author: Voorhies, J.

text:
    Dalzire Lacour v. John P. Watson.
    Plaintiff and defendant had acquired their estates from, one common proprietor, the sale to the former was of the most ancient date and was not a sale per wversionem — the lower boundary of plaintiff’s tract was fixed after the date of the sale to plaintiff. Held: That in an action of boundary preference should be given to him whose title was of the most ancient date, unless an adverse possession had produced a difference in the situation of the parties. O. 0., Art. MB.
    Although the limits had been fixed, as there was no adverse possession to defeat the plaintiff’s right by prescription, any errors in the operation of fixing the limits could be corrected in a court of justice.
    There was error in condemning the plaintiff to pay any of the costs of suit. The costs produced by the call in warranty should be borne by the defendant.
    APPEAL from the District Court of Pointe Coupee, Robertson, Judge of the Sixth District, presiding.

      A. Provosty, for plaintiff.

      George 8. Sawyer and W. H. Gooley, for defendant and appellant.
   Voorhies, J.

This is an action of boundary. The parties derive their titles from the same author, Franpois Vincent Bouis. The plaintiff in her petition alleges that her purchase was made previous to the defendant’s, and prays that a survey be made of the premises, that she be adjudged to be the proprietor of five arpents front from Zadliarie HonorSs boundary, as established on the 5th of November, 1846; that the boundary between their respective tracts be established in conformity with said survey and their titles, and that she be put in possession of the part of her land now occupied and held by the defendant.

The defendant pleads a general denial, and specially that, at the time of his purchase from Bouis, on the 5th of June, 1847, the plaintiff’s land had been measured and surveyed and her lower boundary established, and that she took possession in accordance with said boundary with -reference to which he purchased ; that Bouis sold four arpents front of his concession to A. Ledoux & Go. and two arpents front, immediately above the plaintiff’s land, to Zaohm'ie Honoré; and that if there is any error in the measurement of the plaintiff’s tract, such error proceeded from the measurement or division of the two tracts. The defendant cited his vendor in warranty, and the latter obtained an order making his different vendees parties to the suit for the purpose of establishing their respective limits.

The court below decreed the boundary between the plaintiff and defendant to be fixed in. accordance with a survey made under its order, giving to the plaintiff five arpents front, measured by a perpendicular line from Zaohm'ie HonorSa lower boundary, and decreed the costs of suit to be equally borne by the plaintiff and defendant; and the latter appealed.

The plaintiff has filed an answer, praying for an amendment of the judgment in her favor, by extending her lower boundary, in order to meet the calls of the two tracts above previously conveyed' by her vendor, and by condemning the defendant to pay all the costs.

The proceedings in relation to the call in warranty, &c., producing a large amount of costs, as we infer from the record, have not been noticed in the judgment of the court below. We do not think they were sanctioned by law; and the defendant was consequently bound for the costs arising therefrom. See the case of Duplessis v. Lastrapes, 11 R. 451.

The record shows that Frangois Vincent Bouis was the owner of a large tract of land fronting on the Raccourci bay, in the parish of Pointe Ooupée, which he sold in separate portions to different persons ; the first, containing four arpents front from the upper limit, to A. Ledowx. & Go.; the second, containing two arpents front, to Zaohm'ie Honoré; the third, containing five arpents front, to the plaintiff; and the fourth, containing ten arpents front, to the defendant — all contiguous to each other. The plaintiff’s tract is described in the conveyance to her as being bounded above by Zacharie HonorSs tract, and below by the land of the vendor, Bouis, and the defendant’s tract, in the deed to him,, as being bounded above by the plaintiff’s tract.

The Civil Code, Art. 843, declares : “If the parties claim under simple acts of sale, or other acts which can transfer property, without being supported by any anterior concessions, and if they, or the persons from whom they acquired their estates, have acquired them from one common proprietor, the preference shall be given to him whose title is of the most ancient date, unless an adverse, possession has produceda difference in the situation of the parties.”

The right of the plaintiff to the five arpents front, as set apart to her in fixing her lower boundary, appears to us to bo perfectly clear under this Article. There is nothing to show that an adverse possession has produced a difference in her situation, so as to defeat her right by prescription. The sale to her was clearly not a salsper amersionem ; the land was not sold by specific boundaries, the lower boundary being fixed after the date of the sale. By the effect of the sale, the plaintiff and her vendor became proprietors of contiguous estates, giving rise to the action of boundary. The limits were fixed, but the parties did not lose thereby their right of resorting to a court of justice to rectify any errors which may have been committed in the operation. O. 0., Articles 821, 835, 849.

The doctrine of estoppels pressed on our consideration by the appellant, we think is inapplicable in the present case; for the date of the plaintiff’s alleged acquiescence in the fixing of her lower boundary, as directed by her vendor, it is not shown that such acquiescence was given in presence of the defendant; nor is it shown that the plaintiff ever made any representations to him previous to his purchase in relation to said boundary.

We think the Judge a quo erred in condemning the plaintiff to pay any of the costs of suit. See the case of Andrews v. Knox, 10 An. 604.

There was no error in fixing the plaintiff’s boundary according to the prayer of the plaintiff’s petition.

It is, therefore, ordered and decreed, that the judgment of the court below be amended in favor of the plaintiff and appellee, by condemning the defendant and appellant to pay all the costs of suit in the court below; and, so amended, that the same be affirmed, with costs.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Succession of Henry Flower—On the Opposition of the Bank of Louisiana.
    An inscription of a mortgage which-is not renewed until after an interval of ten years, ceases to have effect against any third person having an an adverse interest.
    The subsequent reinscription only gives it effect from the date of such reinscription.
    Prescription against the creditors of an insolvent is suspended by a surrender of his property, but the same principle is not applicable to successions whether solvent or insolvent.
    The right of a mortgage creditor is lost by the failure to reinscribe within ten years, although before the ten years had expired the mortgagor had died.
    PPEAL from the District Court of West Feliciana, Ratliff, J.

      TJ. B. & E. Phillips, for administrator.

      Hudson and -Brewer & Oollins, for opponent and appellant.-
   Lea, J.

The Bank of Louisiana obtained a judgment against Henry Elowen', which was duly recorded in the mortgage office on the 9th of June, 1831. It was reinscribed in August, 1840, and again reinscribed on the 10th of February, 1854. An interval of more than ten years elapsed between the first and second reinscription. Flower died previous to the year 1840.

It is contended on behalf of the appellant, that this judicial mortgage is in full force. First, because no reinscription is necessary; and, second, that if necessary the-'rei-nscription in 1854 had- the effect to revive the mortgage as against the other creditors.

We cannot give our assent to either of those propositions. It is unnecessary to discuss the policy of the law, at least for the purpose of interpretation, when its provisions are absolute.

Prescription runs against a vacant estate even though no curator may have been appointed. O! O. 3492. Prescription runs against all persons unless they are included in some exception established by law. C. O. 3487. An inscription of a mortgage which is not renewed until after an interval of ten years, ceases to have effect against any third person having an adverse interest. A subsequent reinscription could give it effect only from the date of such reinscription. 2 An. 100.

It is urged that the rights of all mortgage creditors are fixed by the death of an insolvent debtor ; that all judicial proceedings being stayed by the death of the debtor, proscription ceases to run against mortgage creditors, and their rights -remain unalterably fixed until the estate is disposed of according to law. This argument is alike incorrect in its premises and in its conclusion. Judicial proceedings are not necessarily stayed against the estate of an insolvent debtor, and there is nothing peculiar in this case which prevented the opponent from preserving her rank as a mortgage creditor by a timely reinscription. See 3 An. 714; 12 Rob. 507.

On the second point, the provisions of the Code are clear and explicit. “ If a succession which is administered by a curator or beneficiary heir is not sufficient to satisfy the creditors, an inscription made by one of them after it is opened, shall have no effect against the others.” O. O. 3327. The opponent’s right as a mortgage creditor having been lost by a failure to reinscribe within ten years, could not be reinstated by an untimely reinscription. No new ■right could be created by such a proceeding. The statutory provision of the Code quoted above, must, in our opinion, control the rights of parties in this case ; and however strong the analogy between the administration of an insolvent succession, and that of property surrendered by an insolvent debtor, we are not at liberty to overlook the absolute provisions of the Code for the purpose of preserving a supposed uniformity in such cases.

Prescription against the creditors of an insolvent is suspended by a surrender of property. The property ceded is supposed to be given in pledge by the debtor to his creditors, and while that pledge continues, it is considered a standing acknowledgment of the debt. Whether this theory is well founded or not, as respects an insolvent debtor, it evidently can have no application to successions whether solvent or insolvent.

We think the judgment should be affirmed.

Judgment affirmed.


author: Buchanan, J.

text:
    Frederick Arbour v. J. A. Nettles et al.
    A sale of a preemption right acquired under the Act of Congress of 1841, made prior to the issuing of a patent, is null and void.
    The distinction between a transfer of the right of preemption and a transfer of the occupancy and improvement upon which the right of preemption is based, commented on, and declared not applicable to this case.
    APPEAL from the District Oourt of East Baton Rouge, Robertson, J.

      R. Q-. Beale, for plaintiff and appellant.

      A. M. Dunn, for defendants.
   Buchanan, J.

This is a suit upon three notes, amounting to twelve hundred dollars, given for the price of a preemption right and Register’s certificate thereto, of a tract of public land containing one hundred and forty-seven and sixty-eight one-hundreths acres, and all the improvements thereon. In the act of sale, dated April 3d, 1854, it was covenanted that the vendor should continue in the uninterrupted possession of the tract of land until the 1st of January, 1855.

The defence to the action rests upon two grounds:

1st. That the payee of the notes sued on (the vendor of the preemption right, &c.) violated his covenant, by moving from and vacating the premises sold, before the 1st of January, 1855 ; in consequence of which abandonment, the dwelling house, the only improvement of any value, was neglected and was consumed by fire; and by such removal the said vendor lost all right of preemption as an actual settler, in and to the land described in the act of sale.

