author: Rost, L

text:
    Orr et al. v. Thomas, Administrator.
    A.court of Probates, under the judicial organization anterior to the constitution of 1845, was not without jurisdiction of actions in which the title to real estate was incidentally involved.
    A judicial adjudication of community property made to the surviving husband, under proceedings before a court of competent jurisdiction, in which the minor heirs were represented by their under-tutor, will not be annulled for informalities anterior to the decree of adjudication. The minors bei ng represented by their under-tutor, the judgment of adjudication is conclusive as to the facts on which it rests, until corrected on appeal, or annulled in a direct action.
    In all cases of insolvency, whether the insolvent be dead or alive, liis property is the common pledge of his creditors, and each creditor is a third person as to all the others, and may avail himself in the concurso of all equities existing1 between them and the insolvent or his succession.
    The presumption which attaches to the tiling adjudged is jurris et de jure, and no evidence is admissible against it.
    The prohibition to tutors to purchase the property of their wards, contained in art. 327 of the Civil Code, is not affected by any thing in the stat. of 10 March, 1834, s. 4, or that of 2S March, 1840. The stat. of 1834 relates to defects of form, and the provisions of the second 4o not embrace tutors.

      An administrator has no authority to make admissions as to the value of the hire of slaves the amount of which is claimed from the succession in his hands.
    APPEAL from the Court of Probates of Avoyelles, Baillio, J,

      Elgee, for the appellants.

      Taylor and Swayze, for the defendant.

      Edelin and Waddill, for the intervenors.
   The judgment of the court was prepared by

Rost, L

The plaintiffs are minor heirs of Joyce Jane Thomas, and have instituted these proceedings in that capacity against the administrator of their father’s succession, for a settlement of the tutorship accounts, and the partition of their mother’s succession. The succession of Daniel T. Orr is insolvent, and his creditors, some of whom have intervened, are the real defendants in interest.

The plaintiffs claim from the administrator: 1st. Certain slaves described in their petition, and alleged to be the separate property of their mother. 2d. The undivided half of the slaves, and one-half of the moveables belonging to the community. 3d. The paraphernal funds received by their father during marriage. 4th. The hire of the slaves, and a legal mortgage, taking effect for ^all their claims on the 25th April, 1831, the date of their mother’s death.

The defendant and intervenors excepted to the jurisdiction of the Probate Court, so far as the question of title to the paraphernal slaves was involved in the controversy, which exception was overruled. The defendant ¡then filed a general denial, and further answered that, if the plaintiffs Cver had, in right of their mother, a title to the slaves claimed, they have been divested thereof by a judicial sale of all the separate property of her succession, and by a judicial adjudication of the community property to Daniel T. Orr, as surviving parent; that the decrees ordering the adjudication and sale are judgments rendered by a court of competent jurisdiction, and binding until they are reversed on appeal, or annulled in a direct action; and that should the plaintiffs recover, the succession of Daniel T. Orr is entitled to be compensated for the support and education of the plaintiffs, the care and ¡maintenance of the slaves, and the-community debts paid by him. There was a judgment in the court below allowing the greater part of the plaintiffs’ claim; but their representative, conceiving it to be in some respects erroneous, took the present appeal.

The defendant and intervenors insist upon their plea to the jurisdiction ; and, in case it should be overruled, ask that the judgment be amended so as to main, tain the validity of the judicial sale and of the adjudication.

The claim of the plaintiffs, for the paraphernal slaves themselves, while the defendant offers,"in the settlement of the succession of Joyce Jane Thomas, the price at which they were purchased by the husband, may fairly be considered as an incident of this action, and we are of opinion that the plea to_the juris, diction was properly overruled. Neither fraud nor lesion are alleged in the adjudication of the community property to Daniel T. Orr. The minors were represented, in the proceedings, by their under-tutor; the Court of Probates had jurisdiction of the subject matter; and the informality alleged is anterior to the decree of adjudication. This case is not easily distinguished from that of Lalannc’s heirs v. Moreau, 13 La. p. 432, in which the court refused to notice the irregularities in the proceedings anterior to the decree ordering the sale of the property of the succesion. The decree of adjudication in this case has the same force and effect; both create a title, on the faith of which the purchaser paid his money in one instance, and the surviving parent obtained credit in the other. The decree of adjudication is, in the language of the plaintiffs’ counsel, a judicial bill of sale — wn veritable eontrat de vente. Troplong, Prescription, no. 883.

In all cases of insolvency, whether the insolvent be dead or alive, his property is the common pledge of his creditors; and each creditor is a third person as to all the others, and may avail himself, in the concurso, of all equities existing between them and the insolvent or his succession. See the case of Quillemin’s Succession, 2 Ann. 634.

It is contended that the decree of adjudication contains neither a description of the common property, nor the price at which it was adjudicated, and that it is void on account of uncertainty. That is sufficiently certain, which can be made certain. It has been shown in this very case which were the slaves belonging to the community: and it is not pretended that there is error in that part of the judgment. The slaves being known, it is easy to ascertain in the inventory, the prices at which they were appraised. The decree is no doubt defective in form ; but defects of that kind were habitual in the proceedings of the courts of Probate ; and when no fraud is alleged, the preservation of the rights of property, for which this court is in a great measure established, makes it our imperative duty to disregard informalities, and to give effect to the conservative principle that, when the law-giver is silent nullity is seldom to be presumed.

Had the slaves in this case died or diminished in value, the minors would have enforced their rights under the decree of adjudication, and the informalities alleged Would not have availed the creditors of Orr. It is the increase in the value of the property, and the difference in amount between the hire of the slaves and the interest on the price of adjudication, which have given rise to this claim. Speculation upon events are devoid of equity, although minors may be parties to them ; and there is nothing in the circumstances of the controversy which could justify a departure from the rule settled in the cases of Michel’s heirs and Lalanne’s heirs, 11 La. 149. 13 La. 432. The under-tutor having represented the minors in the proceedings, the judgment of adjudication is conclusive as to the fact upon which it rests, until corrected on appeal, or annulled in a direct action. 2 Peters, 166. It is well settled that the presumption which attaches to the thing adjudged is juris el de jure, and that no evidence is admissible against it.

The adjudication of the common property to Daniel T. Orr must be sustained, and the plaintiffs credited with one-half the amount thereof, with interest from the 26th of May, 1835, till paid, and a legal mortgage en the property of the succession, from the 25th of April, 1831.

Judgment was properly rendered in favor of the plaintiffs for the separate property of their mother. Article 327 of the Louisiana Code prohibits tutors from purchasing the property of their wards, and that prohibition has not been removed by the statutes of 1834 and 1840, on which the defendant relies; the first of those acts has reference to defects of form, and the provisions of the second do not embrace tutors.

The legal mortgage operating in favor of the minors after their mother’s death, never was replaced by such a conventional mortgage as the law requires, and is still in force. It takes effect from the day on which the tutorship devolved on Daniel T. Orr, for all sums due by him until the final settlement of (he Inforship account. Civil Code, arts- 268, 3282.

The question has been raised, whether the succession of Orr owed interest .on the hire of the paraphernal slaves. That question is not properly before us at this stage of the proceedings ; and it is possible that, after deducting yearly the expenses of the minors and of rearing the young slaves, from the hire of the grown slaves and the other income of the minors, the balance remaining will not exceed- $500.

We had come to the conclusion to liquidate the money claims of the plaintiffs, and to render in their favor a judgment to be classed and paid in the regular course of administration of their father’s succession. A further examination of the record, and of the written argument of counsel, has induced us to change our opinion in this respect.

The admissions of the administrator are the basis upon which the judgment of the court below as to the hire of the paraphernal slaves rest. He was incompetent to make admissions of that kind; and, without them, we are of opinion that the evidence in the record would not authorize the hire allowed. This, and other facts in the record, satisfy us that the ends of justice will be promoted, by remanding the case for the purpose of having the claims of the plaintiffs liquidated contradictorily with the creditors, of the succession. The late Supreme Court considered that course necessary in all cases of insolvency. See Blois, tutor et al. v. Yard & Blois, syndics, 14 La. 250. But we wish to be understood as merely exercising the discretion vested in us to remand cases, when justice, in our opinion, requires it.

It is, therefore, ordered, that the judgment in this case be amended, so as to read as follows: It is ordered that the plaintiffs, in right of their mother, Joyce Jane Thomas, recover from the defendant, in his capacity of administrator of the succession of Daniel T. Orr, the following forty-five slaves, to wit. [The names of the slaves are omitted. R.] It is ordered that, the adjudication of the common property to Daniel T. Orr, be sustained. It is ordered that, the case be remanded to the District Court, and cumulated with the proceedings in the insolvent succession of Daniel T. Orr, with a view to further proceedings according to law, and the principles settled in the foregoing opinion. It is further ordered that, the plaintiffs and appellants pay the costs of this appeal.

       This opinion was read' by another member of the court, in the absence of Rosl, X,by whom it was proparod, at the preceding term.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Sanders v. Dosson, Curator.
    A procis-verbal of an adjudication for the price of which the'purchaser executed his notes with mortgage, though not in the form of a notarial act, being a matter of judicial record, is authentic evidence, such as may form the basis of an order of seizure and sale. Nor is it important that it was not signed by the judge as judge of probates; his signature as parish judge was sufficient. As parish judge, he was probate judge and auctioneer, and clothed with authority to adjudicate the property.
    As b etween the vendor and vendee it is unimportant whether a mortgage given to secure the price be recorded or not. Any objection on account of its not having .been recorded, could only he raised by a third possessor.
    Letters of -curatorship signed ,by the judge .as parish judge and ex officio judge of prohates, accompanied by the bond and oath of office received by that officer, and attested by his signature as parish judge, is sufficient evidence of a valid appointment as curator.
    APPEAL from the District Court of Franklin, Curry, J.

