text:
    Johnson v. Marsh et al.
    'f’be power of a partner to bind his co-partners, either by note or by his acknowledgments, or to use the social name, ceases with the dissolution of the partnership. Any subsequent power is derived, not from previous relations of the parties as partners, but from a new contract, which is one of mandato ; and this mandate must be express and special. C. C. ¿966.
    Answers to interrogatories on facts and articles can only be used against the party interrogated, and not other parties to the action; the latter have a right to insist on a cross-examination of the witness by whose testimony they are to be -bound.
    Appeal from the District Court of St. Martin, Overton, J.

      Magill, for the appellant,
    contended that an authority conferred on one partner to liquidate a partnership, is an express and special power, within the -meaning of art. 2966, authorising him to execute notes for balances d,ue to the .creditors of the partnership.

      1. E. Morse and Nicholls, for-the appellants.
    After dissolution, a partner .cannot bind the firm without a special power. C. C. 29G6. 18 La. 332. 5 Rob 172. 6 Rob. 70. 11 Rob. 95. Story on Partnership, 1G1, 460. Answers to interrogatories can only affect those immediately concerned in asking or answering them. 10 T.oullier, n.o. 391.
   The judgment of the .court was pronounced by

King, J.

The defendants were partners in a plantation and distillery, which ■was dissolved in October, 1834, when Marsh, one of the partners, was charged with the liquidation of its affairs. In 1840, Marsh executed the note upon which this suit is founded, and subscribed it with the partnership name. For the amount of this note the plaintiff seeks to render the defendants liable in .so-lido, as commercial partners. Two of them, I. E., and M. C. Morse, resist payment, on th.e ground that the .partnership was dissolved before the execution of the note, and that it was made by Marsh without authority to that effect from those defendants. A judgment was rendered by the judge below against Marsh, for the entire amount of the claim, and of non-suit as to the remaining parties. The plaintiff has appealed.

No authority to Marsh to execute the note in question is shown, other than the notice published announcing the dissolution .of the partnership, and that “Jonas Marsh was ehargod with the liquidation of the concern.” It has been repeatedly held that the power of a partner to bind his co-partners, either by note or by his acknowledgments, or to use the social name, censes with the dissolution of the partnership, and that such authority is derived, not from the previous relations of the parties as partners, but from a new contract, which is one of mandate. This mandate our law requires to be express end special. Civil Code, art. 2966. 8 La. 568. 5 Rob. 174. 6 Rob. 70.

Interrogatories were propounded by the plaintiff to Marsh, with the view of proving the consideration of the note. His answers were objected to by I. E., and Ml C. Morse, as far as they tended to charge those defendants, and were properly disregarded by the judge below. Answers to interrogatories on facts and articles can only be used against the party interrogated ; other, parties have a right to insist on a cross-examination of the witness, by who.se testimony they are to be bound. In the present instance, however, we think that the answers of Marsh do not connect the note, with sufficient distinctness, with the affairs of the partnership to authorise a judgment against his co-defendants, ev.on if they were admissible in evidence, and the form of the action permitted us to enter upon the enquiry. Marsh has not complained of the judgment.

Judgment affirmad'.


source: Caselaw Access Project

author: I£ikg, J.

license: Public Domain

text:
    Fuselier v. Spalding.
    ■Where the burning of a brick kiln, erected near a dwelling, would expose the latter to danger from lire, besides seriously incommoding the occupants, the burning of the kiln may bo prevented by injunction.
    Appeal from the District Court of St. Martin, Overton, J.

      Brent, for the plaintiff,
    cited C. C. arts. 852, 853, 860, 861, 862, 863.

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

I£ikg, J.

The plaintiff obtained an injunction prohibiting the defendantfrom burning a brick kiln, which the latter had erected near her dwelling house in the town of St. Martinsville, alleging that the security of her premises, and the health of herself and family, would be endangered, if the defendant were permitted to execute his purpose. The injunction was perpetuated in the court below, and the defendant has appealed. We think that the judge did not err. The plaintiff had a clear right to invoke the aid of a court in this form, to protect her property from an impending danger, and the health of herself and family from being impaired. The evidence, in our opinion, shows that the kiln could not have been burnt in the position where it stood without exposing the premises of the plaintiff, which were all of wood, to danger from fire, besides seriously incommoding, if not injuring the health, of the occupants.

Judgment affirmed.


author: Slidell, J.

text:
    Fontenot et al. v. Soileau.
    A husband, on whose property a legal mortgage existed in favor of his wife, having borrowed money from a third person to purchase lands from the government, after making the entry, andón the same day, executed a mortgage on the land in favor of the lender to secure the amount loaned, and, a few days after, registered the mortgage: Held, that the mortgage in favor of the lender was inferior to the wife’s, which existed before it, and took effect on the land the instant it was purchased by the husband.
    Where a sale is made for cash, and the price paid at the time, no vendor’s privilege can •exist.
    Privileges are stricti juris. They exist.only when expressly allowed. C. C. 3152.
    Appeal from the District Court of St. Landry, Overion, J.

      W. B. Lewis, for the appellants. Swayze and Taylor, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Damacene Oriego, wife of Soileau, had a legal mortgage ou the property of her husband, dating back as far as the year 1S33. The validity of this mortgage, the plaintiffs do not dispute ; but they contend that they have a superior mortgage upon certain land which has been seized and sold, and the proceeds of which form .the subject of the present .controversy.

It appears that Soileau, the defendant’s husband, purchased this land from the United States, in the year 1838. Fontenot and Stagg loaned him the money to make the purchase; and .on the same day upon which the entry was made, and after making it, Soileau executed a mortgage upon the land in favor of the plaintiffs,,to secure the payment of the amount loaned in one year, with interest, which mortgage was registered a few days afterwards. The plaintiffs contend that these circumstances give them a right of mortgage or privilege, superior to that of the defendant. So far as the plaintiffs rely upon a right of mortgage, it is obvious that it is inferior to the mortgage in favor of the defendant, which existed long before the mortgage to the plaintiffs was granted, and took effect upon the land the moment it was purchased by her husband.

,Bu.t it is.said that Fontenot and Stagg are entitled to the vendor’s privilege. The privilege of a.vendor would have existed in favor of the United States,had they sold on a credit; and in that ease a subrogation of such right might haye been made in favor.of the plaintiffs by the vendor. But as the sale was for cash, and the price was paid down at the time of sale by Soileau, the vendor’s privilege never existed. Privileges are matters stricti juris. They exist only in those cases which the lawgiver has expressly declared. C. C. 3152. The case before us is not protected by the Code, and however strongly its hardship may appeal to the conscience of the defendant, there is no authority in us to relieve the plaintiff. Judgment affirmed.


author: Kirie, J.

text:
    Fisher v. Fisher.
    The matrimonial rights of a wife, who married with the intention of removing into another State, must be governed by the laws of her intended domicil.
    Where parties contracted a marriage in another State with the bona jiüó intention of establisbing their matrimonial residence in this, and, within a reasonable time thereafter, become domiciled here, any property belonging to the wife before the marriage, received by the husband afterwards or at the time, will remain her separate estate, according to the laws of this State; and the mortgage of the wife for the security of her paraphernal rights will attach from the dates at which any sum of money may have been received by the husband, though received before the removal of the spouses to this State ; and this without registry. C. C. 2367, 3297, 3298.
    Appeal from the District Court' of St. Martin, Overton, J.

      Heard, for the plaintiff. Mashell, for the intervenor and appellant. No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Kirie, J.

