author: Slidell, J.

text:
    Farrar et al. v. Stacy.
    The title of one who purchases property, sold under execution issued on a judgment from which a devolutive appeal had been taken, will not be affected by the reversal of the judgment*
    Allegations in a petition, signed by one as the attorney of a third person, inconsistent with claims set up by him in an action in his own name, commenced on the same day, will estop him from recovering.

      Appeal from the District Court of Concordia, Gurry, J.

      T. P. Farrar, J. Dunlap, Thomas and O. N. Ogden, for the appellants. Stacy and Sparrow, for the defendant.
   The judgment of tho court was pronounced by

Slidell, J.

This is a petitory action for a slave, and the plaintiffs also claim the value of the slave’s services during the alleged wrongful possession of the defendant. The plaintiffs purchased the slave of one Spencer, on the 16th June, 1841, and the act of purchase was duly recorded. At the time of the purchase, this slave, with fourteen others, was under attachment in the suit of Briggs, Lacoste & Co. v. Spencer, and this fact was stated in the act of sale. Subsequently there was a judgment for the plaintiffs in the -.attachment, with privilege upon the slave; the judgment was assigned to one Reynolds; execution was issued, and the slave was sold under execution to Reynolds, who received possession, and leased the slave to the defendant, Stacy. Stacy disclaimed ownership, and Reynolds was made a party defendant. The cause was tried by a jury, who gave judgment in favor of the defendant Reynolds, and the plaintiffs have appealed.

If it be conceded that Reynolds, as assignee of the judgment, is to be considered as standing upon the same footing as though he had been the original plaintiff in the cause, still we are of opinion that the title vested in him was not affected by the fact that, upon the devolutive appeal taken in the case of Briggs, Lacoste & Co. v. Spencer, the judgment upon which the execution issued was reversed. That pointis settled by the cases of Baillio v. Wilson, 5 Mart. N. S. 219, and Williams v. Gallien, 1 Rob. 94.

But it is contended that the sale did not vest a good title in Reynolds, because -the formalities of the law were not observed — that the sale was not preceded by proper advertisements. The plaintiffs in this cause were the attornies at law of Spencer, in the suit of Briggs, Lacoste & Co., during the pendency of which the sale was made to them by Spencer, subject to the attachment. On the same day upon which the plaintiffs instituted this action, claiming the ownership of the slave and damages for the loss of his services, they also instituted, ,as the attorneys at law of Spencer, an action against Stacy, the surety on the •attachment bond of Briggs, Lacoste & Co. In this action, Spencer claims damages for the wrongful issuing of the attachment. He alleges title in himselh during-the pendency of the attachment of the fifteen slaves therein attached, snaking no exception whatever with reference to the slave now in question ; he .also alleges that this property was injured by the carelessness of the sheriff; that the price at which it was sold under execution was not equal to one-fifth of its value, at the time it was taken from his possession by the sheriff; and that damages to a large amount were sustained by the deprivation of the use of the property pending the attachment. The damages are laid at $17,500, and, although vaguely stated, are evidently intended to cover the loss of the use and services, and the injury arising from the attachment and judicial sale of the entire property attached, of which the slave now in question formed a part. This suit of Spencer, brought by the present plaintiffs as his attornies, is an affirmance by him of the judicial sale, and is manifestly inconsistent with the present action, and with the allegations of title, and of a right in these plaintiffs to recover for the lost services of the slave. The two actions, so far as this slave is concerned, cannot be maintained, and the allegations made in Spencer’s petition over the signature of the plaintiffs as his attorneys at law, are an estoppel in this suit. Judgment affirm.ed.


source: Caselaw Access Project

license: Public Domain

text:
    Dunlap v. Hundly.
    •The provisions of the Code of Practico, art. 746 et seq., authorizing the summary execution of foreign judgments, must he construed strictly.
    An orderof seizure and salo, obtained on a foreign judgment purporting to have been rendered on the confession of the defendant made through his attorney, willbe enjoined, where the transcript of the foreign record has a suspicious appearance on its face, and where, though .the plaintiff in injunction denied under oath the authority of the attorney to confess a judgment for him, and swore that he never abandoned his defence, no evidence is offered to disprove his allegations.
    APPEAL from the Pistrict Court of Madison, Curry, J. The plaintiff enjoined an order of seizure and sale obtained by the defendant Hundly, against the plaintiff, on the record of ajudgment rendered in Mississippi. The petition charges in substance : That in the winter or spring of 1837, the petitioner purchased ?■ negro man, Henry, from Thomas Hundly, a negro trader, who had brought said negro from the State of Virginia to the State of Missis T sippi, for sale as merchandize: that the sale and purchase of the slave was made in Mississippi: that said slave was brought into the State of Mississippi for sale, and sold to him afar the adoption of the present constitution of that State, which petitioner ayeys prohibits the introduction and sale of slaves introduced for sale: that he purchased said slave for a house servant, the vendor representing him as sober and honest, when he knew him' to be an inveterate drunkard, and that he had been sold to him in consequence of his intemperate habits: that he made to David Hundly his note for $1,800, payable four mouths after-date, for. the price of said slave: that at the maturity of his note he refused to pay it, on the ground that the slave was not such as he had been represented, and was wholly unfit for the purpose for which he had been bought: that suit was brought on tho note, in which he filed a plea in person, expecting to be relieved from the payment on two grounds; first, because a fraud had been practiced on him in the sale of the negro, in representing him as possessed of steady and temperate habits: second, because the sale was'a nullity, being made in direct violation of the constitution of Mississippi: that after suit was commenced, pe? titioner sent the slave to Hundly, who look him back and kept him, only .crediting the .note with $1,400: that at the September term, 1840, some person representing himself ;ys the attorney .of the petitioner, withdrew the plea filed by him in said suit, thereby depriving him of the means of making his defence : that he never authorised the withdrawal of his plea; that at that term a judgment was rendered against him, without any plea, for the sum of $394 : that at the June term 1842, said judgment was altered and rendered against him for $753 40: .that said suit was brought in the name of David JV. Hundly for the use of 1'homas Hundly: that Hun/dly has obtained an order of seizure and sale on said judgment, which the petitioner avers is void, being rendered on a void noté: that the demand is unjust: that the order of seizure and sale issued illegally on the record of ajudgmentwithout plea filed.” The petition concludes With a prayer, that the injunction may be perpetuated and for general relief.
    The defence is: 1. That the affidavit is insufficient, not being positive and Unconditional. 2. That the judgment was rendered after issue joined, is pror perly authenticated, and cannot be enquired into. 3;. That the' plaintiff cannot set up fraud or new matter, the judgment having been rendered after appearance and issue j oined. 4. That the allegations of the plaintiff are not correct.

