author: Martin, J.

text:
    POYDRAS vs. TUSSON.
    Eastern Dist.

      June, 1836.
    ArPBAL FROM THE COURT 03? THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where a contract of sale of certain slaves for a fixed price in money, is executed by a notarial act, and the next day the vendee executes a private act to the vendor, in which she proposes to give him certain property in France, for the price of said slaves, if on inquiry the vendor accepts it, and no acceptance is shown, but the property is proved to be of no value: Held that these acts import two separate contracts ; the first is perfect and executed, and the second of no effect.
    A debtor offering to her creditor certain property which is of no value, in payment of a contract, is not entitled to notice of his refusal to accept and receive it. It is equivalent to offering property to which she had no title, and she is in the situation of a drawer of a bill without funds in - the hands of the drawee, when notice of protest is unnecessary.
    This suit originally commenced in the via executiva by the plaintiff, to enforce his demand against three slaves, which he had previously sold to the defendant, for the sum of two thousand two hundred dollars, 'the payment of which was secured by a mortgage on said slaves.
    There is a detailed statement of -all the facts ®f this case, given in the opinion of the court, delivered by judge Martin.
    The plaintiff had been twice enjoined, while attempting to proceed with his order of seizure and sale. The district j udge cancelled both contracts, and decreed (he restoration of the only slave in the defendant’s possession, and the return of the price of one she had sold, with some restrictions, &c. From this judgment, the plaintiff appealed.

      L. Janin, for the plaintiff.
    1. The only question which this case presents, is, whether the promise to sell, under private signature, dated February 5? 1826, is binding upon the plaintiff, or in other words, whether it can be considered as having been accepted by him.
    2. By the private act, the right of inquiring into the value and situation of the property, was reserved to (he plaintiff, before he was to signify his assent or dissent. No period was assigned for the exercise of this right. It is true that the act also says, that the defendant promises to execute an authentic sale to the plaintiff “ dans un an ou plus tard it sa volonté." But this does not mean that the plaintiff has only a year to make up his mind. It was therefore the duty of the defendant to put the plaintiff in mora, if she wanted to know the decision on the subject, by offering to perform her part of the contract. If the contract had been binding on the plaintiff, he would have been obliged to pay the eight hundred dollars at the death of defendant’s father. This occurred in April, 1827. But the defendant never demanded this sum; on the contrary, on July 7,1827, when she probably knew her father’s death, she asked for indulgence for the debt of three hundred and forty-two dollars. She explained herself no more on this subject than the plaintiff, and insisted on the binding force of the contract, only after the plaintiff had manifested his unwillingness to accept it, by bringing suit against her. Even in her petition and grounds for an injunction, she did not offer to pass the sale.
    3. A contract for the transfer of real property, whether a sale, a promise to sell, an exchange or a dation en paiement, must be in writing: until it is reduced to writing, and signed, it has no legal existence, and the plaintiff never signed the act under private signature.
    4. The promise to sell the property in France, in payment of the slaves, was a “ dation en paiement,” which is not perfect without delivery. Louisiana Code, 2626. Delivery never took place in this case, and was never offered. There is very little doubt that the defendant received the rent of the property, and while she was receiving them, she knew full well, that the property had not ceased to belong to her.

      5. It results from the certificate of mortgages and from Maisonneuve’s letter, that there are mortgages on this property to the amount of nine thousand francs. Two of the mortgages are even posterior to the act of February 5, 1826. One was given by the defendant on the very day on which she acquired the property from her father. These mortgages she fraudulently concealed from the plaintiff. Had the sale been perfected, this would have been good cause for setting it aside. The certificate of mortgages was indeed not obtained under a commission, but it was annexed to plaintiff’s answers to interrogatories, and not objected to, and could it be disregarded, still the plaintiff’s declaration, that the property was incumbered to an amount at least equal to its value, would remain. >
   Martin, J.

delivered the opinion of the court.

The District Court decides that “ the plaintiff made a contract with the defendant, at that time the widow of René Bercegeay, and now the wife of Firmin Duplessis, purporting to be a sale of three slaves, Tony, Silvy and Liza, for the price of two thousand two hundred dollars, on which price defendant was to pay an interest of five per cent, from March 1826, till March, 1827, and after that time an interest of eight per cent. The defendant had a right to protract the payment of the capital, until the death of her father, who resided in France. To secure the fulfilment of this contract, Etienne Tusson, the brother of the defendant, became bound with her in solido, the slaves were mortgaged, and defendant also mortgaged a property owned by her at Nantz, in France, in which defendant’s father had a usufructuary interest. The notarial act, containing these stipulations, was made on the 4th February, 1826. On the next day after, defendant made an act under private signature, which bears date the 5th February, 1825, but which, both from its internal evidence and the admission of the parties, was in fact executed on the 5th February, 1826. This act is signed only by defendant, and is in the following words : Je soussignée, Louise Tusson, veuve René Bercegeay, demeurant maintenant dans la paroisse d’Iberville, état de la Louisiane, déclare: m’engager, par ces présentes, á passer a Mr. Benjamin Poydras de Lalande, habitant de la paroisse de la Pointe Coupée; méme état, d’ici a un an ou plus tard, a sa volonté, vente authen-tique de cette portion de la maison4 vulgairement appellée le Cheval Blanc, située a Nantes, département de la Loire Inférieure, faisant face aux rues de St. Léonard et du Cheval Blanc; laquelle portion m’est échue dans ie partage que' mon pére, Baptiste Tusson, fit de ses biens le 11 Octobre de l’année mil liuit cent vingt-cinq, entre ses quarlre enfans et sa femme; cette promesse de vente ainsi faite au dit Sieur Benjamin Poydras de Lalande, qui l’a accepté (sauve information á prendre par lui de l’état de cette portion) pour le prix et somme de quinze mille francs; laquelle somme me sera payée, par le dit Sieur, par la remise de mon obligation hypothécaire, quittancée par luí, que je lui ai consentí hier, quartre du courant, de la somme de deux mille deux cents piastres; et la balance me sera par lé dit Sieur comptée a l’époque du décés de mon pére, m’obligeant néanmoins de payer au dit Sieur Benjamin Poydras de Lalande l’intérét a raison de liuit pour cent du montant de la susdite obligation de deux mille deux cents piastres, chaqué année, a dater de Mars, mil huit cent vingt-sept, jusqu’au décés de mon pére : ce qui reste et est entre nous une condition expresse de la présente vente, dont le prix est fixé a la susdite somme de quinze mil francs, en conséquence de cette obligation de toa part. J’approuve l’écriture ci-dessus.”

VE. BERCEGEAY,

Pointe Coupée, le 5 Février, 1825.

On 24th November, 1830, plaintiff took out an order of' seizure and sale, predicated on the notarial act of 4th February, 1826. The sheriff returned that Tony, one of the negroes, was dead; Silvy, another of the slaves, had been sold by defendant, who would give no information where she was ;• that there remained only Liza to answer to the seizure. Against this order of seizure, defendant filed an opposition containing various exceptions, to which it has become unnecessary to advert. Defendant also filed an opposition to the order of seizure, admitting the purchase of the slaves on the 4th of February, 1826, but setting up the act under private signature of the 5th February, 1826, which she insisted was-1 a part of the contract. That she never intended to purchase-said slaves, except in connection with the sale of her property in Prance. That plaintiff had thereby become purchaser of her property in France, the proceeds of which were to be applied to pay off the mortgage, and that the plaintiff by not notifying her of his non-acceptance in a reasonable time, bad become bound by the sale. That her father had died in April, 1827; that the defendant had since received three hundred dollars from plaintiff and there was a balance of five hundred dollars, for which she prayed judgment..

This injunction was granted by the clerk, under the article of the Code of Practice, which allows injunctions to issue on an allegation of fraud, under oath.

Plaintiff answered this petition, denying the allegations of fraud, and denying the existence of the act under private signature, and claimed the enforcement of the act of mortgage ; the injunction was dissolved at (he April term of the court in 1834 ; the reasons of the judgment do not appear. The order of seizure being again let loose upon defendant, on the 9th July, 1831, she obtained another injunction on the same allegations. To this petition of injunction, an answer in precisely the same terms, was filed; plaintiff’s counsel accounts for the denial of the existence of the act under private signature, by stating that plaintiff was absent, in France, and the counsel himself was ignorant of its existence.

At October term, 1831, defendant put interrogatories to the plaintiff; these interrogatories inquired as to the existence of the act under private signature, of date of 5th of February, 1826.