The plaintiff sues for a separation of property from her husband, claiming certain slaves in kind, and several sums of money alleged to have been received by the latter during the marriage. To secure the reimbursement of the sums of money, she asks that a legal mortgage on the property of her husband be recognised and enforced. Thomas Mashell, a judgment creditor of the defendant, intervened in the suit, and opposed the wife’s claims. A judgment was rendered in favor of the plaintiff for the slaves claimed, and for several sums of money, -with a legal mortgage to take effect from- the dates when the latter were respectively received by the defendant, and-the intervenor has appealed.

From the evidence it appears that, in September, 1841, the defendant, who was at the time a citizen of this State,-intermarried With tlie plaintiff in Nashville, Tennessee, with a view to a residence in Louisiana. He remained in Tennessee for nearly a year after the marriage, during which time he received several sums of money due to the plaintiff in her separate right. At the expiration of that time he returned- to his domicil with his wife, bringing with him the property of the latter, and has continued to reside ¿ere ever since. Previous to the marriage a deed of trust was executed by the plaintiff, by which the property described in the act (being the same claimed in this suit,) was conveyed to trustees, to be held for her use until the celebration- of the marriage, upon which event it should vest in the plaintiff, as her separate estate, for her sole use. This act was not registered in the office of the parish judge of the defendant’s domicil, until February, 18431

The correctness-of the judgment, as regards the slaves decreed to the plaintiff, has not been seriously questioned, and the evidence leaves no doubt that the several sums awarded to the wife were her paraphernal funds, received by the husband at the dates fixed by the judge below. The complaint of the intervenor relates principally to the recognition of the plaintiff’s right of mortgage. He contends that the' plaintiff having been a citizen of another State at the time of her marriage, and when several of the sums claimed by her were received by her husband, no mortgage attached in her favor to secure the reimbursement of those sums, previous to her becoming a resident of this State. He further contends that the legal mortgage took no effect to the prejudice of third persons, until the registry of the act furnishing the evidence of her claim.

As regards the right of the plaintiff to the effects which she owned at the date of her marriage', this case' is not distinguishable from that of Routh v. Routh, 9 Rob. 224, in which- it was held that where “ parties contracted marriage with the bona fid¿ intention of making Louisiana the place of their common or matrimonial residence, and, in pursuance of such intention, did, within a reasonable time, become domiciled in this State, then the property belonging to the wife before the marriage, and received by the husband afterwards or at the time, remained her separate estate,'according to the laws of Louisiana.” The principle is well settled that the matrimonial rights of the wife, who marries with the intention of removing into another State, must be governed by the laws of her intended domicil. 2 Mart. N. S. 574. 3 Mart. 60. Story, Confl. of Laws, no. 191, et seq. The intended matrimonial domicil of of these parties was Louisiana; and, by our laws, the mortgage of the wife, for the security of her paraphernal rights, attaches from the dates at which sums of money are received by the husband, and this without registry. This question can no longer be considered open. C. C. 2367, 3297, 3298. 10 Rob. 159. 6 La. 25. 10 La. 303. Judgment affirmed.


text:
    Bonin et al. v. Durand.
    The seal of the coméis essential to the validity of an execution; without it a sheriff has no authority to act. There is no difference between a decree for the seizure mid sale of mortgaged property and an ordinary decree, as to the necessity for issuing a writ of execution.
    By the omission to reinscribe a mortgage within ten years from the date of the first inscription, the effect of the inscription, not of the mortgage itself, ceases. The doubt which has existed as to the proper interpretation, on this point, oí art. 3333 of the Civil Code, has arisen from the inaccurate translation from the french text. The mortgage is unimpaired thereby, as between the mortgagor and those claiming under him, and the mortgagee. C. C. 3314, 3315, 3316.
    APPEAL, by the parties cited in warranty,from a judgment of the District Court of St. Martin, Overton, J. The facts of the case are stated in the opinion infra.

      Brent, for the plaintiffs.
    The sale under which defendant claims, is null, the execution not having the seal of the court affixed to it. C. P., 179, no. 7, 625, 626, 627, 774. 7 La. 70. 9 La. 542. 10 La. 483. 12 La. 573. 2 Rob. 377. 3 lb. 155. 17 La. 40. Unless the forms of law have been complied with, a purchaser can acquire no title under a sheriff’s sale. 4 Mart. 513. 5 lb. 625. 11 lb. 610. 3 La. 421. 9 La. 543. 10 Rob. 32.

      Simon and Magill, for the appellants.
    We contend : 1. That neither the seal of the court, nor the signature of the clerk, are necessary to authorise the sheriff to carry into effect an order of seizure and sale granted by the judge; that it is sufficient for him to have a memorandum or list of the property to be seized, and that the order of the judge is a sufficient authority to act. 2. That if a seal is required to the list of property or to the writ, its absence is not sufficient to annul a sheriff’s sale, which, in all other respects, has been made with all the formalities of the law.
    1st. The sale was made by virtue of an order of seizure and sale granted by the judge at chambers, a proceeding which our Code of Practice calls “ executory process.” C. P. art. 732 etseq. The rules of proceeding pointed out by arts. 734, 735, 736 and 737 of the Code of Practice are the only ones under which the sheriff derives his authority to seize and sell. They require a simple petition to the judge, who thereupon grants an order, under which the creditor may proceed against the debtor, by causing the mortgaged property to be seized and sold. Art. 736 says: “The judge has the power to issue the order of seizure and sale,” and nothing in any of the provisions of the law relative to this subject shows that an order of seizure and sale ought to issue in the same manner asa writ of Ji. fa., which the Code, art. 641, says, the party in whose favor a judgment has been rendered must apply for to the clerk, who, under art. 774, is bound, in issuing all orders or writs, to seal them and sign them. Here, the order was granted, that is to say, issued by the judge, and it was undoubtedly a sufficient authority for the sheriff to act under, from the moment that, according to art. 735, in obtaining the order of seizure and sale, due notice was given to the debtor'. Itfollows that a writ issued by the clerk was unnecessary; that the order of the judge was a sufficient authority for the sheriff to act; and that, in order to enable him to seize the property, a list or memorandum of its description is all that was required to be given to the sheriff. Thus, it is immaterial whether there was a seal to the certificate signed by the clerk, and even whether the clerk had signed it or not, for the sheriff does Hot derive his authority to act in executory process from any writ or order issued by the clerk, but from the order granted or issued by the judge to whom the petition is presented.
    2d. But if it be necessary that there be a regular writ issued by the clerk, after having obtained the order of the judge, the law does not say, in any of its provisions, that its absence shall be a cause of nullity. This court have decided that they would never recognise any nullity as resulting from irregularities or informalities, unless positively pronounced by law. The want of a seal to a writ issued and signed by the clerk, does not and cannot lessen the authority which the sheriff had to carry the order of the judge into execution. The order is a sufficient warrant; and no injury can ever result to the party against whom the order is obtained, from the absence of a seal, or of the mark, which it is customary to affix to judicial proceedings. In the case of The Stale v. P. B. Martin, ante p. 667, this court have, to a certain extent, expressed views similar to these with regard to nuilites resulting from informalities, and have said that they would not recognise such nullities, unless expressly declared by law.
   The judgment of the court was pronounced by

Slidell, J.

Sev.eral alleged informalities in the judicial proceedings and sale under which the defendant claims title, have been specially set forth in the petition, and elaborately discussed at bar. We shall give our attention to one, which appears to us a fatal defect. A decree of seizure and sale was rendered, in Í83S, against certain mortgaged property, including the slaves now in controversy. A writ of seizure and sale issued, which was returned by order of the seizing creditor. In 1844, without any new order of court, the clerk issued a second writ of seizure and sale, upon the authority of which the judicial sale was effected. This writ was signed by the clerk; but, as is admitted by the parties, did not bear the seal of the court. We consider the seal of the court an essential requisite to the validity of an execution ; and as it did not exist in the present case, the sheriff must be considered as having made the sale without any lawful authorisation. It is urged by the learned counsel forthe defendant, that no writ was necessary ; that it was sufficient that a decree of seizure and sale had been made by the court. We cannot recognise any distinction, in this respect, between a decree of seizure and sale and an ordinary final decree. Both are judgments, and in both a writ is necessary as the sheriff’s warrant for their execution. That process is to be issued by the clerk in the proceeding via execuliva, is obvious from the provisions of the Code of Practice, and upon general principles ; and the universal practice since the promulgation of the Code, as we believe, has been to issue a formal writ under the seal of the court, as in ordinary cases.