      Stillman, for the appellant.

      Purvis., for the defendant.
   The judgment of the court was pronounc ed by

Slidell, J.

The plaintiff obtained an injunction, restraining the execution of an order of seizure and sale ; and, from a judgment dissolving the injunc* tion, has appealed.

The proces-verbal of the parish judge of the adjudication made to Sanders' for which he gave his notes secured by mortgage, upon which the executory process was obtained, is not clothed with the forms of a notarial act; but it is .authentic evidence, being a matter of judicial record (Moore v. Louailler, 2 La. S77), and formed a sufficient basis for the order of seizure and sale. Nor is it important that it was not signed by the judge, expressly in his capacity of judge of probates. As parish judge, he was judge of the court of probates and auctioneer, clothed with authority to adjudicate the property of the succession of Johnson ; and his signature of the procés-verbal as parish judge, is sufficient.

It was unimportant, as between the succession and Sanders, the vendor and vendee, whether the mortgage was duly recorded or not. Such an objection could only be raised by a third possessor.

It is charged in the petition for injunction that, Dobson, the plaintiff in the executory proceedings, was not curator of the succession of Johnson, his pretended appointment having been made by James &• Taliaferro, acting in his capacity as parish judge, in which capacity he had no power to appoint a curator. We are of opinion that a valid appointment was sufficiently established by the letters of curatorship, signed by the judge as parish judge, and ex officio judge of probates, and by the bond and oath of office, received by that officer and attested by his signature as parish judge.

The only other ground alleged in the pelition for injunction is not charged with certainty, and seems to have been abandoned by counsel.

Judgment- affirmed.


author: Seidell, J.

text:
    Jones et al. v. Doles et al.
    A judgment, rendered in an action in which a sequestration was obtained by the plaintiff, determining the ownership of the property sequestered to be in the defendant, is conclusive against the sureties on the sequestration bond as to the question of ownership. In an action on their bond no evidence can be offered by them to impeach the ownership of the party in whose favor the decision was rendered.
    In an action against the sureties in a sequestration bond for damages for the illegality of the sequestration, the plaintiff mustshow the value of the property sequestered, and each other injury as he may have sustained. In the assessment of damages, fees of counsel employed to defend the original suit may be included; nor is it material to show that such fees have been actually paid; it is enough that plaintiff has incurred a liability for them. Where defendants contend that the property sequestered has been restored since the judgment on the sequestration suit, they must show that fact, or that the plaintiff has otherwise gained possession of it.
    Whatever may he the responsibility of tho sheriff for the loss of property sequestered, the plaintiff and the sureties on his sequstration bond, will, in case the sequestration be adjudged illegal, be responsible for Its restoration.
    APPEAL from the District Court of Morehouse, Copley, J.

      McCuire and Ray, for the appellants,
    cited Smith v. Bradford, 17 La. 266. Newman v. Willson, 1 An. 48, as to the right to recover counsel fees as damages.

      Richardson and Sharp, for the defendants.
   The judgment of the court was pronounced by

Seidell, J.

The defendants are sued as the sureties in a sequestration bond, executed in the case of Sawyer, Crawford Cliborne, administrator v. Jones Sf Stevens. In that suit a quantity of logs was taken upon the writ of sequestration out of the possession of Jones Stevens, and the property was then claimed as the property of Saivyer and his co-plaintiffs. The ownership was directly put at issue; and, after a trial on the merits before a jury, a general verdict was found in favor of Jones; upon which the court gave judgment infayor of Jones, and also of his co-defendant Stevens, who had alleged in his answer that he was employed as a raftsman by Jones, the sole owner. This judgment remains unreversed; and, as between the parties plaintiffs and defendants in that case, is res judicata in favor of Jones' ownership, and the lawfulness of his possession, and that of his agent Stevens.

But, it is now contended by the defendants, the sureties of Sawyer, Sfc., that the judgment does not form res judicata against them on the question of ownership, and that they were properly permitted by the judge a quo to offer evidence impeaching the ownership of Jones.

In our opinion the court below erred. What was the condition of the bond in which the present defendants united as sureties, with the plaintiffs in the former suit? It was that, “ if the said Joseph M. Sawyer, et al. shall pay, or cause to be paid, all such damages as may accrue, in case it shall appear and be decreed that the said sequestration was wrongfully sued out, then and in that case the above obligation is to be null and void, otherwise to remain in full force and virtue. Here was a clear undertaking of the sureties that they would pay damages, if the sequestration should in that suit be decreed to have been unlawfully issued ; in other words, if it should be adjudged that the defendants in the sequestration, and not the plaintiffs, were the lawful possessors and owners of the property. Such a decree has been rendered. The lawfulness of the possession of Jones <§* Stevens, and the ownership of Jones, have been solemnly adjudged ; and, we think, it would be a violation of the terms and spirit of the bond, if the sureties were now permitted to renew the issue of ownership. That question is closed by the former judgment, and n,o evidence on the point of ownership is admissible in this cause. The issue now is, what damages has the injured owner, Jones, sustained by the wrongful sequestration.

Under this issue, it is necessary for the plaintiffs to show the value of the property taken under the sequestration, and such other injury as was sustained. In the assessment of damages, we think, may properly be included the reasonable expense of counsel employed in the former suit; and, if the plaintiffs incurred a liability to counsel for their fees, we do not consider it material that, they should show that the fees had been yet actually paid to the counsel employed.

It was certainly admissible for the defendants to show that Jones, or his agent Stevens, had taken away any portions of the timber during the sequestration. An attempt was made to prove that they did so. But, the testimony upon which the defendants rely on this point, is not satisfactory to us. It wants accuracy as to time, place, and'the identity of the property spoken of by the witnesses. The violent resistance, and other acts on the part of Stevens, spoken of, may have occurred before the issuing out the sequestration. The burden was upon the defendants to prove clearly, either the restoration of the property after the decree in favor of the defendants in the former cause, or that they had otherwise gained possession of it. If Jones has not got his property which was wrongfully sequestered, he must have its value. •

It is said, however, that the sheriff was the party to whom Jones should look; that he had the property in his custody under the writ, was bound to preserve it for the successful litigant; and if, from his negligence, it floated away, or was otherwise destroyed or lost, he and his official sureties are answerable. Whatever may be the responsibility of the sheriff, we consider it clear that the plaintiffs in the sequestration were responsible for its restoration, and the sureties also by the tenor of their bond.

Stevens, as a party obligee in ths bond and the agent of Jones, is properly joined in this suit, and may recover jointly with Jones, for his use.

Entertaining these views we should, if the case were originally before us, have certainly given judgment for the plaintiffs, for the value of the property sequestered and for the sum expended in defending the former suit. The only doubt left upon our minds is, as to the question, whether, after the sequestration, the present plaintiffs regained possession of a portion of the property; and that doubt is induced more by the verdict of the jury, than by the evidence on the part of the defence as presented in the transcript. In deference to the opinion of the jury, we have determined to remand the cause.

It is therefore, decreed that, the judgment of the District Court be reversed, and that this cause be remanded for a new trial, and for further proceedings according to Jaw; the defendants paying the costs of this appeal.


author: Etjstis, C. J.

text:
    Johnson v. Downs.
    Where a note was made by an individual, and endorsed by several persons for his accommodation, to enable the maker and the plaintiff to carry on a partnership, and was delivered by the maker to his partner during the existenceof the partnership, the endorsers must he considered as mere, sureties, whose obligations -are limited by that of their principal, the maker; and, to enable the plaintiff to recover against one of the endorsers, a settlement of the partnership must have been made.
    APPEAL from the District Court of Ouachita, Copley. J.

      Garrett, for the appellant.

      Doions, defendant, pro se.

      Richardson and Sharp, on tlie same side.
   The judgment of the court was pronounced by

Etjstis, C. J.

This suit is brought on a promissory note for $6000, dated June 18th, 1836, and payable twelvemonths afterdate. It is drawn by Thomas Short and Francis Routh, to the order of B. Marshall, and is by him endorsed ; it also has the endorsements of W. B. Fort, S. W. Downs, and RobertUaile. The present suit is against the third endorser, S. W. Downs.

The defendant pleaded that the note sued on was given for the accommodation of Short, and that the endorsement was a mere suretyship, contracted by the endorsers in order to enable Short and the plaintiff, who was, at the time, his partner, to establish and carry on a public house at Pascagoula, in the State of Mississippi, under certain articles of partnership agreed upon between them ; that the plaintiff did not himself comply with the conditions of the co-partnership ; that, on the dissolution of the partnership, the plaintiff himself was charged with the liquidation of its affairs, and took in charge all the property, as well as the books and papers of the concern, and has not rendered any account of his administration, and has made no settlement of the partnership affairs with Short, his co-partner ; by reason of which it is pleaded that this action cannot be maintained. It is further alleged as a defence that, on a settlement, Short will not be a debtor to the plaintiff, and that the plaintiff has been guilty of laches in not settling the partnership concerns, and recovering payment, if anything were due him, from the other endorsers, who have since became insolvent. The prescription of five years, and the general issue, are also pleaded.

The case was tried, and evidence taken, under these issues. The district judge non-suited the plaintiff, and lie has appealed.. The defendant, in his answer has prayed that the judgment of the District Court be reversed, and that there be final judgment in his favor.

As the note sued on was given by Short to .his partner, daring the partnership, the only ground on which an action could be maintained on it between the partners would be its entire disconnection with the partnership concerns and liabilities. If the note was given for an independent debt due by Short to Johnson, the recourse of the latter against the parties to the note would be unquestionable.