Whether the defendant did not go to Pointe Coupee to visit plaintiff, for the purpose of selling the property at Nantz ; whether plaintiff did not refuse to give money, but at the instance of plaintiff and defendant’s brother, the arrangement was made for slaves; whether a similar contract was not made with defendant’s brother, Etienne Tusson, for his share of the property at Nantz; whether plaintiff had not stated to defendants, after the order of seizure was taken out, that'he had lost or mislaid the act under private signature; whether plaintiff had taken any, and what steps, to inform himself as to the property at Nantz. The production of the private act was demanded, and also the production of a letter of defendant in 1826, asking for five hundred dollars, as a payment on the property in France. An interrogatory was also put relative to a claim of defendant against her brother Etienne Tusson, for three hundred and seventy-two francs, placed in plaintiff’s hands for collection. To these interrogatories 'plaintiff answered that the act under private signature was entered into, but that it was not a sale; but a promise to sell. Plaintiff denied that defendant came to Pointe Coupée to sell him her property at Nantz ; that she came there to get him to advance her some slaves, which he did, on the terms stated in the public act; that he had great confidence in her brother, whom he took as security ; plaintiff denies that, defendant was induced by him, or her brother, to take the slaves which plaintiff sold her, as part payment of her property’in France; plaintiff refers to the public act, and to the act under private signature, for the contract between them; plaintiff” makes a like answer as to the contract between plaintiff and defendant’s brother; plaintiff denies any knowledge that defendant would not have bought the slaves, but for the sale of her property in France; plaintiff admits that he told.defendant that the act under private signature was lost or mislaid,' owing to his change of residence; that he has since found it and left if on file in court; that plaintiff told defendant that he did not attach any importance to it, because he had received information from different persons at Nantz, and particularly from a Mr. Maisonneuve, and from the register of mortgages at Nantz, by which it appeared that her property was burdened with mortgages and other incumbrances, equal to its value ; that the plaintiff has shown to her and her husband, the certificates of the register of mortgages ; that defendant pretended that some of these mortgages no longer existed, but her assertions did not prevent plaintiff from giving belief to the information he had received ; that plaintiff then told her he did not choose to take the property. That he refers to the certificate and letter of Maisonneuve, dated 26th October, 1830, for the information, received by him ; plaintiff denies having underrated the collection of the claim of defendant against her brother. The certificate of the register of mortgages, states that there existed the following mortgages against Louise Tusson, widow of René- Bercegeay, formerly Jiving at Nantz,'St. Leonard-street: An inscription made on 13th October, 1825, resulting from an obligation, dated 11th October, 1825, in favor of Potery and two other persons, for five thousand francs, with semi-annual interest, due in 1829; .also a mortgage against J, B, Tusson, the father, and defendant as widow of René Bercegeay, who had been clerk in some public office, as a security, in solido, for two thousand francs. A third mortgage is in favor of the minister of state for seven hundred and twelve francs. The letter of Maison-neuve describes the defendant’s property as of the value of from six to seven thousand francs, and incumbered

With mortgages to Potery.for 5,000

With mortgages to Huard.for 2,000

With mortgage in favor of Brian..for 1,000

With one fourth of a life annuity of four hundred francs per annum, equal to a capital of... 1,000

Francs 9,000

The letter of Maisonneuve is dated in October, 1830, and describes the property as in bad condition.

From this evidence, it is impossible to say what the property is worth. ’ -

The contract between these parties took place in February, 1826, and between those dates there is room for considerable fluctuation in valjje, It militates against the apparent good faith of defendant, that she appears to have acknowledged a mortgage on this property, on the 11th October, 1825, to which no allusion is made in the contract of February, 1826. This mortgage was made on the same day on which defendant acquired her title by the partition made by her father, between his wife and four children.

The defendant gives no explanation of these incumbrances, ■Connected with the answer in the interrogatories, plaintiff produces, as th.e letter called for by the defendant, a letter from her to plaintiff, dated the 3d August, 1826, in which defendant says, that since her visit to him, when he had promised to execute a duplicate of the writing passed between them, she had received no news from him. She then requested to borrow from him the sum of three hundred dollars; and as to the rent of the negroes, she begs him to say whether he would exact it that year, or whether he would take it in balance, which would suit her better! There are some other letters from her, and in particular one in 1827, begging for further indulgence, at the rate of interest agreed upon in this act; whether this refers to the note given in August, 1826, for the threehiundred dollars then borrowed on the previous act of February, 1826, is not very clear. It appears that a similar sale of negroes, and contract under private signature had been made between plaintiff and Etienne Tusson, the brother of defendant, for slaves, and in relation to E. Tusson’s share of the property at Nantz, on like terms and conditions, the only difference being in price, which is two thousand four hundred dollars, Etienne Tusson being owner of a different portion of the house. This private act is on the same sheet of paper with that signed by defendant, and was by plaintiff admitted in evidence.

The District Court decreed, that the contract of sale from Benjamin Poydras de Lalande, to the defendant, Louise Tusson, dated 4th February, 1826, be rescinded and annulled, and the mortgage given by defendant on her property in the house called the Cheval Blanc, being a house situated at the corner of St. Leonard and Cheval Blanc streets, at Nantz, in France, be cancelled; and also that the private act from defendant to plaintiff, of date February 5th, 1825, but actually executed on the 5th February, 1826, being a promissory or conditional sale of said property by defendant to plaintiff, be also annulled, and defendant be restored to her rights therein; that the defendant, Louise Tusson, restore to Benjamin Poydras de Lalande the slave Liza, now in her possession ; and that Benjamin Poydras de Lalande receive from Louise Tusson the sum of seven hundred dollars for the slave Silvy, sold by her, with interest at five per cent, from this date; bU(, that before he take out execution for this sum, he- file in this suit a release of any claim to said slave ; but that, if he do not choose to do so, that his right to enforce the payment of the sum of seven hundred dollars, with interest as aforesaid, by the sale of said slave Silvy, in an hypothecary action, be reserved to him; that Benjamin Poydras de Lalande pay the costs of suit up to the present time, but that defendant pay any future costs to be incurred after notification of this decree. The plaintiff appealed.

Where a contract of sale of certain slaves for a fixed price in money, is executed by a notarial act, and the next day the ven-dee executes a private act to the vendor, in which, she proposes to give hiitv certain property in .France, for the priee of said slaves, if on inquiry the vendor accepts it, and no acceptance is shown, but the property is proved to be of no value: Held, that two*3^separate fivst^is8 perfect and executed: and the second of no effect,

It is contended, on the part of the defendant, that the notarial act, and the private one, are evidence of one contract, viz : one of exchange of the slaves for the property in France. That the plaintiff had the faculty of declining to take the property in France, after he had taken information of its value and condition. That, as there is no evidence of his having notified the defendant of his intention to insist on the payment for the slaves in money, according to the notarial act, (except his issuing the order of seizure and sale after upwards of five years had elapsed) he must be considered as having determined to take the property in France in exchange for the slaves. That neither the letter of the plaintiff’s agent, nor the certificate of the recorder of mortgages, which it includes, are legal evidence of the alleged dilapidation or incumbrances. That the District Court might have declared that the plaintiff had made his election to take the property in France in exchange, and could not afterwards resort to the order of seizure and sale. He cannot, therefore, complain of the decision of the District Court, cancelling the whole contract, and placing the parties in their original situation.

We are of opinion that there were two distinct contracts ; one of sale, evidenced by the notarial act: this was an absolute and executed contract. This was accompanied by an offer of the defendant to the plaintiff, to give him the property in France in exchange for the slaves, if after being informed of its value and condition the plaintiff was willing that the contract sale should be resolved into one of exchange,

The plaintiff, in answer to interrogations of the defendant, * ... . . , . . .. , calling on him to say what steps he had taken to ascertain the' condition and value of tbe property in France, lias sworn he employed Maisonneuve to make the inquiry, and that the result of it was that the property was in a state of great dilapidation, and mortgaged for several sums of money, the aggregate amount of which exceeded its value, 'according to the-certificate of the recording officer.

a debtor offer-a"f01í° lie<!ertaiñ property which is of no value in payment of a to n°í tl®e of his refu-sal to accept and receive it. It is IS™1 property t0 which she had no title, and she is in tíie sitúa-of a bill without £und,s “ ‡6 hands of the drawee, when hunneceSary?1

The agent’s letter and certificate were annexed to the answer of the plaintiff. The answer being uncontradicted, and the facility with which it must have been so, if the facts were otherwise, allow no ground to doubt of the correctness of the statement.

The plaintiff and defendant resided at no great distance from each other; and theüdea cannot be easily entertained that the plaintiff withheld the information he had received . _ . . . . , . from the defendant, m the hope ol obtaining a bargain if circumstances changed. The defendant cannot well be supposed to have been ignorant of the mortgage which incum-f 11 m, , i-rr. ■ bered her property. 1 here cannot be any difference between offering foy sale property thus situated, and offering that to which she had no title. She was then in the situation of the drawer of a bill on a person m whose hands there is no fund, To such drawer, notice of protest is unnecessary, because it would be useless, as he had no funds to withdraw. It is not extraordinary that the plaintiff did not secure the evidence of his having notified the defendant of a circumstance which cannot be supposed to- have been unknown to her. His delay to enforce compliance with the terms of the contract of sale, is rather evidence of his indulgence towards a female debtor, whom it is always painful to coerce? than of an expectation that circumstances might turn out which would make it his interest to take the property in France,' and relinquish his claim to the money payment.

If the delay and state of suffering, in which it is contended the defendant was kept in, created any injury to her, she had at all times the faculty of avoiding the injury, .which it is not presumable she would have neglected ; and if the plaintiff was obstinate in withholding his election, she might have put him in mora. No improper view can, in our opinion, be imputed to the plaintiff. The defendant, unless she is thought to have been ignorant of the incumbrance which rendered the property worthless, appears to have sought to deceive the plaintiff, in order to protract the payment of the price of the slaves she had purchased. Pie appears to have been indulgent, as he had hopes that coercion could have been avoided.

