a minor, could not institute a suit against her tutrix, even to compel her to account, for she was then under the control of her parent. She is, therefore, not bound by that account, or decree homologating it/ Code .of Practice, 104.

      Winn, for the defendants,
    insisted, that the judge could order a tutor or tutrix to account at any time, and he was to judge of the correctness of the account when made. Being satisfied that it was correct, it was his duty to homologate it. Louisiana Code, 350.
    2. The tutor is liable to be removed if he' fails to render an account when required to do so by the judge. If the minor’s interest has not been properly guarded or defended, this fact should have been specially alleged and shown, and relief sought by an appeal from the decision of the probate judge, and not by an action of nullity.
   Martin, J.,

delivered the opinion of the court.

Nicholas Yillain instituted suit against his co-heirs, who are all the children of Celeste Rogers, deceased, by several marriages, for the partition of her’ succession. Josiah S. Stafford and wife, filed their opposition thereto. Mrs. Stafford, one of the defendants, was the daughter of the deceased ancestress; half sister, both of the plaintiff and her co-defendant, and sole issue of the second marriage of their common mother. An order was made referring the case to a notary for partition.

Stafford and wife filed their petition, alleging the nullity of the last will and testament of the mother, which was urged as the basis of the partition, and the illegal purchase by the mother of all the property in community which had existed between her and her deceased husband, Edward Kirkland, as well as of the separate property of the latter, and likewise the illegality of the decree homologating the account of the mother and tutrix of her minor daughter, Mrs. Stafford. The petition then concludes with a prayer that the will, the purchase of the mother at the probate sale, and the decree of the Court of Probates, be anulled and set aside. To this petition the defendants pleaded the general issue.

The order which had been made in the first suit, for the partition before the notary, was rescinded, and the suits were consolidated.

Where a will is in the mystic form, and it doe's not state in the superscription on the envelope, that the paper containing the will was either closed, sealed or presented by the testatrix to the vnotary, it will be considered as defective and null, as not possessing the formalities required by law.

All the formalities required by law in making wills, must be complied with on pain of nullity.

The presence of the under tutor is indispensable at a family meeting- provoked to deliberate on the expediency of a sale of minors’ property, or ot the separate property of a deceased partner of the community in which minors are interested.

The purchase by the surviving widow 'of the community and separate property of the deceased husband, is illegal and null, when there was no under tutor present at the family meeting, which advised the sale.

The Court of Probates overruled the opposition and set aside the partition of Stafford and wife, and referred the case to a notary for a partition according to the will and inventory. Stafford and wife appealed.

The first object to which our attention is drawn, is the alleged invalidity of the will of Celeste Rogers. The counsel for the appellants contends that the Court of Probates erred in sustaining this will. It is in the mystic form; and nothing appears op the envelope which shows that the paper containing the will was either closed, sealed, or presented by the testatrix to the notary. The superscription states only that the paper contains the mystic .will of the testatrix, written at her request and under her direction, and subscribed with her proper hand.

If is clear that the formalities required by law were not observed,, and the will was improperly sustained. Louisiana Code, 1577, 1578. The Code requires the observance of. these formalities, under the pain of nullify. Ibid., 1588.

The next object presented for our consideration, is the validity.of the purchase made by the mother of the property of the communit}’-, and that of the separate estate of her deceased husband. Under this head, the counsel of the appellants urges the illegality of the proceedings which preceded the decree under which the sale was made, and the consequent nullity of the decree itself. The illegality of these proceedings is shown to result from the absence of an under tutor at the family meeting convoked to deliberate on the expediency of the sale. The presence of the under-tutor is expressly required at such meetings, “for the purpose of advising; and when he is of opinion that the determination of the meeting is injurious to the interest of the minor, it is his duty to oppose the homologation of the proceedings.” Louisiana Code, 802.

The illegality of the family meeting carries with it that of the decree bottomed upon its deliberation. Sublato funda-mento cadit opus. Had the decree been legal, the purchase of the mother and tutrix under it, would, on that account alone, be illegal, Louisiana Code, article 327.

Where a tutor renders an account of his tutorship, even contradictorily with the under tutor, the Court ofProbatesisnot authorized to ho-mologate it by a decree, making ^thl^minor^ an<1 t° discharge the former from his responsibiii-j^h®0 relieve and discharge a tutor, while the law makes him responsible to his pupil.

We are, in tbe next plaqe, called upon to notice the decree of tbe Probate Court, rendered on the 7th January, 1829, homologating the account presented by the mother and tutrix of the plaintiff, Mrs. Stafford. This account was .rendered contradictorily with an under tutor, the appointment of whom she had provoked two years after the death of her husband, and about a month before the rendition of her account.

Tutors under an order of the Court of Probates, must, and without it, may exhibit an account of their administration, ,, , , . , . . and the court may make certain orders thereon, but nothing authorizes it to homologate such accounts, so as to render them conclusive and binding on the minor; for the law ° . gives-to the latter the right, until the expiration of a certain delay after he comes of age, to examine and contest all the accounts of his tutor. The court, therefore, can in no case ? , ... relieve and discharge the tutor from his responsibility, as has t t • .i • been done m this case. ' N

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and proceeding to give such judgment as in our opinion ought to have been given in-the court below, it is ordered, adjudged and decreed, that the will of Celeste Rogers be annulled and set aside, as well as the decree of the Court of Probates of the 6th of February, 1826, ordering the sale of the property of the community which existed between the parents of the plaintiff, Jeannette Stafford, and the property of the separate estate of her father, and- also the purchase thereof by the mother and tutrix, and likewise the decree of the 7th January, 1829, homologating the account presented by the tutrix, and discharging her from responsibility. It is further ordered, that this cause be remanded to the Court of Probates, to allow and set off to the appellant, Jeannette Stafford, the property of the separate estate of Edward Kirkland, deceased, and one half of that of the community Avhich existed between him and his deceased wife, and to make partition of the other half of the communitjr and the separate property of Celeste Rogers, deceased, in, eqUal portions, between Nicholas Villain, M. R. E. Villain, wife of Aaron Prescott, and Jeannette Kirkland, wife of Josiah S. Stafford, after having settled and allowed Mrs. Stafford’s claim on' the estate of her mother, as tutrix. The costs of the appeal to be paid by the appellees.


source: Caselaw Access Project

author: Matthews J,

license: Public Domain

text:
    MONTGOMERY vs. RUSSELL.
    Western Dist.