2d. That the Act of Congress conferring the right of preemption upon actual settlors on the public lands, forbids the settler to sell or transfer, or assign the right of preemption, and declares all such transfers null and void.

The Act of Congress of 1841, chapter 16, entitled an Act to appropriate the proceeds of the sales of the public lands and to grant preemption rights, section 12, declares: “ That prior to any entries being made under and by virtue of the provisions of this Act, proof of the settlement and improvement thereby required, shall be made to the satisfaction of the Register and Receiver of the land district in which such lands may lie, agreeably to such rules as shall be prescribed by the Secretary of the Treasury, who shall each be entitled to receive fifty cents from each applicant, for his services to be rendered as aforesaid; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.”

The contract which was the cause or consideration of the notes sued upon, is upon its face unlawful, so far as it imports a sale of a preemption right to public land, and of a Register’s certificate of such right. An obligation with an unlawful cause, can have no effect. Civil Code, Art. 1887. The vendor, Eames, might himself have treated the sale as a nullity. Poirier v. White, 2 An. 934.

But the counsel of plaintiff contends that the sale of the improvements on the lamd is not liable to that objection, and constitutes a valid consideration for the notes.

It was held by our predecessors in the case of Jenkins v. Gibson, 3 An. 203; Wood v. Lyle, 4 An. 145; Hollon v. Snapp, 4 An. 519; Price v. Curran, 5 An. 686; Norman v. Ellis, 5 An. 694; and Bryan v. Glass, 6 An. 740—that the sale of improvements on the public lands of the United States was a valid consideration of a note, provided both the vendor and the vendee were in a situation to claim the right of preemption under, the Act of Congress. And in the case of Price v. Gurran, the court established a presumption, in the absence of contrary proof, that the contracting parties possessed the conditions required by the statute for preemptors. Perhaps, after so many decisions, this doctrine of the transferability of the actual occupancy and improvement of the public domain, with a view to its subsequent acquisition by preemption, must be viewed as too firmly settled to be disturbed; although, if it were a new question, we should hesitate much before adopting it, in the face of the very plain and positive enactment confining the right of preemption to the identical party who has made the improvement. The tenth section of the Act already quoted, declares:

“ That from and after the passage of this Act, every person being the head of a family, or widow, or single man over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration to become a citizen, as required by the naturalization laws, who, since the first day of June, A. D. 1840, has made or shall hereafter make a settlement in person on the public lands to which the Indian title had been at the time of such settlement extinguished, and which has been, or shall have been, surveyed prior thereto, and who shall inhabit and improve the same, and who has or shall errect a dwelling thereon, shall be, and is hereby, authorized to enter with the Register of the land district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of said land, subject, however, to the following limitations and exceptions,” &e.

The distinction between a transfer of the right of preemption and a transfer of the occupancy and improvemement upon which the right of preemption is based, is in fact not at all obvious. But accepting the doctrine, such as our predecessors have handed it down to us, it is clearly not applicable to the present case. Eor here we have not a sale of the improvement alone, but a sale of the preemption right and the improvement. And the reason given in Bryan v. Glass, namely, “that the court had reason to believe defendant intended to purchase the right of occupancy, with a view to acquire the land by preemption, upon his own possession,” cannot apply here; for Ernies sells, along with the right of preemption and the improvement, “the certificate of the Register” that he had made the proof required by the twelfth 'section of the Act of Congress, and “ delivers the certificate and plat of said land to the purchaser.” Again, there is one price (twelve hundred dollars) given for the preemption right, the certificate and the improvement, collectively; and the value of the improvement is proved to have been trifling in proportion to the whole price stipulated in the act of sale. In all the cases cited above, the sale was a sale of the improvements alone. Lastly, the proof sustains the allegation of the answer, that the vendor abandoned the land in violation of his agreement contained in the act of sale, in August 1854, and that the house, the only improvement of value, worth from a hundred to a hundred and fifty dollar's, was consumed by fire in November or December, 1854; at which time the vendor ought, by his contract, to have been occupying it. So far, then, as the improvements were concerned, there was an entire failure of consideration, by the fault of the vendor.

Judgment affirmed, with costs.


author: Spokford, J.

text:
    Wm. Gil v. Williams & Davis.
    A contract stipulating a compensation for services to be rendered in procuring an Act to be passed, by the Legislature for the relief of the party promising to pay therefor, is contra "bonos mores, and cannot be enforced, even although no improper means are alleged or shown to have been resorted to by the agent in obtaining the passage of the Act.
    In a case of this kind, which is an exception to the general rule, the party himself will be permitted to allege that the contract was contrary to good morals.
    APPEAL from the District Court of East Baton Rouge, Bobertson, J.

      J. J. Burle, for plaintiff and appellent.

      J. M. MeOuteheon and Ooxe & Breaux, for defendants.
   Spokford, J.

One Wm. B. Williamis having been convicted of importing slaves into the State in violation of the first section of the statute of the 29th January, 1817, the slaves were judicially declared forfeited to the State by virtue of the statute. See the State v. Williams, 7 Rob. 252, where a report of the facts may be found.

Subsequently one Thomas N. Brnis executed the following obligation, which is the basis of the present suit:

“$1500. Baton Bouse, March 13th, 1850.
“For value received, I promise to pay to A. M. Bunn, Wm. Gil and J. G. Patterson the sum of fifteen hundred dollars, on condition that the State of Louisiana shall pay indemnity for a certain lot of slaves, which were seized by this State as the property of William K Willicoms, indemnity for which is now claimed by Thomas PT. Bamis and William J[. Williams.”
(Signed) Thomas N. Davis.”

The plaintiff has appealed from a judgment dismissing his claim for five hundred dollars on this agreement.

There are various defences, but as we concur in the opinion of the District Judge that the obligation sued upon was founded on an illicit cause, we shall only notice that feature of the case.

The plaintiff alleges that the consideration of the contract was his professional services as a lawyer, in presenting and prosecuting the claim of said Bamis and Williams before the Legislature of Louisiana, and that he diligently and effectually served until the condition of the obligation was fulfilled, and the indemnity granted by the Legislature. In proof of his having complied with his part of the contract, the petitioner offered in evidence “An Act for the relief of William U. Williams,” approved March 18th, 1852, (Sess. Acts, 186) and another Act with the same title, approved Jan. 23d, 1856, (Sess Acts, 3). He also offered a witness who testified that the plaintiff was active in circulating documents relative to the application of Williams among the members of the Legislature. The Acts offered in evidence both state upon their face that they are “acts of clemency” to Williams. They were so styled because they relieved him from some of the effects of a forfeiture legally and justly incurred under the laws of the State.

Here, then, we have the case of a man, with no claim in law, petitioning the Legislature for a special Act of pecuniary bounty to himself, and contracting to pay a lawyer a specific sum of money only upon the condition that the lawyer succeeds in inducing the Legislature to grant the bounty. If the scheme fails, the lawyer is to get nothing, no matter how great his labor; if it succeeds, he is, in effect, to partake of the bounty.

If it were consistent with law, public order and good morals for men to make such contracts as this, we would bo called on to inquire further into the history of this novel cause; but we are stopped at the threshold by a conviction that law, public order and good morals strike all such contracts with nullity. O. O. 1887, 1889.

These bargains, to profit jointly by what can be procured from the legislative generosity at the public expense, have a direct tendency to seduce legislators from the line of their duty, and to foster that system of special and exceptional legislation which is a marked vice of the times.

Ve believe it has been uniformly held that a contract for a contingent compensation for obtaining an Act of the Legislature is void by the policy of the law. It is not necessary that improper influences should have been used in a particular case to affect such a contract with nullity. The law looks to the general tendency of things; it opposes the beginnings of evil; it shuts the door against temptation by sweeping rules, which admit of no evasion.

The plaintiff in this case cannot recover, not because he has resorted to bad means in order to procure the passage of laws in which he had a direct pecuniary interest, for of this there is no proof and no imputation, but because he has made a contingent contract, which, if enforced in this case, might open the door to a practice of corruption and to the use of sinister influences.

Upon the general subject we may refer to the cases of Fuller v. Dame, 18 Pick. 470; Hatzfield v. Gulden, 7 Watts, 152; Clippenger v. Hepbaugh, 5 Watts and Serg., 315; Wood v. McCann, 6 Dana, 366; Hunt v. Test, 8 Ala. 719; Commonwealth v. Callaghan, 2 Virginia Cases, 460; all cited in the recent case of Marshall v. Baltimore and Ohio Railroad Compamy, 16 Howard, 314.

The propriety of the rule which turns a suitor upon such a contract out of court is thus forcibly vindicated by the Supreme Court of the United States in the case just referred to: “Bribes, in the shape of high contingent compensation, must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary consequence is the demoralization of the agent who covenants for them; he is soon brought to believe that any means which will produce so beneficial a result to himself are ‘proper means,’ and that a share of these profits may have the same effect of quickening the perceptions and warming the zeal of influential or careless members in favor of his bill. The use of such means and such agents will have the effect to subject the State governmants to the combined capital of wealthy corporations, and produce universal corruption, commencing with the representative and ending with the elector. Speculators in legislation, public and private — a compact corps of venal solicitors, vending their secret influences — will infest the capital, of the Union, and of every State, till corruption shall become the normal condition of the body politic, and it will be said «of us as of Rome, iomne Romm venale.”''

The defendants can even be heard to plead, as they have done, that a contract into which they have voluntarily entered is contra bonos mores; for the authorities make this an exception to’the general rule nemo allegcms suam tur~ pitudinem est audiendus, an exception founded upon the necessity of the case, and the paramount interest of the public.

But in this instance the infirmity which taints the alleged obligation is patent upon the record, and it would have been the duty of the court, even had no such exception been pleaded, to notice ex officio and to discountenance any attempt to enforce, by the authority of justice, a contract which is reprobated by morality and law.