■The defendant has had all the benefit she contemplated by the purchase. It does not appear she has suffered any thing by the plaintiff’s delaying his demand, and we see no ground on which she may be released from paying the consideration of the sale.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that the injunction obtained by the defendant be dissolved, she paying costs in both courts.


source: Caselaw Access Project

author: Mathews, /.,

license: Public Domain

text:
    GORDON vs. PARKER.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE PARISH COURT FOR THE PARISH AMD CITY OF NEW-ORLEANS.
    A purchaser of stocks at auction, when there is no deception, takes them subject to all the requirements of the charter of the institution from which they emanate.
    Where a purchaser is sued to compel a compliance with the conditions of the sale, and avers he is not bound by it, evidence is admissible to show that he offered his note at long date in compliance, and as a recognition of his bid.
    This is an action to recover back a sum of money which had been advanced by the plaintiff, in obedience to calls by the board of directors, on twenty-eight shares of stock in the Louisiana Insurance Company, sold by the former to the defendant.
    The plaintiff alleges, he sold at auction, on the 21st of October, 1834, eleven shares of stock in the Louisiana Insurance Company, at six dollars for one hundred dollars paid in on each share, and seventeen shares at two dollars for one hundred dollars paid, in all twenty-eight shares; at which sale the defendant became the purchaser.
    He further shows, that by the terms of the charter of said company, the capital stock is divided into shares of one thousand dollars each, of which one hundred dollars per share was paid at the time of subscribing, and the remaining nine hundred secured by mortgage or pledge of stock to said company. That the defendant has failed to comply with the terms of the adjudication, and the conditions of the charter of the company, by refusing to pay the sum of one hundred dollars to the petitioner, and to secure the remaining nine tenths of the twenty-eight shares by mortgage or pledge of stock; and the plaintiff alleges, that since said sale he has been called on by the directors of said company, and required to pay two hundred dollars more on each share; making in all the sum of five thousand six hundred dollars, which the said E. E. Parker justly owes him by reason of the premises.
    He prays, that the defendant be decreed topay him the said sum of five thousand six hundred dollars, and be adjudged to comply with the conditions of his purchase; or in default thereof, on demand made by the sheriff, that he forfeit his stock as damages, over and above the said sum of five thousand six hundred dollars.
    The defendant averred, that at the time of the adjudication of said stock, the Louisiana Insurance Company had not only sunk its capital paid in, but eighty-five thousand dollars more, amounting to twenty-five per cent, on the capital stock of the company, so that the stock was not only valueless, but was in debt twenty-five dollars on each share; which fact was suppressed and concealed from the bidders at the sale, and as soon as he found it out he declined his purchase. That it was represented at the auction - sale, on behalf of the vendors, that, only the capital paid in was lost, which induced him (the defendant) to bid; and having purchased in error, through the conduct of the plaintiff, he is not bound thereby.
    On these issues and pleadings, the parties went to trial-The cause was tried before a jury. In the course of the trial, the plaintiff offered evidence to show that the defendant had recognized his purchase, - and had made overtures in compliance with it. The depositions of two witnesses were produced by the plaintiff, to show that the defendant, Parker, had offered a note of long date to the Louisiana Insurance Company, in compliance with its call of two hundred dollars on each share ; which was objected to by the defendant’s counsel, on the ground that the offer was not made to the plaintiff, and was only made by way of compromise of a suit immediately afterwards commenced in the District Court, by the Louisiana Insurance Company against G-ordon and Parker, in relation to this transaction. The evidence was admitted, and a bill of exceptions taken.
    The record and proceedings in the case of the Louisiana Insurance Company vs. Gordon and Parker, 8 Louisiana Reports, 174, was also produced in evidence. The parish judge charged the jury that “ they were to inquire, first,. whether a sale was made; second, whether the plaintiff had done any thjng to deceive the defendant, in relation to the sale; and further, that the principles of law applicable to sales generally, were not strictly applicable to sales of stocks, inasmuch as the interest of the vendor alone in stock was sold; the stocks themselves fluctuating in their nature, and variable in their value.” The charge was excepted to by the defendant’s counsel.
    The jury returned a verdict of five thousand seven hundred dollars for the plaintiff; and from judgment rendered thereon, the defendant appealed.

      Peirce and Lockett, for the plaintiff.

      Preston, for the defendant and appellant.
   Mathews, /.,

delivered the opinion of the court.

This suit is brought to recover from the defendant a sum ■of money, which the plaintiff alleges he paid for the use and benefit of the former, in fulfillment and discharge of a contract by which he was bound as the real debtor to the Louisiana Insurance Company.

The plaintiff obtained judment in the court below, from which the defendant appealed.

The facts of the case, as they appear by the evidence, are the following: The plaintiff was owner of twenty-eight shares' in the stock or capital of the Louisiana Insurance Company, which he caused to be sold at auction. At this sale, the defendant became purchaser, at an immense discount, on the amount which had been actually paid on each share. The sum thus paid, was one hundred dollars per share, the shares being one thousand each; the balance of nine tenths was to be secured to the corporation by each stockholder, by mortgage or pledge of other stocks. The payment of this balance was secured, as required by the plaintiff. On the 13th' of October, 1834, the board of directors of the company called in two hundred dollars on each share, to be paid one half on the 1st of November following, and the other on the 15th of that month. Before these payments became due, viz: on the 21st of October, the stock, as above stated, was sold to the defendant, Gordon, who, in a suit brought by the corporation, was compelled to pay the amount thus called in; and the present action is instituted to recover it, and the price of adjudication made by auction, from the defendant, in which the plaintiff alleges that the contract under which the former acquired the stock in question, was not complied with on his part; that he was really bound to pay to the company the amount called in; and, payable subsequently to the sale and transfer of the stock to him. In avoidance of this contract, the defendant in his answer alleges concealment on the part of the plaintiff, in relation to the embarrassed state of the company, &c., and consequent fraud.

A purchaser of stocks st auction when there isnó them ^subjecfto ail the requirements ot the charter of the which they emanate.

Where a purchaser is sued to compel a compliance with the conditions of the sale, and avers he is not hound by it, evidence is admissible to show that he offered his notes at long- dale in compliance, and as a recognition pfhis hid.

The cause was submitted to a jury, who by their verdict negative the alleged concealment and fraud, and found for the plaintiff five thousand seven hundred dollars. The record contains several bills of exception, two to the testimony offered on the part of the plaintiff, and one to the charge of i l * ' the judge a quo to the jury. We consider the facts offered to proven, by the witness Peirce, whose testimony was reiected, as not very material to the issue made by the J . J . pleadings. We shall, therefore, leave this bill unnoticed. In relation to the second, which was to testimony admitted by the court below, we are unable to perceive any good reasons why it should* have been rejected, and the counsel for the defendant has not favored us with any. We are of opinion that the charge of the judge was correct, and that the verdict and judgment are conformable to the law and evidence of the case.-

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


author: Martin, J,

text:
    CLAPIER ET AL. vs. BANKS.
    Eastern Dist.

      June, 1836.
    ATrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The same exactness is not to be expected, and will not be required, in the execution and preservation of the records of marriages, births and deaths, in a new colony, as^s observed and required in the mother country.
    The destruction by fire of the places of deposit of records and documents, dispenses with the production of the originals, which may be fairly supposed to have been destroyed.
    Legitimacy will be presumed, when a century has elapsed without its being doubted or controverted.

      This is a petitory action, in which the plaintiffs, residing in France and claiming as heirs of the late Pierre Augustin Meuillon, his succession, which was opened in the parish of St. Charles about the year 1810, now seek to recover a house and lot in the possession of the defendant, situated at the comer of Bienville and Levee streets, in New-Orleans, which they allege forms a part of Meuillon’s succession.
    The defendant sets up title to the property in question, by purchase from the late Pierre St. Amand, by public act dated the 8th of May, 1815, for the price and sum of fourteen thousand dollars, with a general warranty of title. He calls the natural children of St. Amand, who succeeded to his estate, in warranty.
    Upon these issues, the parties went to trial.
    The facts and evidence of the case are given with great minuteness and accuracy, in the reasons for the judgment rendered by the district judge, which serve as a statement of the case. They are as follow :
    “To advert to the events pertinent to the case in the order of time, we begin by stating, that, as is alleged, Jean Franqois Daspic St. Amand intermarried with Marie Franqoise Dubuisson, at New-Orleans, in 1722. It will be found that the controversy turns on the proof of this marriage. The fruit of this alleged marriage were Pierre St. Amand, born in 1725, and Dominic St. Amand, born in 1728.
    “ Jean Franqois Daspic St. Amand died in 1729. Antoine Meuillon emigrated from Grenoble, in France, and in 1732 married Marie Franqoise Dubuisson, widow of Daspic S:t. Amand.
    “Marie Framjoise Dubuisson died in 1738; Antoine Meuillon died in 1767.

      “ The fruit of their marriage was Louis Augustin Meuillon, bom at Pointe Coupée, in 1733, and who died, in 1810, without leaving issue. '
    “ The litigation is in relation to his succession. At the time of the decease of Louis Augustin Meuillon, in 1810, his uterine brothers Pierre and Dominic St. Amand were both ¿¡eceasec| • ]3Ut they had left children, nephews of Louis Augustin Meuillon.
    “ The petitioners claim the succession of Louis Augustin Mepillon, alleging themselves to be his nearest relations, in 1810, the time of his decease.
    “ The children of Pierre and Dominic St. Amand, as the nephews and heirs of Louis Augustin Meuillon, on his decease, in 1810, took possession of his estate and had it sold. By successive conveyances, the property sued for came to the defendant, Banks; and by successive calls in warranty, the legal and instituted heirs of Pierre and Dominic St. Amand are made the final defendants.
    “ The original petition claimed for plaintiffs only as legal heirs. An amended petition claimed for them as instituted heirs under a will, alleged to have been destroyed by defendants’ ancestors. As the court was of opinion that plaintiffs cannnot claim under a will without producing a probate of the will, all evidence under this allegation was excluded, and plaintiffs were driven to rest on their character as legal heirs only.
    w The plaintiffs having alleged and proved themselves related to Louis Augustin Meuillon (and they are only one degree more remote than the children of Pierre and Dominic St. Amand,) claim to be heirs of said Meuillon, and it became incumbant on the descendants of these persons, not only to show lineal descent from them, which has been done, but also, that Pierre and Dominic St. Amand were legitimate descendants of Marie Frarnjoise Dubuisson ; and, therefore, lawful uterine or maternal brothers of Louis Augustine Meuillon.
    “ This they have attempted to do, by all the different modes of evidence applicable to the fact:
    “1. By parole evidence, proving themselves and their ancestors always in possession of the legal quality and condition of legitimate lineal descendants of Marie Framjoise Dubuisson, by her first husband, Daspic St. Amand.