      October, 1836.
    ATREAL FROM THE COURT OF THE SIXTJI JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where certain property is conveyed to a surety by the principa] debtor, to indemnify him against loss resulting from his suretyship, its value, at the lime of conveyance, must be taken into consideration, when it is offered in compensation and reconvention, against the sums the surety has actually had to pay for his principal.
    Where the surety is sued on a bond given for an illicit or illegal consideration, before a competent tribunal, and makes all the defence in his power to avoid the obligation, and fails, and afterwards, to avert seizure or arrest, releases errors and pays the judgment obtained against him, his principal will be bound to reimburse him.
    This case had its origin in two suits which Elijah Montgomery, of Mobile, in the state of Alabama, instituted against Gilbert C. Russell, in the months of March and May, 1827, in the parish of Rapides, in Louisiana. The two cases were afterwards consolidated, and have been twice decided on in this court previously to the present appeal. 7 Martini JV*. S’., 288. 2 Louisiana Reports, 67.
    The facts and pleadings are principally stated in the reports of the case referred to.,
    It appears that the plaintiff and defendant are brothers in law, and both resided in or about Mobile, in the state of Alabama, at the time of the transactions involved in this case. The plaintiff alleges, that in October, 1822, he became surety for the defendant in a penal bond for three thousand two hundred dollars, executed to Squire and Silli-man, for the delivery of thirty mules; that in consequence of the failure of Russell to comply with the conditions of said bond, he was sued on it as surety, and judgment obtained in 1824 for the amount, with eight per cent, interest and costs, which he was compelled to pay.
    He alleges, in his second suit, that he signed a bond as surety for the defendant, in 1821, given for the hire of African slaves, which were in the hands of Mr.. Livingston, the United States Marshal, under seizure and libel in the District Court of the United States for the state of Alabama; that suit was instituted on said bond against him as surety, and judgment obtained, notwithstanding he made every defence in his power, for the sum of three thousand five hundred and fifteen dollars, which he has actually paid. He claims the reimbursement of these sums, with interest at eight per cent, per annum, the rate allowed by the laws of Alabama, and his costs and expenses.
    The defendant pleaded a general denial, and averred the facts alleged were untrue. He further averred, that the plaintiff was largely indebted to him, as would appear on a final settlement, to wit: in the sum of twenty-five thousand dollars, for which he prays judgment in reconvention.
    He aven$ furthermore, that the judgment of Squire and Silliman on the mule bond was obtained with the consent and collusion of the plaintiff, in his (defendant’s) absence, a compromise made to his injury, for fifteen hundred dollars, which was paid out of his funds in plaintiff’s hands.
    He also avers, that the African bond which was given in 1821, to Livingston, the United States Marshal in Alabama, for the sum of three thousand dollars, as the hire of sundry African slaves, illegally introduced in the country, and then under seizure and libel, was illegal and void, under the laws of the United States; that the plaintiff, who had signed said bond as his surety in his absence, suffered judgment improperly to go against him for the amount thereof, without making a proper defence, and that since he was advised thereof he has ’ appealed from it. This act of the plaintiff, he avers, has injured him, and caused damage to the amount of three thousand five hundred dollars.
    He further avers, that being much embarrassed in his affairs, he conveyed to the plaintiff eight hundred and sixty acres of land on Fowl River, with a brick yard thereon, and about six hundred thousand bricks, worth about ten dollars per thousand; also a moiety of eight thousand eight hundred and sixty acres of land on Dog River, and a brick yard, in good order ; that the consideration expressed in the deed of conveyance was four thousand dollars, in consequence of which the plaintiff agreed to pay for him a judgment of sixteen hundred and ninety-on,e dollars to one Lud Harris, and other claims, which he failed to do. He then expressly charges, that the plaintiff has kept his property, and his money received for the sale of brick, and owes him for the hire of slaves, &c., for all of which he prays for leave to prove, and to have judgment in reconvention.
    The defendant annexed to his answers ninety-seven interrogatories, which he prayed to have answered on oath by the plaintiff. About half of them were ordered to be answered, and the remainder stricken off, for various causes. Much testimony was taken and read to disprove the answers. The whole evidence is various and contradictory respecting the reconventional demand. The- conveyance of the Fowl and Dog River property -was made by Russell to Montgomery, in an absolute deed, dated the 15th October, 1821, for the consideration of four thousand dollars, with all the brick and implements for brick making thereon, and that the said Montgomery should hold said property by full title, etc.
    The records of the two judgments obtained in Alabama against the plaintiff, as defendant’s surety, were introduced as evidence of his demand against the defendant.
    The district judge, before whom the cause was tried, on its return from the Supreme Court the second time, gave judgment for both of the plaintiff’s demands, rejecting the defendant’s claim in reconvention. The defendant appealed.
    The cause was argued in writing by Thomas, of counsel for the plaintiff, and Dunbar for the defendant.

      Thomas contended, on the part of the plaintiff,
    that he was entitled to recover sixteen hundred and twenty-one dollars on the first judgment, and three thousand five hundred and fifteen dollars on the second, being the amount the Surety had paid, together with interest at eight per cent., the rate allowed by the laws of Alabama, and all his costs and expenses incurred about these suits in that state.
    2. This case rests on authenticated judgments of another state, and must have all the force and effect here they would be entitled to have there. By the laws of Alabama, a confession of judgment operates a release of errors, and by those laws a surety has a right to confess judgment, (which operates a release of errors) and in a summary way proceed against his principal for indemnity. So a release of errors, as was done by the plaintiff, does not affect his right to recover from his principal.
    3. The defendant cannot plead ignorance of the pendency of these suits in Alabama. The correspondence between them shows that Russell had three years notice, and gave no assistance to his surety. He was compelled to release errors, to avoid having his property seized and his person arrested. By doing this, he obtained more favorable terms of payment. To have appealed would have subjected him to additional risks and expenses.
    4. The first question presented by the evidence elicited in the answers to the interrogatories, is, was the property conveyed by the deed of October 15, 1821, intended to pay other debts than what was owing by Russell to Montgomery at the time? The latter, in his answer, on oath, says, “at the time you done so, (made the conveyance) I gave you credit for wishing to pay your debt to me, and did not suppose you had any other motive.” This is proof full and complete to show the consideration for which the property was conveyed.
    , 5. The fact is further proved, that at this time Russell was running all his negroes and movable property from the state and did so; the immovable property he conveyed to the plaintiff by preference to letting his other creditors have it.
    6. The answers of Montgomery to the many interrogatories propounded, fully show that the Fowl and Dog River property was conveyed to pay debts then owing to him by Russell. The latter has taken the depositions of the three Hollingers, his two brothers-in-law, and his mother-in-law, to discredit the plaintiff’s answers. These witnesses, all influenced by family antipathies, as appears on the face of their depositions,, furnish all the evidence against the answers, while many of the witnesses have spoken highly in favor of the plaintiff’s integrity and character for truth. It cannot be doubted that he spoke the truth.
    7. But suppose the defendant put this property into the hands of the plaintiff, to pay his debts generally, it was not suflicient to pay the amount he then owed the plaintiff. The latter, in his answer to the forty-fifth interrogatory, annexes an account, in which he shows the defendant was indebted to him in the sum of five thousand eight hundred and seventy-nine dollars, at the time he got possession of the deeded property. This was before the liability accrued on the surety bonds.

      Dunbar, for the defendant.
    1. This case has been several times before this court, and the. decisions have uniformly been favorable to the defendant. It was remanded the last time, because this court could not agree with the jury in their verdict for the plaintiff, and a fortiori must the decree of the district judge who tried the cause alone, the last time, be reversed.

    2. The case was not remanded for a jury or the court to inquire whether Russell had placed property in Montgomery’s . hands to indemnify him as his surety, but that the cause should have been decided according to the previous decisions of this court. These the district judge have disregarded, in giving judgment against the defendant.
    3. The testimony of the two witnesses to the deed for the Fowl and Dog River property shows that the conveyance was made “to secure Montgomery for responsibilities for Russell,” and that he was to pay a certain debt for the latter to one Lud Harris of about sixteen hundred and ninety dollars.
    4. It cannot be pretended that this conveyance was a sale, The pnce mentioned in the deed was not even spoken of when Russell voluntarily brought and handed it to Montgomery. And can it be believed that any debts which Russell owed to M. were to go in payment of the price, when not a word, as the subscribing witnesses testify, was said about them at the time. Had it been so, M’s. answer would have been, “You sold me your property for four thousand dollars, and I was to pay you .in debts that you owed me.” But this, or any thing like it, he has not said.
    5. The evidence of the Hollingers and other witnesses show, that this property was worth eight or ten thousand dollars, at-the time of the conveyance, and that the bricks, &c., on the Dog River tract alone, were worth four thousand dollars. It is, at the same time, shown, that Russell only owed M. about one thousand dollars, for the hire of some slaves, and therefore follows, that the conveyance was made to secure M. for coming under responsibilities for Russell.
    6. That Montgomery was not responsible to Squire and Silliman on the mule bond, at the date of the conveyance, is of no consequence. Russell had placed him in possession of valuable property, part of which (the bricks) he was enabled to sell for cash; and long before he had any thing to pay, as surety, he had received four or five thousand dollars in money, and enjoyed the rents and profits of the property several years. The presumption is therefore irresistible, that he became Russell’s surety, in consequence of being in possession of his property and funds.
    7. This conveyance or deed must be considered, under our laws, as an antichresis, and the plaintiff’s remedy was, to have the property sold to pay the claims for which he became bound as surety of the defendant. Civil Code, 448, articles 22, 23, 24, 25.