Judgment affirmed.


author: Spofford, J.

text:
    S. M. De Merville et al. v. Villeneuve LeBlanc, Jr., & Co.
    Where usurious interest was stipulated before the passage of the Act of 20th March, 1850, “ relative to the rate of interest,” but paid since the promulgation of that Act — Held: That the whole of the interest paid could be recovered back under the second section of the Act of February 19th 1844.
    The contract relative to interest was void at the time it was entered into, and it remained unaffected by the subsequent law in existence when the payment was made.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.

      Seymow & McHatton, for plaintiffs and appellants.

      David N. Barrow, for defendant.
   Spofford, J.

The only question presented by the appellants is, whether usurious interest, stipulated before the passage of the Act of March 20th, 1856, “ relative to the rate of interest,” (Session Acts, p. 130,) but paid since the promulgation of that Act, can be recovered back under the second section of the Act of February 19th, 1844. (Session Acts, p. 15.) They contend that the payment having been made under the new law is only void for the excess above the legal rate, and that the whole interest paid is not therefore recoverable.

As a general rule, laws prescribe only for the future. The Act of March 20th, 1856, is no exception to the rule, but, with a caution that was perhaps unnecessary, it declares upon its face that the validity or obligation of any contract entered into before the going into operation of this Act shall be unaffected by it.

The whole contract relative to interest, at the time it was entered into between these parties, was void, it being in contravention of a prohibitory law. And an action was given to recover back the amount paid under the contract, if demanded within twelve months after the payment. No vitality was imparted to the void contract by the Act of March 20th, 1856 ; nor did the latter Act take away the right of action given by the former law as to payments which might thereafter be made under contracts prohibited by the Act of 1844, and entered into while it was in force.

The payment did not constitute a new contract, as contended for by the appellants ; it was simply an attempt to execute the old one.

Judgment affirmed.


author: Merrick, O. J.

text:
    Succession of John McLean.
    The executor has the right, whether seizin, be given to him in the will or not, to cause sufficient property of the estate to be sold to pay the debts, unless the heirs furnish him with money.
    He represents the succession fully when he applies to the court for an order for that purpose.
    The widow has a a vested interest in the community property after the death of her husband, but her acceptance of the community will no more take the administration out of the hands of the executor or administrator of her husband’s estate than would alike acceptance on the part of the
    The administration of the succession of the deceased husband involves with it the administration of the community, and the executor or administrator may rightfully cause the community property to be sold for the purpose of paying the debts of the succession.
    The purchaser at a sale thus ordered, acquires all the interest which the widow in community could have had in the property.
    APPEAL from a judgment on a rule taken by John Thompson, testamentary executor, on Pat/rick Hatpin.- — Second District Court of New Orleans, Morgan. J.

      F. Haynes, for plaintiff.

      Thomas Gilmore, for defendant and appellant.
   Merrick, O. J.

John McLean, whose domicil was in this city, died last year, leaving a will, which was admitted to probate. He bequeathed one-third of his estate to his wife, who is now in Scotland on account of her health, and two-thirds to John Thompson.

The inventory amounted to $7,745. There being debts due by the deceased amounting to $3,845 62, the executor under the will applied for the sale of two lots of ground situated in the First District of New Orleans, which were encumbered with a mortgage of $1,500. They were the least valuable belonging to the succession.

The petition, which alleges that the sale of the property was necessary to pay debts, was submitted to the attorney for absent heirs, whp made no objection to the same. The sale was ordered, and at the probate sale the lots v ere adjudicated to Pai/i'iclc ITalpin for $2,725. The property sold belonged to the community existing between the deceased and his wife, and the debts, to pay which the sale was made, were also community.

The purchaser having refused to comply with the terms of sale, the executor took a rule upon him to show cause why he should not comply, which being made absolute, he has appealed.

He resists the rule on the ground that, by the death of the husband, the partnership which existed between the husband and wife was dissolved, and the surviving spouse became the absolute owner of one-half of the property sold; that the deceased, if he had survived the wife, could not have sold her interest; that the testamentary executor, who is but the mandatary of the deceased, cannot pretend to exercise any greater right over the share of the surviving wife, and that the decree of the court ordering the sale will not protect the purchaser against the action of the wife or her heirs.

The passage of the Act of 1887 (page 95) has strengthened as well as continued the powers of the testamentary executor, who represents¡,the_ succession of the deceased, so far as it concerns the collections of money, the sales of property, and the payment of debts, as well as legacies, as fully as administrators or curators of vacant estates. O. O. 1661, 1668. And now, by the sixth section of the Act approved 12th March, 1855, it is provided that the representatives of successions (viz: executors, administrators and curators) shall have the right to cause sales of the property administered by them to be made either by the Sheriff or by an auctioneer, or to make it themselves; but in the event of making it themselves they shall receive no commission. Acts of 1855, p. 79. They are to continue in office until the estate is wound up; they are to file an account once in every twelve months, and to deposit the money in bank, &e.

We think it results from the whole Act, taken in connection with the Code, that unless the heirs furnish the executor with money to pay the debts, he has the same right which the administrator has, whether seizin be given him in the will or not, to cause sufficient property of the estate to be sold to pay the debts, and when ho applies to the court for that purpose, like the administrator, he fully represents the succession.

The widow, the partner in the community, after its dissolution has a vested interest in it, which she may accept, nevertheless her acceptance will no more take the administration out of the hands of the executor or administrator than will the like acceptance on the part of the heir.

Before the dissolution of the community by the death of the husband, the wife has only an eventual interest in it. The husband is the head and master of the community, and may sell and dispose of the same by onerous title as he sees fit, without her permission or consent.' He'may even bestow the movables by gratuitous titles. Now as the husband is responsible for the debts of the community, and must answer for the same out of his separate estate, if the community is insufficient, and as the wife may renounce and claim that her paraphernal rights shall be paid out of his estate, the settlement of the community is a natural consequence of the settlement and payment of the debts of his succession.

The funds of the community, out of which the debts are to be paid, ought to be placed in the hands of him who is charged with the payment of the debts, hence the settlement of the succession of the husband naturally carries with it the sale of sufficient effects of the community as are incident to the payment of its debts.

In the case of Lawson et als. v. Ripley, the court said: “The succession of the husband is so far connected with the community as to form together, at the time of his death, an entire mass called his estate, which is not only liable for the payment of the common debts, but for the portion of the wife or her heirs to the residue, if they have not renounced. The widow or her representatives have consequently such an interest in the mass of the estate or succession of her husband, with regard to whom no distinction is made between his separate property and that of the community until the net proceeds, or amount of the acquets and gains, are ascertained, that their assistance at the inventory and their concurrence at all the proceedings relative thereto, which are to be carried on contradictorily with them, are generally required.”

It is thus evident that the administration of the succession of the deceased husband involves with it the administration of the community. The testamentary executor could, therefore, rightfully apply for the sale of the property of the community, and the order of the Judge decreeing the sale must be considered as a protection to all persons purchasing under it. As the purchaser at the probate sale acquired all the interest which the widow in community could have in the property, there is no reason why he should not comply with the terms of sale.

Judgment affirmed.


text:
    State v. J. H. H. Cravey et als.
    There must he an order of court admitting to bail one charged with murder, and fixing the amount of his bond, otherwise the bond taken by the Deputy Sheriff is not binding on the sureties.
    APPEAL from the District Court of East Eeliciana, Ratliff, J.

      E. W. Mo'ise, Attorney General, for the State.

      Muse & Hardee, for defendants and appellants.
   Buchanan, J.

The record shows no order of court admitting to bail J. H. H Grcmey, charged with murder, nor fixing the amount of his bond.

Without such order the bond taken by the Deputy Sheriff is not binding on the sureties, who are appellants herein. State v. Longineau, 6 An. 700; State v. Clendenin, 6 An. 745.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and judgment is hereby rendered in favor of the appellants, as in case of non-suit.


text:
    Constance Semel, Tutrix, v. J. M. Gould et al.
    "Where work was done on the road and levee under a contract with the Police Jury, in which it was stipulated that the contractor should not look to the parish for payment but to the owner of the land, and it turned out that the land on which the road and levee was made belonged to the United States, it was held that the parish was liable.
    There was an implied warranty on the part of the Police Jury, that the land on which the work was to be done belonged to persons whose property could be reached under their ordinances, to defray the expenses of such work.
    APPEAL from the District Oourt of West Baton Rouge, Robertson, J.

      Provosty and Fa/rra/r, for plaintiff.

      U. B. & F. Phillips and Fa/ralson, for defendants and appellants.
   Voorhies, J.

The plaintiff, as surviving spouse of the late Gha/rles Semel and natural tutrix of her minor child, Fudora, Semel, sole issue of her marriage with deceased, instituted suit against the defendant, John M. Gould, for the recovery of $800, alleged to be for work done on a road and levee on his land fronting on the Mississippi, under a contract entered into between the deceased and the Police Jury of Pointe Coupee on the 22d of September, 1849, said land being then assessed as the property of Ye/i’bal and Ghamibeo's.

The defendant, Gould, filed an answer setting up various matters of defence, among others, that he had purchased said land subsequent to the existenee of said claim or privilege, if any existed upon it, from Jea/n Laehand, with a general and special warranty. Whereupon he prayed for and obtained an order to cite his vendor in warranty.

The warrantor filed an answer alleging that he had purchased the land on which the claim or privilege was sought to be enforced from the United States as public land subsequent to the period when the alleged work was done under the police regulations; and, consequently, acquired the same free from all liens, privileges and mortgages whatever.

The plaintiff thereupon filed a supplemental petition, alleging that if the land belonged to the United States when the alleged work was performed, and was not subject to the charge thus imposed upon it, then the Police Jury of the parish of Pointe Coupee was liable for the payment of her claim, as the work had been performed in good faith by the deceased for the benefit of the parish; and prayed that the Police Jury be cited and condemned to pay her the price thus stipulated for said work.