    A witness proved that the note was given for the price of the slave Henry, the property of Thomas Hundly : that the note was handed to Hundly shortly after the sale: that he sold the slave to Dunlap as the agent of Hundly, in the State of Mississippi, for §1,800, and took the note for the payment of the price: that Hundly was a negro trader at the time, and told witness he had bought the negro from Virginia, and brought him to Mississippi, with many others, for sale. That he was brought to Mississippi a few weeks before the sale to Dunlap. That plaintiff returned him to Hundly, who said he would take him back, and sue the man he got him from, for damages.
    Snyder proved that he was a licensed lawyer in Mississippi, and that by the laws of that State, under the general issue, the defendant could have shown, that the note sued on was given for the purchase of a slave, that the slave was afflicted with a redhibitory malady, and had been introduced into the State for sale as merchandize, and was sold in violation of the constitutional prohibition. The injunction was perpetuated and the defendant appealed.

      Thomas, for the plaintiff.
    The first ground of defence is untrue in fact. The second and third grounds are substantially the same. Neither are true in factor in law, if “ after appearance and issue joined” means ‘■'■upon appearance and issue joined,” and is not a mere play upon words. The contestatio litis is formed by an answer or judgment by default, and is the foundation of the suit. B. and S. Dig, 509, E. 1, and cases cited. The record shows that the case was put at issue by the plea filed by the defendant in person, and that some one, representing himself as of counsel, withdrew the plea, destroyed the issue, and suffered judgment to go against the defendant. The present petition shows that the defendant in that case appeared in person, and that his plea was withdrawn and judgment taken, without, his knowledge, authority or consent, when he had reason to suppose the suit was at an end by the return of the slave. The affidavit annexed to the petition verifies the truth of the facts stated therein, and throws upon the defendant the proof of authority in the attorney to represent Dunlap in withdrawing his plea, destroying the issue made by him, and thus depriving him of his defence. 9 Mart. 88. 12 M. 70, 255. None was attempted. Miller v. Gaskins, 3 Rob. 94. A judicial confession can only be made by the party, or by one specially authorised by him. Civil Code, art. 2270. 8 Mart. N. S. 547. 6 La. 296. .What the law of Mississippi is on the subject is not shown, and it will be presumed to be the same as ours. This presents a stronger case than that contemplated in article 747 of the Code of Practice, as ground for an injunction. Here there was not eyen a judgment by default, to form a constructive contestation on which to rest a judgment. Article 749 authorises an injunction to restrain the execution of an order of seizure and sale, issuing upon a judgment rendered by “a tribunal other than of this State,” for any of the “causes which prevent the sale of property mortgaged, or otherwise bound by virtue of an act importing a confession of judgment.” Article 739 declares that: “The debtor can arrest the sale of things thus seized, by alleging some of the following reasons, to wit: that the debt has been extinguished by transaction, novation, or some other legal manner jtljat it w.as obtained by fraud, violence, fear, or some other unlawful means.”
    The plaintiff alleges in his petition, and has proved that the debt was extinguished by the transaction, in returning the slave, and that the judgment was obtained by surreptitiously withdrawing his defence. The thing adjudged can only take place between parties, upon a contestation “formed ” between ¡them, either express or implied. Code Prac. 357 to 360. C. C. art. 2265. B. and S. Dig. 509, E. 1. 2 Peter’s Dig. 544, note 29.
    The judgment was subject to the equitable revision of a court of Chancery in Mississippi. It c.an have np greater effect here. If the door was open to relief there, it is here. Qur courts possess all the power necessary to give relief, although our system of juresprudence differs in the form of reaching and applying the remedy. Courts of equity will always relieve against judgnjonts at law,. unfairly obtained. 1 Story’s Eq. ss, 32, 82- A fortiori when it is not only unfairly obtained, but upon an unlawful cause. They will not ordinarily relieve against judgments at law, where the defence might have been made full and complete, but was not, owing to the fault, or neglect of the party applying for their aid. Dunlap had done all he was bound to do. He made his defence in person; rescinded the contract of sale and jiurchase by the return of the slave; and extinguished the note by the transaction.
    The judgment of a State court, has the same credit &c. Conklin, 241-2. 2 Peter’s Dig. 544, sec. 2. Whatever plea could be pleaded to it in such State, can be pleaded to it in an action on it in another State, and none other. 3 Wheaton, 234. 4 Cowen, 243. That such is strictly the law, where a distinction is recognized between the redress which is afforded at law and in equity is clear. But under our system, where no such distinction is recognized, tho rule would defeat the ends of justice, and enable a party to enforce a judgment here that equity would relieve against in the State where it was rendered, unless our courts interpose thoir equity powers, or hold the judgment of another State to conclude the parties only when rendered in the last resort upon a full hearing. Why drive a party, when proceeded against here upon a foreign record, into the court of Chancery where the judgment was rendered, for relief which the equity powers of our courts can as well afford. Civil Code, 21. 1 Story’s Eq. ss. 14, 26 to 33, 59.
    The fourth and last ground of dofonce isa general denial. The plaintiff relies upon two grounds to maintain his exemption from liability to pay the note, which was the foundation of the action in Mississippi: 1. Thatthe note was extinguished by transaction, in cancelling the sale and surrendering the slave, for the purchase of which it was given. The evidence of M'Kouen, the agent who made the sale, is full upon this point. The inducement to cancel the sale, witness shows, was the intemperate habits of the slave, I-Iundly declaring he would sue his vendor in Virginia for damages. 2. That the note was given for the purchase of a slave, introduced and sold to him in violation of the constitutional prohibition of Mississippi. The second section, title slaves, of the constitution of Mississippi, prohibiting the introduction of slaves for sale, as merchandise, after May, 1833, is in evidence. The witness proves that the slave Henry, with many others, was introduced into the State of Mississippi, and sold in violation of this prohibition.
    The Supreme Court of the State of Mississippi, in the case of Bryan v, Williams, 5 Howard’s Reports, and this court in the case of Cotton v. Bryan, 6 Rob. 115, have decided that all contracts made for the sale and purchase of slaves introduced into the State of Mississippi for sale, and there sold after May, 1833, are null and void, and that they will not lend their aid to enforce them.
    It is alleged in the petition, and shown by the record, that at the September term, 1840,Dunlap’s plea was withdrawn, and judgment taken against him for $394. That at the June term, 1842, without notice of any kind, in the name of correction, the judgment was altered or amended, increased and entered for $753 40.
    "Which is the proper judgment 1 Certainly, if either, the first. The order of seizure issued on the last. Code of Practice, 546, 547, 548. 6 La. 69. 12 Mart. 558.
    After a judgment is once rendered, the party against whom it was rendered, is po longer, after the close of the term, presumed to be in court.

      Amonett, for the appellant,
   The judgment of court was pronounced by

Slidell, J.