On an examination of the evidence, touching the origin of the note, we have no sufficient reasons for dissenting from the opinion on which the district judge rendered his judgment; and we find, in a suit of the same plaintiff against other endorsers on this note, which is part of the evidence in this, that the Supreme Court came to the conclusion that the note was identified with the partnership concerns of the plaintiff and Short. The casé is reported in 4 Rob. 160. The court say that, if the action had been instituted against the maker of the note, no recovery could be had until a final settlement of the partnership was made, and then only for the balance ascertained to be due, according to the well settled rules of the law of partnership. The plaintiff was accordingly non-suited. We are also satisfied that, in endorsing this note for the purpose for which it was given, the endorsers were mere sureties, and that their obligations are limited by that of the principal, Short, towards his creditor, the plaintiff. To enable the plaintiff to recover against the defendant, therefore, a settlement of the partnership concerns must have been made. None having been made, the objection is, therefore, fatal to the present action.

It is contended by the counsel for the plaintiff that, the defendant is precluded from taking advantage of this plea of the non-settlement of the partnership accounts, by having pleaded other matters which go to the extinguishment of his obligation, and by his asking, on the appeal, for a final judgment in his favor, and pleading the prescription of ten years as' limiting the action for the settlement of accounts between partners. In this opinion we do not concur. The only doubt on our minds has been, as to the correctness of the District Court inrendering the judgmentas in case of non-suit, instead of a final judgment. But as the court appears to have decided exclusively on the plea befara mentioned, we do not feel authorized to reverse it. Judgment affirmed.


author: King, J. King, J.

text:
    Succession of Broadaway.
    Where a succession is solvent, and the whole property of which it is composed is under the care of the administrator, he is authorized to make any necessary advances for the support of the surviving widow in community and of the minor heirs; but such advances must be charged to the widow and the minor heirs, who, on a partition of the succession, will be considered as having received the amount so advanced on account of their shares, and the administrator will be entitled to credits accordingiy.
    APPEAL from the District Court of Caldwell, Barry, J.

      Garrett, for ths administrator, appellant.

      Crawford, for the opponents.
   The judgment of the court was pronounced by

King, J.

S. J. Broadaway died,• leaving a succession in community between his widow and the children of the common marriage. Of the latter, six were minors, whom the mother represented as natural tutrix. A part of the succession property was sold, for the purpose of paying the community debts. The residue was preserved in kind, and the revenues derived from it applied to tile discharge of tho debts of the succession, and to the support of the widow and minor heirs. The administrator filed an account of his administration, which was opposed by the two heirs of full age, on the ground, among others, that the administrator had charged the succession with sums disbursed for the support of the widow and heirs of the deceased. The opposition to sums advanced for that purpose was sustained, and the administrator has appealed.

The right of the administrator to charge the succession generally with monies paid for the support of the surviving widow in community and the minor heirs, is the only question at issue on this appeal.

The succession of the deceased-is solvent; the entire property of which it is composed is under the care of the administrator, and the necessity for (lie advances is fully shown. Under these circumstances the administrator violated no duty of his trust in making reasonable advances to the widow; but these constitute charges against her as surviving partner of the community and tutrix,' and not against the succession generally. They can only properly figure on the present account, for the purpose of showing that the administrator has faithfully accounted for all the funds which have come into his hands. For their amount he stands as the creditor, not of the succession generally, but of the* parties for whose benefit the disbursements were made; and, on a partition, those parties will be considered as having received those amounts as advances on account of their shares, and the administrator will be entitled to a credit for all such payments.

The judgmontof the District court is therefore affirmed, with costs.

Same Case — Application for a Re-hearing.

A RE-HEARING having been applied for in this case, it was refused, for these reasons, assigned by

King, J.

In this case the re-hearing is refused because, in the opinion of the court, the judgment of the court below, and its affirmance by this court, do not prevent the administrator from being credited in the partition, and tho heirs and widow in community charged, with the advances made to the widow and tutrix.


text:
    Carpenter, for the use &c. v. Reynolds.
    The appeal must be dismissed where the certificate of the clerk merely slates "that, I,hr, transcript contains atrae, perfect, and correct transcript of all the records, documents, and proceedings, had in the cause, now on file in the clerk’s office."
    APPEAL from the District Court of Caldwell, Barry, J.

      Purvis, for tile plaintiff.

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

Slidell, J.

Tho plaintiff and appellee has moved the dismissal of thirappeal. On the other hand, tho appellant assigns as error that, he was not brought into the court below by citation, and that the appointment of a curator ad hoc to represent him was unlawful.

The clerk’s certificate is, “ that the transcript contains a true, perfect, and correct transcript of all the records, documents, and proceedings, had in the cause, now on, file in the clerk’s office.” Non-constat, under this certificate, that there may not have been other documents and proceedings in the cause, which would have cured the alleged error, and presented the cause as one against a defendant, who had appeared, or otherwise become, in legal contemplation, a party to the cause. Under this imperfect certificate we cannot say whether the court below erred in sustaining jurisdiction, and renderingjudgment.

It is, therefore, ordered that, the appeal be dismissed at the appellant’s costs, reserving to the appellant whatever right he may have to attack the judgment of the District Court, by an action of nullity or otherwise.


author: Slidell, J. Slidell, J.

text:
    Mitchell v. Lay et al.
    The sale of’ property seized under a ft. fa, cannot be enjoined by the defendant in execution', on the ground that it does not belong to him, but to others ; it is for the latter to resist the' execution, if they desire to do so. If the property was in possession of defendant as agent for the owners, or as administrator of the succession of any one of them,-‘he might have instituted proceedings, in their names, for their protection.
    Where an injunction, arresting the sale of property seized under a fi. fa., is dissolved on , motion as to a portion of the property, but, after a trial on the merits subsequently had, is maintained as to the remainder, the creditor will not, by executing his ji. fa. against the' portion as to which the injunction was dissolved, deprive himself of the right to appeal from the subsequent decree perpetuating the injunction as to the remaining portion.
    APPEAL from the District Court of Caldwell, Barry, J.

      Garrett, for the' plaintiff.

      McGuire and Ray, for the appellant, Lay,

    contended that plaintiff could not maintain an injunction on the allegation that the property does not belong to him, he complaining of no injury to himself. Hudson v. Dangerfield, 2 La. 66. Seymour v. Bourgeat, 12 La. 124. Morgan v. Whitesides, 14 La. 280. Hatch v. City Bank, 1 Rob. 470.
   The judgment of the court was pronounced by

Slidell, J.

This action was brought for the purpose of enjoining the sheriff and Lay, from proceeding to the sale of certain property, seized under a fieri facias1 in the suit of Lay v. Mitchell. The plaintiff alleges that none of the property, the seizure of which has been notified to him, belongs to him ; but that the whole of it belongs to other persons to wit; Francis C. Mitchell, Joseph T. Mitchell, Jesse A. Sapp, and the succession of George Grimshaw, of which he is administrator. On motion, the court dissolved, the injunction as to all the property, except that alleged to belong to the estate of Grimshaw ; and, after a trial on the merits, the injunction was made perpetual as to the property belonging to Grimshaw’s estate.

A defendant in execution has no right to enjoin the sale of property seized under a writ against himself, because it belongs to other persons. The purpose of the remedy is to prevent an injury to the complaining party-. Tf the owners of the property desired to resist the execution, it was their province, not Mitchell’s, to do so. If the property was held by Mitchell, as the agent of the owners, which, with the exception hereafter noticed, was not alleged, hs might, as agent, have instituted proceedings in their names, and for their protection. But, as the case stands, the action of Mitchell is gratuitous.

Garrett, prayed for a re-hearing,

as to the sureties, on the ground that they were not made appellees, citing Spurlock v. Hunter, 12 La. 370.

It is true that, if the purchaser at a sheriff’s sale of property not belonging to the defendant is evicted by the owner, the defendant in execution is liable to an action for the reimbursement of the price paid, which has gone to his credit, and may thus be exposed to future expense and litigation. But this the debtor may easily avoid, by paying his judgment creditor, so that this argument presents no equity.

As to the property which he possessed as administrator, it is quite clear that an administrator has authority, and that it is his duty, to protect the estate from seizure for the debt of another; and, if the property really belonged to the succession, we should attach no importance to the circumstance that the notary has omitted to describe it properly in the inventory. But, in the present case, the plaintiff did not bring suit as administrator, but in his individual capacity. The injunction bond is in his individual name, and the proceedings are so framed that they would not bind the succession as res judicata ; nor could the succession be liable in damages upon a dissolution of the injunction.

It has been urged by the appellee that Lay, by proceeding to execute his fieri facias against that portion of the property as to which the injunction was dissolved upon- motion, deprived himself of the right to appeal from the subsequent decree, perpetuating the injunction as to another portion. In this view we do not concur. The decrees were not indivisible.

It is, therefore, decreed that, the judgment of the court below, which sustained the motion to dissolve, be affirmed. It is further decreed that, the judgment of-the court below, perpetuating the injunction, be reversed; that the suit of plaintiff be dismissed, with costs in both courts; and that the defendant, Benjamin Lay, recover of the said William W. Mitchell, and of Aaron P. Ryan and Charles Newburgcr, his sureties, in solido, the sum of $100, as damages-

Same Case — AppliCxVtion for a Re-hearing.

On this application the judgment of the court was pronounced by

Slidell, J.

It is ordered that the judgment remain undisturbed, except only so far as concerns the sureties, Ryan and Neiolmrger, as to whom a rehearing is granted, on the point in their behalf presented; and that, as between plaintiff and defendants, the mandate of this court issue- to the court below.


author: Kins, J.

text:
    Brown, Tutrix v. King, Curator.
    Where a party intends-to avail himself of a judgment as the foundation of his claim, the whole proceedings upon which the decree was based, must be produced. An incomplete transcript will not be admissible.

      APPEAL from the District Court of Qaldwell, Barry, J.

      Phelps, for the plaintiff.

      McGuire and Ray, for the appellant.
   The judgment of the court was pronounced by

Kins, J.