The Police Jury, in answer, claimed to be exempted from liability under the following- clause of the contract, to wit:

“ And the said Paul Joffrion does, by these presents, stipulate that the parish of Pointe Coupée will in no manner be bound for the payment of said work, and that the aforesaid owners must and ought to be bound for the payment of the same. To all of which the said contractor agrees.”

There was judgment in favor of the plaintiff against the Police Jury, and the latter appealed.

The evidence shows conclusively that the land on which the work was performed, under the contract, was a portion of the public domain and continued to be so long after the completion of said work; that said road was of great service to the parish, and the levee a protection to a large portion thereof from inundation.

We consider the appellants, under the authority of the case of Cronan v. Municipality No. One, 5 An. 537, to he liable to the plaintiff. The clause of the contract under which they seek to shelter themselves, was certainly not intended to secure to the public the benefit of work so essential to its use and protection from inundation at the expense of the contractor. In making the contract, there was an implied warranty on the part of the Police Jury that the land on which the work was to be done belonged to persons whose property could be reached under their ordinances to defray the expenses of such works.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.


text:
    State v. Felix Lenares.
    The Judge has the right to assume, in his instructions to the jury, a hypothetical state of facts, anái say to the jury, if they believe such a state of facts to be proved, that it amounts to- a commission, of the crime or offence charged.
    But the j.ury are the sole judges of the facts, and, under the instruction of the court, they have tharight to -say whether the offence charged is a violation of the statute or not.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      E. W. Moise,. Attorney General, for the State.

      R. G. Beale, for defendant and appellant..
   Voorhies, J.

This appeal is brought up by the defendant, who was convicted of the offence of keeping a banking game, and sentenced to pay a fine of $1000, and the costs of'prosecution.

He complains that the Judge charged the jury on the facts of the case.

The Judge, charged “that the game of ‘keno’ was abanking game, according to the decision in the case of the City v. Miller, 7 A. 651.” That the court and jury must be governed by the interpretation and definition given to the-statute upon the game of “keno” being a banking game by that decision.

The statute on which the indictment was framed declares:

“Whoever shall keep a banking game, or banking house, at which money, or anything representing money, or any article of value, shall be bet or hazarded, or shall aid or assist in keeping one, shall, on conviction,” &c.

The indictment in this case charges that the defendant “didkeep, carry on and play a certain banking game called keno, at which money was bet and hazarded.” Whether the game of keno is a banking game or not is a mixed question of law and fact. The Judge has the-right to assume in his instructions to the-jury a hypothetical state of facts, and say to the jury, if they believe such a state of facts to be proved, that it amounts to a banking game. But the jury are the sole judges of the fact, and, under the instruction of. the court, they have the right to say whether the game played is a violation of the statute or-not.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and the case, be remanded for a new trial according to-law.


author: Merrick, C. J.

text:
    P. H. Gary v. E. D. Burguieres.
    No privilege, as to third persons, exists in favor of the vendor of an engine and gearing for a sugar mill, if he permits it te be attached to a plantation, without having enregistered the contract of sale.
    APPEAL from the District Court of Terrebonne, Cole, J.

      Beatty & Bush, for plaintiff.

      Connolly & BAghtor, for defendant and appellant.
   Merrick, C. J.

The plaintiff sold to the defendant an engine and gearing for a sugar mill.

This engine and machinery was attached to a plantation which the defendant had bought from A. J. J. Burrus. Burrus obtained an order of seizure and sale on his mortgage and vendor’s privilege, for the price of the plantation, which still remained unpaid.

Before the sale under the order of seizure and sale, the plaintiff filed his suit against the defendant and Burrus, in the nature of a third opposition, to prevent the sale of the engine and gearing confusedly with the plantation, and praying that his vendor’s privilege on the engine, etc., be recognized.

A separate appraisement was made of the land and engine. The Judge iof the lower court recognized the plaintiff’s privilege upon the engine, and ordered Burrus, who had become the purchaser of the property at the Sheriff’s sale, to pay the plaintiff the balance of the price due him Burrus appealed.

The appellant contends, among other things, that the engine and machinery, having been attached to the plantation, became a part thereof, and was subject to the mortgage and privilege of Burrus, and that if plaintiff ever had any privilege as vendor of the engine, it was lost for want of registry.

The plaintiff contends that as he did not suffer the property to be sold confusedly with the plantation, he has preserved his privilege in virtue of Articles Nos. 3104, 3195, 3198 and 3235 of the Civil Code. He also cites Troplong on Privilege and Mortgage, No. 113.

We think that the engine and gearing, after having been attached to the plantation with the presumed consent of the vendor, must be considered as forming a part of the immovable itself. C. C. 455, 460.

After being so attached, its nature, it is true, was not changed so that it was less an engine and machinery than before. But as it could not be used on any plantation without being necessarily attached to the soil, when so attached it became as much a part thereof as the doors, shutters and blinds become a part of the immovable to which the house is attached, of which they form a part. The engine and machinery could not be removed to another plantation without breaking up the masonry and taking the engine and machinery in pieces. It could not be put in successful operation without being again reset in brick and mortar, and again attached to an immovable.

The passage cited from Troplong applies to such movables as are attached to the plantation only by a fiction of law: such as the animals which are employed upon a plantation, the farming utensils, wagons, &c. These movables, which can be used in one place as well as another, Troplong- thinks do not so become a part of the immovable, to which they are only intellectually attached, as to defeat the vendor’s privilege. As to him, they are as much movables as they were when he sold them.

The engine and machinery having become a part of the immovable sold, and the contract being for a sum over $500, the privilege could only be preserved by a registry of the contract, in conformity to Article No. 3239 of the Civil Code.

For the want of such registry, the mortgage and vendor’s privilege of Burrus attached to the entire plantation, although increased in value by the accession of the machinery and engine, and he is entitled to the proceeds of sale, notwithstanding the appraisement made at the instance of the plaintiff.

Therefore, the judgment of the lower court must be reversed.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court appealed from be avoided and reversed, and now, proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed, that there be judgment against the demand of the plaintiff and in favor of the said A. J. J. Burrus, and that the plaintiff pay the costs of both courts.


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    Widow and Heirs of Carlile Pollock v. The Citizens’ Bank of Louisiana.
    The Act of the Legislature of 1852, which relieved the Citizens’ Bank from the decree of forfeiture of its charter, while it restored the “ rights and privileges ” of the corporation, is not to be understood as having restored those of the individual corporators, so as to entitle the original stockholders to . a credit at the hands of the Bank, as at present organized, of thirty-three dollars per share, as a loan payable in instalments, according to the original charter.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. Legardew', for plaintiffs and appellants.

      A. Pitot, for defendants.
   Buchanan, J.

The plaintiffs, original stockholders of the Citizens’ Bank to the extent of 215 shares, claim to be entitled to a credit, at the hands of the Bank, as at present organized, of thirty-three dollars per share, as a loan repayable in annual instalments of two per cent., according to the provisions of the Act of April 1st, 1833, which was the original charter of the Bank.

The defendants plead that the original charter has been forfeited, and, although since revived, yet that it has been so modified, with the consent of the stockholders, as to preclude the latter from claiming, as a right, the credit accorded to them by the original charter; moreover, that it would be a violation of the obligations of the Bank towards the State and towards the holders of the bonds of the Bank, as well as a breach of faith towards the subscribers of a cash stock in this institution, to grant the mortgage stockholders a credit such as is asked.

The argument of the learned and able counsel for plaintiffs, may be summed up in the two following propositions:

1st. The Act of the Legislature of 1852, No. 141, entitled “An Act for the relief of ,the Citizens’ Bank of Louisiana,” in its first section, declares, that the Bank is relieved from the decree of forfeiture of its charter, and the administration and control of the affairs of said Bank shall be restored to the stockholders thereof, in the same manner, with the same rights and privileges, to the same extent, and with the same restrictions, as if the said decree of forfeiture had never been rendered: and consequently, one of the rights and privileges of each stockholder, before the decree of forfeiture rendered, being a credit to the amount of a certain proportion of his stock, estimated at par, each stockholder is now entitled to the same credit.

2d. Plaintiffs were not a party to the compact of the 26th July, 1853, between the mortgage stockholders and the cash stockholders of the Citizens’ Bank, and are not bound by said compact.

Both these propositions are fallacies.

I. The Act for the relief of the Citizens’ Bank recites that the charter of the Bank, under which plaintiffs claim, had been forfeited by a judgment ten years previously. Of this fact, indeed, there is no question. It is likewise a matter admitted on all hands, that the State is largely interested in the success of the Citizens’ Bank, being bound, as the preamble of the Act declares, for the payment of upwards of six millions of bonds negotiated for the benefit of the Bank. The preamble proceeds to state, that the managers, appointed by the State for the Citizens’ Bank, have represented that the stockholders' will be enabled to secure the State from the risk of loss, if they be restored to the control and administration of the affairs of the Bank, with the rights, privileges and immunities possessed by said Bank at the date of the decree of forfeiture rendered against it in the First District Court, &c.

In consequence of this representation, the Act declares, in its first section, the charter revived, as stated in the argument of plaintiffs’ counsel. Now, what are the “rights and privileges ” which “shall be restored?” Taking the first section in connection with the preamble, of which that section is but the repetition and the complement, it is obvious that we are to understand the rights, privileges and immunities possessed by the Bank under its forfeited ohartes’— privileges so immense, that they constituted a legislation apart for this favored corporation. For it, the Article 2412 of the Civil Code did not exist, neither did the insolvent laws, neither the statute of distributions. No legal incapacity could be pleaded by its debtors. No exceptional jurisdiction could obstruct the collection of debts due to it. See sections 24, 25, 26, Acts of 1833, p. 190.

Not only is it clear from the context that the “ rights and privileges ” are those of the corporation, and not of the individual incorporators, but the assurance of the State against loss, the avowed object of this law, must have been defeated by the opening of a credit on the books of the Bank, in favor of each stockholder, to the extent of one-third of his stock at a par estimate; stock which, so far from having any value in the market itself, depreciated the value of any property on which it was secured.