It is not indispensable fox the decision of the present suit that we should express an opinion upon the other points made in the case. But as they have been fully ai’gued, and as it is evident that there will be further litigation between these parties, we have considered it proper to notice some of the points presented by the plaintiffs.

We consider the mortgage executed by the plaintiffs’ ancestor to the bank, as covering not merely the stock, but also the loan made to Madame Martinez, pursuant to the credit to which she was entitled as a stockholder. A consideration of the true intent and spirit of the charter of the “ Consolidated' Association,” which charter is expressly referred to in the act of mortgage, might perhaps suffice for the solution of the question. But Besides this, the language' of the contracting parties in the act of mortgage very clearly indicates their intention, that the loan should be- secured- by mortgage-. It recites that the-mortgagor desires to furnish a mortgage in--conformity to th8 provisions of the-charter, specially referring to the 5th and’ 6th sections of the statute of 1827,- and the 6th section- of the amendatory statute of 1828, in whioh sections the-security of the capital By mortgage is contemplated, the right of the stockholder to a Iban declared, and hypothecary obligations of whatever nature subscribed by individuals in favor of the bank are’ constituted a special guarantee and> security for the reimbursement of the capital-of $2,500,009. The mortgagor,after these recitations, proceeds to mortgage’ the slaves in question, describing; them, and adding the usual covenants de non alienando, See. The mortgagor then declaresher intention to avaihherself of the'eredit allowed-her as a stockholder,-and-acknowledges the-receipt of the loan-.. The act then’ recites that she has furnished her bond for the amount of the loan, “ laquelle obligation a’ eté signé etparaphé ne varietur par le jugé. ex officio notaire, soussigné, confórmément- á la lob et emeonformité de l’acte hypotÜécaire susment-ionné.”

It was arguedThatthe'mortgage had been lost by the- failure to re-inscribe it’ within ten years. The plaintiffs are the heirs of the mortgagor, and represent the person of their ancestor. The failure to re-inscribe would, in ordinary cases, be fatal as to third persons, but leaves the mortgage unimpaired as between the mortgagor and mortgagee. The doubts which'have existed as to the proper interpretation on this point of article 3333 of our Civil Code; have arisen from the inaccurate translation of the french- text. It is the “ effect'’’ of. the inscription which ceases, not of the mortgage. The subject was very carefully considered, after full’argument, in the recent cases of Shepherd v. The Orleans Cotton Press, ante p. 100, and McElrath v. Dupuy, ante p. 520. See also Civil Code, arts. 3314, 3315, 3316.

Upon the plea of prescription- of the debt set’ up by the plaintiffs, the court Below was of opinion that the debt was not prescribed, and gave judgment accordingly. In this the plaintiffs say there is error; and, in their answer to the appeal; they pray that the- judgment of the’eourt, in this respect, be reversed. After a carefuleonsideration of the evidence our minds are not entirely satisfied upon the question of- prescription. While we, however, reverse the opinion of the district judge upon this point, we are not prepared to adjudge the question in the plaintiffs’ favor. Much light may be thrown upon the facts of the ease in the- future contest which will probably occur; the examination of the point is not indispensable to- the decision- of the present suit, and we shall leave it entirely open.

It’is therefore decreed that so’much only of the judgment of the court below as decrees “ that prescription-as to the debt has not attached, but that the plea of prescription tb the mortgage-is sustained,” be reversed. And it is further decreed that, in all other respects, the said judgment be affirmed, with costs; leaving the question of. prescription as to-the debt open. And it is further decreed that the plea of prescription; or peremption, of the mortgage executed in- favor of the said Consolidated Association, be dismissed.


text:
    Bonin v. Berard.
    APPEAL from the District Court of St. Martin, Overton, J.

      Brent, "for the plaintiff. Simon and Magill, for the appellants.
   The judgment of the .court was pronounced by

Slidell, J.

The reasons assigned for our-decree in the case of Bonin v. Durand, just decided, apply to this case, in which the writ of seizure and sale, besides having no seal, exhibits the additional defect of not being signed by the ,clerk.


author: Slidell, J,

text:
    Toledano v. Gardiner.
    An actionby a factor against his principal, for a balance of account, one item of which is for tbe amount of a bill accepted by the former for the accommodation of the latter, and paid by the acceptor, is prescribed only by ten years. C. C. 3508. .The action is not upon the bill, but upon the contract for reimbursement between-the drawer and accomodation acceptor.
    In an action by a factor on an account current between him- and his principal, embracing their dealings in that relation, the latter will not be,permitted to.isolate the items, and apply to any particular item tbe prescription-which might be applicable if it stood alone, and if the relation of factor and principal did not exist. The various items are component parts of one account, which is to be regarded as a whole, and tbe prescription to be applied to an action on such an account is that of ten years, established by .art. 3508 of the Code.
    An agent who advances money for the business of bis principal is entitled, without any.express agreement,-to legal .interest from the day on which the advance was made. -C. C. 2994.
    Appeal from the District Court of St. Landry, O.verton, J.

      W. B. -Lewis, for the appellant. Swayze, .for the defendant.
   The judgment .of .the court was pronounced by

Slidell, J,

This suit is brought to recover the balance of a factor’s account. The account.is composed of itemsfor plantation supplies furnished, cash advanced, an accommodation acceptance, and charges for commissions and interest, forming the debit side ; and of credits of the proceeds of cottons shipped to plaintiff by defendant. It is the usual account of .planter and factor, and the dates of the items run from 21st October, 1836, to 20th April, 1838. This suit was brought in 18dá. The defendant answered by a general denial. He also pleaded the prescription of one, two, three, five, and ten years. He averred that the plaintiff was .indebted to him in the sum of $2,506 25, the value of fifty-seven bales of cotton.consigned to Toledano at various periods to be sold for defendant’s account; and asked a judgment for that sum against the plaintiff. At-the trial of the .cause the correctness of the account was proved by the plaintiff’s clerk. A draft of the defendant was also offered iu evidence for $2,525, the principal item of the account, in which.it is charged as an accommodation acceptance. This draft purports to be drawn upon and accepted .by the plaintiff.

The first ground of defence urged is, that.the amount claimed exceeds $500, and under article 2257 of the Civil Code cannot be established by a single witness- Even if it be true that the article in question covers the present case, still the claim does not rest upon the testimony of one witness only. A strong corroboration is found in the draft signed by the defendant, and in the allegations of his answer, which show that the relation of factor and principal existed between the parties. A comparison of the account with the answer, exhibits a conformity in the quantity of ’cotton shipped and in its value.

But it is said that the items of the account are barred by prescription. Thus the principal item, the payment of the accommodation acceptance, is said to be barred by the prescription of five years, applicable to negotiable instruments. But it is to be observed that the action of the plaintiff is not upon the bill of exchange. It arises out of the bill, but the bill itself was functus oficio when paid by the acceptor. The bill is a voucher, and the claim is upon the contract for reimbursement between the drawer and accommodation acceptor. We have recently considered this subject in the case of the Succession of Guillemin, ante p. 634.