      “ 2. By the recognition of them as such, by Louis Augustin Meuillon, and by their being treated and considered as such by the community.
    “ 3. By the private writings, notarial acts, &c., in which both Antoine Meuillon and Louis Augustin Meuillon recognized and treated with them as such. Antoine Meuillon divides the succession of their mother between them and his own child, Louis Augustin Meuillon, and acquits himself towards them as their tutor, both in relation to their father’s and mother’s successions.
    “ 4. By the act of marriage between Antoine Meuillon and Marie Fran^oise Dubuisson, in which she is described as the widow of Daspic St. Amand.
    “ The evidence on these heads of proof, is of the most plenary description, and carries the most perfect conviction to the mind, of the facts sought to be established by the defendants. But the defendants have further,
    " 5. Introduced an act of the marriage between Jean Francois Daspic St. Amand and Marie Frantjoise Dubuisson, which took place, as has been stated, in 1722.
    “ ‘ First register of marriages of the parish church of St. Louis, of New-Orleans, containing three hundred and seventy-six acts of marriages of whites and eleven marriages of negroes, and three acts of abjuration of heresy. The said register begins the first day of the month of July, of the year 1720, and finishes the fourth day of the month of December, of the year 1730.’
    “ The book is obviously not a collection of original acts, but copies of them, and extracts from them. At the close of the book is a certificate in Spanish, as follows :
    “ ‘ I, Francis. Antonio de Sedella, religious, capuchin, curate of this church of St. Louis of New-Orleans, certify in the form (que puedo) I have a right to do, that this present register, which contains three hundred and ninety acts of marriage, which were copied and extracted in the time of the government of France over this province, to which full credit and faith should be given; that the original register which contained them, from which they were copied, was found in a ka(j etat6j as were ajs0 t,he conditions of the other registers of this chureh, caused by the devouring fire, which took place in this capital on 21st March, 1788, and that this may appear, I attest.
    Signed, PR. ANTONIO DE SEDELLA, Curate.’
    “ The act of marriage is as follows :
    “ ‘No. 119, fol. 40. Jean Franqois de St. Amand, with Marie Franqoise Dubuisson.
    “ ‘ In the year 1722, 13th April, I, the undersigned, curate of New-Orleans, have received the mutual consent of marriage of Jean Francois St. Amand Daspic, son of Jacques Daspic, and of Dominique Bordeliére, his father and mother, and of Marie Franqoise Dubuisson, daughter of Leon Dubuisson and of Mañane Canop, her father and mother, in presence of Pierre Dreux, of Martharine Dreux, of Pierre Alexis Desjardins, of Franqois Quasido, and of Claude Pierre Hyronée, who have signed ; with me also signed St.-Amand Dreux, M. Dreux, and J. Richard, curate.’
    “ This act of marriage is ‘ attacked as not being in conformity with the ordonnance of 1667 on this subject, made in France, which requires the act of marriage to be signed by the parties, by at least four witnesses, or a declaration that they know not how to sign.
    “ That the act does not express that the banns were published.
    “ That the nuptial benediction is not stated to have been given.
    “ That it does not appear that the curate was the local curate of New-Orleans.
    “ That it is not stated that the marriage was celebrated ; only that a consent to marry was given.
    “ That it is not stated that the marriage was in the face of the church.
    . “ There appears much boldness in the attempt to have a marriage declared null, which was made one hundred and thirteen years ago, and the descendants from which have ever since been in the undisputed possession of the quality, character and condition of lineal legitimate descendants of the married persons, and who were acknowledged, treated with, and recognized as legitimate, by the only persons who had an interest to make the question.
    “ One of the counsel of the plaintiffs adverted to a principle of law, that when a plaintiff in a petitory action makes out a prima facie, title or case, the burden of proof is thrown on the defendant to show a better title. This position is true, but it is also true, that when the defendant has in turn shown a prima facie good title in himself, the burden of proof is shifted back on the plaintiff, to rebut and destroy it.
    “ The counsel admitted the truth of this position so far as to say, that if defendants had rested on their proof by witnesses, private writings and> notarial acts, they would fully have established their lineal legitimacy as descendants of Marie Franchise Dubuisson, but that the production of the act of marriage, defective in essential forms, had paralized the other proofs.
    “ In relation to this part of the subject, I concur in the application by defendant’s counsel, of the principle, that the laws of a mother country when applied to her colonies, are always to be modified to the situation, wants, and circumstances of the colony. This register is described as the first register of marriages. It is to be presumed there were marriages before 1720; and even if it were proved they were made before a commandant for want of a curé, or of any other public officer, as among the Anglo-American population justices of the peace presided at marriages for want of a clergyman, the necessity of the case would make the law of it.
    “ In Pizero vs. Meuillon, for the name of Meuillon figures once before in an interesting case ih our books, the court declared, that the passing of acts before commandants was binding, and the law of the colony, because there were no notaries, and it was the practice. So, it has been decided, that an order to admit a will to probate, implied an order to execute the will. Authorities could be cumulated without number on analagous questions, according to which it has been held, that great allowance for ignorance, unskillfulness or peculiar circumstances of a colony, is to be made, and the law applied as it was then understood and practised. It is the common law of colonies.
    “ These principles repel many, if not all the objections and exceptions to this act of marriage, if they Avere ever so clearly established. On examination, it will be found that the acts of marriage in the register produced, are recorded in different forms, by different individuals. If the case Avere much more modern, and the proof much more defective than it is, the certificate of the condition in which the records were, Avhen copied, Avould give the court ample room for presumption, and the court Avould presume a great deal in favor of a quality and condition of married persons, recognized as such by all the connections ; and it appears to me, a court is bound to presume any thing and every thing in support of a civil condition and quality of one hundred years’ standing in Louisiana, which has been hitherto unimpeached.
    “ It Avill presume every thing that is necessary to make this extract, for it is so styled, to be an extract from an original, complete in all respects.
    “As was observed by a counsel for defendants, if the evidence in this case does not establish the civil condition of this family, the inhabitants of Louisiana of French descent may as well at once surrender their estates to the descendants of their common ancestors in France.
    “ I consider, that the quality and condition of the children of Pierre and Dominic St. Amand, as heirs of Louis Augustin Meuillon, in 1810, is fully established.”
    Judgment Avas rendered in favor of the defendant, from which the plaintiffs appealed.

      Fourchy, Magnin and Caillard, for the plaintiffs.

      Morphy, Mazureau, Pichot and Conrad, for the defendants and warrantors.

      The same ex-^eexpeetea°and -will not be re-eoutionand^re-recordíTof marriages,birthsand deaths, in a new served’ anif required in the mother country.
   Martin, J,

delivered the opinion of the court.

This is an action by the heirs and legal representatives of the late Louis Augustin Meuillon, who is alleged to have died in this state in the year 1810, against the defendant, as possessor of a lot of ground, which the plaintiffs allege to be part of the estate of their said ancestor, and which legally belongs to them by inheritance.

The defendant sets up title to the lot in question, as purchaser from the late Pierre St. Amand, of New-Orleans, the 8th of May, 1815, as appeai-s by his deed of sale of that date, for the price and sum of fourteen thousand dollars, with full warranty of title.

The success of the plaintiffs depends on establishing the illegality of the marriage of St. Amand, the ancestor. For this purpose, they rely on the absence of any documentary evidence of his marriage with Marie Frangoise Dubuisson, who after St. Amand’s death married Antoine Meuillon, in respect of whom the plaintiffs claim as collaterg.1 heirs.

On the other hand, it has been shown, that in the conflagration which desolated a considerable portion of the city of New-Orleans, in the year 1788, the records of the parish became for a cohsiderable part the prey of the flames ; that those which were saved, were very much injured and defaced, so much so, that it became necessary to have them transcribed into new books procured for that purpose.

Among the records thus rescued from the flames, is a document purporting to be a record of marriage, bearing date in the year 1722, in which the curate of New-Orleans attests and declares he has received the mutual consent of marriage of Jean Frangois St. Amand, &c., and of Marie Frangoise Dubuisson, &c., in the presence of witnesses. These are the parents of St. Amand, the vendor of the defendant.

During the century which preceded the present suit, the heirs of St. Amand have been reputed the legitimate descendants of the common mother' of St. Amand, and of the children by her second marriage with P. A. Meuillon.

On these facts and proofs, the district judge who tried the cause recognized the legality of the marriage of the parents of’St. Amand, who sold the disputed premises to the defendant, and consequently established the defendant’s title. From this judgment the plaintiffs appealed.

The destruction by fire of posit of records dispenses with ofdie orfginais1 which may be to'have been°de-strayed.

Legitimacy will he presumed, when a century has elapsed, without its being troverted.r C°n

On a careful examination of the evidence and law of the case, this court is of opinion the district judge decided con'ectly. In the infancy of a colony it but rarely happens, that the laws of the mother country, which are enacted to J ■ secure the evidence of marriages* births and deaths, are executed and carried into effect, with the regularity and exactness they would be in the mother country itself,

The destruction by fire of the places of deposit of records an<^ documents, dispenses with the production of the original records and documents themselves, which may fairly be supposed to have been destroyed; and legitimacy will be presumed when a century has elapsed, without its being * J 1 ° doubted, controverted or denied.

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


author: Mathews, J.,

text:
    TERRY vs. TERRY ET AL.
    Eastmot Dist.