Again: we find in the second section “ that this Act shall not take effect until the Citizens’ Bank of Louisiana shall have restored to the Governor of the State bonds of the State to the amount of eight hundred thousand dollars, and shall have raised, by contribution from its stockholders, independently of its present means, additional assets for at least eight hundred thousand dollars.” The other sections of the Act contain provisions having reference to the conditions and revival of the corporation, contained in the 2d section. There is no evidence in this record that those conditions were ever fulfilled; that the sixteen hundred thousand dollars bonus, in bonds and cash, was ever forthcoming. It is certain that the corporation, as we now find it, is the offspring of the legislation of the succeeding session, (1853,) which will be presently the subject of our examination.

The Act of 1852 appears to have failed of its purpose of resuscitating the defunct corporation. For this, as well as for the reasons inherent in the Act itself, it appears to us that no weight is to be attached to the argument derived from the general and somewhat vague expressions of the first section of that Act.

II. On the 28th April, 1853, was passed an Act to authorize the Citizens’ Bank of Louisiana to convert shares secured by mortgage into cash shares.

This Act made a radical change in the constitution of the Bank, by divesting it, in pai’t, of its character of a joint stock association of the owners of real estate, trading upon a capital raised by the negotiation of bonds secured by the hypothecation of lands and slaves. It provided, that the Directors might raise a million of dollars, by opening books of subscription for ten thousand shares of one hundred dollars each, in which subscription the preexisting or mortgage stockholders should have a pi’eference to the extent of one share for every fifteen already possessed by them; said ten thousand shares to be paid in full, at the time and in the manner to be determined by the Directors, in order to constitute a cash stock.

The second section enacts, that those who shall become the owners of said cash stock, shall be designated as the cash stockholders of the Bank, and shall, besides any yearly interest which they may receive on the stock so paid in, if any be allowed, share in the profits or losses of the Bank in the proportion of the amount of said stock paid in, to the amount of the available banking assets •of the Bank, to be estimated and fixed by the Board of Directors, and on such terms and conditions as shall be fixed by said board; the same, when so determined, to be binding on and between the holders of said cash stock and mortgage stock respectively.

The third section enacts, that subscriptions to the cash stock shall be received at the office of the Bank in New Orleans, under the superintendence of the Board of Directors, after thirty days previous notice of the terms and conditions agreed upon by said board, which shall be considered as binding upon the subscribers.

And by section fifth, the Act to be in force only after having been accepted, in writing, by a majority in number and amount of the stockholders of the Citizens’ Bank of Louisiana.

It is proved that this Act was accepted by three hundred and eighty stockholders, owning- eighty-six thousand nine hundred and ninety-two shares of stock, .and rejected by three stockholders, owning four hundred and fifty-eight shares; the total number of stockholders at the time being six hundred and ninety-six, and the total number of shares, one hundred and forty-three thous- and eight hundred and ninety-two. Therefore, there was a majority in number and amount, of all the stockholders and stock, which accepted. And it is admitted, that the plaintiffs were among those stockholders who accepted.

After this acceptance of the Act, which was then by its terms in force, the Board of Directors, as they were authorized and required to do by the second section, fixed, on the 26th July, 1853, before opening books of subscription, the terms and conditions of a compact and agreement as to the manner of administering the affairs of the Bank and dividing its profits between the cash stockholders and the mortgage stockholders; which compact and agreement, after being formally ratified by a committee of the mortgage- stockholders, was advertised during the term of thirty days, in six different newspapers, as the basis of subscription to the cash stock. The whole of the ten thousand shares of cash stock were thereafter subscribed, and the Bank went into operation under the amended charter of the 28th April, 1858, and in the mode and upon the terms and conditions fixed by the articles of compact and agreement of the 26th July, 1853, adopted in conformity and obedience to that statute, and which are to be considered as the constitution of the corporation at the present time.

There is no doubt that all the mortgage stockholders, including the plaintiffs, are bound by that compact. It is in vain that the plaintiffs claim to stand aloof and to repudiate the nearly unanimous assent of then- fellow-corporators. See on this subject Angelí and Ames, on Corporations, chapter 13, sectipn 7; 2d Kent’s Commentaries, lecture 33d, page 236. Upon these authorities, plaintiffs would be bound, even had they been among those few corporators who voted to reject the amendment of the charter. A fortiori are they bound, having voted to accept it.

Judgment affirmed, with costs.

Mr. Justice Voobhies being a stockholder in the- Bank did not sit on the trial of this case.


text:
    F. B. LeBeau v. The Citizens’ Bank of Louisiana.—Widow G. M. Plique v. The Same.—Gaston Bruslé v. The Same.
    Decision in the preceding case of Tibe JJeirs of Carlile Pollock v. The Citizen# Bank, affirmed.
    A PPEAL from the Second District Court of New Orleans, Morgan, J.
   Buchanan, J.

For the reasons given in the case of The Heirs of Carlile Pollock v. The Citizens’ Bank of Louisiana, it is ordered, adjudged and decreed, that the judgment of the District Court in this case be affirmed, with costs.


author: Buchanan, J

text:
    F. Hardesty v. Mary Sturges, Executrix, et al.
    When the liability of the surety had been fixed by the same judgment in which the principal was' condemned, held, that an agreement under which, without the formality óf a Sheriff’s sale, a twelve months’ bond was given by the principal, to cover the debt and costs, as if the property seized, had been adjudicated on a second crying for that amount, did not have the effect of releasing the surety.
    APPEAL from the District Court of East Feliciana, Bailiff, J.

      P. Pond, for plaintiff.

      Muse & Hardee, for defendants and appellants.
   Buchanan, J

The plaintiff, Ha/i'desty, having obtained judgment against the principal and surety upon a bond, took out execution, which was levied upon property of the principal, who, by written consent of plaintiff, was permitted, without the formality of a Sheriff’s sale, to give a twelve months’ bond with security for an amount sufficient to cover the debt and costs, as if the property had been adjudicated at a second crying for that amount. Even if this can be considered as a giving of time to the principal, (which it scarcely can be under the circumstances,) the surety was not thereby released, for two reasons : first, because his liability was already fixed by a judgment; Story on Promissory Notes, No. 417; 2 An. 456. The counsl of appellant relies upon the case of Callihan v. Turner, 3 Robertson, and Gustine v. Union Bank, 10 Robertson, which are inconsistent with the doctrine here stated. But we prefer and adhere to the ruling of The Louisiana State Bank v. Haralson, 2 An., quoted above. Secondly, because the surety had sued and obtained judgment by confession against his principal, as the record shows, for the amount of this identical bond, simultaneously with the judgment obtained by plaintiff against both of them, and issued executions against his principal upon the judgment thus obtained. It is, therefore, evident, that the defendant’s testator, the surety in question, was never delayed or impeded in the least by the supposed giving of time to his principal by plaintiff. In the very peculiar facts of this case the surety appears to have even exercised a right beyond the law; for the confession of judgement in his favor gave him a virtual subrogation to plaintiff’s rights against his principal without having satisfied the debt or any part of it.

Judgment affirmed, with costs.

Merrick, C. J., recused himself in this case.


author: Spoeford, J.

text:
    Celestine Molaison v. V. Hébert, Executor, et al.

    There is no law authorizing the court to appoint a curator ad 7ioo to represent the slaves of a testator in a suit brought by his forced heirs to annul the disposition of the will enfranchising them.
    APPEAL from the District Court of West Baton Rouge, Rob&rtson, J.

      Andrew 8. Herron, for plaintiff

      Ba/rrow & Petit, for defendants and appellants.
   Spoeford, J.

This suit was brought by certain persons alleging themselves to be forced heirs of Jacques Molaison, deceased, against his testamentary executor, for the purpose of annulling a nuncupative testament by public act, and setting aside a disposition by which the testator had sought to enfranchise certain slaves.

The District Judge thinking it necessary that the slaves should be represented, appointed a curator ad, hoe for them. Upon a hearing, there was judgment setting aside that portion only of the will which purported to manumit the slaves.

The curator ad hoe alone has appealed, and no answer to the appeal has been filed.

We have been referred to no law authorizing a curator ad hoe to stand in judgment in such a proceeding as this, and we do not think it was contemplated by the law-giver.

The only decree we can make is to dismiss the appeal;

Appeal dismissed.

Lea, J., absent.


author: Voobhies, J.

text:
    A. G. Penn v. J. J. Ott.
    The sale of a right of preemption acquired under the Act of Congress of the 4th of September, 1841, is null and void.
    A right of preemption and improvements on the public domain, are not susceptible of mortgage under the Code.
    An order of seizure and sale on a mortgage of such objects, is a nullity.
    The vendor’s privilege on movables can only be exercised whilst such movables remain in the possession of the purchaser or where the vendor claims a preference on the price over the other creditors of the purchaser.
    PPEAL from the District Court of St. Tammany, Waterston, J.

      Mermen & Perm, for plaintiff and appellant.

      J. B. Jones, for defendant.
   Voobhies, J.

This is an injunction to restrain the execution of an order of seizure and sale obtained by the defendant against Abraham Penn.

The property seized under this writ and advertised to be sold by the Sheriff, is described as “ a certain pretended preemption claim and improvements on the south west section No. 23, township No. 6, Range No. 10 east.” The land on which the alleged right of preemption existed, was purchased by the plaintiff from the United States, on the 13th of November, 1854, under a special Act of Congress, approved 1st August, 1854. The defendant transferred to Abraham Penn the right of preemption and improvements, reserving a special mortgage to secure the payment of the price thereof.