    8. Instead of the creditor having the right to impute any payments that are made, it is the debtor’s right to impute payment and apply it to the debt he prefers to have first paid. If, however, in this case, the deed should not be considered as an antichresis, but as conveying an absolute title, we must then have the full value of the property allowed.
    9. The answers of plaintiff to the interrogatories are contradictory and not to be relied on. It is, however, said, we have made him our witness and cannot impeach his testimony, unless by two witnesses, to disprove his statement. This is the provision of the Code of Practice, but it must receive a reasonable construction. It is the object of all legal investigations to arrive at truth. These answers, like all other testimony, might be stamped with falsehood on their face. Are they then to be believed, or taken as true 1 Is a witness who contradicts himself, or prevaricates, to be believed 1 It is a rule of evidence, that treachery in a witness should not exclude a party from establishing the truth by the aid of other testimony. 1 Starkie on Evidence, part 2, 147.
    10. It. will' then be seen, from the examination of the testimony, that the plaintiff is contradicted, both as to the value of the deeded property, the objects Russell had in view when he made the conveyance, and the amount of his debts due to the plaintiff, by more than three or four of the witnesses, and those, too, of respectability.
    11. The defendant is not liable for the amount claimed as having' been paid to the heirs of the marshal, on the African bond, because the consideration and object of that instrument were illegal, being for the hire of African slaves illicitly and illegally introduced into the country, and under libel in the U. S. District Court at the time. It was illegal in the marshal to hire them out, for his own emolument, as slaves, and contrary to the genius and spirit of our laws. 1 Kent's Commentaries, 184. A Peters, 184. Ingersoil's Digest U. S. Laws, 805. Section 11, of Act of 1819. Ibid,., 376.

      12. The surety should have made this defence to the suit on the bond ; but instead of doing so, as' directed by the defendant, he released errors after judgment of the inferior court of Alabama, and prevented any further defence by the principal on an appeal. He has now no right to recover by reason of this release. Pothier on Objections, Nos. 433 to 436.

      The defendant, in propria persona,

    read an elaborate written argument to the court, commenting and criticising on the evidence and facts of the case with much severity and at great length.
   Matthews J,

delivered the opinion of the court.

This case has been twice before the Supreme Court before the present appeal. In the two previous instances, verdicts of juries had been obtained, on which the judgments were based. The cause was remanded on the first appeal, in consequence of the defendant having been improperly ruled to trial. On the second, it was sent back because the appellate tribunal could not fully concur with the jury, in relation to their conclusions on the facts. The object of this remanding appears to have been to obtain a determination on the facts of the case by another jury. On its going back to the court below, the parties waived their right to a trial b}T jury. The cause was submitted to the judge a quo, who rendered judgment in favor of the plaintiff, from which the defendant appealed.

The cause as it now stands before the court, presents two principal questions ; one of fact, in relation to the value of certain property conveyed by the defendant to the plaintiff, for the purpose of securing the latter against losses, which he might sustain in consequence of debts due him by the former, and sums of money which he the plaintiff might be compelled to pay as surety for the defendant; another of law, viz : whether the appellee did not pay in his own wrong, the sum of money stipulated in favor of the marshal of the United States, for the State of Alabama, by the defendant, in a bond in which the plaintiff became his surety, the consideration of the obligation being illicit, according to the laws of the United States.

Where certain property is conveyed to a sure-iudbydehtor,n<to indemnify him against loss re-suiting from his vaíueauhétime of conveyance must be taken into considera-offered'in'1 com-pensationandre-gainst the sums actually "fad to cipaí0rlUSpim"

suretyh<ise sued on a bond given for an illicit illegal consial'ompetenuri-bunai.andmakes all the defence in his power to tiondand°bfafi% and afterwards to avert seizure or arrest, releases errors, and pays the judgment obtained against him, his principal will be bound to reimburse him.

The whole amount owing by the appellant to the appellee, including the personal obligations of the latter, with claims for sums by the former as having been paid on the score of suretyship, is about nine thousand dollars, without interest. If interest were to be now added, at the rate of eight per cent, per annum, the rate of legal interest in the state of Alabama, the whole sum would probably exceed the most extravagant valuation of the real property conveyed to the plaintiff, as a surety against his responsibilities for the defen-1 , , , . . . . dant. But m order that this property may be made to compensate, under the plea in reconvention, the debts due to the plaintiff, its value at the time of conveyance must be taken ; . , J into consideration. The testimony on this part of the cause is variant and contradictory. The Verdict of the jury, to whom the case was submitted on the second trial, and the . * judgment of the court on the last, seem to fix the value of the property claimed in reconvention, at a price not more jj.ian 8Ufgcient to satisfy the direct claims of the' appellant against the appellee, and in this we are not prepared say there was error, considering the contradictory evidence °ffered on the subject.

It only remains to examine the second question in the case, which we have stated is one of law. The plaintiff, as already assumed, became surety for the defendant, in a bond given by the latter to the marshal of Alabama. The contract ought, probably, to have been avoided, on the ground of illegality in the consideration. Suit was how- , . & , . , . . , ... , . ,, ever, brought on this bond in a competent tribunal, in the State of Alabama, against the surety, who used all means of defence in his power, but in spite of this, he was compelled to r . , ‘ . pay the whole amount of the obligation, by a judgment of the court. In order to save his property from immediate sejzure or his person from arrest, under execution, he ’ 1 . . ,. made terms with the plaintiff in the case, by releasing errors, &c., and finally paid the full amount of the judgment rendered against him, as already stated.

We are of opinion, that by the release of errors, the surety in acting in this manner for his own safety, did nothing prejudicial to his principal, who might either have obtained a writ of error, or brought suit to annul the bond on account of illegality. The surety did all, which in our opinion he was bound to do, to avoid the payment of this debt, both in relation to himself, and the principal debtor.

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


author: Bullard, J.,

text:
    WALL vs. SPURLOCK.
    Western Dist.
    October, 1836.
    ArPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE FIFTH PRESIDING.
    The principle, that where the titles of the parties respectively are of equal dignity, the possessor will be maintained in accordance with the maxim potior est conditio possidentis, is confined to eases where both titles cover the locus in quo.