Hundly had obtained an order of seizure and sale on a judgment recovered against Dunlap in Mississippi. Dunlap thereupon filed his petition for an injunction, in which he avers, under oath, that a plea which he had filed to the merits in the suit in Mississippi had been fraudulently withdrawn, and a confession entered without his authorization. He then sets forth various grounds of defence which he had against the action, and avers the note upon which the suit in Mississippi was brought to have been void under the constitu. tion of Mississippi, in which State it was made. An injunction was obtained, commanding the sheriff not to proceed with the sale of the property, until the further order of the court. After trial the order of seizure and sale was an-' nulled, and the injunction was perpetuated. Hundly appealed.

The record of the suit in Mississippi shows that Dunlap first filed, by his attorney, a plea of the general issue. The record then- sets forth that his attorney-appeared at a subsequent term, withdrew the plea and confessed the'j ust-iee of the’ plaintiffs claim, upon which judgment was entered against Dunlap for $394 and-costs. Upon this judgment there was-an execution, and return of nulla Iona.

About two years subsequent to the rendition of the first judgment, and after' the return of the execution, an application was made by motion to correct the' judgment theretofore rendered for $394, upon a suggestion that the same1 should have been for $753 40. It is stated that the defendant having had notice’ of this motion, the judgment was thereupon amended, and it was decreed “that the plaintiff recover of said defendant the sum of seven hundred and fifty three dollars, forty cents, with interest from the — day of October, 1840, the date of rendition of said judgment originally recovered in said court, and also costs of suit.-’

There is something very extraordinary and suspicious on the face of this record ; and although the plaintiff in injunction has denied under oath the authority of the attorney to confess judgment for him-, and swears that he never abandoned his defence, no evidence to the contrary, except the record itself, has been adduced.

We have not been assisted with any testimony to show what faith and credit would be given in Mississippi to a record, which varies so materially not only from the forms and mode of proceeding adopted in our own courts, but from what we have supposed to be the practice at common law. It is our duty to construe strictly the provisions of our Code authorizing the summary execution of foreign judgments; and litigants who choose that remedy must bring themselves fully and unequivocally within its requisitions. See Miller v. Gaskins, 3 Rob. 94. 8 Martin, 236. Judgment affirmed.


author: Rost, J.

text:
    Ledbetter v. Ledbetter.
    A son cannot recover from the succession of his mother any compensation for services rendered by him during his minority, as an overseer on an estate belonging to the community, in the absence of proof of any promise of payment by the head of the community; nor will an acknowledgment of his claim made by the mother, after the death of the father, be binding on her, oronherheirs. Per Curiam: Dot-the services rendered by the son during the minority there could be no debt, and the acknowledgment of a debt which had no existence, is not binding on the mother or her heirs.
    APPEAL from the Court of Probates of Carroll, Harris, I. This suit was brought to recover $4,500, the half of plaintiff’s wages as overseer for nine years, at $1,000 a year, for services rendered on a plantation owned in community by the defendant, plaintiff’s mother, and her late husband. The petition states that the community property had been divided between the defendant and the heirs of her deceased husband, and that the defendant expressly assumed to pay the plaintiff one half of his wages, to wit, the sum sued for; that he has in vain demanded payment, &e, The defendant pleaded to the jurisdiction of the court, and a general denial. She died pending the suit, and the case was transferred to the Court of Probates, James Ledbetter, administrator of the deceased, appeared to defend the suit, and tiled his answer, adopting the original answer.
    From the evidence, it appears that the defendant repeatedly acknowledged plaintiff’s claim.
    There was judgment in favor of the plaintiff for $2,416 66, that is, the half of his wages, from the date of his majority in March, 1832, to 1836. From this judgment the plaintiff appealed.

      Prentiss and Finney, for the appellant.
    It is contended that the original defendant, the mother of the plaintiff, was entitled to his services until the age of majority, and therefore her promise Was nudum pactum. By what law or code' of laws is the mother entitled to the services of her child during his minority? In the absence of any law on the subject, we should rather think the mother was bound to educate the child according to her position, and that it was her duty to do so, instead of having a right to subdue him to hard toil, and thus deprive him of all opportunity of improvement. According to the roman law, the father had a right to the acqusitions of his son except the pecuVmm castrense; but in the time of Justinian the law was changed, and it was ordered that the proceeds of the son’s labor should be entirely his own, reserving the usufruct thereof to the father in certain cases. Vide 2 Domat., Eng. Ed. 644. By the Spanish law, the proceeds of the son’s labor belonged to the son. 1 Moreau & Carleton’s Partidas, 558. Partida 4, title 17, law 5. Neither by the roman nor the Spanish law had the mother any right to the labor of her child. Our Code is silent as to the right of either father or mother to the labor of the child, and until this case we have never heard of such a pretension. By the common law, the father was entitled to the labor and services of his child; and this principle of the common law, we presume, suggested his defence to the counsel of the defendant. But at common law the mother had no such right. 1 Black. Comm. 453. 4 Binney, 487. Nor are we aware of any law or code of laws that gives the mother the right to the services of her child. At common law, if a father relinquish to his child the proceeds of his labor, the son is absolutely entitled to the same even against the father’s creditors. 12 Mass. 375. 6 Conn. 547. 5 Verm. 556. So also at common law, if the father receive the proceeds of the' son’s labor, and in consideration thereof make any promise to the son,' the consideration is good in law to support the promise. 12 Mass. 375. And there can be no doubt that even if the father or mother be entitled to the labor of a minor child, and yet agrees to pay the child for his services, the receipt of benefit from the child’s labor, in connection with a concurrent promise of remuneration, will impose a natural obligation on the parent that will support any subsequent promise. La. Code, 1750, 1751.
    We have argued this question as though it were properly presented by the record, but are satisfied; that, even if the défence be a good one, it should have been specially pleaded, and that evidence in the record cannot cure the want of a plea. It is one of those unconscientious defences which, like prescription-must be pleaded, and, however patent upon the record, the court will net supply.

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

Rost, J.

The plaintiff claims from his mother, as common in acquéts and gains with the heirs of her deceased husband, the sum of $4,500, for one half of his services as overseer on a plantation, for the period of nine years, during part of which he was a minor. The petition alleges, and it is proved, that, in the act of partition between the heirs and the defendant, and at divers times since, the said defendant acknowledged the claim to be due. The defendant filed a general denial, and the pl'ea of prescription. After issue joined she died, and the suit was removed the court of Probates, and revived' against her ad-ministrator. The court below allowed the plaintiff the wages claimed by him, from the time he became of age, and he has appealed.

There is no error in the judgment. The father of the plaintiff was living during his minority and owed him no reward for services rendered till he became of age, if any such services were ever rendered, which is not shown. The plaintiff shows no promise from the head and master of the community, and his pretended legal lights are incompatible with the paternal power. “ Quando filius de mandato patris negociatur, ñeque hoc casu aliquod safarium debebitur filio.” Gregorio Lopez, on the law 5, tit. 17, Partida 4.

For the services rendered during minority there could be no debt, and tbe acknowledgment of an obligation which had no. existence is not binding upon the defendant, or her legal representatives.