The plaintiff alleges that the sale thus made was null and void, because the defendant could not, as he then owned 640 acres of land, acquire a right of preemption to the land in question, under the Act of Congress of September 4th, 1841; and neither could Abraham Penn acquire such right, as he too owned 320 acres of land at the date of the sale. He further alleges, that the preemption right and improvements thus conveyed to Abraham Penn, were seized and sold under an execution issued on the 21st of June, 1854, on a judgment rendered against him in favor of the Union Bank of Louisiana ; that he held said judgment as transferree of said bank; and that in consequence of his prior seizure, as said property was not susceptible of mortgage, he was entitled to be paid out of the proceeds of the sale thereof, in preference to all the other creditors of the seized debtor. His petition concludes with a prayer for damages resulting from the illegal seizure, and to be declared to be the lawful owner of said land, &c.

The defendant avers in his answer, that he is the holder of a promissory note of Abraham Penn for the sum of $750, dated the 11th July, 1849, payable the 1st of January, 1851, with eight per cent, interest per annum thereon, from maturity until paid, and secure by mortgage and the vendor’s privilege upon a certain tract of 160 acres of land, with the improvements thereon, upon which he alleges he had a right of preemption. He avers, that the plaintiff’s right to said land was acquired by virtue of this preemption, and that he is, therefore, bound for the payment of the note of Abraham Penn, given for the price thereof. He therefore prays for the dissolution of the injunction, with twenty per cent, damages.

The injunction was dissolved, and the plaintiff appealed.

The record shows that, on the 11th of July, 1849, the defendant sold to Abraham Penn the following described property, viz :

“All the right, title, interest and claim of the vendor, in and to a preemption right situated upon the south west quarter of section No. 23, township No. 6, south of range No. 10 east, acquired by the vendor under the provisions of the Act of Congress approved the 4th of September, 1841, and the certificate of the Register of the Land Office at Greensburg, Louisiana, dated 9th of May, 1848, and paraphed by me, Notary, even date with this act, together with the saw-mill, running two saws, and grist mill, all driven by water power, in the river Tchefuncta, with all the fixtures, appendages, blacksmith’s shop, tools,” &c.

The consideration stipulated was $2,000 cash and $3,000 in four promissory notes given by the vendee to the vendor, each for the sum of $750, payable on the 1st of January and 1st of July, 1850, and the 1st of January and 1st of July, 1851, with eight per cent, per annum interest thereon from 'maturity until paid, and to secure the payment thereof said property to remain specially mortgaged.

On the 10th of June, 1854, the defendant obtained a judgment against Abraham Penn, for a balance due on the first of these notes, to wit, $586 66, with eight per cent, per annum interest. L. Klopman, as endorsee of the second note, also obtained a judgment against Abraham Penn, for the use of J. B. Byrne & Oo.

The order of seizure and sale enjoined in the present case, was obtained to enforce the payment of the third note, which matured on the 1st of January, 1851.

The right of preemption and improvements in question, were seized as alleged under the judgment of the Union Bank, for ’the use of the plaintiff, and advertised on the 30th of June, 1854, to be sold by the Sheriff for cash, on the 2d of September, 1854. In the moan time, the plaintiff entered into an agreement with the defendant and Klopman, the other judgment creditors, whereby he stipulated to become the purchaser of the property thus levied upon, at twelve months credit, for a price sufficient to cover the special mortgages, and to amount to at least two-thirds of the appraised value thereof, and to give his separate bonds for the amount of each judgment. It was stipulated that the plaintiff should have the right to contest said bonds, or in other words to urge his right of preference to be paid out of the proceeds of said sale over the other -creditors, in consequence of his prior seizure; and that said agreement should not be considered as a waiver of any legal right which either party had on the property. Said property was accordingly adjudicated to the plaintiff for the price of $3,656, for which he executed his two twelve months bonds, one in favor of the defendant and the other in favor of L. Klopman for the use of J. B. Byrne & Oo., amounting in the aggregate to the sum of $1,805 66, with eight per cent, per annum interest thereon, from the 2d of September, 1854, and retained the residue in his own hands.

It has been repeatedly held by this court, that the sale of a right of preemption acquired under the Act of Congress of the 4th of September, 1841, was null and void. See the case of Arbour v. Nettles et al., recently decided by us, and the authorities there quoted.

But we consider it clear that a right of preemption and improvements on the public domain, cannot be considered under our Code as an object susceptible of mortgage. It is not an immovable subject to alienation. O. C. 3256 ; 16 La. 234. Hence, it follows, as a necessary consequence, that the order of seizure and sale enjoined in the present case, must be considered as a mere nullity.

It is, however, contended by the defendant and appellee, that he is entitled to claim the vendor’s privilege. We do not think the right, if it exists, can be exercised in the form of action to which he has resorted. The vendor’s privilege on movables can only be exercised whilst such movables continue to remain in the possession of the purchaser, or where the vendor claims a preference on the price over the other creditors of the purchaser. But such right must be exercised seasonably and in the mode prescribed by law. C. O. 3194; 1 An. 80; 11 R. 140; O. P. 396, 401.

It is, therefore, ordered and decreed, that the judgment of the court below bo reversed; that the injunction obtained in this case be reinstated and made perpetual; and that the defendant and appellee pay the costs of both courts.


author: Yookhies, J.

text:
    G. F. Gilbert v. Alexander G. Penn.
    The principles in the preceding case of Perm v. Ott, reaffirmed.
    APPEAL from the District Court of St. Tammany, Waterston, J.

      J. B. Jones, for plaintiff.

      Alfred Eennen, G-. W. Penn and Q-. W. Martin, for defendant and appellant.
   Yookhies, J.

This is an hypothecary action. The plaintiff alleges that Jacob J. Ott sold to Abraham Penn, on the 11th of July, 1849, “a certain preemption right, with all the buildings and improvements thereon situated,” for the price of $5,000, $2,000 of which in cash and the residue on terms of credit, for which the purchaser gave his four promissory notes, each for the sum of $750, payable on the 1st of January and 1st of July, 1850, and 1st of January and 1st of July, 1851, with eight per cent, per annum interest thereon from maturity until paid, the payment of which being secured by a special mortgage and the vendor’s privilege on said property now in the possession of the the defendant, who acquired the same by purchase at Sheriff’s sale, subject to said mortgage and privilege ; that he is the holder and owner of the note which was made payable on the 1st of July, 1851, and thus secured by mortgage on said property. He, therefore, prays that the defendant be condemned to pay him said note with interest, and that the property thus mortgaged be sold to satisfy the same.

The pleadings in this case present the same issues as those presented in the case of the defendant against Jacob J. Ott, just decided by us.

We think it is clear that a right of preemption and improvements on public land cannot be considered as objects susceptible of mortgage under our laws, and, therefore, cannot form the basis of an hypothecary action.

It is insisted by the plaintiff in his brief that he is entitled to claim the vendor’s privilege on the property. We think not, for the reasons given in the case of the defendant against Ott, to which we have already adverted.

It is, therefore, ordered and decreed, that the judgment of the court below be reversed, and that the demand of the plaintiff against .the defendant be rejected at his costs in both courts.


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    Andrew C. Finley v. H. V. Babin, Sheriff, et al.
    A judicial sale made to effect a partition among co-heirs, has the effect of extinguishing mortgages given by some of the heirs on their undivided portions, and of transferring such mortgages to the proceeds of the sale.
    APPEAL from the District Oourt of East Baton Rouge, Robertson, J.

      Joseph Joor, for plaintiff and appellant.

      F. M. Brunot, for defendants.
   Merrick, C. J.

The wife of the plaintiff, Emeline Gilmore, and the wife of the defendant Bernard, Bailey, were two out of five heirs of John and Ma/rtha Gilmore, deceased. Before any partition or sale of the effects of said succession, and before the marriage of the plaintiff, Mrs. Bailey sold her undivided interest in these successions, consisting of a sugar plantation, slaves, &c., to her sister, Fhneline Gilmore, and her brother, Jolvn A. Gilmore. They mortgaged the interest acquired and their undivided individual interests in the said successions, to secure the price.

The price not being paid at the maturity of the notes given therefor, Bernard, Bailey, in his own name, instituted his suit against the wife of the plaintiff and her brother upon the notes, in order to obtain judgment thereon, and to cause the mortgage to be recognized. ■ The plaintiff was cited as usual in actions against the wife.

During the pendency of the suit, the plantation, slaves and other effects, belonging to John and Mai'y Gilmore, were sold at probate sale. At the sale the plaintiff and John A. Gilmore bought the plantation for $9,200. The plaintiff also bought the slaves Bill, Sarah, and their children Pierce, Augustus, Henry and Julia, and negro man IAge. After this purchase, the judgment was rendered upon the notes in favor of Bernard Bailey against John A. Gilmore,mA the wife of plaintiff, in solido, recognizing the mortgage upon the undivided interest bought by them and their own undivided interest in the succession, constituting three undivided fifth parts of said successions. Bahley issued a fi. fa. upon his judgment against EmaUne Finley and J. A. Gilmore, and the Sheriff disregarding the probate sale seized among other things the plantation and the slaves bought by the plaintiff, and advertised the same for sale.

The plaintiff enjoined the sale of the slaves and his undivided interest in the plantation. His injunction having been dissolved in the lower court with damages, he has appealed.

The judgment of the lower court must be reversed. Finley was not bound for the debts of his wife, and the judgment in the case of Bailey against his wife did not bind him. His purchase of property at the probate sale in his own name must be held to be on his own account. That sale had the effect of extinguishing the mortgages given by the heirs upon the property itself, and transferring the mortgage to the proceeds. Act 1843, p. 44; O. O. 1434; Succession of Pinguay, 12 Rob. 450; 9 An. 212.

The defendants, therefore, were not authorized by the judgment against the wife, to seize the property of the husband to pay the same.

There have been no damages proven in this case, and we have no basis before us on which to estimate the same.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and that the defendants be perpetually enjoined from selling plaintiff’s undivided half of said plantation known as the Gilmore plantation, and more particularly described in the plaintiff’s petition, which said undivided half is hereby recognized as belonging to the plaintiff, and also from selling the plaintiff’s said slaves Bill, San'ah, and their children Pierce, Augustus, Servry and Julia, and the negro man Lige, described in plaintiff’s petition. And it is further ordered, that plaintiff’s demand for damages for the unlawful seizure of his property be dismissed as in the case of a nonsuit. It is further ordered, that the defendants pay the costs of both courts.