      June, 1836.
    APPEAL PROM THE COURT OP THE PXRST JUDICIAL DISTRICT.
    A sequestration of the funds of the defendant in the marshal’s hands, does not have the effect of an attachment to bring the party into court by liis property. If the defendant is absent in such case, and there is no curator ad litem, or ad hoc appointed to represent him, hut only service of citation on the attorney appointed to defend the suit, it will be dismissed as to him.
    Where the plaintiff was prevented by the excess of his claim, from going before a court of limited jurisdiction, to contest and litigate his rank and privilege with another creditor, who was seeking a judgment with a privilege against the common debtor in said court: Held, that he can compel his adversary to come into a higher court to litigate their claims.
    The vendor of a vessel or other moveable property not paid for, is entitled to a privilege on its proceeds, when sold by a forced sale, in a suit against his vendee for the price, even when he has taken a note and allowed a credit; but his privilege is of inferior rank to that of a creditor who has furnished supplies to the vessel.
    This is an action in which the plaintiff seeks to recover the sum of five hundred dollars, as a privileged claim on the proceeds of the sale of a barge, in the hands of the city marshal of New-Orleans.
    The plaintiff alleges, he is the holder of two promissory notes, one for one hundred dollars and the other for four hundred dollars, executed by J. C. Terry, for the purchase of the barge Volunteer; that said barge has been attached and seized by various creditors of said J. C. Terry, and sold by the city marshal of New-Orleans for the sum of eight hundred dollars, on a credit of ninety days.
    The plaintiff further shows, that he is a privileged creditor on the proceeds of said barge, yet in the hands of the city marshal for the amount of said notes, which he prays may be sequestered and held subject to such judgment as shall be rendered in the caseand he prays judgment for the amount of his claim.
    An attorney was appointed to defend the interest of the defendant, who, it was suggested, had departed from the state.
    In an amended petition, the plaintiff alleges, that one William Bowman, was prosecuting a claim of about two hundred and ninety dollars against the proceeds of said barge, in the City Court of New-Orleans, which claim, he alleges, is not a privileged or valid one; but that his (plaintiff’s) claim is too large to be litigated in the City Court: wherefore, he prays that Bowman and the city marshal be cited and made parties to this suit, and that he have judgment against them for the amount of any moneys Bowman may have received, and for so much in the hands of the marshal as will satisfy his claim.

      Bowman appeared and excepted to the supplemental petition, as making new parties, and setting forth new and totally distinct causes of action from that in the original petition; that it prays for the annulling such judgment as Bowman may and has obtained in the City Court, which this court is incompetent to pronounce: and further, that the right of preference claimed by the plaintiff on the proceeds of the barge is res judicata, having been passed upon by the City Court of competent jurisdiction.
    The attorney for the absent defendant pleaded a general denial, and required strict proof.
    While this suit was pending, to wit, on the 19th June, f835, Bowman obtained his judgment in the City Court for two hundred and ninety-six dollars, with a privilege on the proceeds of the barge. Several other persons had also obtained judgments against the barge, for seamen’s wages, &c., amounting in all to five hundred and thirty-five dollars and ninety-one cents, under which she was seized and sold in the first instance.
    The district judge delivered his judgment, overruling the exceptions, as follows:
    “It is obvious these exceptions do not raise the real difficulty of the case; for as to the first exception, the suit was originally against Jeremiah Terry, and such an exception could not therefore be raised by Bowman. If any thing, it might be said the original petition was defective, in not having in the outset made Bowman (a real party in interest) party to the suit, if J. O. Terry had a knowledge of the institution of Bowman’s suit, when he filed his petition; nor is there any change in ‘the nature of the claim. The second exception is without point, as it objects only to the nature of the relief prayed for. It is not to be supposed that the District Court will give any relief, or make a decree it is incompetent to make. The judgment, Bowman vs. Jeremiah Terry, may well stand, and yet J. O. Terry be entitled to the proceeds of the Volunteer; for although Bowman may have a right to them, as against Jeremiah Terry, he may not have a right to them as against J. O. Terry, and that question was certainly not litigated when the judgment, Bowman vs. Jeremiah Terry, was rendered in the City Court. As to the third exception, it touches upon the real question in a collateral manner, viz: whether J. 0. Terry was bound to litigate his claim for five hundred dollars, in the City Court. If Bowman had obtained his judgment, and received its amount before J. O. Terry had instituted any proceedings, the case would have been embarrassed with new difficulties; but we are spared the necessity of investigating that question, by a reference to the dates of the proceedings. Bowman was served with the petition and citation out of the District Court, on the 1st July, 1835, and he did not take his last rule on J. O. Terry and the marshal, to show cause why he should not be paid his judgment out of the proceeds of the barge, until 20th August, 1835.
    “I cannot suppose that J. O. Terry was bound on the rule taken on him, to go into the City Court and litigate his claim of five hundred dollars. Bowman was aware of the extent of J. O. Terry’s claim, and I must suppose, knew, when the rule was taken and decided, the existence of the suit, as the judgment of the City Court refers to that proceeding. I am disposed to give full effect to all the articles cited by the presiding judge of the City Court; but the question presents itself to my mind under these points of view:
    “ 1. The City Court is a court of limited jurisdiction. No claim for any debt, &c., beyond three hundred dollars, can be litigated there.
    “2. The constitution gives a right of appeal for sums exceeding three hundred dollars, to the Supreme Court, and no provision is made for an appeal from the City Court to the Supreme Court.
    “ 3. The Code, in various articles, provides that the distribution of the proceeds of property seized and sold on execution, should be made by the court out of which the execution issues; but if there be a conflict between these articles of the Code and, the more general laws, and other articles of the Code and of the constitution relative to jurisdiction, &c., the minor articles or regulations of th,e Code must be so construed, limited or modified, as not to impair a more general law or right,, more especially if it be a constitutional one. They are subordinate provisions of the law, and more especially the whole must be so construed,'as that there be not a failure'of justice.
    “ I cannot suppose that it was intended by the laws, that a mortgage or privilege creditor for a sum of three hundred dollars, is to stand by and quietly permit his pledge to be sold, and the proceeds distributed among smaller creditors, or paid over to the debtor to be dissipated, because the law allows creditors for sums under three hundred dollars to sue in Parish Courts in the country, or in courts of limited jurisdiction in the city, while the same laws incapacitate and prohibit those courts from entertaining jurisdiction of his claim or debt for a larger ainount, while on the other hand there will be no failure of justice if the litigation be brought into the higher court.
    “ The case is likely frequently to occur as to the privileged claims, and I see no way of preventing a failure of justice, but by drawing the litigation into a jurisdiction co-extensive with the right claimed, otherwise the creditor must lose his right of property, or of appeal, or both. I consider it to be on reasons of this kind, that the case of' Lawes vs. Chinn, 4 Martin, N. S., 390, was decided, and the court put the decision on the necessity of the case. The case of Yail against U. S. marshal, Nicholson, covered the whole ground. The case of Oger against Daunoy, 7 Martin, N. S., 656, appears much in point for the defendant, Bowman; for the court there decided, that Oger, who alleged that his property was seized on an execution against Harland, could not enjoin the sale, or recover the property itself from Daunoy, the marshal, in the District Court, because of article 395 et seq., of Code of Practice, but that he might recover its value from Daunoy in that court. My understanding is too practical to understand the value of distinctions, where there are no differences. In ,the dilemma raised by contradictory provisions of law, it appears to me, that in substance there were but two solutions of the difficulty: either to say, that Oger might claim his goods or their value, without regard to the limitation of the jurisdiction of the City Court, when they were under seizure by execution out of that court; or to say, that when the property claimed was of the value of an amount beyond the jurisdiction of the City Court, the third person, whose property was seized, might come into the District Court, to claim out of the funds of the marshal, and that the Code of Practice, 395, et seq., ex necessitati rei did not apply in such a case.
    “ In the present case it may be said, upon principles anala-gous to the reasoning used in Oger against Daunoy, that the sequestration will not hold, but that if Bowman receives money, with the notice that another person claims a better-right to it, he might, when that right is established, ex equo et bono, to be made to refund it; but this is to get around the difficulty, not to meet it. It is to observe the law to the letter, but break it to the spirit. Nor does it do complete justice, and it does not meet all the cases which will arise. If the maxim, c est boni judiéis ampliare jurisdictionem,’ be meant to convey the opinion, that courts should grasp at power, I disclaim it as practice or as principle. If it be meant to convey the opinion, that courts ought to prevent a failure of justice, it is a sacred principle; and Civil Code, article 21, which directs that in civil matters where there is no express law, the judge is bound to proceed and decide-according to equity, applies as fully in a case where there is a conflict of laws, or of provisions of the law, as in a case where express law is wanting. Equity calls for remedies adapted to its rights, for rights are of no practical benefit, without remedies to enforce them. These being my views, I am of opinion, that after it was made known to the City Court, that a creditor to an amount beyond its jurisdiction, had on that account applied to the District Court, to establish his rights upon the property seized and sold under process from the City Court, nothing further should have been done in that court, and that if plaintiff makes out his claim of higher privilege, &c., Bowman cannot be allowed to benefit ]-,y proceeding in the City Court, after the institution of the suit in tbé District Court. Afithorities' might be adduced, cases decided on analagous principles, in the relation of courts of law and equity in England.”
    The defendant, Bowman, answered to the merits and pleaded a general denial, and averred that the plaintiff’s claim was fraudulent and collusive: that if the District Court decree a distribution of the proceeds of the barge, it must be done contradictorily with all the persons and parties interested, but which the plaintiff has failed to bring before the court.
    The cause was submitted to the court on these pleadings, and the evidence of the respective claimants. The district judge dismissed the suit as to the defendant, J. C. Terry, because he was not legally brought into court, and dissolved the sequestration, with judgment in favor of Bowman and the city marshal, on the following grounds :
    “ It was considered that the plaintiff, J. 0. Terry, proved his claim against J. C. Terry, the defendant; but has he a privilege resulting from it 1
    “I have heretofore been compelled to adopt a rule in relation to privileges on vessels and steam-boats, which navigate within the waters of the state, or to distances which do not come within the meaning of the word voyage. The rule adopted is in accordance with Louisiana Code, article 3212, that is to consider the lapse of sixty days, from the time the debt is incurred, as a' voyage, and exclude from privilege, debts of anterior standing. Either this, or there is no privilege on vessels which do not make voyages within the meaning of the term. The plaintiff’s claim is predicated on two notes, given for part of the price of the vessel. •
    “ The plaintiff’s counsel 'relies on the Louisiana Code, article 3194, which gives the general privilege on moveables, notwithstanding a credit and a note is given.
    “ This reliance, it appears to me, must fail him.