"We do not think it necessary to consider separately the various items of the account, the nature of which has been already stated. In an account of this sort between factor and principal, embracing their dealings and transactions in that relation, the defendant is not to be permitted to isolate the items, and apply the rule of prescription which might be applicable to the particular charge, if it stood alone, and if the relation of factor and principal did not exist. The various items are component parts of one account, which is to be regarded as a whole, and the law of prescription is to be applied accordingly. Thus considered, the case falls under the prescription of ten years, Civil Code, 3508.

The plaintiff, in the absence of proper proof of an agreement for a higher rate of interest, is entitled to interest only at five per cent. His character as agent entitles him to legal interest without an express agreement. “ If the attorney has advanced any sum of money for the affairs of the principal, the latter owes the interest of it from the day on which the advance is proved to have been made. Civil Code, art. 2994.

It is therefore decreed that the judgment of the District Court be reversed, and that the plaintiff, Chrisloval Toledano, recover of the defendant, George W. Gardiner, the sum of 351,061 61, with interest at the rate of five per centum per annum, from the 20th April, 1838, till paid, and costs in both courts.


author: Rost, J.

text:
    Fontenot v. Her Husband.
    Where prescription is pleaded, for the first time, in the Supreme Court, the parly to whom it is opposed may require the case to he remanded for trial upon that plea. C. P.902.
    Appeal from the District Court of St. Landry, Overton, J.

      Swayze and Taylor, for the plaintiff. W. B. Lewis, for the appellant. Martin, for the intervenors.
   The opinion of the court was pronounced by

Rost, J.

The plaintiff sued her husband for a separation of property, and asked to be authorized to resume the administration of the slave Helene and her descendants, whom she alleges to be her paraphernal property. The defendant filed a general denial; and further averred: that he married the plaintiff', on the 12th day of January, 1806; that she was then in possession of the slave Helene; that the laws then in force regulate his matrimonial rights; that under those laws the issue of slaves held by the wife, as paraphernal property, fell into the community; and that should the plaintiff’s action be sustained, he is entitled to one undivided half of the slaves mentioned in her petition. After issue joined, the children of the defendant by her first husband, Don Diego Lafleur, intervened, alleging that the slave Helene and her ascendants belonged to them, by inheritance from their father. The court below, being of opinion that the plaintiff and the intervenors were each entitled to one undivided half of the slaves, gave judgment accordingly, and authorised the plaintiff to resume the administration of her paraphernal property. From this judgment the defendant alone has appealed, and the other parties pray that it may be affirmed.

The claim for a decree of separation of property appeal’s to be abandoned by the plaintiff, and the only question presented by the appeal is, in relation to the ownership of the slaves claimed. The facts material to that issue areas follows :

The plaintiff was married to Don Diego Lafleur, on the 14th of July, 1795. On the 18th of August, 1796, Lafleur purchased and paid for the slave Helene ; he subsequently died, and the plaintiff married the defendant as already stated. On the 5th'of August, 1806, an inventory and appraisement of the property held in common between her and the children of the first marriage was made, at her request, she was called upon to declare all the property belonging to the community, and gave the slave Helene as forming part of it. In her application to have the inventory and appraisement made, she expressed her desire of having guardians appointed to her children, and prayed that suitable persons might be appointed, and legal proceedings had to ascertain and set apart their respective shares in the succession of their father. The judge made the preliminary orders, and on the 1st day of September, 1806, a judicial sale of all the moveable property belonging to the community and the succession took place.

No written evidence of a partition, or of any subsequent proceeding in the succession of Lafleur, is found at this day in the office where the law required it to be deposited; nothing in the records of the Court of Probates shows who was appointed tutor of the minors; but obligations and receipts adduced in evidence, bearing dates from 1807 to 1822, show that Garrigues Flaujac acted in that capacity, and that he had the funds of the succession in his hands. No record of a judicial sale of the slaves belonging to the community, or of any other lawful alienation of them, now exists ; but three of the intervenors have each given to Garrigues Flaujac, their acting tutor, a receipt for the sum of $383-, which they state to he in full of the fifth coming to them in the succession of their father, amounting to the sum of $1,916 50. This amount is probably made up of one-half of the proceeds of the sale of the moyeables added to one-half of the appraised value of the slaves.

Having before us the evidence of the application of the plaintiff, that the share of her children in the succession of their father might be ascertained in due course of law, the first orders made upon that application, and the receipt of three of the heirs showing that the amount of the succession had been liquidated and ascertained, it is a serious question whether, after an acquiescence of more than forty years, ’the rule, Probatis extremisprasumuntur media, should not be applied. It is true that this rule does not generally extend to ¡records and public documents, when it is known that suitable buildings have been at all times provided for their preservation, and that proper care has been taken of them: but it is an historical fact that such is not the case with the an- ’ cientrecords of Louisiana; and as we observed in the case of Gibson v. Foster, ante p. 503, if the validity of ancient titles originating in judicial proceedings was made exclusively to depend upon the records, as they might be found at any subsequent time, the surest way to destroy private rights would.be to ascend to their origin.

In this case no reasonable doubt can exist that Garrigues Flaujac was the tutor of the minors, and yet his appointment, his bond, and his oath, are nowhere to be found.

If we should come to the conclusion that there was a partition of some kind, it is probable that the claim of the intervenors to set it aside, or to recover any part of the property of the succession, would be barred by the time that has elapsed since they became of age- The plea .of prescription was filed in the Supreme Court, and as it may be material in .the decision of the cause, the application of the appellees that .the case be remanded, must be granted.

It is extremely desirable that cases like this, in which courts of justice have nothing but remote probabilities to act upon, should be settled by the parties themselves, in a spirit of mutual justice; and we earnestly recommend that course.

The judgment in this case, so far as it affects the defendant, is reversed, and the case remanded for .further proceedings; the appellees paying .the costs of this appeal.


text:
    Neda v. Fontenot et al.
    .A .judgment creditor having a judicial mortgage upon all the immovables of an insolvent succession, may sue a third person alleged to have in his possession property belonging to the succession, to .compel its delivery ¡to’the administrator. Per Curiam: An administrator is only bound to account for what lie ¡receives; and if he-could not be compelled by the creditors to take possession of all of -the .assets of the succession, they would be left without a remedy.
    The deliberations of ¡creditors •touching’fclie sale of the .property of an insolvent succession must, in all cases, be homologated, or the sale willbc.null.
    Clerks of courts have,no power to homologate the deliberations of creditors touching the sale of the property of insolvent successions. Const, art. ¡79. Stat, 29 May, 1846. 'The homologation is a judicial act.
    Where the mortgage creditors of .an insolvent succession have declared’their wish to exercise the right of requiring fcbat-so much of the property should be sold for cash as may be necessary to satisfy their claims, they should not be-considered, in counting the votes to as certain the. wish of the majority of the .creditors in number and amount, as to the terms of sale of the residue of the property.
    Where an administrator, charged with the sale of -the property of a succession, acts at the salo as the agent of one who purchases a large portion of the property, the sale will be nulL It will make no difference that he did not act from improper motives. C. C. 19.
    Under the laws in force in 1805, the appraisement in the mavriage contract of a slave brought into the mavriage by the wife transferred the right-of property in the slave to the husband; and the only claim of the wife was for the amount of the appraisement.
    Appeal from the District Court of St. Landry, Overton, J.

      Marlin and BrenU for the plaintiff. Lewis, Swayze and Taylor, for the appellants,
   rphe judgment of the court was pronounced by

Rost, J.

The administrator of the succession of Garrigues Flavjac, believing the solvency of the succession to be doubtful, caused a meeting of its creditor’s to be held before a notary public, to deliberate and decide upon the terms and conditions of the sale of the property left by the deceased. The pi’oceediugs were kept open eleven days by the notary, and during their continuance two of the present defendants, representing themselves to bo mortgage creditors to the amount of about thirty thousand dollars, exercised their regal right to require a cash sale up to the amount of those claims. Placing the amount of those mortgage debts out of view, a majority in number and aBiount of the other creditors voted that the property be sold at a credit of one year for all sums of one hundred dollars and under, and on three equal annual instalments for all sums over one hundred dollars. The proceedings before the notary were then closed, and filed in court on the 28th of December, 1846.