    This is mainly an action of boundary. The plaintiff sets out by alleging that he is the owner of a tract of land situated on both sides of the bayou Robert, in the parish of Rapides, having a front of ten arpents on each side thereof, with the depth of forty each way, so. as to include eight hundred superficial arpents. That his title is derived from a requéte in favor of John Wall, and signed by Valentine Layssard, then commandant of the post of Rapides, and which was confirmed to the said John Wall by the commissioners’ certificate, dated the 20th June, 1811. That this tract has been properly located by an authorised surveyor in 1802, and its proper location fixed agreeably to the calls of the title papers.
    The plaintiff further shows, that said land is bounded on one side by lands claimed by W. H. Overton, and on the other by lands of Robert Spurlock, but that his boundary on the latter has never been definitely settled by any contradictory survey, though originally his land was properly located. That there is a confliction of boundary between them, which he has been desirous to settle amicably, but that said Spurlock declines and refuses to acknowledge his true boundary, according to his original claim.
    ■He prays that the boundary be fixed by a decree of the court, according to the calls of his title, by parallel lines running from the bayou Robert, each way, so as to give him his quantity of eight hundred superficial arpents, in the form of a parallelogram. That the survey be made in pursuance of the provisions of the Louisiana Code, relative to fixing lines and boundaries between neighboring proprietors.
    The defendant, Robert Spurlock, answered and averred, that the land he is possessed of, belongs to him and Eliza Spurlock, wife of James D. Spurlock, whom he prays may be permitted to join him in defending this suit.
    The defendants then pleaded the general issue. They aver that the commissioners’ certificate of confirmation, on which the plaintiff relies to support his title, was never intended for the land claimed, but for a different part of the country. That John Wall, under whom the plaintiff claims, was not entitled to any lands from the Spanish government; not having complied with the conditions, he could acquire no right to any lands from that government. His claim is, therefore, invalid, and should be rejected.
    The defendants further aver, that they hold all the land claimed by them, under a good title translative of property, which was confirmed to one Jesse Ratcliffe, by the commissioners’ certificate, in June, 1811; and that said Ratcliffe conveyed it to Stephen Tippet, from whom these respondents derive title; and ybey and those under whom they claim, have been in possession more- than twenty years. They plead the prescription of ten and twenty years, and pray to be quieted in their possession to the land in question, against the claim of the plaintiff.
    Upon these pleadings and issues the parties went to trial before the court.
    Wjssebbk Dist. 0ctoto’, 1836~ wail srraiiocK.
    The plaintiff produced in evidence the requéte of John Wall, with the commandant’s order thereon, dated in 1802; and the commissioners’ certificate confirming this claim to John Wall, in 1811, as claimed in the plaintiff’s petition. Evidence was introduced, showing the sale of this claim at the probate sale of John Wall’s succession, and purchase by the plaintiff. A plat and certificate of the Wall tract, made by the parish surveyor, was read in evidence. It states, that by “ actual survey, the land claimed by the plaintiff, John L. Wall, does interfere and conflict with the land possessed by Robert Spurlock, (defendant,) one hundred and five and a half acres, equal to one hundred and twenty-four and sixty-six hundredths arpents, which interference is represented in the plat and diagram, &c.”
    The plat of survey showed that the land of defendants, embracing a claim of four hundred arpents, fronting on a small lake or pond, marked ‘Ratcliffe’s Lake,’ run across the rear or end of the plaintiff’s four hundred arpent tract, on that side of Bayou Robert, and cut off one hundred and five and a half acres.
    The evidence of both parties showed that the claim of the plaintiff was the oldest, having been granted and located in 1802.
    From the defendant’s testimony it appeared that there was confirmed to Jesse Ratcliffe, four hundred superficial arpents of land, with ten arpents front on Little Lake, (Ratcliffe’s Lake,) founded on a requite and permission to settle, dated the 14th of August, 1803. Ratcliffe conveyed to Tippet, from whom the defendants derived their title. Ratcliffe had cleared a small field, built a small cabin near the Little Lake, (called “Ratcliffe’s Lake,” on the plat,) and cultivated three or four acres of corn in 1811 and 12. His settlement and improvements were near the lake, and not included within the limits of Wall’s location. Wall’s location had been made by an authorized deputy surveyor, in 1802, by running parallel lines on each side of the bayou, to the distance of forty arpents in depth, so as to include his quantity of eight hundred superficial arpents.
    Ratcliffe’s location was made subsequent to its confirmation in 1811, and instead of fronting on and running at parallel lines, from Little, or Ratcliffe’s Lake, it run off in an oblique direction, and crossed the rear of Wall’s location. Had it run in parallel lines, it would have run along side of Wall’s, and included Ratcliffe’s improvement without any interference.
    The district judge rendered judgment, giving the plaintiff the boundary and quantity of land as claimed in the petition, and quieting him in the possession thereof. The defendants appealed.

      Flint, for the plaintiff,
    contended that this was an action of bornage, or boundary, instituted under the provisions of law, to give the plaintiff his true bondary and quantity of land, in the form and manner called for by his titles. Louisiana Code, 841, 842, et seq.

      2. The titles of the plaintiff call for ten arpents front on the bayou Robert, and according to the principles of law, must run parallel from this water course, so as to include the superficial number of arpents to which the proprietor is entitled. There is no legal impediment to the application of the principle invoked in this case. 7 Martin, N. S., 117, 119.

      Boyce, for the defendant.
    I. In this case there is a confliction of locations. The plaintiff claims a part of the defendant’s land, which has been long in his possession, and those under whom he claims. The defendant’s title is indisputable, being confirmed by commissioners’ certificate, in consequence of a settlement and cultivation finder the Spanish government, to Jesse Ratcliffe. It is superior to the plaintiff’s, and accompanied by actual and long possession; and even if the titles were equal, he who is in possession will prevail. 5 Martin, N. S., 109.

      2. The plaintiff was never in possession of the locus in quo. But the defendant being in long and acthal possession, had he been in under a younger order or title, his possession would prevail. It must prevail here, for the plaintiff never complied with the conditions of his grant. He never occupied or cultivated the land. 5 Martin, Jf. S., 35, 36 and 7.
    . 3. The case of Boissier et al. vs. Metoyer, is applicable to the plaintiff’s title, and he must abide the consequences. 5 Martin, 678. See Land Laws, 978, 509.

      Dunbar, on the same side,
    relied on the case of Delahoussaye’s heirs vs. Saunders. 4 Louisiana Reports, 443.

      2. He contended that the defendant having shown possession, under a good title, could not, after the lapse of time be required to yield to the plaintiff, who was without possession of the locus in quo, to aid him.

      Winn, for the plaintiff, in conclusion.

      1. The defendants cannot avail themselves of the plea of prescription. 3 Martin, JY. 8., 11. 10 Martin, 395.

      2. The location of the Wall tract was made according to the calls of the titles, and in accordance with the principles of law, as settled by decisions of this court. He is, therefore, entitled to recover to the extent of his limits and location against the defendant. See case of Holstein vs. Henderson. 12 Martin, 319.
    3. This suit was instituted to settle the boundaries between the plantiff and defendants, and to give the former the quantity of land his titles call for. The controlling influence of possession, applies when both parties claim the same land. The defendants had no possession within the Wall tract before instituting this suit; so that the case cited from 4 Louisiana Reports, 443, does not apply to this one.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff in this case asserts title to a tract of land, having a front of ten arpents on each side of the bayou Robert, with the ordinary depth; and he demands that a boundary be fixed between him and the defendant, the owner of an adjoining tract.

The principle, that • where the titles of the parties respectively are of equal dignity, the possessor will be maintained in accordance with the maxim, potior est conditio pos-sidentiSy is confined to cases where both titles cover the locus in quo.

The defendant sets up title to the land possessed by him, under a commissioners’ certificate, founded on a requite of Jesse Ratcliffe. He denies that the plaintiff or those under whom he claims, are entitled to any land from the Spanish government, as he never performed the conditions of his grant, and finally he pleads prescription.