The plaintiff, in her capacity of administratrix of her husband, John Brown, deceased, instituted this action against the defendant, as curator of the estate of Charles Craig, deceased, to compel him to recognize and pay, in due course of administration, a balance alleged to be due upon a judgment obtained by John Brown §• Co. against Craig and others, in 1821. From a judgment rendered in favor of the plaintiff, the defendant has appealed.

On the trial of the cause the plaintiff offered in evidence a document aa purporting to be a transcript of the suit of John Brown & Co. v. Craig et al., the introduction of which was opposed, on the ground that the record was incomplete. The objection was overruled, and a bill of exceptions taken to the opinion of the judge. We think that the judge erred in receiving the testimony. The document offered bears internal evidence that it is not a complete transcript of the record, and this fact further appears from the certificate of the clerk. That officer only certifies, “ the foregoing to be true copies from the originals filed in my office, in the suit of John Brown & Co. v. Craig, Haberling & Co.” The rule appears to be settled that, when a party intends to avail himself a judgment as the foundation of his claim, the whole proceedings upon which the decree was based, must be produced. 1 Greenleaf, Ev. §511. 8 Mart. N. S. 382. This case differs from that of the Succession of Stafford, 2 An. Rep. 886, in which we held that a party would not be required to produce the entire record of insolvent or mortuary proceedings having no connection with his demand, but with which his demand had been cumulated.

The rejection of this testimony leaves the plaintiff’s claim unsupported by evidence, and renders it necessary to remand the cause.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that the cause be remanded for further proceedings according to law ; the plaintiff pnying the costs of this appeal.


author: Eustis, C. J.

text:
    Waters v. Grayson.
    A slave brought to this State and remaining with the person who brought him until his death, being an immovable in his possession, must be presumed to belong to him. If such a title is to be effected by parol evidence as to its origin in a State in which slaves are considered as personal property, the evidence ought to be definite, positive, and of unquestionable credibility.
    APPEAL from the District Court of Caldwell, Barry, J.

      McGuire anct Ray, for the appellant.

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

Eustis, C. J.

The plaintiff claims from the defendant, who is administrator of the succession of Robert Caldwell, deceased,- a certain Degress slave named Nancy, and a reasonable sum for herhire, since 1836. The defendant answers that the slave forms a part of the property of the succession of said Caldwell, he, Caldwell, having purchased .'her in Missouri in that year, and having been in possession of her up to his death, and that, since that period, she has been'in possession of the 2'epresentatives of his succession. There was judgment for the defendant, and the plaintiff has appealed.

The admissions and acts of the administrator of the succession in relation to .the subject of this suit, we attach no importance to, inasmuch as the title to the slave acquired in Missouri, which is to determine this controversy, rests upon the testimony of the plaintiff’s witness, Logan.

The plaintiff is the sister of the late Robert Caldwell. In her petition, she says that, in 1836, her brother loaned to her $300, and she permitted him to take into his possession the slaye in controversy .until the sum was refunded to h¡22i, he.agreeing to pay her a reasonable compensation for the services of the slave, which she avers .to be $100 per year, and claims for eleven years hire, $1,100, less the $300 loaned. The witness, Logan, says: “ I know of getting possession of a negro slave called Nancy from the plaintiff. It was, in the year 1836, that Robert Caldwell got possession of said slave Nancy, in the county of 'Perry, State .of Missouri. The reason of his getting possession .of her was, that the said plaintiff had sold the said slave to one Isaac Flynn, who had become dissatisfied with the title of said slave, and Robert Caldwell proposed to .advance the money to Flynn for the plaintiff, Mary Ann Waters, which, I was informed by Caldw.ell, was done accordingly — the sum of money being $300 ; that said Caldwell was to return said slave to plaintiff, -whenever she repaid to him the sum of $300. In a conversation with Caldwell, said Caldwell informed this deponent that he did not make this arrangement in relation -to said slave for the sake of profit; and, speaking of the plaintiff’s slaves generally, he spoke ■of -the little profit they were to his sistei', the said plaintiff, and that she would do well to let him .take them all to the State of Louisiana, and hire them out or work .them.”

By the laws of this State slaves are considered -as immovable propei'ty, and the title to them is governed by the rules relating to the latter, as to its proof -and the forms in which-it is transferred. In Missouri, where the title to this skive originated, skives are held t-obe personal property; and the evidence respecting their transfer is said to be the same as relates to that class of property. The slave, being an immovable, in the possession of Caldwell, when she was brought to Louisiana, in 1836, and remaining with him until his death, must be presumed to belong to him. If this title, which the law implies from possession, in the absence of any evidence impugning it, is to .be affected by parol evidence as to its origin in a State in which slaves are considered as personal property, we think that such evidence ought to be definite, positive, .and -of unquestionable credibility. The deeiai-ations of a single witness, at this remote period of time, as to the admission of a person no longer living, ought .certainly to be received under due caution, and .to be weighed and examined with scrutiny. Otherwise the uncertainty which would be thrown around .the titles to slaves brought from other States, would be of serious injui'y to that description of properly ; mortgagees, as well as owners, would feel alarmed at the danger which an interested and unscrupulous witness might .create, ,in relation to titles in slaves.

When we come to examine this testimony under these reservations, we find it to fail in establishing, with proper certainty, the binding consent of the plaintiff to the supposed proposal of Caldwell to purchase the slave for and on her .account, and the promise to pay the $300 at all events. The slave belonged to Flynn. Caldwell paid ihe $300, and took her. But did the plaintiff l-equest ¡him to .do il '! Did she bind .herself to re-pay the purchase money? Did she consent that the slave should be taken to Louisiana at her risk, and she remain bound to reimburse the §300, even in the event of the death of the slave ? Did she, during the eleven years, ever demand the hire of the slave, or an account of her earnings? These are questions to which the evidence gives no satisfactory answer.

It may well be true that Caldwell would willingly have returned the slave to her former mistress, who was his sister, had she desired it, and remunerated him for the advance for her purchase, and he may so have expressed himself; but, from what is before us, we attribute such a willingness and declaration on his part to the promptings of natural affection for his sister, rather than to any contract made between them for the pledge of the slave for a loan of money. An expression, on his part to this effect, may have caused his administratrix to withhold “the slave from the sale of the effects of his succession, in 1842. But, as we have stated, the rights of Caldwell’s succession to the slave depend on his title, which he acquired by purchase from Flynn, and which we consider the testimony of Logan does not impair or modify.

The district judge has given, by his decision in favor of the defendant, his opinion as to the effect of the testimony of Logan; 'and, concurring with him therein, there is nothing in the case which tvould warrant us in reversing it.

Judgment affirmed.


text:
    Ludeling v. Graves.
    A sale, made of property seized under a Ji. fa., pending an opposition by a third person, if the opposition be sustained, will be nuil.
    APPEAL from the District Court of Ouachita, Barry, J.

      McGuire and Ray, for the appellant.

      R. W. Richardson and Garrett, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff' obtained an injunction against the execution of a writ of possession, issued from the District Court held in Ouachita, in the case of the present defendant v. Hemkin et al. The judgment rendered in that case was affirmed on an appeal to the Supreme Court, and is reported in 12 Rob. 103. The plaintiff claims the ownership of the slave Jennie-and her son John, which were the object of the writ of possession. On an issue made as to the title of the plaintiff, there was judgment in favor of the title of the present defendant, Mrs. Graves, dissolving the injunction, and condemning the plaintiff to pay the defendant §10 per month, from the 22d of March, 1847, the day of the issuing of the injunction ; and the plaintiff has appealed. The litigation with which the property of the defendant in these slaves is connected, antagonist to the plaintiff and those in whose right she claims, dates back to 1840.

-I. The plaintiff alleges, in support of her title, that she purchased the slaves from Bernard Hemkin, on the 5th of August, 1842. But the only title which Hemkin himself had was null, under article 400 of the Code of Practice. The purchase was made pending the opposition to the sale under execution, .and the subsequent decree of the Supreme Court is conclusive as to the effect of the adjudication^ and the sale to the plaintiff was made during the pendency of the opposition. 1-Iemkin was tho plaintiff in execution, aud bound, ns a Pal‘ty, by all the pz-oceedings.

II. Plaintiff also claims title under a purchase she made at a sheriff’s sale of the rights of the defendant in the suit abovementioned, by virtue of which she alleges herself to be the owner of the judgment on which the writ of possession issued. The sale was made under an execution for costs, on the 5th of Feb. 3 844. But, by the return of the sheriff, it does not appear that the interest of the defendant in the suit purports even to have been seized, or sold. The parties whose interest the plaintiff appears by the z’ecord to have puz'chased, had zzo real interest in the suit, or the propez'ty which was the subject of it.

III. The plaintiff claims, in support of her title, through Drinkgrave, fL-om whom she bought, the benefit of a purchase made by George W. Copley, of the intez’est of the defendant in the same suit, at a shez'iff’s sale under an execution issued on a judgment rendered against the defendant and her husband. This sale was made in April following (1844). Considering the character of the agreement under which Drinkgrave acquired Copley’s rights, and the position of the latter as one of the attornies of the defendant at the time, we only feel ourselves called upon to state that, wa think the plaintiff’s title acquired no additional validity by supez’adding that thus acquired by the attorney of the defendant.

We have been asked by the counsel for the defendant to z'educe the price allowed for the hire of slaves by the District Court, as the weight of testimony would be in favor of that reduction. This is a matter which, under contradictozy evidence, rests in the judgment of the judge who tried the cause, and we may observe, in conclusion, that the plaintiff lias not placed herself in a situation before the court to invoke its equity. The litigation, which she has inflicted on the lawful owner of these slaves, has been without cause, and even without apology; and the stipend allowed her will afford but a small indemnity for the injuzy which she has suffered bj the depi’ivation of her properly for so long a pei’iod.