On the 16th of January following, the administrator applied by petition to the District Court for the homologation of the proceedings of the creditors, and for a sale of all the property for cash, subject to the mortgages of the Union Bank and Citizens Bank; and, on the same day, the' following order was made thereon by the clerk of the court r

“ Let the proceedings of the meeting of creditors of the late Cfarrigues Flaujac, deceased, be, and they are hereby homologated and confirmed,-no op-position having been filed within the time prescribed by law; and let a sale of the property belonging to the estate of the said deceased be made by Evariste Eibaillon, public auctioneer in and for the parish of SS. Landry, on the terms-fixed by the majority in claims of the creditors of said estate.”

The record farther shows that these proceedings were followed up By a commission, which the clerk issued on the 23d of the same month, to sell the’ whole estate for cash, subject to- the mortgages held on said property by the Citizens Bank and the Union Bank of Louisiana. On the’23d of February, arid the two following days, property of the succession was accordingly sold for cash, to the amount of §43,644. A portion of the property not having brought the amount of the appraisement, the administrator, on the 2d of March ensuing, applied to the court to be authorised to sell it on a credit of twelve months: the authorisation was granted on the same day by the clerk, and the remainder of the property was sold in- conformity therewith.

On the 16th of February, before the first sale took place, the plaintiff filed an opposition to the sale on the terms fixed in the decree of homologation, alleging, among other grounds, that the clerk had no- power to homologate proceedings of that description. This opposition was1 served on the defendants four days previous to the sale of the succession, which 'took place, as already stated, on the 23d and the two succeeding days, and which gave rise to the institution by the plaintiff of another action to- set it aside and annul it, and farther to cause to be brought into the succession certain slaves, and also rents and profits produced by the plantation and slaves of the deceased s'mce his- death, alleged to have been received and expended by his widow, the defendant Marie Louise Fontenot. This suit was cumulated- with the opposition, and presents, in addition, other grounds of nullity, some of which we will- notice. The court below, after a thorough investigation of the facts of the case, and of the law applicable to them, gave judgment in favor of the plaintiff, and the defendants appealed.

Tiie exception filed by the defendants to the capacity of the plaintiff to maintain her action, so far as it has for its object to compel the defendant Marie Louise Fontenot to deliver to the administrator slaves alleged to belong to the succession, was properly overruled. The succession is proved to be insolvent. The plaintiff is a judgment creditor, and has a judicial mortgage upon all the immovable property of the succession; her right to prevent any portion of it from being either withheld or unlawfully sacrificed, cannot be doubted. The administrator is only bound to account for what he receives ; and if he could not be compelled by thé creditors to take possession of all the assets of the succession, they would, in eases like this, be left without a remedy.

We find it unnecessary to go into an examination of all the grounds of nullity taken by the plaintiff’s counsel. The following are fatal to the defendants : 1st, The deliberations of creditors touching the sale of property must be homologated. 2d. The clerks of the District courts have no power to homologate them. 3d. The terms on which the property was sold, were not those which had been fixed by the creditors.

Article 1164 of the Louisiana Code expressly requires the homologation of the proceedings of the creditors in cases like the present; and we know no rule of construction upon which that article can be considered as repealed by article 1039 of the Code of Practice. Supposing the latter article to have reference to the insolvent act of 1817 and the acts amending it, those a'cts only dispense with homologation, when no opposition is filed within ten days, in proceedings for the appointment of syndics. It was never doubted before, that the deliberations of creditors touching the sale of property must be iu ali cases homologated; and the facts of this case place in the strongest light the necessity of the rule.

Article 79 of the constitution provides that the powers which the legislature is authorised to vest in the clerks of courts shall be specified and determined. In the act of 1846, defining the powers given to the clerks, the power to homologate the deliberations of creditors is not specified.

It was contended at bar that, where no opposition is made within ten days, the power to homologate is incidental to the delegated power of ordering the sale of the property of the succession; that in such cases it is a ministerial, not n judicial act; that the law does not require the deliberations of creditors to be placed on the docket of the court, unless opposition has been made; and that if the clerk has not the power to homologate them, no action whatever can be had upon them.

If the homologation be a ministerial act when no opposition has been filed, how does it happen that the clerk who granted it in this case fell into two capital errors 3 The two mortgage creditors were entitled to have so much of the property sold for cash as would satisfy their mortgage claims, but those claims should not otherwise have been taken into consideration in the counting the votes; without them, the majority of the creditors in number and amount had voted for a credit sale, and the clerk ordered it to be made for cash. In relation to the claims of the Union Bank and Citizens Bank, the creditors had not the right to require a cash sale; and, if they had done so, their deliberations in that respect should have been disregarded, as being contrary to law. The decision of those important questions, which the nature of the debts, the laws regulating the administration of property banks, and the conflict between the creditors as to the terms of sale, presented, was, in the strictest sense of the term, a judicial act, which clerks are not authorized to perform.

When the deliberations were filed in court it was the duty of'the administrator to have them homologated; and it cannot be seriously urged that, the court had not the power to homologate them, at any time during its session.

We have already shown that the terms of the sale were different from those fixed by the majority of the bre'ditofs; but we cannot Close this part bf the case without observing,- that another cause of nullity has been shown. It is in evidence that the administrator, being charged with the sale of the succession property, acted at that sale as agent of Marie Louise Fontenot, who purchased nearly the whole of it. This was clearly illegal. It is not proved, and we have no reason to believe, that he acted thus from improper inotiVes; but “ When to prevent fraud, or from any other motives of public good, the' law declares certain acts void, its provisions are not to be dispensed With on the ground that the particular act in question has been proved not to be fraudulent, or not toi be contrary to the public good:” Civil Code, art. 19.

We' concur with the learned judge of the first instance in the view he has taken of the rights of the succession to the slave' Sophie, and her children. The Marriage contract between the' deceased and his Wife was executed in 1805: The slave Sophie was brought into the marriage by the wife, and appraised in the contract. Under the laws then in force, the appraisement transferred the' right of property to the husband, and the only claim of the wife is for the amount of it. Gordon et al. v. Williams et al. 6 Mart. 659.

The claims of the succession against the defendant Marie Louise Fontenot for the proceeds of the fruits of the property of the succession received by her, must of course’ be compensated with an equal amount of her claims; and when a tableau of distribution is filed, the creditors will have the Means of ascertaining whether the ad ministrator has done his duty in this behalf.

The care taken by the judge of the court below in the preparation of thet case, and his lucid and able opinion, have greatly facilitated our investigation. We are satisfied that he has done justice between the parties, and that thet judgment ought to be affirmed. Judgment affirmed*


author: Kins, J.

text:
    Offut v. Monquit et al.
    A bond can be legally seized by a sheriff only by his obtaining actual possession of it. A purchaser at a sheriff’s sale made without a previous seizure, acquires nothing.
    Appeal from the District Court of Lafayette, Overton, J.

      W. B. Lewis, for the plaintiff. Brent and Porter, for the appellants.
   The judgment of the court was pronounc'ed by

Kins, J.