The judgment is affirmed with costs in the court below, the plaintiff afld appellant paying, the costs of this appeal.


text:
    Harris v. Patten et ux.
    The fact that the subscribing -witnesses to an act sous seingpriv é reside ohf of the State, will not dispense with the necessity of proving the signature, or ordinary mark, of the party.Proof of the signature Of the'subscribing witnesses is not enough. C. C. 2241.
    Appeal from the ÍHstrict Couit of Carroll, Curry, J.

      Selby, for the appellant,
    cited Greéníeaf on Evidence, p. (ill, ss. 574, 755. McPherson v. Rathbone, 11 Wendell, 98, and same' volume, p. 123. Jackson v. Waldon, 13 Wendell, 196. Chitty on Bills, 379, 380. In the case of Dismukes v. Musgrove, 7 Mart. N. S. 58, there was no proof of any inability to prove the signature of the obligor, and that was á written signature; here the party only made his mark.

      Stacy and Sparrow, for the defendants.
   The judgment of the' court Was pronounced by

Rost, J.

There was a judgment of non-suit in this casó, because' the plaintiff, claiming under a private act alleged to have been' signed with an ordinary mark in presence of two witnesses, who are living and reside out of the State, failed to make proof of the signature of the party, and only proved the signature of the subscribing witnesses-.

We adhere to the rule laid down in Dismukes and others v. Musgrove, 7 Mart. N. S. 58, and since recognized in Tagiasco et al. v. Molinari's Heirs, 9 La. p. 530. When a signature is disavowed art. 2241 of the Civil Code requires it to be proved by witnesses, or comypai ison of hand writing. Proving, the signature of the subscribing witnesses, satisfies neither of these requisitions.

The witnesses in this case reside in North Carolina, and appear to be well known to the plaintiff. It was easy for him, under our rules of practice,, to annex the document he wished to prove to a commission, and to procure their' evidence of its execution. The nature of the proof resorted to by the plaintiff is so uncertain and dangerous, that courts of justice ought not to notice it> whenever it is shown that better evidence exists. Judgment affirmed.-


text:
    Boyd v. Brown.
    Acarpcnter employed to do certain work on a house belonging to two partners, in which they kept a grocery and billiard table, when the work was nearly finished purchased the interest of one of the partners, and finished the work afterwards. Held, that he might sue tho other partner for his proportion of the price of the work; and that it is not necessary that ho should sue for a settlement of the partnership accounts, the work not being a partnership transaction.
    APPEAL from tlis District Court of Carroll, Guriy, J. The plaintiff alleges that he performed work worth Si,010, on a house owned by the defendantand himself jointly; and that the defendant had agreed, and expressly promised to- pay half of such a sum as the work was fairly worth ;• that nevertheless he had refused, <fce.
    The defendant excepted that the suit was for a specific item of an unsettled-partnership account. This exception was overruled.
    The testimony establishes that while the house belonged jointly to Bell and the defendant, they agreed to divid e equally the cost of the work which the plain-tiff was employed to perform. With this understanding, the plaintiffhad almost completed the job, when he purchased Bell’s undivided share of the house, assuming in every respect Bell’s position as joint owner. The work was then-completed by the plaintiff. The defendant appealed from a judgment against him.

      Prentiss and Finney, for the plaintiff.
    The house upon which the work was-done was not partnership property. The plaintiff and defendant were joint owners as to the house, not partners. The plaintiff’s claim, therefore, for half the work done on the house, was not a specific item-of an unsettled partnership, account. The deeds introduced in evidence show that each purchased a moiety individually, and if they had taken the title in the name of the firm, they would still have been joint owners each of an undivided-half. Civ. Code, arts. 2777,. 2807. 3 La. 494. 17 La. 596.

      Selby, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is a carpenter by trade, was employed to do some work on a house, belonging, at the time, to the defendant, and one Bell. Who® the work was nearly finished, he purchased the undivided half of Bell. The act of sale also contains the sale of the undivided half of a billiard table, and of the furniture and contents of a grocery shop, then in the house, the other half of which belonged to the defendaut. The plaintiff continued to work as before on the house, and now claims from the defendant one-half of the value of tho work done and of the materials furnished by him.

The defendant excepted- to the action on the ground that, after the plaintiff’s purchase, they kept the grocery shop in partnership; that the house and grocery belongiug alike to the partnership, the only action which the plaintiff can maintain is one for a settlement of accounts. This exception was properly overruled. Most of the work was done' by the plaintiff before the date of his-purchase, and is, in no sense of tho word, a partnership concern. The defeat dant is not a carpenter, and has no right to enrich himself by the plaintiff’s labor The court below rightly decided that ths partnership concerns, if any there be; could not be settled in this suit-

The case was tried before a jury, wlio gave a verdict in favor of the ¿plaintiff’, and there is nothing in the judgment which requires our interference.

Judgment affirmed,.


author: Rise, J.

text:
    Hood v. Stewart.
    'Trespassers cannot call in warranty persons under whoso authority'they act, and relieve themselves from responsibility by substituting the latter in their places.
    , -Uninterrupted possession as owner, for more than a year, will exempt the party from liability in damages for acts of ownership done while such possession continued; and in such a case, an agent of the party in possession cannot be made li able for acts which his principal might have done without subjecting himself to damages.
    Appeal from the District Court of Carroll, Curry, 3.

      Selby, for the appellant.

      Stockton and Steele, for the defendant.
    A trespasser maycall in warranty the .party under whose authority he acted. Larchev. Jackson, 9 Mart. 424. 8 Ibid, N. S. 468.
   The judgment of the court was pronounced by

Rise, J.

This is an action of trespass, in which the plaintiff complains that his enclosures have been torn down and removed from his land by the defendant, from whom he claims remuneration in damages. The defendant admitted .that he had removed the fencing, but averred that, at the time of the removal, -it stood upon land in the possession and forming a part of .-a plantation owned by Robert Stewart, whose agent he was', and by whose order the act was done, and prayed that Robert Stewart might be cited to defend the suit. The right of the ■defendant to call his employer in warranty was resisted by the plaintiff. .His -opposition was overruled, and he excepted to the opinion of the judge. R. Stewart filed an answer, in which he avowed that the acts of the defendant were .done by his direction, and averred that, under the belief that he was the proprietor of the land on which the fencing stood, he had cleared forty -acres of the tract, enclosed it, and constructed ninety rods of levée upon it, for which, as a ■possessor in good faith, he was entitled to be remunerated; and he prayed a judgment for the value of these improvements. The cause was tried by a jury ¡who rendered a verdict in favor of R. Stewart, for the .value of his improvements; .and the plaintiff has appealed.