There is no question z'aised in the pleadings as to the issue of the slave born since her son John, who is named in the writ. The others will follow the condition of llzeir mother, and belong of course to the defendant.

Judgment affirmed.


author: Kine, J,

text:
    The State v. Harper.
    A justice of the peace, before whom a party is brought for examination, cannot admit him to bail, if the crime of which he is accused be "punishable with death, or with • seven years, or more, imprisonment at hard labor". Stafc. 31 March, 1807, s. 13. This statute is not inconsistent with art. 108, of the constitution of 1845, nor with the cor. responding art. of the constitution of 1812. These articles are silent in relation to the magistrates who shall admit to bail, leaving the subject to the discretion of the legislature.
    A bail bond taken by a justice of the peace in a case in which he is prohibited by law from admitting the party to bail, is void; and the State canuofc recover on it.
    APPEAL from the District Court of Caddo, OlcotU J.
    Gilbert, District Attorney, for the State.

      Landrum, on the same side.

      Young and
      Campbell, far the appellants.
   The judgment of the court was pronounced by

Kine, J,

Harper was arrested under a charge .of “ killing A. O. Fuqua.” After hearing his voluntary confession, the justice of the peace, before whom he was examined, admitted him to bail, on his giving a bond and security in the sum of $5000, and the defendants became his sureties. At the next ensuing term of the District Court, an indictment for murder was found against Harper, who failed to appear and answer to the charge preferred against him. When the sureties were called upon the bond, they opposed its forfeiture, and denied their liability, on the ground, among many others. which\ were urged, that the justice of the peace who received this' bond was without authority to admit the accused to bail. The district judge overruled their opposition, and rendered a judgment, in solido, against them, from which they have appealed.

The lowest grade of homicide, regarded as a ci’ime 'is manslaughter, which may be punished with imprisonment at hard labor for twenty-one years. The act of the 31st March, 1807, (Bui. & Cur. Dig. p. 530), requires the justice of the peace, before whom complaint is made of any crime, after an examination, “ to send the accused to jail under the custody ofliis constable, if the crime be punishable with death, or with seven years or more imprisonment at hard labor; or to set him at liberty if the offence be punishable with less severe pains, upon giving security in such sum” &c. The act of the 3d May, 1805, is to the same effect, declaring justices of the peace incapable of admitting to bail parties, charged with offences punishable with death, or exclusively cognizable by the Superior Court. Bui. & Cur. Dig. p. 529. Those crimes were capital crimes, and crimes punishable with hard labor for life, or for seven years or upwards. Sess. Acts, p. 448, § 43. In these cases the justice of the peace is required to commit the accused to the custody of the sheriff, who is to hold him in confinement, until he be delivered in due course of law.

In the case of the The State v. Hebert et al., 10 Rob.p. 41, justices of thepeace were declared, under the authority of these statutes, to be incompetent to admit to bail parties charged with crimes which may be punished with imprisonment at hard labor for seven years or more, and a bail bond taken by a justice of the peace, on such complaint, was held to be in contravention of a prohibitory statute, and consequently void.

The district judge, however, considered that these statutes, as far as they restrain the power of justices to admit to bail, have been repealed by the 108th article of the constitution of 1845, and the corresponding article of the constitution of 1812, which declare that, “ all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great.” These articles announce no rule which was not in full force in the territory of Louisiana when the statutes of 1805 and 1809 were enacted, and stand in no necessary conflict with those acts.

These constitutions are silent in relation to the magistrates who shall exercise the right of receiving bail. This was left to the discretion of the legislature, who have wisely committed the exercise of this important power to a higher order of judicial officers when the complaint relates to grave crimes, and to an inferior magistracy the same power is reference to offences of less magnitude. This legislation is not inconsistent with the right of the accused to be admitted to bail, when the offence with which he is charged does not fall within the excepted class mentioned in the constitution. I<t denies the right to none to whom it is accorded by the constitution, but merely discrimínalos between the officers who shall exercise the power of granting bail, according to the gravity of the offence.

The judgment of the District Court is, therefore, reversed, and judgment rendered in favor of the appellants.


author: Slideix, 3.

text:
    Boner v. Mahle.
    The privilege of the vendor is not required to be expressly stipulated ; it springs from the nature of the debt, and exists by force of law, unless i’enounced. The renunciation need not be express, it may be implied from the terms of the instrument; but fcbe intention to renounce must not be doubtful; it must be clearly deducible from the language of the ■ parties.
    The mere omission to stipulate a special mortgage, cánnot be considered a renunciation of the higher right of privilege ; nor can such a renunciation be inferred where the omission to take a special mortgage is accompanied by the granting of a mortgage upon other property; nor, where a special mortgage has been taken, will its subsequent release affect the creditor’s privilege. ‘
    An interpretation of contracts based upon presumed ignorance of the law by the parties, is inadmissible.
    The recital in an act of sale that the purchaser, " in order to secure the payment of the notes fot the price, hereby mortgages ” certain property previously belonging to him, cannot be considered as evidence of an implied release of the creditor’s privilege.
    Where a written act of sale is unambiguous, and, by its legal effect, confers the vendor's privilege, parol evidence is inadmissible to establish that the parties intended that no such privilege should exist. C. C. 2256.
    Children of a female slave born since the sale of the mother, are subject to the vendor’s priviJ lege. C. C. 183, 491, 539, 557. Stat. of 7 June, 1806, ss. 9,10.
    The purchaser of slaves under a ventü a reméré does not become the owner of the children bom of tbe slaves purchased, during his possessiou under the contract; the vendor, when be exercises his right of redemption, is entitled to reclaim them as owner. So on the resolution of a sale of slaves, at the suit of the vendor, he is entitled to take back the offspring born since the sale.
    APPEAL from the District Cotirt oí Caddo, Taylor, L

      Spofford, for the plaintiff.
    The plaintiff has the privilege of a vendor. C.C. 3216. The taking of a special mortgage on other property is not a waiver of it. Howard v. Thomas^, 3 La. 111. 3 Rob. 216. 12 Rob. 279. The law being so settled here, it is immaterial that the opposite doctrine was held in Rome, France, or England. Tropiong, Privil. v. 1, § 199. 2 Story’s Eq. Juris. § 1224. The privilege was preserved by registering the sale. 2 La. 577. Parol evidence to show a renunciation of the privilege is inadmissible. C. C. 2255, 2256, 1842, 2498, 1757 § 2. 2449, 2477, 2496. 8 Taunton, 97. ’ As between vendor and vendee the privilege of the former extends 'to the young of slaves sold, born after the sale. Partus sequitur ventrera, C. C. 490 etseq., 537, 530, 196, 3278. Greiner’s Dig. arts. 3370, 3371, 3496. Code Nap. 2133, and Rogron’s Com. on it. Tropiong, Hyp. v.2, p. 365, &e. White’s New Recop. v. 1, p. 141. Mor. and Carleton’s Partidas, v, 1. p. 371. If by the resolutory condition implied in every sale, the vendor, on the dissolution of the sale on the failure of the purchaser to pay the-price, is entitled to all the natural fruits that have accrued since the sale (C. C. 2040, 3041, 2539), it would seem that he should not be placed in a worse position where he exercises the concurrent remedy afforded by hi® privilege as vendor.

      Persil, Reg. Hyp. p. 54, gee. 2, no. 2. C. 0. 3135.' The román law supports plaintiff’s position on these questions.
    •* V. G. Quse ex re pignerata apud eum qui earn obligavit nascuntur,- hujus rei pignori accedunt.
    “ Item Paulus : Si maneipia in causam pignoris ceciderunt, ea quoqub qua ex his nata sunt, eodem jure'habenda sunt.” Pandects, by Pothier, v. 7. p. 493.

      Elgee, for the defendant.
    This action is in the nature of an hypothecaryaction against Mahle, as the possessor of certain slaves on which the plaintiff alleges that his privilege, as a vendor, rests. The del endant avers that no such lien was reserved, but, on the contrary, at the time of the sale, was abandoned, in consideration of a special mortgage given on other' and distinct property, to secure the full amount due ; that, if the abandonment be not inserted expressly in the deed, the omission occurred through the neglect of the notary, and that plaintiff, availing himself of such an omission, is fraudulently attempting to en-force a right which he had abandoned. To prove the renunciation of this right,the defendant, in the lower court, offered the parol testimony of the notary who drew up the act of sale, which evidence that tribunal refused to receive. The decision of this case rests upon the question, whether this evidence be, or be not, admissible. The plaintiff bases his objection upon the 225th art. of the Civil Code, averring that the evidence offered contradicts the deed.
    The article referred to does not establish a principle peculiar to our jurisprudence. It is a well settled principle that, parol testimony shall not be admitted to contradict the deed. The deed must speak for itself. But it is manifest that this rule cannot be extended so as to embrace matters not set forth in the deed. Thus, in the present case, had the parties to the act of sale stipulated that the lien of the vendor should be retained, no parol proof could be admitted to contradict the solemn and express agreement. But the deed is silent upon this point, and the parties may or may not have agreed to retain or abandon it; therefore the testimony does not contradict the deed.
    But the plaintiff urges that the lien of the vendor is a legal consequence of the deed; that its retention is presumed by law; and that, therefore, a renunciation of it must be express. The defendant does not admit the legal accuracy of the statement, that the vendor’s lien is a consequence of the deed. But admitting, for the sake of argument, that it is, does it follow, ex necessitate, that renunciations of such legal rights must be express?. Not at all. In France, Where the very highest regard is paid to privileges, it'is admitted that they may be either expressly or tacitly renounced. Vide Troplong, Brnss. Edit. Priviléges p. 191, no. 808. Persil, Reg. Hypothécaire, p. 273, no. 15. Guiehard, Reg. Hyp. vol. 4, p. 241. See also the authorities of Caius and Ulpian, loco citato# If the renunciation of a privilege can be legally inferred from the silent testi-mony of surrounding facts and circumstances, with how mnch more of reason Will not direct evidence be admissible.
    Whilst the rule of law is rigidly adhered to in England, and the States of this Union, that parol evidence is not admissible to contradict written instruments# the rule is no less well settled, that contracts which arise by operation of law are exempted from it. In the case of the Susquehanna Bridge v. Evans, 4 Wash. C. C. R. p. 480, Judge Washington says: “The reasons which forbid the admission of parol evidence to alter or explain written agreements and other-instruments, do not apply to those contracts implied by operation of law.” See also Wharton’s Dig. p. 254. 3d. Sergt. and Rawle, p. G09. 5 lb. p. 363.
    The apparent difficulty in deciding this question seems to arise from the impression, erroneous in itself, that the lien or privilege is an inherent part of the deed. The plaintiff is seeking to enforce a privilege. .Whatis a privilege ? -A right, arising not from the deed, but from the nature of the debt. C. C. art. 3153. The debt can exist without the deed ; ergo, the privilege ■ which arises from the debt can also exist without the deed. liad a verbal sale of the slaves taken place, the vendor s lien would certainly have existed as between the parties, and could have been enforced at law. The deed in this case affords written evidence of the nature of the property sold, and the price which was to be paid for it; and, so far, it cannot be contradicted by the parties thereto. But it is silent as to what may have been the agreement or understanding in relation to the privilege of the vendor. The admission of parol evidence in all cases is the general rule, only restrained or inhibited in such cases as the law-maker has pointed out. Thus, if there be no express prohibition against the receiving of parol testimony to rebut a legal presumption, it must be admitted. See Starkie on Evidence.