The commercial firm of Dupre, J'ubertie Tinet, while in liquidation, received, under an execution, a twelve months’ bond executed by the defendants. On the day on Which the bond was taken it was transferred to the plaintiff, in part satisfaction of a larger sum which he, as endorser for the firm, had paid. At the time of the transfer Tinet Was dead, and his succession represented by Jub'erlie, as administrator. Some months after the transfer, Miramond, a judgment creditor of “ Jubertie, executor,” caused an execution to issue, in virtue of which this bond was, as, it is contended, seized. P'revious to the alleged seizure, the attorney of Miramond was notified of the transfer, but persisted in instructing the officer to seize. On the day of the sale, the sheriff, when offering the bond, proclaimed that' it had been transferred, notwithstanding which the defendant M'onquit, the principal obligor, purchasedit. The plaintiff claims in this action the amount'off the'bond, and the defendant Monquit sets up in defence that the seizure of the sheriff and his adjudication to her were legal, and tHat'b’y reason of her purchase the bond has been extinguished. A judgment was rendered'in favorof the plaintiff, from which the defendants have appealed.

We are satisfied from tlie evidence tliaf, no legal seizure of the bond Was ever effected. That instrument appeals to have remained in the possession of the plaintiff, from the' date of his purchase'until the commencement of this suit. The sheriff so far from having been in possession of it under the writ, was unable to describe it in his notices. In an attempt at a description he omitted the date, and left its amount in blank. We have lately held that the sheriff can only seize such effects by obtaining' actual'' possession of the object levied upon. Fluker v. Bullard, ante 338.

The defendant, under the defence' set up, can onlysuecessfully resisfthe claim of the plaintiff by showing the superiority of her own title to the bond, and in this she has failed. She not only purchased with a previous notice of the transfer to the plaintiff, but acquired at a sheriff’s sale-made without a previous seizure. The plaintiff, who is the holder of the bond, may legally enforce its payment,-as faiyat all events, as relates-to the parties to this controversy.

Judgment affirmed,,-


author: Eustis, C. J.

text:
    Tulane et al. v. Levinson.
    An allegation, in-the answerof a defendant in a petitory action, calling a.-third person in warranty and disclaiming any title to the property in contest, is not evidence, as against the ■plaintiff, of possession in the party oited in warranty. To enable the warrantor to avail - himself of any legal rights dependent on his possession, it should be established affirmatively.as a substantive fact.
    An act of sale of land must be .registered in the office of the parish judge of the parish in which the land is situated, to have effect against.third persons, either as tsansferring title or possession. It is not sufficient that it he recorded in the office of'the register of mortgages. Art.-2455 of the Civil Code, which declares that " the law considers the delivery of immovables as always accompanying the public act transferring the property”, is subordinate to those articles which require the registry of .acts of sale in the parish in which the land is situated.
    Notice is not equivalent.to registry.» relation to conveyances of real property.
    APPEAL from the District Court of Natchitoches, Campbell, T.

      M. Boyce,' for the plaintiffs. P. A. Morse and Roysdon, for 'the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action .brought for .the recovery of a certain lot of ground in the town of Natchitoches, .the petitioners alleging that one Joseph Levinson wrongfully detains possession of it, notwithstanding their ownership. The plaintiffs purchased the lot at a sheriff’s sale made on the 4th February, 1843, under a fieri facias which had issued on a judgment obtained in the District Court of the parish of Natchitoches, at the suit of the plaintiffs against Geo. F. Barney. The judgment was rendered on the 28th of April, 1842, and was recorded in the office of the register of mortgages of the parish, on the 3d of May of that year, Th® sheriff’s deed to the plaintiff’s was regularly recorded. The defendant, Levinson, disclaimed all title to the lot in dispute, alleging that he was only the lessee of the heirs and legal representatives of Jacob Y. Bartlett, deceased, and that he understands that John C. Bartlett, of the town of Greenwich, in the State of New Fork, is the sole heir of the said deceased, and he prays that, said John C, Bartlett may fee cited jn warranty to defend the suit, Two gentlemen pf the bar were appointed to represent him, and they appeared for him, and defended the suit accordingly.

The answer nffeges the defendant to be the sole heir of the deceased Jacob Y. Bartlett; denies that the plain,tiffs have any right pr tijtje te the lot; and charges that he holds, and still is the legal proprietor of it by virtue of a sale made by George F- Barney to Jacob Y- Bartlett, on the 19th of Mprph, 1842, by act passed before William Y. Lewis, notary public, jn the ejty pf New Oiv leans, and duly recorded ip tl)e parish of Natchitoches.

He prays that he may be quieted in his possession of the lot, and the plaintiffs’ suit bp dismissed with costs, Judgment was rendered for the plaintiffs against the defendant Bartlett, for the lot-apd .costs of the suit? and be has ap? pealed.

Bartlett's title was not recorded jn the office of the parish judge of the paiv jsb of Natchitoches, but was recorded in that of t'he register of mortgages; and the decision of the case depends .on the respective rights of the parties under a sheriff’s sale, and an unrecorded notarial act passed out of the parish ip which the property is situated ; the record in the mortgage office not being a compliance with our registry laws concernin r sales of real property.

The title and possession of Barney neither the plaintiffs nor the defendant .contest, Levinson is charged ip the petition as wrongfully holding possession <of the property; but no possession is proved to have been taken or held by the .defendant, .or his ancestor. It is .alleged to have existed in the answer and disclaimer of Levinson, but that is no proof .of the feet against the plaintiff. It ougfii to have been established affirmatively as a substantive fact, in order to enable the .defendant.to .avail himsejf of any legal fights dependent on it. The alleged possession of Levinspn .cannot enure tp the benefit of the defendant, without some evidence establishing his connection with it,

ft has been urged that possession passed to the ancestor .of the defendant in virtue of the notarial act of sale, passed in New Orleans, on the 19th day of March, ¡L842; and the Civil .Code, art. 24.55, .and ffie decisions under it, have been referred to in support of that position. This article is evidently subordinate to those which require the registry of acts-of sale in the parish where the land conveyed is situated, i.n order to give effect to the sale against third .persons. An ,aet passed in a remote parish, and not recorded in the proper office, can have no effect, as to third persons, either as transferring title Of possession. As the case is before us, the defendant rests upon his naked acf ef purchase madeja New .Orleans, without possession .or any evidence of consideration, except that resulting from .the instrument itself.

The title to the lot being in the pame of Barney on the public records if Hepame .subject to the mortgage, which the recording of the judgment creat.effi on the 3d of May, 1842, .and we think could be lawfully seized ¡under the execution issued on the judgment and s.old to satisfy the same. It seems to follow as a necessary consequence that, if it could be lawfully sold under this state of things, a purchaser, having# knowledge of the facts, would be justified in buying the property.

It is in evidence, that the plaintiffs’ attorney, before the issuing of the fieri facias under which they became tlje purchasers, was apprised ,pf the existence of the act of sale to Bartlett, and of its being recorded in the mortgage office ; but that, on finding no record of it in the .office of the parish judge, he had the lot seized and bought.in for his clients, the .plaintiffs. As we consider the right of the plaintiffs to have .the property sold to satisfy their debt paramount to that of the defendant under his unrecorded deed, by virtue ,of their recorded judgment, \ve dp not see ho.w that right can be impaired by this knowledge on the part,of .the-attorney.

The theory that notice is equivalent to registry in relation to conveyances of real property, we do not understand to have been adopted in opr jurisprudence. The subject is one o.f great interest, and by no meansfr.ee front difficulty. The facts in this case leaye no do.nht on our minds as to the correctness of the decision of the .district judge. Judgment affirmed.

       Slidell X, considering himself as having an interest in the question involved in this case, took no part in it. The decision was made by the other judges.


author: Siupell, J.

text:
    Friend v. Fenner et al.
    A wife lias no privilege .on-the immovables of her .husband, for dotal or paraphernal funds received by him. The only privilege given to a wife on the property of the husband is for her dotal rights, and is restricted to .moveables. ,C. G. 2355, 2356, 3219. jPor the protection of lie.r paraphernal funds, the wife has a mortgage only. C. C. 2367.
    Appeal from the District C.ourt of Claiborne, Campbell, J.