      ■“The privilege on vessels is given under restrictions, and in relation to a subject-matter, which prevent the application of this salvo.
    “ The privileges are restricted to the last voyage, to wages, supplies, repairs, &c. &c., previous to the departure of the ship, if she has already made a voyage. Louisiana Code, 3212. A voyage is a departure from one port, and arrival at another, or being out sixty days.
    “ It is wholly inconsistent with these provisions of law, that the creditor can retain his privilege, if he gives a credit of three months, or six months.
    “ This subsistence of the privilege, notwithstanding credit and note given, would not apply to privileges of inn-keepers on effects of a traveller. If the traveller removes his effects, (unless perhaps by fraud or stealth,) the privilege is gone.
    “The clause sustaining the privilege, notwithstanding credit and note, is not repealed in the special section giving privilege on ships and merchandise, under the restrictions there stated, and is obviously inconsistent with them, and would introduce inextricable confusion into a subject sufficiently complicated. Ships and vessels are subject to a succession of privileges from their nature, and the uses to which they are put.
    “If a seaman, &c., takes a note for his wages, at six months, his privilege is gone, and so of the others.
    “ If this reasoning be correct, the conclusion follows, that plaintiff is not entitled to any privilege ; with it the sequestration .falls, and with the sequestration the jurisdiction of the court, the defendant being an absentee.”

      Hennen, for the plaintiff,
    submitted the following points and authorities:
    1. The plaintiff as vendor of the barge Volunteer, has a privilege thereon, while in the hands of the vendee, though sold on a credit and a note taken for the price. Louisiana Code, 3194.
    2. The barge Volunteer never having made a voyage in the sense of the Louisiana Code, article 3212; because she only navigated lake Pontchartrain, and never went to sea, the plaintiff cannot be said to be without privilege, in consequence of more than sixty days having elapsed from the ráme Save cl'edit for the purchase money.
    3. 'At all events, the creditors on this barge should be paid pro rata. Louisiana Code, 3205.
    4. The general privilege of the vendor cannot be destroyed by any legislative construction of the article 3205 of the Louisiana Code, such as that made by the judge of the District Court.
    5. The yendor’s privilege on the vessel has always been recognized. 1 Valin, 367-8, liv: 1, tit. 14, art. 17.

      Buchanan, for the defendant, Bowman.
    1. The exceptions filed by William Bowman were improperly overruled: they are valid in law, and should be maintained.
    2. That the District Court is without jurisdiction of the distribution of funds in the hands of the city marshal in virtue of judgments, executions or seizures from the City Courts ; and cannot obstruct or detain said funds from the .seizing or judgment creditors in the City Court, by writs of injunction, sequestration or the like.
    3. That judgment creditors, with privilege decreed and a seizure levied, in the City Court, upon the proceeds of a ■vessel in the city marshal’s hands, cannot be compelled to litigate their claims over again in the District Court, contradictorily with creditors who have sued out sequestrations in the District Court, of such proceeds in the marshal’s hands.
    4. That the plaintiff has no privilege as claimed for the note of one hundred dollars, annexed to his petition, said note having been endorsed to him by the payee and vendor without subrogation.
    5. That, as regards the second note, of four hundred dollars, annexed to the petition, the plaintiff and appellant, so far from having a right to a preference over the appellee, Bowman, upon the proceeds of the barge Volunteer, is, on the contrary, liable to him and the other creditors, as part owner of the boat; the said note being dated November 17, while many items of Bowman’s bill are of prior date.
    A sequestration of the funds of the defendant in the marshal’s hands, does not have the effect of an attachment to bring the party into court by his property. -Ifthe defendant is absent in such case, and there is no
      curator ad ntem or ad hoc appointed to represent him, but cftatiojTon6 the ed°t™defend the suit, it -will be uST aS °

      6. That the appellant has lost his privilege of vendor, if ever he had any, the barge Volunteer having made many voyages since the sale.
    7. The judgment in favor of the defendant has not been appealed from. This appeal, being against parties whose liability is only consequential upon that of defendant, must, therefore, fall.
   Mathews, J.,

delivered the opinion of the court.

In this case, the plaintiff claims a privilege as vendor of a boat which was used on the lake Pontchartrain, in trade between New-Orleans and various places situated on the other side of the lake. The judgment of the court below was against his claim, from which he appealed.

It apears that the price of the boat was the subject matter of dispute, the thing itself having been sold by the marshal of the City Court, to satisfy several judgments which had been obtained by persons who navigated the vessel. Whilst the price was still in the hands of that officer, a person named Bowman applied to that court for an order of sequestration of it, and claimed the sum of two hundred and ninety-six dollars and thirteen cents, as a privileged creditor, for supplies of provisions and other articles furnished to the boat, and sums to which he had acquired a right by purchase from other privileged creditors. He obtained the provisional order of sequestration, &c. While matters, were in this situation, the plaintiff made the claim as above stated, amounting to five hundred dollars, a sum above the jurisdiction of the City Court; and made parties to this suit, or attempted to make them, his vendee and Bowman, who had obtained the order of sequestration in the court of limited jurisdiction. No service of citation was made on the vendee, who is stated to have been absent from the state, nor was a curator ad litem or ad hoc regularly appointed for him. The court below dismissed the suit as to this party, and we think properly. The order of sequestration which the plaintiff had obtained in the District Court being a mere cautionary measure, could n0£ the effect of an attachment,' so as to bring the cause before the court, as between this defendant and the plaintiff, in such manner as to give jurisdiction; nor could the service of citation made on the attorney at law, appointed to defend him, have this effect. The case then rested on 7 the different claims of privilege set up by the remaining parties. A plea to the jurisdiction of the District Court was hleh 011 Part the defendant, based on several grounds, one of which was that their proceeding interfered illegally with the separate and exclusive judicial functions of the City Court.

Where the vented bySPthe SainT from going before ' a jurisdiction, to gate Ms rank and privilege with anothor creditor, who was seeking a,*lprmfege'Vlfí gainst the common debtor, m said court: Held, pe^Hs^dversa-ry to come into a higher court, to litigate their claims.

The judge a quo, in his opinion by which he retained cognizance of the case, investigated thoroughly these 8TOUnch, and we are of opinion arrived at a correct con-elusion. The plaintiff could not go into the court of limited jurisdiction, and it would have amounted, to a denial of justice> if he were not permitted to bring his adversary into the higher court, to litigate on the subject of their privileges, ... , , r , notwithstanding the judgment rendered m this matter m the inferior tribunal. Thé judgment by which the defendant was condemned to pay a certain sum, would remain ... , . ,. untouched, whilst its accessory, the privilege allowed, remained a proper subject of litigation before the District Court: otherwise, our jurisprudence would present the f * r absurdity of a wrong without remedy, or a denial of justice jn a matter clearly cognizable before our courts of judicature. The reasoning and conclusions of the court below, have relieved us from the trouble of examining the difficult and too often perplexed question relating to a conflict of jurisdictions, as we are satisfied with both. But the question of privileges, perhaps not less vexatious and difficult of solution, in spite of the attempt of the compilers of our Code to render this subject plain and simple, must be solved. There are so mauy privileges allowed on the property of debtors, and they are so various in their origin and their classifications so multifarious, that it is often difficult to settle their rank. The counsel for the plaintiff in the present case seems to rely principally on the articles of the Louisiana Code which treat of privileges on ships and merchandise. The interpretation of these articles as made by the inferior court, denies to his client any privilege ; and the record does not furnish facts by which the conclusion of that court on this head is shown to be erroneous. The boat about which the present dispute is maintained, is moveable property, and if the plaintiff has any privilege on its price, it must result from the provisions of the Code, wherein the privilege of the vendor of such property is established and defined.

The vendor of a vessel or other moveable pro-perfy_ not paid to^privilege on soícTby a forced sale, in a vendeePfor the ^e^a^take^a note and allowed privilege is of inferior rank to that of a oredi-for who has for-mshed supplies to the vessel,

We are of opinion, that the plaintiff in the present instance is entitled to the privilege of a vendor, as secured by the article 3194 of the Louisiana Code; but that it is inferior in rank to that claimed by the defendant.