      The authorities adduced in the lower court by plaintiff do not meet this question.
    11 Rob. p. 20. Jewett’s case arose on a question of priority of prescription.
    12 Rob. p. 280. Citizens’ Bankv. Ctmy et at. decides that the relinquishment of the special mortgage did not include that of the vendor’s lien, particularly as in the relinquishment of the former, the vendor had stated, at the same time, on the records, that no part of the price had been paid.
    3 La. p. 112. Howard, v. Thomas. In this case the vendee put interrogatories to the vendor, to know whether he had not agreed to renounce his lien as vendor, to which he was answered in the negative. These answers were not sought to be disproved, and judgment was rendered accordingly, recognizing the lien of the vendor;
    2 La. p. 575. Mooré v. Louaillier, lias no relation to the case at bar. It merely decides that where the office of parish and probate judge are united in the same person, that it is indifferent how he styles himself in the filing of the instruments in his office.
    3 Rob. p. 216. Succession of Johnson. The court held that, in cases of doubt, the lien of the vendor would be recognized; but admit that, if the question were res nova, they would hesitate before deciding that, at least as to third parties, the privilege was retained.
    Amongst the facts and circumstances surrounding this transaction as indicative of the intention of the parties to abandon the vendor’s lien, one cannot fail to be struck with the peculiar language of the deed of sale of the slaves. After reciting the terms of sale, and setting forth the note which'was given, the notary proceeds — “ and now in order to secure ” etc., indicative certainly of the idea that, the mortgage recited subsequently was the sole, substantive security to be given. If it had been considered additional, would not the notary have used the language “ more fully to secure.”
    The judgment appealed from is clearly erroneous in decreeing the vendor’s lien to rest upon the slaves set forth in the petition, upon referring to which we find that the plaintiff claims that the original slaves and their increase, be sold, etc. Legal ingenuity can scarcely go so far as to affect property yet in the womb of time with the lien of the vendor. Persons not yet born can scarcely be considered objects of. commerce.
   The judgment of the court was pronounced by

Slideix, 3.

The plaintiff seeks to1 enforce the vendor’s privilege upon certain slaves, in the possession of the defendant. The defendant avers that no such privilege was reserved ; but, on the contrary, at the time of the sale, was abandoned by the plaintiff, in consideration of a special mortgage being given him on other and distinct property, to secure him in the full amount of the price not paid in cash ; that, if the abandonment was not inserted expressly in the deed of sale, the omission occurred through the “ remissness, negligence, or perhaps ignorance” of the notary, who drew up the act; that the plaintiff, availing himself of such omission, is fraudulently attempting to enforce a right which he had abandoned.

To prove the renunciation of the vendor’s privilege, the defendant offered, in the lower court, the parol testimony of the parish judge, who, in his capacity of notary, drew up the act of sale, and before whom it was executed, to prove what was said at the time by the parties. The court refused to receive the testimony, and to that refusal a bill of exceptions was taken. The defendant’s counsel acknowledges, in his brief, that the decision of this cause rests almost entirely upon the question of the admissibility of the parol evidence. He has, however, relied in some degree upon the act of sale itself. Before considering the question of the admissibility of the parol evidence, we propose to examine the case as standing simply upon the act of sale, the written contract of the parties.

The material contents of the act are as follows: Boner declares that, for the consideration of §5250, cash, and the vendee’s note, of ©ven date with the act, for $7220, payable to the vendor’s order, with interest, on the 1st February ensuing, and duly paraphed, he sells to Mahle seven slaves (being those in controversy). And, in order to secure the payment of the said note, as well as all interest that may become due therein, the said John H. Mahle hereby mortgages and especially hypothecates all that lot of ground situated in the parish of Natchitoches, etc.; also, the undivided half of another lot of ground, etc., (describing them) all of which property is so to remain mortgaged until complete payment of said sum and interest.” Nothing is said about mortgaging the slaves, and the act is also entirely silent as to the vendor’s privilege.

Is a renunciation of the vendor’s privilege to be inferred from the face of the act, upon a sound interpretation of the language which the parties in this solemn written form, have used to express their intentions 1

By article 3216 of our Code, the vendor has a privilege on the estate, or slave, sold by him, for the payment of the price, or so much of it as is due, whether it was sold on, or without, a credit. It is not necessary that, in the contract of the parties, this privilege should be expressly stipulated. It is a right which springs from the nature of the debt, and by force of law is embodied in the contract, unless it be renounced. It is also a right of a very high character, conferring advantages superior to .those which flow from a mortgage. It is not necessary that this right should be renounced in express terms, in the act of sale. Such renunciation may be implied from the terms of the instrument. But, inasmuch as the obligation of contracts extend not only to what is expressly stipulated, but also to everything that by law is considered as appertaining to the nature of the particular contract (Code 1897); and, inasmuch as the vendor’s privilege is a legal concomitant of the contract of sale, it must be held, upon sound principles of interpretation, that the renunciation of this important right which sets aside the legal presumption, should be established, not by doubtful, but by clear and cogent inferences from the language of the parties. Now the omission of the parties to stipulate a special mortgage, cannot be considered as an implied renunciation of the higher right of privilege. Such a construction would militate •against the express .previsions of our law, which declare privileges to be given by the nature-of the debt, and confer a privilege upon the vendor by force of the contract of sale itself. It has even been held that, when a special mortgage had been taken, its subsequent release did not affect the vendor’s privilege. Citizen’s Bank v. Cuny, 12 Rob. 279. See also Succession of Johnson, 3 Rob. 217. Howard v. Thomas, 3 La. 112. Privilege and mortgage may co-exist, and the former may exist without the latter. The rights are different.

But it is said that the renunciation of the privilege may be inferred from the •omission to grant a mortgage upon the slaves, coupled with the fact of granting a mortgage upon other and independent property. In our opinion this is not a necessary inference. Because a vendor takes the seeiirity of other property, we are not to presume that he relinquishes the security which the law gives him upon the property sold; but rather to consider him as superinducing an additions' security; and more particularly, where the property sold is in its nature perish.able, liable to be impaired by disease, or destroyed by death. We cannot look •upon it in the opposite light, without assuming that the parties were ignorant of •the law, and disregarded the legal consequence which it attaches to the contract they were making, An interpretation of contracts based upon presumed ignorance of the law by the contracting parties, is inadmissible.

Some stress was laid by the counsel upon the words of the act — “and, in order ,t.o secure the payment of said note.” From these expressions it was argued that the parties are tobe considered assaying, “the lands shall be the security and nothing else shall be encumbered.” This conflicts with the rules of inter pretation we have already noticed, and, if sanctioned, would destroy the vendor’s privilege in every act of sale on credit that has come under .our observation, ■when a special mortgage was granted on the property sold. For the usual formula is: “ Now in order to secure the payment of the said notes, the -vendee mortgages, etc.”

In conclusion, we may add, that although .the doctrine that a renunciation of a mortgage or privilege may be implied, is fully sanctioned by authority, the illustrations found in the books, are .cases where the implication is cogent, and its rejection wo.uld be against good conscience. Thus, in the roman law, the wife was considered as making a tacit renunciation of her mortgage, by uniting with her husband in a contract of sale, avec promesse d’eviction. So in the same law, .a wife w,ho appears with her husband in a contract, by which he constitutes a dowry for his child on a property subject to her legal mortgage., was .considered .as releasing her mortgage on that property. S.o of a mortgage creditor consenting .that .the property encumbered in his favor should be mortgaged to another creditor. So of the lien of a factor under the law merchant: It is founded ¡upon a tacit agreement of the parties, which the law implies, but will consider as waived if, while the. property is in the hands of the factor with a lien attached to it, he agrees .to hold the property exclusively for, or as the property of, a third person.

Merlin expresses, with his .usual accuracy, the j.ust rule for the interpretation .of renunciations. Les renunciations se font de deux maniér.es; expressément, ,et par des faits, Mais pour .que des faits enrportent renonciation, il faut qu'il en résulte une y.olonté manifesté d.e renoncer, c’est-tL-dire, que e.es faits soient directement e.t á tous égards contraires au droit o.u au privilege dont il s’agit. Merlin, Rep. verbo Renon. § 3. .See also Persjl, Questions sur les Hyp. p. 38. Wall v. Bry, 1 An. 314.