      Friend, for the appellant,. McQuir.e and Ray, for the defendants.
   The judgment of ¡the court was pronounced .by

Siupell, J.

This .case presents aconiest between ,the plaintiff, who is the •wife of Friend, and several of his creditors holding judicial mortgages, as to ¡the distribution of the praceads °f the sale of a slave,. The judgment creditors seized the sjaye who was advertised for sale, and .the plaintiff then instituted this suit, alleging herself to be .a privileged creditor, and praying that the price of the slave whenso.ld be first applied to the payment of a judgment which .she obtained against her husband, in Mur.eh, 1844.. The executions of the .creditors appear to have he,en levied at the time, or shortly before, the wife obtained her judgment. The judgments ,i.n .favor .of the ¡creditors were duly recorded, in .the year's 1842 and 1843.

f The only evidence offered by the plaintiff in support .of the alleged privilege .upon the proceeds of .the intended sale., was .a certified .copy of the judgment against her husband, unaccompanied by the pleadings or eviden.ee in that cause, ur by any other evidence whatever. Thejudgmentrestor.es to her the separate administration of certain property, and further adjudges that she recover -from her husband several sums of money, with “ a privilege on the immovable property of her husband”, to bear date respectively from certain dates in the years 1-84’1, 1842, and 1843. No evidence was offered, by any of the parties, to show at what period the slave thus seized had been acquired. The court below decreed a pro rata distribution of the proceeds of sale among all the parties litigant, and the plnintiffhas appealed. The .appellees, in their answer to the appeal, have prayed that the judgment be amended by rejecting the claim of .the wife entirely, and giving.them the entire proceeds of the sale.

In the entire absence of any evidence as to the origin .or nature of the claim «pon which the wife obtained judgment, and with nothing-before us but the ■mere judgment in her .favor, against her husband, we are o.f opinion that the <wife has no right to any portion .of the proceeds. The creditors .who oppose her have a double claim upon the proceeds of the slaves. They hold duly recorded judicial mortgages, .and .also the privilege conferred .by seizure under •■execution. The w.ife, on the .contrary, exhibits nothing but .a judgment .against her husband declared to be privileged on his immovables. Whether the /claim arose from dotal.or paraphernal funds received by .the husband, in neither •■case does the law grant her a privilege on the immovable property of her hus.bnnd. The only privilege accorded to the wife on the property of her husband .is for dotal rights, and -is restricted -to moveables. Civil Code, 2355, ,3219. Article 2355 .expressly declares that in no case can the .privilqge granted by the .preceding article be extended to immovables. For the protection of paraphernal rights the law accords to the wife a mortgage only. C. C. 2367. Privi.leges. are stricti juris,.and can be .claimed only for those debts to .which they .are .expressly granted by the lawgiver. Ib. 3152. The 'judgment, therefore, nn which alone the plaintiff’s claim of privilege rests, and to which the defendants were not parties, .violates the law, and cannot affect them. It is as against them erroneous on its face, and we can give it no effect. The expression •“ privilege” may hav.e been inadvertently used fo.r mortgage; hut.it is an error from which we'eannot relieve the party, as we might have done if the plaintiff had not rested solely upon the judgment, but had proved, by further .evidence, the existence of claims to which the law accords aitacit mortgage.

It is therefore decreed that tire judgment qf the court .belo.w be reversed, and that there be judgment .in .favor of the defendants; the plaintiff paying .costs in both courts.


text:
    Lacour v. Carrie, Administrator.
    Where a mortgage recites that it was executed to secure the payment of a note, describing the name of the maker, the date of -the note, and the rate of .interest, .hut is silent as to its amount, and the mortgage is recorded, but the note is .not, .the neglect to insert the amount .will be fatal as to third persons, and the mortgagee will .have no preference upon the property mortgaged. C. C. 3277.
    Appeal from the Court of Probates of Natchitoches, Greneaux, J.

      M. Boyce, for the appellant,
    contended.that the note was sufficiently identified with the mortgage by the paraph of .the notary, citing Civil Code, arts. 3273, 3274, 3277.

      Sherhurne andJ. B. Smith,for the defendant.
    The mortgage is a nullity, the exact amount fpr which it was given not being declared in the act. C. C. 3277. Bosquet, Diet, des Oblig. vol. 2, p. 399. Sirey, 34, 2, 279. 9 Rob. 482.
   The judgment of the court-was pronounced by

Slidell, J.

The plaintiff sues the defendant, administrator of the-success sioii of Sylvestre Anty, upon a note executed by the deceased". He asks to be placed on the tableau of debts due by the succession, as a privileged creditor upon the proceeds of certain real estate,- and as an ordinary creditor for the balance of his claim.

The first point presented for our consideration is, as to the Validity of the alleged mortgage. The mortgage recites an'indebtedness upon a note described as signed by Anty, dated 1st April, 1840; and bearing interest at ten per cent." The mortgage is entirely silent as to the amount of the note; At the trial’ of the cause the note was offered in evidence, and exhibited the paraph of the notary before whom the act of mortgage was executed ; and a subscribing witness to the act deposed that it was the identical note which was exhibited to the parties by the notary. The mortgage only was recorded; but the note was not.

“ The mortgage-only takes place in such instances as are authorised by law.” Civil Code, 3250. “ To render a conventional mortgage-valid, it is necessary that the exact sum- for which it is given shall be declared in- the act.” Ib. 3277. Under these articles, the neglect to state the sum is fata! as to third persons; and therefore the claim of preference over other creditors upon the-proceeds of the property described in the'act, was properly rejected.

We are also'of opinion" that the plea of prescription was properly overruled. The acknowledgment of the indebtedness by the deceased, within five" years Before the institution of the suit, and before prescription had accrued, is sufficiently proved. Judgment affirmed.


author: Kibu, J.

text:
    Citizens Bank of Louisiana v. Walker.
    A notice of protest addressed to tlie post-office at which an endorser habitually receives lifs letters, though not the nearest to his residence, is sufficient to fix his liability.
    Any address of a notice of protest which will ensure its transmission to the proper post-office, is sufficient. Thus where it is shown that by addressing a notice to an endorser " at the parish of R.,” the letter will be talren-out and retained for delivery at the office to which the notice should he sent, the name of the office need not he mentioned in the address.
    Appeal from the District Court of Rapides, Boyce, J.

      Sherburne, J.B. Smith, P. A. Morse and Roysdon, for the plaintiffs. O'. N. Ogden, for the appellant.
   The judgment of the court was pronounced by

Kibu, J.

The defendant is sought to be rendered liable as the endorser of a promissory note, duly presented at its maturity, and protested for non-payment. The defence relied on is, the wimt of legal notice of the- dishonor of the not'e. A judgment was rendered against the defendant in the'court below, from whidi he has appealed.

The notice of protest was addressed to the defondant, at the “ parish of Rapides, La.” The evidence shows that, at the date of the protest, there were several post-offices in the parish of Rapides, and among the number, one at Cotile ; that the principal office in the parish was at Alexandria; and that letters addressed to the “parish of Rapides,” would first reach the post-office at Alexandria for delivery, and would be retained there for that purpose. It further that t'h'e'defendant had a box at the office at Alexandria; that he was in'the habit of receiving letters and papers through that office ; and it is not shown that he received letters through any other. His residence was at a point nearly equally distant from Alexandria and Cotile. One of the witnesses considers it to- be half a mile' or a mile nearer tb’ the office at Cotile ; two others think- that it is hearer to Alexandria.