Both parties exhibit evidence of title, the plaintiff to ten arpents front on the bayou Robert, bounded below by V. Layssard, and the defendant to ten arpents front on the Little Lake. The question, therefore, which the case presents, is one of location,rather than of title. It appears that the two claims have been surveyed and located in such a manner, as to conflict with each other. The location made of the plaintiff’s title, conforms to the calls of the original requéte and to the certificate of confirmation. It is laid off with a front of ten arpents on the bayou, bounded below by V. Layssard, and running forty arpents back, having the side lines parallel, and embracing a superficies of four hundred arpents. On the other hand, the location of the Ratcliffe claim is made in an irregular form, extending only twenty-eight arpents from the lake, and its side lines are not parallel with each other. It embraces, it is true, the original improvement made by Ratcliffe, but it does not appear that Ratcliffe had ever occupied any of the land covered by the plaintiff’s title.

The question, whether Wall was entitled to a grant from the Spanish government, or whether he performed the usual conditions of grants, according to the ordinance, cannot be entertained in this case, because the defendant does not pretend to have a grant for the same land, as was the case in Boissier vs. Metoyer, upon which the counsel of the defendant relies. 5 Martin, 678.

The principle upon which this court has uniformly proceeded, that when the titles of the parties respectively, are of equal dignity, the possessors will be maintained according to the maxim, “potior est conditio possidentis,” is confined to cases where both titles cover the locus in quo; as may be seen by reference to the cases cited by the counsel for the plaintiff. The principle will not, in our opinion, avail the defendant, because it is not shown that the field which he had made previously to the survey of the land, under the order of the court, was within the limits of his grant, if located according to its calls; and because it was within the limits of the plaintiff’s, as surveyed and located under the authority of the United States.

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


author: Martin, J.,

text:
    HAGAN ET AL. vs. SCOTT.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, TIIE JUDGE ■ THEREOF PRESIDING.
    When the property of a partnership firm, is not more than sufficient to pay the partnership debts, no part of it can be legally applied to the payment of the separate debts of either of the partners.
    Where a partner buys the undivided share of his co-partner, in a town lot, by assuming debts of his vendor to the full amount of its value, and paying them to his separate or individual creditors, it will be a valid payment against the claims of the creditors of the partnership.
    The separate creditors of a partner, have a right to be paid out of his separate property, in preference to the claims of the creditors of the partnership, of which he is a member.
    This is an action on a promissory note for three thousand dollars, executed by the firm of Calland & Scott, payable to Hagan & Co., the first of November, 1832, with ten per cent, interest per annum.

      The petition charges that W. P. Scott had, since the maturity of the note, changed the firm into a new one, of W. P. & J. B. Scott. That in October, 1833, W. P. Scott, being in insolvent circumstances, sold all his interest in the stock of merchandize, of W. P. & J. B. Scott, together with all the debts due to said firm, to his co-partner, J. B. Scott, and also his undivided half of a lot of ground, in the town of Alexandria, with the improvements thereon.
    The plaintiffs further allege, that the vendee, J. B. Scott, was not a creditor at the time of said sale, and that it was made on the part, both of the vendor and vendee, with a view to defraud the bond, fide and just creditors of W. P. Scott, and without any just consideration.
    The plaintiffs pray that said sales be annulled, and that all the property embraced therein, be seized and sold to satisfy their demand.
    The defendants answered separately, and pleaded the general issue.
    Upon these pleadings and issue, the cause was tried before a jury.
    From the evidence it appeared, that on the 12th of October, 1833, the commercial partnership heretofore existing between W. P. & J. B. Scott, was dissolved on'the following conditions and stipulations.
    1. “W. P. Scott, sells to, and conveys to J. B. Scott, all his interest in said house, or partnership of W. P. & J. B. Scott, as well the stock in trade, both of merchandize, and every description of the property belonging thereto, including all debts due to the house by assumpsit, book accounts, notes, draft, or otherwise.”

      2. The said W. P. Scott, also sells his undivided half of a certain • house and lot, in the town of Alexandria, to J. B. Scott.
    3. The said W. P. Scott, releases all his claims on said house, or on the said J. B. Scott, for advances made to the same, or in any other way whatever.
    4. In consideration of the above sale and release, and benefit by W. P. Scott, of all his interest in said firm as above, to the said J. B. Scott, and of the sale of the right of W. P. Scott to the said house and lot, the said J. B. Scott binds himself to pay all the debts of the house of W. P. & J. B. Scott, and also several debts of W. P. Scott, as specified.
    After Calland left the firm of Calland & Scott, the latter took in his brother J. B. Scott, and the new firm of W. P. & J. B. Scott commenced. It continued until dissolved, as stated above. W. P. Scott brought into this firm, from the old one of Calland & Scott, stock and merchandize estimated at twelve thousand dollars, and J. B. Scott put in five thousand dollars. Since the dissolution and sale from W. P. Scott to J. B. Scott, the latter has paid debts of the firm, amounting to twenty-eight thousand eight hundred and forty-four dollars; and assumed and paid debts of W. P. Scott, amounting 'to thirteen thousand five hundred and thirty-one dollars, making an aggregate of forty-two thousand three hundred and seventy-six dollars.
    The stock of goods on hand at the dissolution of the firm of W. P. & J. B. Scott, amounted to seven thousand seven hundred and eighty-seven dollars. Debts due them, nineteen thousand and twenty-six dollars, in all twenty-six thousand eight hundred and fourteen dollars. This showed a balance of fifteen thousand five hundred and sixty-two dollars, which J. B. Scott had already paid over and above what he had received, both on account of the firm and private debts of W. P. Scott.
    The jury returned a verdict for the plaintiffs against the defendants, J. B. Calland and W. P. Scott, .for the amount of the note sued on; and discharged J. B. Scott. After an unsuccessful attempt to obtain a new trial, the plaintiffs appealed,

      Winn and Barry, for the plaintiffs.
    1. This is an action to set aside the sale of stock of merchandize, property and effects of the firm of W. P. & J. B. Scott, to the latter, as having been made when the vendor was in insolvent circumstances, which were known to the vendee. The sale is invalid and fraudulent as against creditors, and the goods are liable to the plaintiffs’ claim. It is clearly shown, that J. B. Scott knew the firm of Calland & Scott was insolvent at the time he joined his brother, whom he acknowledges ruined him. Louisiana Code, 1997. 4 Martin, N. S., 649. 2 Louisiana Reports, 16. 2 Martin, JV. S., 64-5.

    When the property of a partnership firm is not more than sufficient to pay the partnership debts, no part of it can be legally applied to the payment of the sejjwate debts of either of the pa*’ers'

      2. The goods of Calland & Scott, and of W. P. Scott, went into the partnership of W. P. & J. B. Scott, and which compose part of the sale sought to be annulled. W. P. Scott was bound to pay the debts of Calland & Scott; these goods are therefore bound for the plaintiffs’ claim. 3 Louisiana Reports, 494.

      Hyams and Thomas, for the defendant.
    The gist of this action is alleged fraud in the seller and buyer, in regard to third persons and creditors. If there is none shown they cannot complain, and the creditors have sustained no injury. The evidence shows that the defendant has ruined himself in paying the debts of the late firm, and of W. P. Scott, to a much greater amount than the property which he received by the sale. He is not, therefore, responsible. Louisiana Code, 1973, 1977.
   Martin, J.,

delivered the opinion of the court.

This action was brought on a promissory note, executed by J. B. Calland and W. P. Scott, under the style and firm of Calland & Scott. This partnership terminated in the purchase of Calland’s interest, by his partner, W. P. Scott, who afterwards formed a new partnership with J. B. Scott, in which he put the old stock of Calland & Scott; the new partner’s share in the stock being relatively small. He afterwards purchased the interest of W. P. Scott, and his undivided half of a lot of ground.