Being, ther.efo.re, of opiuion that, on the face of this instrument, which the parties have chosen .to make in the mo.st solemn form known to our law, the repository and .evidence of their intentions, the vendor’s privilege w,as not waived, we proceed to the consideration of the question whether the parol evidence is admissible to .contradict the ac.t, and .show that the parties did intend that it should not exist.

It appears, by the bill of .exceptions that, on .the trial of .this cause .the defendant offered in evidence the .testimony of C. E. Qreneaux, (which evidence is made part of the bill of exceptions,) for the purpose of rebutting the presumption arising fro.m the deed pf sale of Boner .to defendant, that the said Boner had avendor’s lien on the negroes therein sold; and also for .the purpose of explaining the .ambiguity latent i.n said deed, that plaintiff took the mortgage on .the Natchitoches property as sole and substantive security for his debt, and not as further and additional security ; but the .court refused to admit the said testimony on the ground that it is not legal .to defeat by parol the authentic act containing a privilege ; that the parties must stand by the written act; and that any other rule would unsettle the rights .of property, and leave the defendant upon the uncertain memory of man.'”

The testimony of Judge Qreneaux was as follows: Interrogatory 1. Be pleased to refer to tho act of sale passed before you in your capacity of notary public, on or about the 19th May, 1833, from William Boner to JphnJi. Mahlcs of certain slaves, and state whether or not you remember what took place be tween the parties when said sale was made ?

Answer. I refer to the act of sale passed before me in my capacity of notary public on the 19th of May, 1838, from William Boner to John II. Mahle, of certain slaves, and believe I have some recollection of what took place between the parties when said sale was made.

Interrogatory 2. State why it was that Boner did not retain a special mortgage on the property then sold ?

Answer. Boner did not retain a special mortgage on the property then sold, because Mahle stated that he wished to have the slaves free of hypothecation, in order to enable him to mortgage them with his plantation to some bank.

Interrogatory 3. Did, or did not, the said Boner accept the special mortgage on town property in Natchitoches, as full security for the price of the slaves sold?

Answer. I then understood, from the purport of the act of sale, that Boner was satisfied with the mortgage on the house, as full security for the payment of the price of the slaves sold ?

Interrogatory 4. What a'eason did Mahle assign for not giving Boner a special mortgage on the slaves ? Did he, or nGt, tell Boner that he wanted to obtain a loan by mortgaging said slaves in bank?

Answer. I have answered ' this in my answer to the second interrogatory.

Interrogatory 5. What was, at that time, the-value of the town property mortgaged by Mahle? Was it or not, according to the value of town property at that time, sufficient to secure the amount of the purchase ?

Anstoer. I cannot say. .

Interrogatory 6. Was it, or not, at -the time of the sale, and afterwards, understood between Boner and Mahle, that Boner was to have no mortgage, privilege, or hen on the slaves sold; and was not the mortgage on town property given in consideration of Boner's relinquishment of his lien on the slaves?

Answer. I have stated my impressions at the time, in my answer to the third interrogatory.

Interrogatory 7. Is it, or not, the almost universal eustom when real estate or slaves are sold en credit, to retain a special mortgage for the price, in addition to the vendor’s privilege ? Why was the custom departed from in this instance ?

Answer. It is generally the custom, when real estate or slaves are sold on a credit, to retain a special mortgage for the priee, in addition to the vendor’s privilege. I recollect having asked the parties in this case, and specially Mahle, why he preferred giving a mortgage on his house aud lot, and his answer was as I have already stated. Mr. Boner was present, and did not object. There was no express understanding .that Boner should relinquish his privilege'; but. the object of his taking a mortgage on the house and lot, instead of retaining it on the slaves, -was to enable Mahle to mortgage them free from all encumbrances or liens. This is what I understood from both of them, at the time the sale was made and passed before me.

It-must be observed that the answer did not charge, nor was the testimony offered to prove, fraud. The language o’f the answer is, that it was well understood and agreed betweenj the vendor and vendee that no lien or privilege of any kind should be retained, that the Natchitoches property should be mortgaged in lieu thereof to secure the payment of the note, .and that if an express r.elinquishment of the vendor’s lien was not therein made, it arose purely from the remissness, negligence, or perhaps ignorance of the notary. It is true the answer adds: “Your respondents do now further distinctly charge upon plaintiff fraud, in attempting to enforce a lien which he well knows he did relinquish, for and in consideration of the mortgage hereinbefore referred to”. But this allegation of fraud points not to the formation of the contract or the execution of the act of sale, but to the subsequent conduct of the plaintiff.

The law requires that every transfer of immovable property or slaves must be in writing, saving, however, under certain circumstances, the confession of the vendor, when interrogated on oath. Following this provision, and under the title of “ testimonial proof,” is the stringent rule: “ Neither shall parol evidence be admitted against, or beyond, what is contained in the acts, nor on what may have been said before, or at the time of, making them, or since”. Articles 1842 and 2267 authorize an exception, where an act is attacked on account of “ fraud or deceit”.

It is obvious that the attempt here is, to contradict the authentic written evidence of the parties, to give parol evidence against the act. The written contract, by its legal effect, confers the vendor’s privilege; by the testimony, the plaintiff seeks to show that the parties intended that no such privilege should exist — to substitute another contract for that which they have in a solemn writing expressed — to establish that they meant one thing, but signed another. Let it be observed that the act is not in itself unintelligible. What is written in the act is unambiguous, and tho legal effect of what is written is also clear.

This testimony then, we think, could not have been admitted under the pleadings, and for the purpose for which it was offered, without violating the letter and the meaning of the Code, It was properly said at bar that, on this question we must follow our own law. In the equity jurisprudence of England, to which we have been referred, there seems to be a good deal of latitude allowed in the admission of parol evidence to vary or reform written contracts upon the ground of mistake. Although it must be, at the same time, observed that, courts of Equity will grant such relief only where there is a plain mistake, clearly made out by satisfactory proofs, and refuse it where the eviidence is loose, equivocal, or contradictory, or is in its texture open to doubt or to opposing presumptions. See Story’s Equity Jurisprudence, § 155. The opponents of that doctrine contend that, there is great danger in setting aside the solemn engagements of parties when reduced to writing, by the introduction of parol evidence, and that it leaves too much to the discretion of the bench, and holds out temptation to perjury; while its advocates insist that, it is in furtherance of justice, and that it would be a great defect in the moral jurisdiction of courts of Equity if they were to refuse in such cases to administer relief upon parol evidence. It is not our province to enquire what our own law ought to be, but what it is. It forbids as to let in contemporaneous parol evidence to defeat the written contract, and prefers that cases of individual hardship should sometimes occur, rather than that the daily transactions of the people ahd their titles to immovable property, should be exposed to the uncertainty which would result from permitting written contracts to be questioned upon oral testimony.

In conclusion we may remark that, the present case is not an inapt illustration of the danger that would result from a contrary rule. The witness does not profess to speak with certainty: “I believe I have some recollection of what took place between tho parties when the sale was made”. “ I then understood from the purport of the act of sale, .that Boner was satisfied with the mortgage on the house &c’’. “I have stated my impression at the time”.

It has been contended that Mahle, and his heirs now holding under him, are to be considered as third persons, and holding the place and rights of Elgee> The facts relied upon in support of the position that Mahle became a third person, are as follows : In 1838,Boner sold the slaves to Mahle by the authentic act already considered, which act was duly recorded,and preserved the vendor’s privilege. After this, Mahle mortgaged the property to Barrett, the parish judge certifying that the slaves were unencumbered by mortgage. Elgee subsequently became part owner of the Barrett mortgage, caused the slaves to be seized and sold under it, and bought them at judicial sale. In March, 1843 Mahle was discharged as a bankrupt by the United States Court, under proceedings instituted' in 1843. In November, 1843, Elgee sold the slaves to Mahle, with exclusion of warranty, except against his own acts. Under these circumstances it may be questionable, whether Mahle can be treated as a third person. He was a party to the original contract, now to be enforced : the price he promised to pay, he has not paid; and, although legally discharged from personal liability by the decree of the bankrupt court, the liability exists in foro conscientes.

But, even if Mahle and his heirs could, under the circumstances, be deemed third persons, the vendor’s privilege was preserved against them by the due recording of the act of sale (C. C. 3238); and, for the purposes for which it was offered, the parol evidence would have been as inadmissible against Boner as though the title had never passed from Mahle. What safety would there be in contracts, and what security for the rights of property, if, when A. and B. have made an agreement in a solemn written form, C., a subseqsent creditor of B., should be permitted, without a charge of fraud, to attack the rights of A., by proving that B. undertook one thing in the agreement, but meant another. The principles and policy of the law upon which we have already commented, forbid such evidence.

But it is said that the children of the female slaves, born since the sale, are not subject to the vendor’s privilege; and that the judgment which, by relation to the pleadings, recognizes a privilege upon such increase, is therefore erroneous. In the consideration of this question it may be well to enquire whether, if the vendor has chosen to sue for the resolution of this sale by reason of the nonpayment of the price, he would have been entitled to take this increase.

Upon this point we are not aware that the Code contains any express enunciation. We must draw our conclusions from the anology of cases where it has plainly spoken, and from authority. The child follows the condition of the mother, and, if she be a slave, the child- born becomes the property of her owner. This relation, established by the Code (art. 183), construed in a restricted sense, might be said merely to solve the question of the child’s condition; but, taken in connection with other provisions of the Code and of our statute book, it corroborates the view that, the child should be deemed annexed to the parent, and that the property in the former should follow as an accessory the property in the latter. It is in this sense that the law speaks in treating of the rights of an usufructuary. Slaves are spoken of as natural fruits, in article 557 of the Civil Code. In article 491 it is said that, the children of slaves belong to the proprietor, by right of accession. In both articles they are spoken of concurrently with fruits of the earth, spontaneous or cultivated. But while the latter, produced during the existence of the usufruct, are declared to belong to the usufructuary, the children of slaves are excepted. In article 539 it is said, the children of slaves subject to usufruct, Who are born during its duration, belong to the owner. The usufructuary has only the enjoyment of their labor and services.