It is, therefore, ordered, adjudged and decreed, that the . - . ' ° . . judgment of the District Court m relation to this part. of the cause, be avoided, reversed . and annulled ; and it is further ordered, adjudged and decreed, that the marshal of the City Court pay over to the plaintiff and appellant the amount that remains in his hands of the price of the boat in question, after payment of l'aw charges and paying and satisfying the claim of the defendant: the costs of this suit in both courts to be first paid out of the funds in the hands of the marshal. This judgment not to prejudice the claims of the judgment creditors, under whose judgments the boat was seized and sold. They must be allowed to claim from the marshal the several sums due to them according to the rank of their privileges, compared with those of the vendor and Bowman, and other creditors.


author: Martin, J.,

text:
    BOSTWICK vs. GASQUET ET AL.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    The jury are made the judges of the law and facts of the ease, when it is submitted for their verdict. They may indeed act on a question of fact, and by a special verdict submit that of law to the court; but they are at liberty in all cases to act on both questions.
    This suit commenced by injunction. The plaintiff alleges, that in the year 1822 she obtained a judgment of separation of property from her husband, decreeing to her the restoration of her paraphernal effects, which decree was duly executed, and that she has been openly and notoriously in the possession and administration thereof.
    She further shows, that the defendants, in virtue of judgments obtained against her husband, have levied executions on two tracts of land and several lots, with their improvements, in the town of Clinton, Louisiana, and are about to sell the same, in satisfaction of their said claims against her husband. She prays for an injunction, and that the property thus seized, be declared to belong to her separately, in pursuance of her said judgment of separation against her husband.
    The defendants alleged, that the judgment of separation, if any -existed, was obtained through fraud and collusion between the husband and wife, to defraud his creditors by covering his property so as to prevent the creditors from seizing and subjecting it to the payment of their just claims.
    On these pleadings and issues, the parties went to trial before the court and a jury.
    In the course of the trial, “ after the evidence had been gone through, and the case was under argument, the counsel for- the plaintiff attempted to argue to the jury, that they were the judges of both the law and the fact, notwithstanding the court has expressed its opinion, that if the judgment of the plaintiff was not supported by testimony of its genuineness, that it must go for nothing.” The court refused to allow the counsel to argue the question, and having charged the jury that they were not the judges of the law, the plaintiff’s counsel took his bill of exceptions to the opinion of the court.
    The jury are made the judges of the law and facts of the case, ■when it is submitted for their verdict. They may indeed act on a question of fact, and by a special verdict submit that of law to the court $ but they are at liberty in all cases to act on both questions.
    The jury returned a verdict for the defendants. Upon this verdict judgment was rendered, dissolving the injunction, with twenty per cent, damages on the amount of the judgments enjoined. - The plaintiff appealed.

      Lawson, for the plaintiff.

      Downs and Cooley, contra.

   Martin, J.,

delivered the opinion of the court.

Our attention is arrested by a bill of exceptions, taken by the plaintiff and appellant’s counsel to the opinion of the District Court, in refusing him leave to argue to the jury, “that they were judges of both the law and the fact, and that notwithstanding the court has expressed the opinion, that if the judgment of the plaintiff was not supported by testimony of its genuineness, that it must go for nothing and the court having refused to suffer the counsel to argue it, and having charged the jury that they were not the judges of the law, the plaintiff took bis bill of exceptions. In our opinion the District Court erred. The jury may indeed act on a question of fact, and by a special verdict submit that of law to the court; but they are at liberty in all cases to act on both questions. Code of Practice, article 520.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial, with directions to the judge to allow the plaintiff’s counsel to argue to the jury, that they are the judges of both the law and the fact; and that notwithstanding the court has expressed the opinion, that if (he judgment of the plaintiff was not supported by testimony of its genuineness, that-it must go for nothing; and to forbear charging the .¡Ul'y that they were not to judge of both law and fact: the defendants and appellees paying the costs of this appeal.


text:
    BIRD'S HEIRS vs. BLACK.
    Easkbun Dist.

      June, 1836.
    APPBAI. FROM, the'COURT OF PROBATES FOR THE PARISH OF EAST BATON ROUSE.
    To effect a removal from office of a tutor or under-tutor, for the causes authorized by law,- suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates.
    This suit was instituted b'y Abraham, John and Thompson Bird, uncles of the minor children of William Bird, their deceased brother, to remove the defendant, Andrew Black, from his office of under-tutor to said minors, on account of neglect and want of proper attention to their interests.
    The plaintiffs allege, that William Bird died in 1830, leaving two minor children, and a valuable sugar and cotton estate, appraised at twenty-five thousand dollars, which was his own .separate property; that his widow, who is the daughter of the defendant, was confirmed in her office'as natural tutrix of the minor children, and the defendant appointed under-tutor; and has remained in possession of the entire estate of her deceased husband ever since, without rendering any account to the said minors. They further show, that the widow has about a year since married a second time, and that the said defendant, from partiality to his daughter, suffered her and her husband to continue in possession, administering said estate without the advice of a family meeting, or g’ving security, or in any manner providing against the losses attending the administration of said property. They pray that the under-tutor be removed, and another appointed in his place.
    The defendant excepted to the right of the plaintiffs to maintain this action, because they do not allege any cause or right of action in themselves, or show that they have been' appointed curators ad hoc, by the Court of Probates, of said minors; and because it is not shown, the Probate Court has jurisdiction of the case, or that the defendant received his appointment from it, because there is no legal cause of complaint alleged; and that no mismanagement on the part of the tutrix is legal cause of complaint against the under-tutor.
    In answer to the merits, the defendant pleaded a general denial.
    Upon proof of the allegations, the judge of probates ■considered thejgrounds alleged by the plaintiffs as legal cause of removal, and removed the defendant accordingly, and he appealed.

      JBrunot, for the plaintiffs.

      Morgan and Elam, contra.

   Martin, J.,

delivered the opinion of the court.

In this case, the brothers of William Bird, deceased, alleging themselves the uncles of his two minors, instituted a suit in the Court of Probates for the parish of East Baton Rouge, against the defendant, as under-tutor of said minors, praying his removal from office, on the ground of neglect of duty.

The defendant pleaded an exception, averring that the plaintiffs had shown no right in themselves to sue, or any legal cause of complaint against him as under-tutor, &c.; and to the merits they pleaded the general issue.

The judge of probates, on hearing the parties, was of opinion the grounds alleged by the plaintiffs, were sufficient cause for the removal of the under-tutor. He sustained the action, and rendered judgment, removing him from office with payment of costs. The defendant has appealed to this court.

To effect a removal from office of a tutor or under-tutor, for the causes authorized by law, suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates.

The right of the petitioners to institute this suit being denied by the defendant, it does not appear to us, that there is any provision in our law which recognizes this right. It cannot exist in every body, and there is nothing to show that it was ever vested in the petitioners.

The Code of Practice is silent as to the causes and mode of removal of under-tutors, unless they are included in the provisions relating to tutors.

In regard to tutors, the Code appears to have given to any one the faculty of communicating to the judge of probates, information of any circumstances authorizing their removal from office; but to effect this, a suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates. A suit brought by a person without legal authority, would be nugatory and vexatious, because judgment rendered in favor of the defendant would not form a res judicata.

We are therefore of opinion, that the Court of Probates, in this case, erred in its judgment dismissing the defendant as under-tutor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and the judgment of this court is, that the plaintiffs’ petition be dismissed, with costs in both courts.


author: Mathews, J,

text:
    RHODES vs. RHODES.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE- COVET OF THE THIRD JUDICIAL DISTEICT, THE JUDGE THEREOF PRESIDING.
    The District Court has jurisdiction in an action of partition, when it embraces two objects ; first, to ascertain and determine the rights of .the parties to the property in question; and, second, to decree a partition between them.
    Whether an act, which is set up as a sale, be good as such or not ? yet if it be clothed with all the formalities required by law, to give force and eifect to donations inter vivos, it will be considered and held valid as a donation.
    A donation inter vivos can comprehend only the present property of the donor; if it comprehends property to come, as regards that, it will be null: Held, that where a donation was made of lands, of which the donor was in possession only under an inchoate or equitable title, which was afterwards confirmed to him, the donation was valid on the perfection of title.
    This is an action instituted by Aseneth P. Rhodes, widow of Henry Rhodes, deceased, and as tutrix of her minor children, against Sarah Rhodes, widow of John Rhodes, and tutrix of the minor children, to recover one half of a tract or section of land, which it is alleged, John Rhodes in his lifetime bound himself to convey to his said brother Henry, by a penal bond in the sum of two thousand dollars, on the condition that he, John Rhodes, was to use all lawful means and industry to obtain a donation of six hundred and forty acres of land, in virtue of a settlement right, which was then owned by him, and returned to the commissioners of the land office at St. Helena.
    The plaintiff further alleges, that the said John Rhodes obtained the donation from the United States government, by virtue of a commissioners certificate, number 716, and dated November 1st, 1827, which was subsequently ordered to be surveyed, &c.; that in virtue of said confirmation, said Henry Rhodes and his heirs became joint owners with John Rhodes, for one half thereof. They pray for a partition in kind or by licitation.
    The defendant pleaded a general denial; that if any such bond or contract as the one sued on, was executed by the said John Rhodes, it was fraudulently obtained from him, made in error and without consideration ; that the District Court was without jurisdiction of the matter alleged in the plaintiff’s petition, and the case should be dismissed.
    The suit is instituted on the following bond:
    “ Know all men by these presents, that I John Rhodes, &c., am held and firmly bound unto Henry Rhodes, &c., in the full sum of two thousand dollars, lawful money of the United States, and to the true and faithful payment whereof, I do hereby bind myself, my heirs, &c., firmly by these presents. Signed, &c., at Jackson, this 25th October, 1822.
    “Now, the conditions of the above obligation are such, that if the said John Rhodes shall use all lawful means and industry, to obtain from the United States a donation of six hundred and forty acres of land, by virtue of a settlement right or claim which he the said John Rhodes owns, and has returned to the commissioners of the land office, which claim is situated on the waters of Sandy Creek, and is how inhabited and cultivated by said John Rhodes; and if when he shall so have obtained a donation for said land, he shall convey by good and sufficient title, one-half of said tract of land to the said Henry Rhodes, deducting the value of his said improvements on said tract of land, or one entire half of so much land as the said John Rhodes shall obtain, making the aforesaid deduction. It is further stipulated by these parties, that in case the said John Rhodes should fail in obtaining a donation of said land, and should be reduced to the necessity of purchasing the same from the United States, the said Henry Rhodes shall pay his full proportion of the purchase money; then this obligation shall be void, otherwise remain in full force.