The plaintiff seeks to make the new partner, J. B. Scott, liable with the makers of the note, on the ground that he was the purchaser of all the interest of W. P. Scott, in the said firm, including the old stock of goods of Calland & Scott, with a knowledge of the insolvency of W. P. Scott, who thereby removed from the reach of his creditors, ail the means he had for the payment of their claims. There was a verdict and judgment in favor of J. B. Scott, and against his co-defendants for the amount of the note sued on. The plaintiffs appealed.

Wneve a partner buys the un-hjsldef0fpartner a t0.™ lot, hy assuming debts of his vendor to oHts vaiue^aud P?yin§ to his separate or individual credi-vaHd ^ payment ®faa“ssl of ‘Jj® creditors of the

, I he separate creditors of a ri^htTo belaid properiyia preference to the credtorsyf die partnership of •which he is a member,

The defendant, J. B. Scott, can only be made liable for the J fraudulent purchase of the interest of his co-partner, W. P. Scott, in the firm, and of his undivided interest in the lot of ground. This is not shown by the evidence in the . * L case. As to the interest of W. P. Scott, m the partnership of W. P. & J. B. Scott, the testimony shows that the whole property of the firm did not exceed the amount of its debts; 1 * J 7 and therefore, no part of it could be legally applied to the discharge of any separate debts, of either of the partners. So far as regards W. P. Scott’s interest in the undivided half of the lot of ground, it is shown that J. B. Scott assumed and paid debts of his vendor, to the full amount of the value of r 7 that share. These last debts were separate ones of W. P. Scott, and his separate creditors had a right to be paid out of his separate property, paramount to the claims of the creditors of any partnership, in which he had been concerned, 8 Martin, N. S., 599.

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


author: Matthews, J.,

text:
    SPRIGG ET AL. vs. HOOPER.
    Western Disx.

      October, 1836.
    APPEAL EROM THE COURT OE TIIE SIXTH JUDICIAL DISTRICT, THE PARISH JUDGE OE THE PARISH OE RAPIDES PRESIDING.
    It is an incontrovertible principle 'in law, that in a petitory action, the plaintiff can only recover on showing a valid title to the disputed premises in himself.
    Where the defendant is in possession, and the plaintiff shows no title, he cannot recover.
    Where there is no judgment in former eases between the same parties about the contested premises', the plea of res judíenla cannot be sustained.
    This is, essentially, a petitory action, and one of bornage. The plaintiff Sprigg, alleges he is the owner of a tract of land, having eight arpents front on Bayou Robert, with the usual depth, bounded above by lands of Fiske, and below by Thomas Hooper, the defendant.
    The plaintiff further alleges, that Hooper formerly instituted suit against him for a part of this land, and praying that boundaries be fixed between them, but that a decree was rendered in his favor, fixing and limiting the upper boundary of Hooper to a point below your petitioner’s fence, without expressly saying this should be the boundary between their respective tracts. He_ expressly alleges, that he is entitled to possess and hold all the land from his fence down to said point or limit; that Hooper, under the pretext that the court has not so fixed the limit, and as there is a large space between his fence and the said limit, withholds the possession, and refuses him permission to enter thereon and enclose the same.
    He prays that the boundaries between them be fixed and established according to the limit, or at the point fixed in said decree, and that he may have the quiet possession of the land included in the said space.
    In an amended petition, the plaintiff alleges, that the defendant is in possession of a tract contiguous and adjoining the one claimed in the original petition, situated in the rear of it, which embraces the back land, or concession. He claims this also, and prays that the boundaries between it and the defendant’s lands be fixed, and that the latter deliver up the land thus wrongfully withheld.
    It is an incontrovertible principle in law, that in a petito-ry action, the plaintiff can only recover on showing a valid title to the disputed premises in himself.
    The defendant pleaded a general denial to both petitions, and averred that he had a good title to the land claimed and possessed by him, and prays that the suit be dismissed.
    Fiske intervened and joined the plaintiff, claiming the strip of land between Sprigg’s lower line and a dotted line in a plat of survey in a former suit between Hooper, as plaintiff, and Sprigg & Fiske, which limited Hooper’s upper line, after running up five arpents from a certain cotton wood tree, as the centre of his ten arpent tract. This was fixed as Hooper’s upper boundary by this decree. It left a strip of about two arpents front between Sprigg’s lower line and this boundary, which is the object of both the plaintiff and intervenor to recover in this suit. Hooper was in possession up to Sprigg’s lower boundary. He pleaded a general denial to the demand of the intervenor.
    Upon these pleadings and issues the cause was submitted to a jury.
    After hearing the evidence of the respective parties, and having before them a map or diagram of the original tracts of land on which both parties reside, in virtue of which they claim, made by the parish surveyor, the jury returned a verdict, fixing the boundary between the plaintiff and defendant on the line to which the latter claims, and in his favor.
    From judgment confirming this verdict, the plaintiff and intervenor appealed.

      Dunbar, for the plaintiff and intervenor.

      Thomas, contra.

   Matthews, J.,

delivered the opinion of the court.

This is a petitory action, in which the plaintiff and intervenor, Fiske, claim titles to land adjoining a tract in possession of the defendant, and require a boundary to be established and fixed between the parties. A jury to whom the case was submitted, found a verdict by which the defendant was quieted in his possession of the disputed premises; and, from a judgment rendered thereon, the plaintiffs appealed_ ;

Where the de-iendanlisinpos-session, and the ncTtiflef he cannot recover.

is no judgment between61 C!the same parties, about the contested premises, the plea of res judicata cannot be sustained.

It is an incontrovertible principle of law, that a plaintiff in a petitory action can only recover on showing a valid title in himself. In the present instance, the claimants of title have shown none to the land admitted to be in the possession of defendant, and no judgments in former cases between the same parties, relating to the thing at present in contest, , , , , . , , ,, ¶ * . 7. . nave been shown, which support the plea of res judicata*

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


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    PARGOUD vs. AMBERSON’S ADMINISTRATOR.
    Westehn-'Dist.

      October, 1836.
    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF OUACHITA*
    Without positive evidence of an agreement to the contrary, the court will not presume that a payment was imputable to a mortgage debt not due at the time it was made, although it is the most onerous.
    This is an action commenced by the plaintiff by filing an opposition to the defendant’s supplemental statement of debts and account of the estate of G. Amberson, deceased, which he administers.
    The plaintiff alleges, that the defendant has improperly placed a claim of six hundred dollars on his tableau, as due to Jane Hughes and the heirs of B. T. Hughes, with a privilege and mortgage, because it had been paid; that large sums of money had been placed by the deceased, in his life time, in the hands of these claimants, to extinguish their claims against him, which should have been imputed to them as the most onerous; and, if not done, creditors have the right to make such imputation. He prays that said claim be dismissed and disallowed.
    The defendant pleaded a general denial, and averred,, that the sum allowed to Hughes’s heirs is correct, and supported by an act of sale of 2d May, 1832, with vendor’s privilege and mortgage reserved. He prays that his account be homolo-gated. Hughes’s heirs intervened, and offered record and other evidence of their claim. Parole evidence was produced by the plaintiff, to show payment of the claim set up by Hughes’s heirs. Faulk, a witness, says, that he loaned Amberson, in his life time, five hundred dollars, to pay the Hughes’s claim. That Hughes told him he had been paid this sum, and that Amberson’s land was freed from his mortgage. Snow, another witness, also saw Amberson pay Hughes some money. Judge Wilson, also a witness, says, on consulting Mrs. Hughes, she said she had no claims against Amberson. This was after Amberson’s death. From his conversation with Mrs. H., the impression was left on his mind that there existed no claim against Amberson’s estate.
    The defendant and Hughes’s heirs, offered rebutting proof that their claim was not paid. It appeared Amberson purchased a tract of land from Hughes, during both their life times, for two thousand dollars. The act of sale acknowledged fourteen hundred dollars as paid in cash, and six hundred to be paid in one and two years, from 1832. That Amberson had given Hughes a note for twelve hundred and fifty dollars, of a prior date' to this transaction, on which Hughes had instituted suit. He had given credit for five hundred dollars paid on it, and prayed judgment for the balance. The five hundred dollars spoken of by the witnesses, was accounted for as having been paid and imputed to this note.
    The judge of probates, after hearing the parties and evidence, sustained the opposition and disallowed the claim. From judgment rendered in the case, the claimants, Hughes’ heirs, appealed.