Acting upon the analogy of this article of the Code (536), the court held, in Patterson v. Bonner, 19 La. 509, that the vendee under a vente a remiré was not the owner of slaves born of the slaves purchased, during his possession under the contract, and that the vendor, when he exercises the right of redemption, is entitled to recover them as owner.

If, in such a sale, the increase would not be considered the property of the vendee, it appears to us they should not, when the vendor sets aside the sale, by availing himself of the resolutory condition. In the vente a remiré — the sale with the right of redemption — the resolution of the sale does not spring from the fault of the purchaser, but is based upon the exercise of the potestative condition reserved to the seller, and of which, under the agreement of the parties, he choses, for the furtherance of his own interest, arbitrary to avail himself. But, in the other case, the right to exercise the resolutory condition has its source in the fault of the purchaser, who has violated, or failed to perform, his promise to pay the price. Quia nihil penes eum residere oporierei ex re in qua fidem fejellisset.

The view we have taken of this question derives additional force from the language of our statutes concerning slaves, which are conceived in the same humane spirit which restricts the master’s power to punish the slave. “ Eve* ry person is expressly prohibited from selling separately from their mothers, the. children who shall not have attained the full age of ten years.” So, too, from the fiction of the law : “ Slaves shall always be reputed and considered real estate; shall be, as such, subject to be mortgaged, according the rules prescribed by law ; and they shall be seized and sold as real estatp.” Statute of 1806. It is proper to observe that the children, in this case, do not appear to have reached the age of ten years. The sale from Boner, and the mortgage to Barrett, do not speak of the slaves Charity, Susan, and Elvira, as then having issue. The only child, whose age is exhibited by the record is a child of Elvira, not at the present time nine years old. The two children, issue of Susant are not mentiened in any of the sales or the mortgages down to 1843 ; and she was fifteen years old at the date of Boner’s sale, in 1838. In the absence of contrary proof, we must presume them to be under the age of ten years. If the issue are to be treated as fruits, still, as the law forbids them to be separated from the mother until the age of ten years, we cannot liken them to gathered fruits until they have attained that age.

The conclusion, we think, is clear that, if Boner had chosen to sue for a're* solution of the sale, he would have had a right to take back the offspring. They would not have become the property of the purchaser. This goes very far to establish the right of privilege. It is indeed difficult, on principle, to distinguish the cases. We have not been favored with any argument which would authorize us to make a distinction, and to say that if the vendor chooses to resolve the sale, he shall take the increase; but that if he seeks to collect the price, the increase shall be considered as disconnected from the parents, and unreservedly, and without encumbrance, the property of the purchaser.

The privilege of the vendor is a species of implied mortgage, superior, however, in some respects, in its rank and effect to the conventional mortgage. The effects of mortgages and privileges are treated of in the same chapter of the' Code (Mortgages, chap. 3, sec. 1, et seq.) and we are not aware of any reason for excluding the vendor, whose rights are deemed peculiarly sacred,- from the advantages enjoyed by the simple mortgagee. “ La raison,” says Luranton, in' speaking of the vendor’s privilege and of the effect, of the mortgage, “ est la¡ méme pour le privilege.” Vol. 10,- §158, ■ *'

Our law, in this respect, follows the ancient jurisprudence. 11 Quae rebutf obligatis aecesserunt obligata censentur, veluti si quid fundi oppignorato per alluvionem adjectum sit, aut proprietati, quEe pignori data erat, ususfructus posteá accreverit.” Voet, cited in Tropíong, Lfyp. vol. 2, no. S5'£. In the language sf the commentator it is assise suf la chose, and extends itself with the property and its “ modifications.”

In the roman law, we find this question considered with reference to slaves. Quae ex re pignorata apud eum qui earn oblrgavit nascuntur, hnjus rei pignori accedunt. Partus pigneratae ancillíé in pari causa, esse qua mater est, olini placuit. Si mancipia in causam pignoris cecideiunt, eaquoque qute ex his nata sunt, codem jure habendasunt.

Although the mortgage be restrained to certain* things, yet it will nevertheless extend to nil that shall arise or proceed from the.t.hing which is mortgaged, or that shall augment it, and make part of it. Thus,- the fruits which grow ote the lands that are mortgaged, are subject to the mortgage, while they continue unseparatecl from the ground. Thus, where a stock of horses, a head of cattle, or a flock of sheep, is put in pawn into the creditor’s hands, the foals, the'lambs, and other beasts which they bring forth, and which augment their number, are likewise engaged for the creditor’s security; and if the whole herd, or flock, be entirely changed, the heads which have renewed it are engaged in the same manner as the old stock. . Thus,, when the bounds of a piece of ground that is mortgaged happen to be enlarged by that which the course of a river may add to it, the mortgage extends to that which has augmented the ground. Thus a house that is built on ground which is mortgaged, is subject likewise to the mortgage. And if, on the contrary, a house be mortgaged, and it perishes by fire or falls through decay, the mortgage will subsist on the ground-where the house stood. Thus when a debtor mortgages a piece of ground of which he had only the bars property, another enjoying the usufruct of it, when the said right to the usufruct comes to be extinct, the mortgage will comprehend the ground together with the fruits. Domat, book 3,"tit. 1, sec. 1, § 7. (Stra.han’s ed.) See Civil Code, 3*278, 3371, &c.

We are, therefore, of opinion that, the vendor’s privilege attached on the issue of the slaves, born after the defendant purchased.

We have already expressed a doubt as to the right of Mahle and his heirs, to be considered as third persons by reason of the sale tó Elgee and the resale to Mahle after his bankruptcy. But, however this may be, the act of sale was duiy recorded ; and we do not perceive how a third possessor could resist the privilege, any more than he could resist an action based upon the resolutory condition. Resoluto jure dantis, resoivitur jus accipientis. Persil, Ques. sur les Hyp. p. 27. Trop. Vente, § 629.

It is, therefore, decreed that, the judgment of the court below be affirmed, with costs; said judgment being considered by this court as comprehending, under the expression slaves mentioned in the petition, not only the slaves Jasper, Isaac, John, Jim, Charity, Susan and Elvira, but also any increase born of ¡my or either of said slaves since the 19th day of May, 1838.


text:
    Snow v. Copley et al.
    While the father and mother are both alive, the former cannot be natural tutor to the minor children; hut, as their father, he is, during the marriage, administrator of their estate, and competent to institute judicial proceeding for its protection. C. C. 267.
    The' validity of a donation made to a minor child by a third person, cannot he questioned by a creditor of the father of the minor, who has no interest in'the property, but simply administers it for his child. The validity of the donation is a matter between the donors and those claiming under them, and the donees.
    APPEAL, by the defendants-, from' a judgment of the District Court of Caldwell, Barry, J., perpetuating an injunction obtained by plaintiff-

      Garrett, for the plaintiff.

      Purvis, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

Copley having a judgment against Snow, caused to be seized on execution certain property, described in the seizure as “'the entire improvement on which Snow resided,” a-house in the town of Columbia, and all the rights and credits in the hands of J. B. B'res. Snow then obtained an injunction. In his petition he appears in his own right, andas the natural tutor of his minor children, Susan and James. He alleges that the property seized is not bound for the payment of his debts; that “the improvement” was not his property ; that it was on land belonging partly to one Meredith, and partly to his minor child, James; that the house in Columbia belonged to his minor child Susan; that the debts due to him by Bres were for fees earned by him as parish judge, and as a clerk of court, and consequently were not subject to seizure.

The right of Snoio to- act for his minor children is disputed, upon the ground that the mother and father being both living, he could not be clothed with the capacity of natural tutor. It is true- that Snow' is not natural'tutor; but, as the father of the minors, he is, during the marriage, the administrator of their estate, and competent to institute a judicial proceeding for its protection. C. C. 267.

The lot on which the house stands, and' a portion of the lands in question, are claimed for these minors under donations from- King and Garrett. Copley contends that these donations are invalid; but, in our opinion, he cannot be permitted to question their validity. That is a matter between the donors and' those claiming under them, and the donees, and cannot be raised by a creditor of the father, who clearly has no ownership or interest in the property, and’ is simply its administrator for the children.

But, as regards the house erected on the lot, the ownership of the minor Susan is not established. King made a donation to her of the lot, but the house was not erected by her. Her father erected it; it is not proved that she has paid for it, nor that it was paid for out of her funds; and it cannot, for the benefit of his child; be protected from his creditors. The same observations apply to “the improvements” made by the father on the other lands.

So far as those improvements are Meredith's property, or were made by the plaintiff upon Meredith's land. Snow was without right to enjoin. If they belonged to him. they worn liable to his creditors. If they belonged to Meredith, it was not Snow's province to protect them, by a suit in his own name. See the case of Mitchell v. Lay et al. ante p. 593. It is proper to remark that it is not alleged, nor proved, that Snow was the lessee of Meredith.

There is no proof that the debts due by Bres were of such a nature as to be exempt from seizure.

It is, therefore, decreed that, the judgment of the court below be affirmed, so far only as it restrains the seizure and sale of the town lot conveyed by Richard King to Margaret Susan S. Snow and the lands conveyed' by Isaiah Garrett to James G. B. Snow, more particularly described in the deeds, whereof copies are on record in this cause; and that, in other respects, the judgment of the court below be reversed, and the injunction dissolved ; the defendants paying the costs in the court below, and the plaintiff the costs of this appeal.