The court erred, in our opinion, in permitting Robert Steioart to be called in warranty, for such, in effect, was the defendant’s plea, and in allowing him, when so called, to set up a reconventional demand. Parties .sought to be rendered liable as trespassers, are not permitted to escape from the responsibilities con. sequent upon their acts, by pleading, in defence, the authority of third persons. 8 Mart. N. S. 549. The call in warranty being-unauthorized in actions of this character, Robert Stewart became improperly a party to the suit, and his answer with the issues its presents, must be disregarded in the present litigation. Our inquiry must be confined to the controversy between the plaintiff and the defendant, S. M. Stewart. It appears from the evidence, -that Robert Stewart is the proprietor of a plantation adjoining the land on which the enclosures in controversy stood. Several years previous to the alleged trespass, he cleared, enclosed, constructed levees on, and put under cultivation, about twenty-five acres -of the plaintiff’s Innd, of which he held uninterrupted possession up to the monient that the fencing in question was removed from it. This possession, which had continued-for more than a year, created such a legal presumption of ownership, as would have protected him against a possessory action. It so far legalized his possession, as to authorize him, during its continuance, to exercise acts .of ownership without exposing himself to an action of damages; otherwise the protection given by lajy to such ownership would be nugatory. The plaintiff .could only have proceeded against him in a petitory action for the recovery of the land; and, in that action, the respective claims of the parties for improvements and rents, could have been adjusted, Code of Prac. art. 58. 13 La. 396. We ,are clearly of opinion that the plaintiff co.uld not have maintained an action against Robert Stewart, as a trespasser, for the alleged act. Tho defendant was the agent of R. Stewart, holding possession and managing .the property for lffm, 9-nd .could perform every act of ownership in relation to it, permitted to his employer, •with equal exemption from an aqtion of trespass.

It is therefore ordered that the judgment of the District Court be reversed, and the verdict of the jury set aside. It is further ordered that the plaintiff’s .demand be rejected, and his suit dismissed; that h.e pay the .costs of the loyvej.’ ¿court; and that the appellee pay the costs of this appeal.


author: Slidell, J,

text:
    Wood et al v. Henderson.
    Where the record shows that .the judgment of the lower court was rendered on an exception to the petition, on the ground of the insufficiency of the allegations to authorize the issuing of the injunction prayed for, and that the exception was overruled, the judgment may he examined on appeal without any formal assignment of errors. Per Curiam: This is noy such a case as is contemplated by art. 897 of the Code of Practic.e.
    Allegations in a petition for an injunction against an order of seizure and sale issued on a foreign judgment, that the petitioner was uot cited in the foreign tribunal, and that the attorney who entered an appearance amffiled an answer for him had no authority to do so, are sufficient grounds for relief.
    When an exception to the sufficiency of the ground for an injunction is overruled, the oourfc cannot proceed at once to pronounce a final judgment in favor of tho plaintiff. The defer?, dant is entitled to file an answer, and put at issue the allegations on .the petition.
    Appeal from the District of Carroll, Curry, J,

      Pepper, Browder and Garland, for the appellants. Thomas and Finney, for the defendant.
   The judgment of the court was pronounced 'by

Slidell, J,

'í'he plaintiffs obtained an order of seizure and sale upon ,a judgment rendered in the United States Circuit Court in Mississippi, against Henderson and others. That judgment was obtained in a suit upon a promis? ,sory note drawn by “ B. Hardison & Co. in liquidation,” of which firm it was .alleged that Henderson was,a member. The record exhibits an appearance in the case .by Henderson and the other defendants, through an attorney at law.

Henderson obtained an .injunction restraining this order of seizure and sale. He alleges, among other things, that the party who thus signed the name of the firm “ in liquidation,” was unauthorized so to bind the firm, which was dis? solved before the making of the note ; that he was never legally cited in that suit; that the attorney at Jaw who made an appearance for him had no authorijty to do so; and that he was not legally represented therein. He prayed for ¿damages for the alleged illegal seizure of his property, that the injunctio.n made perpetual, and for general relief. Thereupon the seizing creditors moved for the dissolution of the injunction. The motion was filed in writing, and set forth various grounds, all based upon the alleged defectiveness of the allegations of the petition. It was in effect an exception to the petition of injunction, as not exhibiting any lawful grounds for the issuing of the injunction and the relief prayed for: it was endorsed as an exception by the clerk, and was so •styled in the judgment of the court below.

The court below overruled the exception, and, at the same time, “ by reason .of the law and the evidence,” gave final judgment in favor of Henderson, rendering the injunction perpetual, and thus finally concluding the rights of the parties. The clerk certifies that the record contains all the evidence on which the cause was tried, but the record exhibits no statement of facts. The defendants in injunction appealed, and the appellee has moved to dismiss this .appeal upon the ground that, there is no statement of facts, bill of .exceptions, .special verdict, nor timely assignment in this court of errors apparent on the face of the record.

The record and proceedings certainly exhibit a very confused, and, in some respects, contradictory aspect; but after carefully considering them, we cannot concur in the proposition asserted by the appellees, that this cause was tried on the merits. Our .opinion is that, the case was tried on the motion or exception, and that the confusion has arisen from the ignorance of the clerk in treating the trial of the exception as a trial pn the merits.

The exception having been overruled by the court below, we are permitted to consider it and the decree of the court upon it, without a formal assignment ,o.f error. This is not such a case as is contemplated by article 897 of the Code of Practice. The exception was, that the petition exhibited no legal grounds for an injunction and relief as prayed for. The petition, exception and judgment thereo.n.are fully presented by the record, and if a mere bill of exceptions c.an be examined in this court without filing an assignment of error, the matter in question is certainly open to consideration without that formality.

This brings us to the enquiry whether the exception was properly overruled. The exception, for the purposes of its trial, admitted the truth of the allegations of the plaintiff irf injunction. There is one allegation, which, if true, -would entitle the latter to relief. He was not cited in the cause, and if the •attornies at law who entered his appearance and filed an answer for him had no ■authority to do so, the judgment against him is void. We deem it unnecessary, at the present time, to consider how such an authority may be conferred, or ■to pass upon the other questions raised upon the face of the petition.

We are of opinion, therefore, that the petition for injunction did exhibit sufficient ground for relief, and that the exception was properly overruled. But this did not justify the court below in proceeding further, and rendering, upon .the exception, a final judgment in favor of the plaintiff in injunction. Upon the dismissal of the motion or exception, the defendants in injunction were entitled to file an answer in the cause, and put at issue the allegation of the plaintiff’s petition.