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    Joseph Oulliber v William Joublanc, f. m. c.
    An appeal will not be dismissed merely on account of tbe carelessness of the officer in an obvious omission of a word in his return of the service of the copy of the petition of appeal. Such a case is completely within the scope of the Act of 18B9'.
    Where an injunction has been sued out on grave charges of fraud and simulation, and the plaintiff offers no evidence whatever to sustain them, the maximum of damages allowed by law should be awarded to the defendant on the dissolution of the injunction.
    APPEAL from the District Court of St. Tammany, Wateopton, J.

      Penn & Mouton, for plaintiff

      3. Griffon, for defendant and appellant.
   Buchanan, J.

The appellees move to dismiss this appeal, on the ground that no copy of petition of appeal was served on them. There are three appellees, and three citations of appeal are annexed to the transcript. On each is written a return in these words: “Received this original with a copy a/nd copy of appeal, January 13th, 1857, and on the 14th of the same month and year served sañd copies, & c.” Weunderstand the words copy of appeal in these returns to mean copies of petition of appeal. They either have that meaning or no meaning at all; and the court cannot consent that the carelessness of the returning officer in omitting a word so obvious shall deprive the party of the benefit of his appeal. A case cannot be imagined more completely within the scope of the Act of 1839, (Session Acts, 170.)

The motion to dismiss is overruled on the merits we have presented, a case of abuse of the process of injunction which calls for an infliction of the maximum of the discretionary penalty inflicted by the Act of 1831.

William Joublanc, the defendant, having suedout executory process upon a note for the sum of $6413 64, subscribed by Joseph Oulliber, and past due, the said Joseph Oulliber applied for an injunction upon allegations, that he was induced by the fraudulent representations of the payee of the note to give his seven promissory notes, forming a series payable at different times, of which the note enjoined was the first due, and amounting, in the aggregate, to the sum of twenty-two thousand dollars and upwards, and payment secured by special mortgage on a tract of land in the parish of St. Tammany. That the aforesaid seven notes were obtained as aforesaid by the payee of the same, for the alleged purpose of having them discounted, and the proceeds to be used for the benefit of a partnership existing between plaintiff and the payee of the notes, in a saw-mill, established on the tract of land mortgaged. That the payee fraudulently retained said notes in his possession, and never discounted and placed the same to the credit of the partnership. That the proceeds of said saw-mill proved amply sufficient to carry on the partnership without resorting to the discounting of the said notes. That the revenues derived from the said mill were all placed in the hands of the said payee of the notes and partner of plaintiff, who made disbursements on account of said partnership, but not equal in amount to the income; hence it was not necessary to discount said notes. That, being in possession of the note sued on at its maturity, and having funds on hand sufficient to liquidate and pay it, the pretended sale of it afterwards was a fraud upon the plaintiff’s rights. Plaintiff charges collusion and fraud between defendant and the partner of plaintiff, that the pretended sale and subrogation of the note and mortgage, to the former by the latter, are simulated and fraudulent, and the name of defendant merely used as a color to enable plaintiff’s partner to carry on a suit to compel plaintiff in injunction to pay said note, or have the mortgaged property sacrificed, and thus force, at an unseasonable moment, the dissolution of the partnership, to the great injury of the plaintiff in injunction. Plaintiff alleges that, without any consideration whatever, paid or expressed, defendant has accepted of a pretended sale and subrogation of said note from plaintiff’s partner, the payee of the note, and has commenced executory proceedings, under which the property mortgaged has been seized and taken into the possession of the Sheriff. The sale of the property was enjoined on these allegations, and on the plaintiff making the affidavit and giving the bond required by law, and by the order of the court, on the 4th January, 1866.

When, nearly a year afterwards, this ease came to trial plaintiff did not offer a tithe of evidence in support of the very grave and circumstantial charges of fraud and simulation contained in this petition, nor, indeed, any evidence whatsoever. On the other hand, the defendant has proved by -the -testimony of witnesses, and by letters and other documents signed by the plaintiff himself, that the charges of misconduct and fraud, simulation and collusion, between defendant and plaintiff’s partner to injure plaintiff are entirely contrary to the truth. The District Judge dissolved the injunction, with five per cent, damages against the plaintiff and his sureties on the injunction bond. The defendant has appealed, and claims that the damages be increased to the maximum allowed by law. The record demonstrates that this request is not unreasonable. The petition states the property seized to be in the possession of a keeper appointed by the Sheriff. This keeping has now lasted for more than fourteen months, and the legal charge of the Sheriff for keeping will probably amount to more than double the damages allowed by the court below, and as costs of court, will be of course privileged upon the proceeds of the Sheriff’s sale. The judgment enjoined, amounts, exclusive of interest, to six thousand four hundred dollars and upwards.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the injunction be dissolved, and that William Joublane, f. e. m., defendant in injunction, recover of Joseph Oulliber, principal, and of William H. Merritt and José Oolomer, sureties in the injunction bond, in solido, twelve hundred and eighty dollars damages, with - costs in both courts.


author: Spoitord, J.

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    Wm. F. Flynn v. N. G. Rhodes et al.
    ■When the defendant had no acknowledged domicil or residence in the parish in which he was sued, field, that the return of the Sheriff that he had left the copies of the petition and citation at defendant’s place of residence in the parish with a white person oyer the age of fourteen years, “ residing at said residence,” was manifestly had.
    The judgment rendered against the defendant after default thereupon was null and yoid, as the defendant made no appearance in the cause.
    Counsel fees in the suit to annul the judgment and enjoin its execution were properly disallowed to the plaintiff as damages.
    APPEAL from the District Court of East Feliciana, Ratliff, J. Tried by a jury.

      Bowman & Relee, for plaintiff and appellant.

      Muse & Ear dee, for appellees.
   Spoitord, J.

This suit was brought to annul a judgment-rendered against the plaintiff, upon default, without previous citation according to law ; it was accompanied by an injunction to restrain the defendants from proceeding with an execution which they had sued out under the judgment, and concluded with a prayer for damages.

The injunction was perpetuated without damages, and the plaintiff has appealed.

The plaintiff had no acknowledged domicil or residence in the parish of East Feliciana at the date of the pretended service of citation there. The service, as indicated by the return, was manifestly had, and the judgment rendered against the plaintiff, after default thereupon, was null and void, as he made no appearance in the cause. The injunction was, therefore, properly made perpetual.

The plaintiff and appellant complains of various alleged irregularities in the rulings of the court a qua, and contends that the cause should be remanded for a new trial upon the question of damages.

If all the rulings complained of had been otherwise, and the rejected evidence admitted in its full extent, we do not think damages should have been awarded in this proceeding. The only damages suffered must have arisen from the seizure under the judgment and the necessity of enjoining it. As to the seizure, the extravagant conjectures of the plaintiff’s witnesses are wholly unsupported by the facts. The costs of the suit have already been awarded to the plaintiff, under the authority of the cases of Smith v. Bradford, 17 L. 266, and Hill v. Noe, 4 An. 304. Counsel fees for prosecuting this suit was correctly disallowed.

Judgment affirmed, the appellant to pay the costs of appeal.


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    City of New Orleans v. The Commissioners of the Estate of John McDonogh.
    The commissioners are the mandataries of the cities of New Orleans and Baltimore, and derive no power from the will of the testator. (See case of Society for reUef of Orphan Boys v. New Orleans mid Baltimore, 12 An. 62.)
    The commissioners and agents cannot stand in judgment for the cities without the authorization of the latter.
    APPEAL from the Second District Court of New Orleans, Morgan,, J.

      F. G. Lmille and G. Morel, for plaintiff and appellant.

      P. F. Bonford, for defendants.
   Spofford, J.

It has been decided that the cities of New Orleans and Baltimore are the universal heirs of John MaDonogh.

They are, therefore, co-proprietors of the property of the succession situated in New Orleans; each city is owner of an undivided moiety.

The commissioners and agents have no powers independent of the cities whose mandataries they are. They represent nobody hut the cities which appointed them, and derive their authority, not from the will of John MaDonogh, but from their principals, whose instructions they must obey. Society for relief of Orphan Boys v. New Orleans and Baltimore, 12 An. 62; Howard & Mayer v. New Orleans and Baltimore, 12 An.

The city of New Orleans sued the commissioners alone for municipal taxes upon the whole of this property. The suit was dismissed.

The argument for the appellants, filed in this court, discloses a sufficient reason for affirming this judgment. It is stated in that argument that “the cities of New Orleans and Baltimore have no interest in and are not parties to this suit.”

The commissioners and agents cannot stand in judgment for the cities without the authorization of the latter. No such authority appears in this case. They do not represent in any manner the beneficiaries who for a time are to share in the revenues of the MaDonogh estate. The tax bills are not made out against those beneficiaries, and they have had no notice of this action.

It is plain that, so far as the city of New Orleans is concerned, it would be an idle ceremony for the city to tax itself; such a claim would be instantly extinguished by confusion.

There is no such aontestatio litis between proper parties as to enable us to decide whether the city of New Orleans has the right to tax the interest of its co-proprietor, Baltimore, in the property common to both.

Judgment affirmed.


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    Henry Hawford v. Moses and Solomon Adler, Administrators.
    A notary public cannot be allowed to increase his legal fees for those acts which he does in his official capacity, by testimony as to the value of extra services.
    A motion filed in the Supreme Court by the defendant, who is appellee, to have the judgment of the lower court amended by dismissing plaintiff’s demand, is a substantial compliance with Articles 888 and 890 of the Code of Practice, and authorizes the entire reversal of the judgment of the lower court and a judgement of the appellate court in favor of defendant.
    APPEA from the District Court of East Feliciana, Bailiff, J.

      J. O. Fuqua, for plaintiff and appellant.

      Muse & Hardee, for defendants.
   Buchanan, J.