      Hyams, for the plaintiff and appellee,
    contended that the opposition was fully sustained. The sale from Hughes was for two thousand dollars; fourteen hundred of which is acknowledged in the act to have been paid in cash, and proof is made by parole, of the balance. 4 Martin, JV. S., 212. Louisiana Code, 2233-34, 2257.
    2. The payment of five hundred dollars, which Hughes’s heirs say was' applied to a note of twelve hundred and fifty dollars, should have been applied to the mortgage claim. Imputation of payment must be made to the most onerous debt. The receipt on that note cannot charge the debtor. Louisiana Code, 2245-46.

      M‘Guire, for the intervenors.
    1. The demand and claim of the heirs of Hughes, is evidenced by a certified copy of the act of mortgage, and should be allowed.
    2. There is no legal evidence in the record, to destroy the legal presumption and proof, resulting from the. mortgage, that the debt still exists, and is unpaid. All the opposite testimony is illegal, hearsay or irrelevant.
    3. If the evidence of this claim should be considered doubtful, the case should be remanded, as the intervenors were never cited to contest it in the court below. The con-testation was entirely between the administrator and the plaintiff, who made the opposition to it.
   Bullard, J.,

delivered the opinion of the court.

The defendant having placed on the tableau Jane and T. I. Hughes, as hypothecary creditors of the estate, Pargoud, another creditor, made opposition, on the ground, that the debt claimed by the former, and secured by special mortgage on a tract of land, had been paid and extinguished. The opposition having been sustained by the court, the mortgagees appealed.

Without positive evidence of an agreement to the contraiy, the court will not presume that a paymentwas imputable to a mortgage debt not due at the timeitwas made, although it is the most onerous.

The suxn of six hundred dollars claimed by the appellants, was due one half in March, 1833, and the balance in March, 1834, and bore an interest at eight per cent. They held at the same time the promissory note of the deceased, for twelve hundred and fifty dollars, which was due in 1832. The only evidence to show the extinguishment of the mortgage, consists of the statement of a witness, that five hundred dollars were paid, evidently, before the first instalment on the mortgage was due, and while the appellants were holders of the note ; and that one of the original obligees, of whom the appellants are the heirs, told him that the mortgage was released. This payment was evidently made in 1832, and appears to have been credited on the note for twelve hundred and fifty dollars. Without positive evidence of a contrary agreement, we cannot presume that the payment was imputable to the mortgage debt, which was not due at the time. No such agreement is shown; and evidence of the loose confession of a deceased person ought to have very little or no effect, particularly when contrary to the rights of the parties, as shown by written evidence. In addition to this, it appears, that in a former proceeding in the same court between the same parties, the credit of five hundred dollars was allowed on the note. We are, therefore, of opinion, that the Court of Probates erred in sustaining the opposition.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided, and reversed, the opposition rejected, and that the opposing creditor pay the costs in both courts.


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    PARGOUD vs. GRIFFING’S ADMINISTRATOR.
    Western Dist.

      October, 1836.
    ArPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF OUACHITA.
    Payments must be imputed to the most onerous debt. So where A was creditor of B, by an open account and a note, payments made after the note became due, should have been imputed to it, instead of the account.
    An opposition, and not a separate suit, is the proper mode of proceeding in litigating the claim of a creditor, who demands to be placed on the tableau, filed by an administrator of an estate. The plea of the general issue, on the part of the administrator, will let in all legal evidence touching the validity of the claim.
    The defendant filed a tableau of distribution, of the estate which he has administered. The plaintiff made opposition to it, because he was not placed on it as a creditor, for a balance due, on an account for two thousand two hundred and twenty-nine dollars and sixty-nine cents, with interest, and for the further sum of one thousand four hundred and eighty-five dollars and fifteen cents, the amount of a note of the deceased, which he holds. He also opposes the allowance of the sum of eight hundred and sixty-five dollars, to one J. H. Guise, in the name of J. Grifiing, as not being due, and as not belonging to said Guise. He also claims seven dollars, due on account. He prays judgment for his demand, and the rejection of Guise’s claim.
    The defendant pleaded a general denial, and that the sum of three hundred and sixty dollars had been paid to the plaintiff. He further denies the right of the plaintiff, to interfere in the allowance of other claims; and further, that this is not the proper suit in which to liquidate a claim, but' that an action for that purpose, should have been instituted. He prays that the plaintiff’s opposition be dismissed.
    Upon these pleadings and issues, the cause was tried before the court.

      Payments must the ^osfcLer-“^ere^A was creditor of B, count andaimte" ¡,fe™henotebe-came due,should have been imputed to it instead oftheaccounfc'
    The judge of probates, on hearing the evidence, sustained the opposition throughout, and amended the tableau accordingly. From this judgment the administrator, as defendant, appealed.

      Hycms, for the plaintiff and opponent,
    contended that this was the proper mode of proceeding to litigate the claims set up by the opponent, which are proved, and should be allowed.
    2. In a concurso of creditors and claimants of an estate, they are all plaintiffs and defendants, and can litigate with each other, contradictorily. Saul vs. His Creditors, 7 Martin, JV. S., 433, 447. Ibid., 131.
    M‘Guire, contra.

   Bullard, J.,

delivered the opinion of the court.

The appellee opposed the tableau filed by the administrators, on the ground, principally, that he had not been placed on it as a creditor for about two thousand dollars, balance of accounts, and for fourteen hundred and eighty-five dollars and fifteen cents, by note, with interest at ten per cent., dated 7th September, 1831., The administrator put in an answer, containing the general denial, and he is appellant from a judgment by which the opposition was sustained.

The evidence makes it clear, that while the note which bore interest at ten per cent, was due, Pargoud received about eleven hundred dollars, the proceeds of cotton of the deceased, sold in New-Orleans. That amount ought to have been imputed to the note, which was not only the most onerous but was in fact the only debt due at that time. That sum, together with the payments made by the representatives of the estate, since the death of the debtor, as shown in the record, nearly extinguished the note of the 7th September, 1831. 1

„ , . , ,, , , . , 13 ut the opponent credited the open account with the proceeds of the cotton. This we think he could not do, and that the court erred in sustaining his pretensions.