It is therefore decreed that so much of the judgment of the court below as dismissed the motion or exception of the defendants in injunction be affirmed, ■and that said judgment, as to the residue thereof, be reversed, and that this ¡cause be remanded for further proceedings according to lavy, the. said Hender¡áoít paying the costs of this appeal.


author: SiADEim, J.

text:
    Spencer v. Knowland.
    On an •application for executory process on a foreign judgment, which is silent as to interest, plaintiff cannot, by producing an authenticated copy of a statute of the State in which the • judgment was rendered authorizing execution to issue on such a judgment for the principal with interest at a certain rate, obtain an order of seizure and sale for more than the principal sum. The court cannot look beyond the foreign record itself. Per Curiam; A proceeding by which Che property of a party is summarily seized and sold, without citation, is one of great severity, and cannot bo extended beyond the cases for which it was expressly and clearly provided.
    APPEAL from the District Court of Madison, Curry, J. The defendant appealed from an order of seizure and sale granted, on the transcript of the proceedings in a suit in which judgment was rendered in Mississippi. The original judgment was silent as to interest; but the plaintiff offered in evidence an authenticated copy of a statute of Mississippi, authorizing .execution to issue on such a judgment, for interest at eight per .cent a year. The court below authorized an order of seizure and sale to be issued in favor of the plaintiff for the principal sum, with interest at eight per cent a year from the date of the judgment, till payment. The defendant appealed from a judgment overruling a motion to set aside the order of seizure and sale.

      Dunbar, Hyarris, and Elgee, for the plaintiff.

      Shannon, for the appellant.
    The judgment in Mississippi does not show that plaintiff was entitled to any interest. Nothing is said of interest in it; and the judge had no authority to take any proof whatever in relation to interest, or to take cognisance of any matter dehors the judgment rendered in Mississippi. He could only direct the judgment of a foreign court to be executed as he finds it in the record presented to him; if the judgment gives interest, he can do so; if not, he cannot. Code of Pract. art. 746.
   The judgment of the court was pronounced by

SiADEim, J.

This is a proceeding by executory process upon a judgment obtained in the State of Mississippi. The judgment itself made no mention of interest, and under our law would be considered as not bearing interest. The plaintiff averred in his petition for executory process, that, by the law of Mississippi, such a judgment bore interest at the rate of eight per cent per annum from its rendition, and he annexed to his application for the order of seizure and sale, a copy of a statute of Mississippi passed at a time several years anterior to the date of the judgment.

The proceeding by executory process, by which the property of the defendant is, without citation, summarily -seized and sold, is one of great severity, and should not be extended beyond the cases for which it is expressly and clearly provided. The Code of Practice gives a creditor who has obtained a judgment in another State of the Union, the right, which we believe is granted by the legislature of no other State, of obtaining instant execution in our courts, without the citation of the debtor, upon presentation of a duly authenticated copy of the foreign record. But the record alone is spoken of in the Code as the basis of the proceedings. The legal import of the record, under our law, was, as we have said, that the judgment bore no interest. Of a foreign statute, the judge could not take judicial notice. But he was called upon, ex parte, to receive evidence of the foreign law in the form of an authenticated statute of Mississippi, and give judgment of seizure and sale for the amount of the judgment and interest from its date, at the foreign rate. This, in our opinion, he could not do. Under the provisions of the Code, he had no authority to look beyond the authenticated foreign record to ascertain its legal effect. If the plaintiff was not satisfied with a decree of execution for the principal sum stated in the judg-' ment, the court was open to him for a proceeding in the ordinary mode by citation. We may also add that, it is true that the authenticated statute of Mississippi, exhibited with the foreign record, and passed many years before the' date of the judgment, established a rate of eight per cent; but non constat by the certificate appended to that statute, that it was in force at the date of the judgment; and we are not prepared to say that, in an ex parte proceeding of this sort, the matter should have been left upon a legal- presumption. The principle, so frequently recognized in our decisions, is one from which We are not disposed to depart, that all remedies by whieh, on ex parte orders, the property of a defendant is taken out of his hands, must be strictly construed. The motion to set aside the order of seizure and sale should have been sustained.

It is therefore decreed that the judgment of the court below be reversed, and the petition dismissed, with costs in both courts.


author: Kusra, J.

text:
    Le Blanc v. Nolan.

    Although in actions of trespass the enquiry is restricted exclusively to the questions of possession, and of the damages resulting from the injury complained of, yet, where the defendant asserts an adverse possession, the title under whieh he holds is admissible in evidence in support of that possession. This production of title does not authorize an adjudication upon the question of property, but is admissible to show the beginning and extent of the possession.
    When, from inadvertence, or other cause, a plaintiff has failed to offer all the evidence on which lie relies for a recovery, it is discretionary with the judge, even after the evidence for the defence had been closed, to permit the deficiency to he supplied, where the evidence offered is not of a character to surprize the opposite party.
    In actions of trespass there can be no examination into title. Possession alone is sufficient to support the action.
    Appeal from the District Court of We'st Baton Rouge, Burk, J.

      W. B. Robertson, for the plaintiff. Lobdell and Cfreves,- for the appellant.
   The judgment of the court was pronounced by

Kusra, J.

This action was instituted to recover damages' for a trespass, alleged to have been committed by the defendant, by cutting trees on a tract of land which the plaintiff claims to possess as owner, in virtue of titles derived from the United States. The defendant denies the alleged trespass, and asserts title in himself to the land on which the acts complained of were committed. The cause was submitted to a jury, who gave a verdict for the plaintiff and from the judgment rendered thereon the defendant has appealed.

Our attention is called to several bills of exception presented on the trial. The first is to the introduction in evidence of the defendant’s titles to the land in question. We think the judge did not err; in permitting them to be offered. Although, in actions of trespass, enquiry is /restricted exclusively to the questions of possession,' and of the damages resulting from the injury complained of, yet when the defendant asserts an adverse possession, the title under which he holds may be exhibited in support of that possession. This production of title does not authorise an adjudication upon the question of property, but is admissible to show the beginning and the extent of the'possession, • 16 La. 395.-

The second exception was to the permission' granted by the court to the plaintiff, to offer in evidence the'title by which he holds the land in question, af-" ter the plaintiff had closed his testimony in chief, and after the evidence for the defence had also been elosed. The' plaintiff ought, before closing his evidence in-chief, to offer all the testimony on which he relies'for a recovery. When, from inadvertence or other cause, he has failed to do so, it is always discretionary with tlie judge to permit the party to supply the deficiency, when the testimony offered is not of a character to operate a surprise upon his adversary. In the present instance the plaintiff averred title, and the title produced being in conformity with that recited in- the petition, the defendant cannot complain of sur-* prise.

The third exception is to the refusal- of the judge to charge the jury that,“where a plaintiff claims damages for Cutting down trees,-he must show and prove title to the land on which the trees were growing.” The judge did not, in our opinion, err.- It has been repeatedly held that, in actions of trespass,there can be no examination into title. Possession alone is sufficient to support the action. 6 La. 559. 4 Mart. N. S. 136.

As regards the merits, the plaintiff has shown that, as the owner of a tract' of land of one and a fourth arpents front, on the Mississippi river, by forty in-depth, he availed himself of the act of Congress afi'd purchased the back conces--' sion, containing forty five acres, for which a patent has issued in his favor. The' witnesses state that the side lines of the double concession, aré parallel and extend- back forty arpents■; that they are marked, blazed, and staked plainly, and-that the plaintiff has possessed,- in conformity with them, since 1833; that his enclosures extend back, about twenty five arpents, and that several of the' trees cut by the defendant stood within two or three arpents of the plaintiffs rear' fence. It is also shown that, the defendant has'a fence running back the entire forty arpents within sixty feet of the plaintiffs line, and that he has always, until recently, respected the plaintiff’s possession.