The plaintiff, a notary public in the parish of East Feliciana, made the inventory of the estate of Benoit Adler, of which the defendants are administrators, under an order from the District Court in which the succession was opened.

This inventory occupies between six and seven pages of this record, and contains about fifteen hundred words, counting every figure as a word. The petition admits that the plaintiff has received one hundred and twenty-five dollars for making this inventory, and he claims five hundred and two dollars and fifty cents additional, upon the following plea: “That by virtue of and in obedience to a commission from your honorable court, issued on or about the 9th of November, 1853, your petitioner, in his capacity of notary public, made inventories of the property and effects of said succession of Benoit Adler, deceased. That before said inventories could be made, it was necessary to go into a general and minute examination of the affairs of the commercial firm of A. Leri, Adler & Go., of which firm deceased was a partner, and to make a detailed statement of said affairs, before the experts could make any estimation of the interest of deceased in said firm. That said examination and detailed statement of the business and condition of affairs in said firm were accordingly made by your petitioner, as will be seen more fully and in detail by reference to the annexed statements marked ‘A’ and ‘B,’ which are made part hereof. That your petitioner also made inventory, and performed other services for the benefit of said succession, as will be more fully seen by reference to the annexed statement or account marked 10,’ which is also made part hereof That said labor and services so rendered, and which enured to the benefit of said succession, were well worth the price of six hundred and twenty-seven dollars and fifty cents. That petitioner has received from A. Leroi, for the account of said succession, the sum of one hundred and twenty-five dollars, which leaves a balance due him of five hundred and two dollars and fifty cents, as hereinbefore stated.”

On the trial the plaintiff offered witnesses to prove the value of his services in making a balance-sheet of the books of A. Leri, Adler & Go., as contained in the inventory of Benoit Adler. This testimony was objected to by the defendants, but the objection was overruled and the evidence admitted. To which ruling of the court a bill of exceptions was reserved.

The District Court erred. A notary public cannot be allowed to increase his legal fees, for those acts which he does in his official capacity, by testimony of a quantum meruit for extra services. This was distinctly decided in Walton v. His Creditors, 3 Rob. 438, and again in the case of the State v. Atchafalaya Bank, 7 Rob. 198.

It is very easy to perceive that a relaxation of the rule would make the fee bill a dead letter. And no stronger instance can well be presented than the present case affords of the bad consequences of a different rule: the extra compensation charged by the plaintiff for making the inventory of Benoit Adler, amounting to nearly twenty per cent, of the total appraisement of the estate inventoried. The jury who tried the case in the court below, found a verdict in favor of plaintiff for thirty-six dollars and seventy-five oents, from which plaintiff has appealed. The appellees filed in this court, on the same day the transcript was filed, a paper of the following tenor:

“Eenry Emoford v. M. & S. Adler, Administrators.
“On appeal in the Supreme Court, come the defendants and appellees, and move the court to amend the judgment of the lower court by dismissing plaintiff’s demand entirely, as prayed for in appellees’ answer, and for the reason stated in their said answer. By their attorneys,
Muse & Hardee.”

We view this as an answer to the appeal, and a substantial compliance with the requirements of the Code of Practice, Articles 888 and'890.

As the record shows that the plaintiff has been already paid more than his legal fees for making the inventory of Adler's estate, the amendment prayed for must be allowed.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendants, with costs in both courts.

Merrick, C. J., was recused in this case.


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    Thomas McGowan v. Mary Laughlan.
    When the only subscribing witness to an act of sale is dead, and after diligent search and inquiry no one can be found who is acquainted with the signature or place of residence of the vendor, proof of the genuineness of the signature of the subscribing witness will be sufficient proof of the execution of the instrument.
    APPEAL from the District Court of Carroll, Fan'ra/r, J.

      Goodrrieh do DeFrcmee, for plaintiff and appellant.

      A. B. Caldwell, for defendant.
   Voorhies, J.

This is a petitory action brought by the plaintiff to recover a slave named Jerry. He alleges that he acquired said slave, then known as Spencer, by donation from his father, prior to the year 1839. That sometime in that year or the next, 1840, said slave was enticed away from his possession in Tennessee, where he resided, and came into the possession of the late Wm. Laughlan about twelve years since, and has ever since been in possession of said Laughlan or that of the defendant, but without any legal title.

The defendant in her answer avers that her title is derived from James Stotts, a resident of Arkansas, who sold said slave to the late WilUam Laughlan, at Vicksburg, on the 20th November, 1841, for the price of $740; that John Gedge bought him at the syndic’s sale of the estate of said Laraghlan, on the 18th of June, 1851, and sold him to her on the 18th of August, 1851, and that she, and those imder whom she holds, have been in the quiet, public and uninterrupted possession of said slave as owners in good faith more than ten years prior to the institution of the present suit. She therefore pleads the prescription of five and ten years as a bar to the plaintiff’s action. There was judgment in her favor, and the plaintiff appealed.

We conclude from the admission of the plaintiff that William Laughlan and the defendant had been in the uninterrupted possession of the slave Jerry about twelve years previous to the date of the filing of his petition, on the 20th of December, 1854, a sufficient length of time to acquire said slave by prescription with a just title. O. C. 3432. In the absence of proof to the contrary, WilUam, Laughlan and those holding under him must be presumed to have been possessors in good faith. O. C. 3447, 3448.

But it is contended by the appellant that .the sale from Stotts to Laugh- ' lan was an absolute nullity, insufficient to constitute a just title to form the basis of prescription, because it was in contravention of a constitutional and statutory provision of the State of Mississippi, interdicting the introduction of slaves into that State as merchandize or for sale.

Conceding that such an interdiction did exist, of which we cannot take judicial notice, there is no evidence in the record to show that the slave was brought into Mississippi by Stotts as merchandize or for sale. Certainly the recital in the sale, that he resided in the State of Arkansas, could scarcely be viewed as affording any proof of such fact, much less the fact that the slave had, as alleged by the plaintiff, absconded in 1839 or 1840 from his residence in Tennessee. Indeed, for aught that appears to the contrary, Stotts may have acquired his title to the slave in Mississippi.

A bill of exceptions to the admission of the sale under private signature from ■ Stgtts to Larnghlam,, in evidence on the trial of the cause below, has been submitted to our consideration. It is objected that there was not sufficient proof of its execution. W. Pollock, the only subscribing witness, then resided and continued to reside at Vicksburg until the time of his death, in the fall of 1843. The genuineness of his signature is satisfactorily proved.

The defendant appears to have made a strict, diligent and honest inquiry and search for the vendor, James Stotts, at Vicksburg, and at the place indicated in the deed as his residence, in the State of Arkansas, but in vain. It is shown that he had never resided in the parish of Carroll, nor that any one had known him in the State. None of the witnesses in Vicksburg, whose depositions were taken under commission, appear to have been acquainted with his signature or his place of residence.

We think the evidence in the record is sufficient to establish the impossibility of proving the signature of James Stotts in any other manner than that to which the defendant has resorted, and that she has brought herself within the rule for the admission of such secondary evidence. 9 An. 227; Greenleaf on Evidence, §§ 574, 569, 572, 575, 604, 606 and 610.

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


author: Vooruies, J.

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    Elizabeth Wilson v. Moses Hendry et al.
    When the wife in opposition to a creditor of the husband, in whose favor she had made a formal renunciation, claimed the property mortgaged by him as her separate property — Held: that a conveyance of the property to the wife, by act under private signature, not recorded, in which the consideration of the transfer was stated to be a partial payment of the amount due to the wife from her father’s succession, without its being shown where the father’s succession was opened, or what amount the wife was entitled to inherit, was insufficient to rebut the legal presumption of title in the community.
    APPEAL from the District Court of Tensas, Fm'rcm', J.

      L. V. Beeves, for plaintiff and appellant.

      Thomas P. Farra/r, for defendants.
   Vooruies, J.

On the 1st of January, 1855, WilKmn G. Wilson, the husband of the plaintiff, executed a mortgage in favor of the defendant, Moses Hench'y, on a slave named Jane, and other property, to secure the payment of a promissory note for the sum of $1150; in which act the plaintiff made a formal renunciation of her right of mortgage.

The execution of a writ of seizure and sale, obtained by the defendant on this mortgage, was enjoined by the plaintiff in so far as the same related to the slave Jane, whom she claimed as her paraphernal property, alleging that she had acquired said slave by inheritance from her deceased father’s succession, on the 6th of February, 1850, as evidenced by a transfer to her of that date.

The injunction was dissolved without damages, and she appealed.

Our examination of the evidence has brought us to the conclusion that there is no error in the judgment of the court below. An act under private signature, dated the 6th Df February, 1850, purporting to be a conveyance of the slave Jane from Sarah Moore and her husband, Da/oid Gay, to the plaintiff for the price of $050, in part payment of the amount due to the latter from her father’s succession, and which does not appear to have ever been recorded, appears to be the only evidence of title in the plaintiff. Nothing shows when or where her father’s succession was opened, nor the amount which she was entitled to inherit. This conveyance to her, standing alone, is clearly insufficient, under the well settled jurisprudence on the subject, to rebut the legal presumption of title in the community to said property. O. O. 2335; 5 An. 368.

In Wiley v. Hunter and wife, 2 An. 806, where the property mortgaged by the husband to the plaintiff, was conveyed to the wife by her brothers and sisters, and urged as a ckotion enpaiement for her share of her mother’s succession, her failure to make proof of what that share was, the court held to be fatal to her pretensions. We do not apprehend this to bo in opposition to the doctrine of the cases quoted by the appellant’s counsel in 1 La. 522; 11 La. 296; 1 Rob. 367; 4 Rob. 115; 2 An. 930, and 5 An. 741, 116.

Under the peculiar circumstances of this case, wo do not think justice requires that the appellant should be mulcted in damages, as claimed by the appellee; neither can we allow him any more than the highest rate of conventional interest to which he is entitled under the judgment.

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