It only remains to inquire, whether the opponent has proved his account by sufficient evidence. It appears, that the deceased was a retailer, and purchased his stock principally of the opponent. One witness swears to the delivery of the goods, except what were charged in December, when he was in New-Orleans. The charge for that month was on|y seventy-five cents. De minimis non curat lex. This evidence satisfied the court below.

andAKrt^a^epa-proper'mode of proceeding, in the claim of acredi-torbehp?iSednon the tableau filed oy an adminis-Irator of an es-of^the^genera* issue on the part or the administrator, will let dence 'touching theciafmdlty of

Hyams, for the plaintiff,

suggested an error in the judgment, which was corrected, as follows:

' court below did not err, in our opinion, in disregarding the exception as to the mode of proceeding in the shape of .. . , . . , an opposition, instead of instituting a separate suit, the administrator having pleaded the general issue, and the evidence was properly admitted. 1 1 *

R is,' therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed; J ° * . . and proceeding to render such judgment, as ought m our opinion to have been given below, it is further adjudged and decreed, that the opponent be placed on the tableau as a simple creditor, for the sum of three thousand three hundred and forty dollars and twenty-three cents, to be paid in due course of administration, with interest at five per cent., if there be sufficient funds to authorize it; that his opposition, so far as relates to the note of the 7th September, 1831, be rejected, and the note cancelled, that the claim of the estate of Jeremiah Griffing be disallowed and rejected, and that the tableau, as thus amended, be homologated; the costs of the Court of Probates to be paid by the estate, and those of the appeal by the appellee.

Bullard, J., delivered the opinion of the court.

We are satisfied, on the re-hearing in this case, that the judgment first pronounced was erroneous, in rejecting in toto the claim of the opponent for the note of the deceased; that the judgment is therefore set aside, and the following pronounced in lieu of it:

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed; and proceeding to render such judgment, as ought in our opinion to have been given below, it is further adjudged and decreed, that the opponent be placed on the tableau as a simple creditor for the sum of three thousand three hundred and forty dollars and twenty-three cents, to be paid in due course of administration, with interest at five per cent., if there be sufficient funds to authorize it; that he be further put down as creditor for a balance on the note of the 7th September, 1831, of two hundred and thirty-six dollars and sixty-five cents, with interest at-ten percent., from July 20th, 1833; that the claim of the estate of Jeremiah Griffin g be •disallowed and rejected, and that the tableau, as thus amended, be homologated; the costs of the Court of Probates to be paid by the estate, and those of the appeal by the appellee.


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    TIPPET vs. JETT.
    westeun Dist.

      October, 1836.
    APPEAL FROM THE COURT Olí THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE SEVENTH PRESIDING.
    Where a lessee is sued for the rent, and has been in the undisturbed possession of the premises under a lease, he cannot contest the lessor’s title.
    So a lessee cannot avail himself of the purchase of the leased premises from other claimants. He entered as the lessor’s tenant, and his possession is that of the lessor, which he cannot change as to any part of the premises by the purchase of adverse titles.
    The court will correct an error in the finding of the j ury, as to the amount or sum found, when it can do so and not remand the case.

      This is an action instituted on a claim for rent. The plaintiff alleges that the defendant (J. M. Jett) is indebted to her, in the sum of eight hundred dollars, due for the rent °f a tract of land, from the 10th of March, 1830, up to the time of bringing suit, 21st October, 1833.
    The defendant pleaded a general denial, and averred that the plaintiff was without title to the land for which she claims rent. That her title is null, because she claims in virtue of a probate sale, which was made without legal authority.
    The defendant further avers, that as administrator of the succession of Tabitha Jett, to which this land then belonged, he rendered an account of rents to the Court of Probates, and also, the nett proceeds of the crop of 1830.
    He further shows, that the plaintiff is one of the heirs of said succession, and is entitled as such to one fourth of it; but he held this same land as administrator, under the order and appointment of the Court of Probates, up to 1832.
    He further avers, that he has become the owner of the portions of several of the heirs of Mrs. Jett, deceased, by purchase of the land in question, and sets up title to one half thereof. That the plaintiff is, in fact, indebted to him, both as.administrator, and since he became owner, in the sum of two thousand dollars, for which he demands judgment in reconvention.
    Upon these pleadings and issues, the cause was submitted for trial, before a jury.
    The plaintiff produced in evidence, the act under which she purchased the leased premises, at the probate sale of Mrs. Jett’s succession.
    Spurlock, witness for plaintiff, sworn, says, he had a conversation with the defendant, about the rent, and the latter offered to pay two hundred dollars for the land, per annum, if the plaintiff would withdraw a former suit, for rent then due. This was done, and the defendant afterwards refused. He made four crops after the probate sale, in 1830-31-32 and ’33. He left the place in the spring of 1834, and Mrs. Tippet (the plaintiff) has had possession since. That defendant promised to pay rent, at two hundred dollars per year, from the time he went there, until he removed from the place in 1834.
    Another witness says, the defendant gathered the crop of 1833.
    The defendant offered evidence to show title in himself, to a part of the leased premises, and that the plaintiff had no right or title.
    On hearing all the testimony, and the arguments of counsel, the jury returned a verdict for the plaintiff, for the sum claimed. From judgment rendered thereon, the defendant appealed.

      Flinty for the plaintiff,
    explained the case. He argued to show, that the evidence established th'e plaintiff’s claim for the entire amount of rent, due for the use of the land in question, during four years, at two hundred dollars per year.
    2. The plaintiff showed title, and that the defendant was her lessee. The rent which is charged and claimed, is but a fair compensation for the value of the property leased.

      Winn, for the defendant,
    urged that the latter was the owner of one undivided half of the rented premises. The claim for rent cannot, therefore, be sustained.
    2. The defendant had a right to set up title to the land, in an action for rent. If he is the owner of the land he is not bound to pay rent.
    3. The plaintiff held this very land, as lessee for two years, while it was part of Mrs. T. Jett’s succession. She has continued to hold and possess the premises in the same way, without any new agreement for a new lease, and must still hold, subject to the same conditions to pay rent. Her silence shows an assent to the same terms, &c. Louisiana Code, 1811, 2658.
   Martin, J.,

delivered the opinion of the court.

The plaintiff claims four years rent of a plantation, at the rate of two hundred dollars per year. The defendant pleaded the general issue, denied the plaintiff’s title to the leased' premises, and avers himself to be the owner, by purchase, from several part owners, of the plantation in question.

Where a lessee is sued for the rent, and has "been in the undisturbed possession of' the premises under a lease, he cannot’ contest the lessor’s title.

So, a lessee cannotavailhim-self of the purchase of the leased premises from other claimants : he entered as the lessor’s tenant, and his possession is that of the lessor, -which he cannot change as to any part of the premises, by the purchase of adverse titles.

The court will correct an error in the ñnding of the jury, as to the amount or' sum found, when it can do so, and not remand the case.

There was a verdict in favor of the plaintiff for the sum demanded, without prejudice to the defendant’s rights, as claimed and set forth in his answer.

The lease was proved, and the occupation of the leased premises by the defendant, during three years. He cannot contest the plaintiff’s title, as he had the undisturbed possession of the premises, under a lease from her. Neither can he avail himself of the alleged purchases, from other claimants or owners; as he entered on the land as the plaintiff’s' tenant, his possession was hers, and he could not change it, as to any part of the premises, by the purchase of adverse titles.

The plaintiff is, perhaps, entitled to the rent or crop, for the year 1833, but as it was not due, at the inception of the suit, it cannot be recovered in this action, and the rights of the plaintiff in regard to it, must be reserved.

It has appeared to us better to correct the error into which the jury has fallen, than to occasion delay and expense by remanding the case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and proceeding to give such judgment, as in our opinion ought to have been given in the court below, it is ordered, adjudged and decreed, that the plaintiff recover from the defendant, the sum of six hundred dollars, without prejudice to the claims set up by the defendant, in his answer, with the costs in the District Court, and that she pay those of the appeal.