The defendant contends that the true lines of the plaintiff,- as established by the approved government survey, diverge from the front to the rear,- in consequence of which the quantity contained in the front tract was obtained by extending, the lines less-than forty arpents- in depth. The evidence which he has adduced renders it probable that, in regard to a small- portion of the land, there isa conflict of possession between the parties; for while the plaintiff proves possession of a tract of one and a fourth arpents front, by forty in depth, with parallel side lines clearly defined, the defendant exhibits an extract from a town-" ship map, on which it is represented as being a little less than thirty one arpents in depth. The plaintiff also produces a title from the United States to a tract of land owned by himself, which, as represented in the township map, embraces ten or twelve acres of the land- claimed by the plaintiff. The exact point of conflict has not been shown, nor do we deem it important, in the present con troversy, as several of the trees appear, by the testimony, to have been cut within the limits assigned by the defendant himself to the plaintiff’s tract.

The damages assessed by the jury do not appear to us to be excessive. The question was one peculiarly within their province, and they have not so exercised the discretion vested in them by law as to require our own interference.

Judgment affirmed.


author: Kino, J.

text:
    Stone v. Rose.
    tVheve the affidavit of a plaintiff sets forth that, since judgment was rendered, material evidence in support of her demand has been discovered, which oonld not have been obtained before, though due diligence was used, and states fully the facts expected to be proved, and the name of the witnesses to establish them, and the facts are such as, if satisfactorily established, would authorize a recovery, and no circumstanóes are disclosed which conflict with the affidavit or indicate a' want of due diligence, a new trial should be granted. C.P. 560, 561.
    Appeal from the District Court of Madfeon, Selby, 1.

      Pepper and R. C. Downes, for the appellant,
    contended that a new trial Should have been granted,-citing 4 Mart. N. S. Í32. 10 La. 409.

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

Kino, J.

This action whs instituted to recover a debt alleged to be due' by the defendant. After its inception, the plaintiff died, and his administratrix was made a party to the suit. The proofs on the trial were insufficient to establish the plaintiff’s demand,- and a non-súit was rendered. An application for a new trial was made, on the ground of newly discovered evidence, which was overruled, and the plaintiff appealed.-

We think the judge erred in refusing a new trial. The affidavit in support of the application brings the' plaintiff strictly Within the rule which provides for this kind of relief. It sets forth that, since the rendition of the judgment, material evidence has been discovered in support of the demand, which could not be obtained before, although due diligence was used. The facts expected to be proved aré fully stated. They are' such as, if satisfactorily established, would authorise a recovery, and the witnesses by whom they are to be' proved are named. Code of Practice, arts. 560, 561.

No circumstances are disclosed by the record which Conflict with the affidavit, or indicate the want of diligence in the preparation of the Cause,- and the judge has assigned no reasons for refusing the application. But a short time intervened between the institution of the süjt and the trial, and during that interval the plaintiff died* This event probably deprived his counsel' of the means of discovering the testimony necessary to prove' the demand, which it is stated in the affidavit is now known to e'xist.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that a new trial be awarded, and that the cause be remanded to be proceeded- with according to law, the appellee paying the costs of this-appeal.


text:
    Guice v. Lawrence, Syndic.
    The hush and as head and master of the community m ay alienate a Hire onireux the immovahies of which it is composed, without- tho consent of his wife. The laws'of Louisiana, like those of Spain, recognize no title in the wife, during marriage, to any part of the acquits-, she becomes tho owner of one-half, only after tho dissolution of the marriage. C. C. 2373.
    A voluntary surrender of property, made by the husband to his creditors, becomes, after acceptance, an alienation of the property, vesting the title thereto in his creditors; and, where the property surrendered was acquired during marriage, the proceeds must go to the payment of the debts prbvedin the concurso, givingthe preference to those contracted "during the community (stat. 29 March, 1826, § 2); and where the community is dissolved by the death of the husband after the surrender, the wife will preserve only her recourse against the syndic, for onc-half of any balance remaining in his hands afterpayment of all the debts.
    Where property belonging to the community of acquits has been alienated by the husband in-fraud of the rights of the wife, the only recourse given to her by art. 2373of the Civil Code is-against the heirs of tho husband after the dissolution of the marriage.
    APPEAL Appeal from the-District" Court of Concordia, Curry, J'. The1 petitioner represented that, in August, 1839, she was married to on»1 Smalley, and that the parish of Concordia was their matrimonial domicil. That, in the autumn of 1840, Smalley purchased one thousand acres of land of the United States, at the public sales at Monroe, partly in the name of the petitioner and partly in liis own name, for the price of $1 25 per acre : That, in March, 1841, he-made a surrender of his property, when the defendant was appointed his syndic ; and that, in May following, he died: That he surrendex-ed to his cx-editoi-s the lands acquired by the community, and that they were sold for $8,000, or $10,000:. That she has accepted the community existing between her husband and herself, and has demanded of the syndic to be placed on the tableau as entitled to one-half of the nett proceeds of the community property, after deducting the debts, contracted during its existence: Thepetition avers that the defendant refuses to recognize her as entitled to any thing, until all the debts of Smalley are paid. She prays that she may be placed on the tableau for one-half of the proceeds of the community property, subject to the payment of one-half of- the community debts.
    The syndic denied her right to be placed on the tableau for any sum whatever: 1st, Because Smalley’s debts are more than sufficient to consume the whole of the property surrendered: 2d, Because the property surrendered was mortgaged for more than its value before the surrendei", and said mortgages must be first paid: 3d, Because the debts contracted during the community must be paid before any thing can be appi’opi'iated to the petitionei-, and they are more than-sufficient to consume the property.
    It appears from a statement of facts made by the counsel of the parties, that’ Smalley was married in Mississippi, in August, 1839, and that he purchased lands as alleged in the petition: that he made a surrender of his property to his creditors, in March, 1841, which was accepted, and the defendant appointed syndic, and that Smalley died in May following; that the largest part of Smalley’sdebts was conti'acted before his man-iage; that judgments were obtained on some of them after the maiTiage, and legal mortgages acquired subsequent to the marriage and before the surrender; that ordinary debts wore contracted during the-marriage; that Smalley's wife brought no properly into the marriage, and liad nothing; that their matrimonial domicil was in Louisiana; that tho lands sold for between $8,000 and $10,000; that the legal mortgages were for more than the property surrendered, and were acquired subsequently to the marriage, but were5 for the most part, founded on debts contracted previously thereto. There was a judgment below rejecting the demand of the plaintiff, from which she appealed.