      “ In testimony whereof, the said John Rhodes signs this bond, in presence of Hugh W. Hill, judge of the parish of Feliciana, &c., and the said Henry Rhodes also signs, accepting the bond, and confirming the stipulation he therein makes on the day above written. JOHN RHODES,

      Witness: G. MORGAN,' HENRY RHODES.
    “ B. BROWN.
    HUGH W. HILL, Parish Judge.”

    The commissioner’s certificate showed the confirmation of an entire section of land, as a donation to John Rhodes.
    Upon these pleadings and issues, the cause was submitted to a jury, with the evidence and explanations of the parties. The jury returned a verdict for the plaintiffs, upon which the court rendered judgment, that they recover of the defendants one undivided half of said tract of land. From this judgment the defendant appealed.

      Lawson, for the plaintiffs,
    contended, that the bond in this case was binding on the heirs of John Rhodes. A promise to sell amounts to a sale, when there exists a reciprocal consent of both parties, as to the thing and the price thereof and when this promise is evidenced by an act clothed with the required formalities. Civil Code, 346, articles 4, 9. Napoleon ' Code, 1589. 9 Toullier, Nos. 92, 93.
    2. A sale is considered perfect, as soon as there is an agreement for the object and the price, though no delivery has been made. Civil Code, 346, article 4. ' 1 JDomat, lib. 27, tit. 2, sec. 1.
    3. The act between the ancestors of plaintiffs and defendants was clearly a sale, (in the sense of the Code,) followed by tradition and continued possession, and in all the subsequent transactions considered as such by them. It is a sale which depended on the happening of an event, the donation of the land. It is not the less a sale, because the deed does not express the price of the thing: he who has promised to sell real property, and who afterwards puts, or suffers to enter into possession, him to whom he has made the promise, is naturally supposed, by this, to execute his promise by a verbal or tacit sale, and in such a case it is presumed, that he has received the price, since he has neglected to require an act to secure the payment. Civil Code, 274, article 81. 9 Toullier, JVo. 93.
    4. Such a sale, having as its basis a written promise to make titles, as well as the payment of the price, may be established by testimonial proof. 9 Toullier, JVo. 93. 3 Louisiana Roports, 169.
    5. The bond to make title, is a commencement of proof in writing, and the receipt is a written acknowledgment of payment; these authorized parole testimony of the sale. Civil Code, 243. 9 Toullier, JVo. 93. 8 Toullier, 320-2. 4 Martin, JV. 203. 3 Martin, JV. S., 517. 12 Martin 713.
    6. A receipt of the vendor, acknowledging payment by vendee, of the price of real property, is good evidence of a sale. 3 Martin, JV. S., 337. 1 Louisiana Reports, 311. 3 Martin, JV. S., 583.. 6 Marlin, 10.

      Andrews, for the defendant.
    1. The plaintiff in this case has mistaken her remedy, provided she even has any right. She should have sued to have title made to her, instead of suing for partition; for she cannot sue without the advice of a, family meeting.

    2. Her petition should have been in the alternative, for the land, or the money mentioned in the bond.
    3. The District Court has no jurisdiction of an action of partition of a succession, particularly where there are minors. Code of Practice, article 924, JVo. 11. Session Acts of 1825, page 122. Ibid, of 1828, page 156, section 13. 7 Martin, JV. S., 469. Hook vs. Hook, 6 Louisiana Reports, 420. Code of Practice, articles 983, 995, 996.
    4. There was no consideration given for the bond. On its face it purports to be a gratuitous donation ; as such it is void. It is made of future property, and there is no appraisement ; and it is in other respects informal. The consideration as set out in the petition has failed.

      5. The plaintiff contends that it is a sale. If it is so on its face, has it the constituents of a sale Í Can it be made so by connecting it with other transactions, by parole testimony1? See 12 Martin, 404. 3 Martin, JY. S., 384. 5 Louisiana Reports, 457. Civil Code, page 310, articles 341, 342.
    6. The verdict finds nothing, and is insufficient. Code of Practice, article 522. 4 Martin, JY. S., 410.

      7. The judgment does not conform to the verdict, or the prayer of the petition. Petition prays for partition only; judgment gives title to the land, and partition.
    8. Allowing, as is contended for by the plaintiff, that the bond from John to Henry Rhodes is a sale with a suspensive condition, then we contend that the condition is not accomplished. He was to make title, when he obtained title from the United States. He has no title; only a commissioner’s certificate. Civil Code, page 274, article 81. 8 Marliny JY. S., 644.
   Mathews, J,

delivered the opinion of the court.

This suit was commenced by the widow of Henry Rhodes* as representing her minor children, in her capacity of tutrix, against the tutrix of the children of John Rhodes. The action is founded on a bond or writing, obligatory, in which the ancestor of the defendants bound himself to convey, by sufficient title, one half of a tract of land, containing six hundred and forty acres, to Henry Rhodes, the father of the plaintiffs.

At the time this bond was made, John Rhodes, the obligor, had no absolute title to the property, but calculated on obtaining it by donation, from the United States, or by purchase under the provisions of the laws of congress, relating to the public lands in Florida.

He succeeded in his claim for a donation, in pursuance of the act of 1826, as appears by a certificate of the register and receiver, &c. There is also an order for the location of the claim, found in the evidence of record. The cause was submitted to a jury, who found a verdict for the plaintiffs, on which judgment was entered, ordering a partition of the land, in litigation between the plaintiffs and defendants.

The District Court has jurisdiction in an action of partition, when it embraces two objects, first, to ascertain and determine die rights of the parties to the property in question $ and, second, to decree a partition between them.

Whether an act, which is set up as a sale, be good as such or not? yet if it be clothed with all the formalities required by law, to give force and effect to donations inter vivos, it will be considered and held valid as a donation.

. Amongst other matters of defence, we find a plea to the jurisdiction of the District Court.

We consider the cause as having two objects, first, to ascertain the rights of the plaintiffs to the property; and, second, to obtain a partition of it. Viewed in this manner, the District Court was authorized to retain jurisdiction of the case. It is not exclusively cognizable by the Court of Pro-batesi not being strictly a partition of a succession, for the question first to be settled, is, whether any part of the land in dispute, belongs to the succession of Henry Rhodes.

According to the points made on the part of the defendants, we are called on to examine the effects of the contract, on which the plaintiffs rely for a judgment in their favor. It was made in authentic form, before a notary and two witnesses, and signed by both the parties. No valuable consideration for the agreement is expressed in the instrument; but the plaintiffs attempted to supply this defect, by proof of payment of certain sums of money, made by Henry Rhodes to his brother John, being the consideration of the promise. The testimony to establish this fact was objected to, and several bills of exception are found to the opinion of the judge a quo, by which witnesses were received to prove the payment of money, not shown by the written contract to have any connection with it.

Whether the act under consideration be good or not, as a sale, we deem it unnecessary to determine,.believing it to be valid as a donation. It is clothed with all the formalities required by the Civil Code, to give force and effect to donations inter vivos. See the Civil Code of 1808, page 220. Opposed to the act as containing a valid donation, we are referred to the articles 43 and 48, found in the Civil Code, at page 218. In the first of these articles, it is declared, that “ a donation inter vivos can comprehend only the present property of the donor. If it comprehends property to come, it shall be null with regard to that.”

a donation in- “- ly the present ^onor^ífiteom-come" asitregardsthat, Held, that where madenaof°iandsS of which the donor was m possession only un-^equitable0 ti-whi1c'1 was firmed to him, the donation was vaua on the per-Action of title,

In the present case the evidence shows, that the ancestor of the defendants was in possession of the property promised to the donee, at the time of the contract, under a purchase of the settlement right of a person named Brown. His title, it is true, was inchoate; but he had reasonable and well grounded hopes, founded on the laws of congress, that it would be made perfect, and be completed, either by donation from the government, or by a right of pre-emption. Being in possession under color of title, which was afterwards confirmed to him by competent officers of the general government, so far as they could act on the case; we are of opinion, that the donor may be considered as having had an equitable title to the land in question, at the date of the . . . . donation. He was m possession; therefore it cannot be viewed, strictly speaking, as property to come, and consequently the article 43 of the Civil Code, does not govern the present case. The article 48 is wholly inapplicable; for it i r i . ,, j i mi . has reference only to moveables and slaves. The contracting parties were brothers, and the testimony shows, that the donee held possession of part of the land, subsequent to the act of donation, and that his brother would not sell any part.' of it without his consent, which was given in a sale made of one hundred and sixty-eight acres.

Under all the circumstances of the case, it is believed, that the plaintiffs are entitled to one half of the remainder of the tract of land in dispute, after deducting the number of acres sold by the brothers. The certificate of confirmation by the register and receiver, and the subsequent order, specifying the location of the claim, affords such primfo facie evidence of title, as to require a transfer of right from the defendants to the plaintiffs, without waiting for a patent. The certificate and location must be considered as a fulfilment of the condition, on which the property was to be transferred to the. donee.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, with the following amendments and additions: the property must be divided according to the terms of the donation, deducting from the tract now to be partitioned, one hundred and sixty-eight acres and ninety-three hundredths, already sold, &e. ° J J