      Lowly, Frost and Sanders, for the appellant.
    The plaintiff’s pretensions are based on the following propositions: 1st, That the community property, after the payment of its debts, is to be.equaily divided between the parties. C. C. art. 2372. 2d, That the husband cannot validly surrender the wife’s portion, for the payment of his private debts contracted prior to the marriage. Civ. Code, art, 2373. 3d, That a surrender is not an alienation, but a pledge. C. C. arts. 2171, 2174, 2176. 2 Rob. 193. 4th, That the wife lias a right to attack any alienation or encumbrance made by the husband to her injury. 5th. That the action which she may exercise against the heirs of the husband is a cumulative remedy, and does not preclude her from claiming tho property itself. 2 Mart. N. S. 573. 4 La. 192. 9Ibid, 583.
    The old Code gave the husband express power to give away the community property. The new Code expressly forbids it. Code of 1808, p. 336. The community is but a civil partnership, of which the husband is the active partner. J.n any other partnership, would one partner be allowed .to pay his individual debts .out of the partnership funds, to a creditor who had notice. The Code of Practice gives her the power to prevent sales by the husband to her prejudice. C. P. art. 298. The judgment should be reversed, and tho syndic ordered to place .the plaintiff on the tableau for one-half of the surplus of the community properly after the payment of its debts. The syndic contends that, among the community debts, should be included certain judgments rendered against Smalley during his marriage, but on debts contracted previously. We cannot so understand the .law. The date of the debt, not of the judgment, fixes its character. A pre-existing debt is not a valuable consideration for .a sale, as against creditors. Why should not the rule apply here?

      Perkins, on the same side.

      Shaw and Lawrence, for the defendant,
    as to the first position of plaintiff’s counsel, contended that art. 2372 must be construed with art. 2378. As to the second portion, they cited 9 Rob. 210-219. As to the third, they alleged that though the surrender be considered as a pledge, it cannot better the plaintiff’s position. 2 Rob. 193. C. C. ai-t. 3124. Bui. and Curry’s Dig. 495. The fourth position they contended was erroneous. Under art. 2373 the remedy of the wife is not to annul the alienation, but against the heirs. The rights and position of creditors cannot be changed by the fortuitous event of Smalley’s death, subsequent to the surrender. Actus Leineminifacit injuriam. Were Smalley alive, his widow could insist upon no claim whatever, and his death does not alter her position in this respect. C. C. arts. 2126, 2176. 11 La. 438. B. .& C. Dig. 492.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff married one Abner Smalley in the State of Mississippi. She had no property, and Smalley was much in debt. They came to Louisiana, and, a few months after,Smalley bought at public sale, from the United States, one thousand acres of land, partly in his own name and partly in the name of the plaintiff, and paid for it. His creditors pursued him in Louisiana, and obtained against him judgments, which were duly recorded after the purchase of the lands. In consequence of those judgments, Smalley made to all his creditors, in March, 1841, a voluntary surrender of his property, which was accepted by them. They appointed a syndic, and, in the month of May following the surrender, Smalley died. There are some debts due by the community; but the larger portion were due by him previous to his marriage. The proceeds of the sale of the lands are not sufficient to pay the amounts of the judgments recorded against him. The plaintiff, who has accepted the community, now asks to be placed on the tableau for one-half of the nett proceeds of the land, after deduct-mg community debts, on the ground that she was half owner of the commu, property, and that her share cannot be taken to pay the debts of her has? band, anterior to marriage. The judge of the court beiowrefused her application, and she appealed. .

The laws of Louisiana have never recognized a title in the wife during marriage, to one-half of the acquéfs and gains. The rule of the Spanish law on •that subject, is laid down by Febrero with his usual precision. The ownership of tho wife, says that author, is revocable .and fictitious during marriage. As Jong as the husband lives and the marriage is n.ot dissolved, the wife must not say that she-has gananciales, nor is she tp prevent .the husband from using them, under die pretext that the law gives her one.-half. But, soluto matrimonio, she becomes irrevocably the owner of one undivided half, in the manner provided by law for ordinary jbint ownership. The husband is, during marriage, real y verdadero dueño de todos, y tiene en el efecto de .su dominio irrevocable. Febrero Adic., tomo I y 4, part 2d, bk. 1st, chap. 4. parag. 1, nos 29 and 30. Pothier, Communauté, p. 35 and following. 12 Toullier, chap. 2, nos. 72 to 31. 14 Duranton, Droit Franc. p. 281 and foll. 10 Dalloz, Jurisp. p. 198 and fol.

The provisions of our Code on the same subject are the embodiment of those ,of the ¡Spanish law, without any change. The husband is head and master of the community, and ha§ power to alienate the immovables which compose it by an encumbered title, without the consent or permission of his wife. Civil Code, art. 2373. The voluntary surrender of his property by Smalley to iiis .creditors, became him, after acceptance, such an alienation. Under the express provisions of the act of 1823, he was absolutely divested of the title, and hia .creditors were vested with it. 2d Moreau’s Dig. p. 437.

If this alienation can be considered as made in fraud of .the rights .of the wife, the only recourse iyljich the above article giv.es her is, against the heirs of her husband after the dissolution of the marriage. Iu the case cited from 9th La, the alienation complained of, took place after the title of the wife had become irrevocable, by the dissolution of the marriage. We agree fully with the opinion delivered by judge Bullard on that occasion, and consider it, as far as it goes, a .correct exposition of the law on the subject. With th.e reasoning of the court in 4th La. w.e canno.t agree; although the conclusion to which th.eycame, may have been correct on other grounds. The difference supposed by the court'ta .exist between our Code and that of France, is imaginary. Under both, cases of fraud are excepted from the general power given to the liusbapd to alienate the ¡acquéts and gains. Se.e 7th Sirey, 1st sect. p. 401. The proviso of art. 2373 cannot be construed as giying or recognizing a title to or in the wife. As well might it be said that children have a title in the property of their father, because he is prohibited from disposing of it in fraud of their legitime. Dixon v. Dixon, 4 La. 188.

Tho plaintiff h.ad not applied for a separation of property, and .could not have obtained it, as she brought nothing into marriage, and appears to have had no separate avocation of any kind. The surrender was, after acceptance, an alienation, by which she is bound. The proceeds of the land must go to the payment .of the debts proved in concurso, giving the preference to those contracted .during the .community, and reserving to the plaintiff her rights against the syndic for one-half of any balance in his hands after the payment of all the debts, pnd also the rights she may have against the heirs of her liusbqnd, under .art, •2373 of the .Civil Code,

For the reasons assigned, it is .ordered that the judgment in this case be amended, so as to reserve to the plaintiff her right to one half of any 'balance remaining in the hands of the syndic after payment of all the debts, and also any rights she may have against the heirs of her husband under art. 2373 of the Civil Code. It is further ordered, that the judgment aa amended be affirmed, with costs.