The- defendant contends that, there being several post-offices in the parish in which h‘e resides, no one of which is known as that of the “ parish of Rapides,” the address of the notie'e to him, in the form- used by the notary in the present instance, is too uncertain to secure its transmission to the post-office nearest to its residence, and is not in compliance with the law. The notice was, in our opinion, sufficient. It has been repeatedly held, that a notice sent to the post-office at which the endorser habitually receives his letters, will be sufficient to fix his liability, although there may be another office nearer his residence. 6 Rob. 73, and authorities there cited. The office through which' the'defendant received his fetters was at Alexandria-, and we are not prepared to- say, under the evidence in this case, that it was not the nearest to his residence. Any address of the notice Which will insure' it's transmission to the proper office, is a compliance with the requisites of the' law. No useful end Would have been obtained by adding “Alexandria” to the address used by the' notary, as the notice would have equally reached the office at that place, without the addition 9 Rob. 162. 16 La. 310. 1 Ann. Rep. 269.

Judgment affirmed.-


author: King, J.

text:
    Hickman et al., Executors, v. Stafford et al.
    Acknowledgment of the debt by the maker of a note, does not interrupt prescription as to the endorser. The maker and endorser of a note are not debtors in spit do.

    Appeal the District. Court of Rapides, Boyce, J.

      JE-lgé'e and Hyams, for the plaintiffs.
    The maker and endorser of a' note1 are bOundim solido. The case of Attain v. Longer, 4 La. 152, is opposed' to' the decision in Jacobs v. Williams, 12 Rob. 183. The first question to be answered is, what is an obligation in solido? Art. 2086 et seq.- of the Civil Code,' says: “There is an obligation in solido on the part of the debtors when they are all obliged to the same thing, so that each may be compelled for the whole,- and when the payment which is made by one of them exonerates the others towards the' creditors.” The obligation may be in solido, although one of the debtors be obliged differently from- the other, to the payment of one and the same thing; for instance, if the one be but conditionally bound,' whilst the en-" gagement of the other is pure and simple, or if the one is allowed a term which-is not granted towards the other. See also Pothier, Oblig.- 262, 263,- 264.
    It is impossible to make language clearer than that of art. 2087 is, to render' the endorsers of negotiable paper debtors in solido. The endorser, to use the' language of the Code, is “ conditionally bound,” “ whilst the engagement of” the maker “is pure and simple;” so that the reasoning of tlite court, in Jacobs-v. Williams,- that endorsers are'not to be considered solidary debtors, because their contract is conditional, is answered by the plain and unambiguous language of the Code. We treat of the obligation here as it affects creditors, not of the effects Of it amongst the Co-debtors themselves.-
    Pothier, in his “ Contrat de Change,” invariably characterises the obligations-of all the parties to a bill or letter of exchange, or other negó!iablo paper, as-being insólido. Nos. 115, 180, 212, 160, and notes, p. 237. See also Code de Commerce, art. 140. “ Tous ceux qui oat signé, aceeplé, ou endossé une lettre de change, sont tenus t'i la garantía solidaire envers le portear.”
    Pardessus, Cours de Droit Commerciale, vol. 1, nos. 190', 191 and 192, commenting on this article, says that solidarity exists in all commercial contracts, without express mention, by agreement or law; and this, he says, would have existed even if art. 140, cited above, had not been enacted. TouJlier, 6 vol., no. 720, cites on this point, with favor, the authority of Pardessus. The authority of art. 2099 of the Civil Code, so much relied upon by the counsel in the erase of Jacobs v. Williams, is completely answered by art. 2102.

      Edelen, for the defendants,
    relied on Jacobs v. Williams, 12 Rob. 183.
   The judgment of the court was pronounced by

King, J.

The defendants are sued as the endorsers of a promissory note, and plead the prescription of five years in defence. A judgment was rendered against them in the court below', from which they have appealed.

The note upon which the action is founded matured on the 4th of January, 1838, and citations were served on the defendants on the 22d and 24th of April, 1844, more than six years after the note fell due. The prescription had therefore become complete before the inception of this suit, unless interrupted. To show such interruption the plaintiffs rely on an acknowledgment of the maker, resulting from a payment made, as they contend, within less than five years previous to the services of citation. If it be conceded that the pay'ment was made as contended for, its effect was not to interrupt the prescription as relates to the defendants. The obligations of the maker and endorsers grow out of separate and distinct contracts. There is no privity between the parties, and no such community of interest as confers upon one of them the authority to make acknowledgments binding upon the others. In the case of Jacobs v. Williams, 12 Rob. p. 183, it was held that prescription as to the endorser was not interrupted by acknowledgments of the maker. We recognised the correctness of this principle in the case of McCalop v. Newcomb, ante p. 332; and, after a careful reconsideration of the question, upon the further arguments and authorities adduced in the present case, we are satisfied with the conclusion at w'hich we then arrived. 6 Toullier, no. 723. Angell on Limitations, p. 277.

The judgment of the District Court is therefore reversed, and a judgment rendered in favor of the defendants; the appellees paying the costs of both courts.


text:
    Mason et al. v. Oglesby et al.
    No appeal will .lie from a judgment on a claim for three hundred dollars, with interest from judicial demand. Const, art. 63. The amount due at the institution of the suit constitutes the matter in dispute.
    Appeal from the District Court of Caddo, Campbell, J. Roysdon,

      Hyams, and Gilbert, for the plaintiffs. Crain, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

This is a suit for §300, with interest from judicial demand. The claim is for so much money advanced at the defendants’ request. There was judgment for the sum claimed, with interest from judicial demand; and the defendants have appealed.

The appellees have asked for a dismissal of the appeal, upon the ground of want of jurisdiction. The jurisdiction of this court in cases of this nature is governed by the 63d article of the constitution. It extends to those cases only, in which “the matter in dispute shall exceed $¡300.” It is the amount due at the institution of the suit, which constitutes the matter in dispute. That amount was only $300 ; and the interest which accrued subsequently, ex mora, by the judicial demand, cannot be considered. See Pujol v. Correjolles, 5 Rob. 90. Klady v. McGuire, 1 Rob. 26. Appeal dismissed.


text:
    Cumming v. Biossatt, Curator, et al.
    Judgments or mortgages registered ia the parish of the supposed domicil of a party, will not be affected by a>subsequent discovery, made in running the boundary line, that tlio residence of the debtor was beyond the line, and within the adjoining parish. Per Curiam: Cerreur commune fait le droit..

    Where a mortgage enslaves has boon-recorded in, the mortgage office of the place where the debtor had his domicil at the time of the inscription, his subsequent removal to another parish and acquisition of a domicil there, will not make it necessary to register the mortgage in tlio parish to wliiohhe removes, in order to preservo-its effcGt.
    Appeal from the District Court of Rapides, King, J.

      Hyman-, for the-plaintiff,
    cited Civil Code, arts. 33141, 3318.

      Ilyams, £or the appellants-
   The-judgment of the- court was pronounced by

Rost, J.

This is a third opposition,, in which three several mortgage creditors claim to-receive, by preference, the proceeds of the judicial sale of » slave..

In¡1835, Lewis Hoffman and Bis wife, believing themselves to be domiciliated in the parish; of Rapides, paying taxes and exercising their civil'and political rights in said parish, executed in favor of the Canal and Banking Company, apon- their homestead and a slave, a mortgage, which was duly recorded in the parish of their-supposed domicil. The priority of this mortgage in the parish of Rapides is admitted. In 1838, Biossalt obtained against Hoffman a judgment, which was also recorded in the parish of Rapides.. In 1841, Hoffman gave,upon the same slave, a mortgage, which was at first recorded in the parish of Rapides, and afterwards transferred to the present plaintiff, who, in 1842, had it recorded in the-parishof Catahoula, where Hoffman had previously gone to reside. The slave was seized under the judgment of Biossatt, and the plaintiff, as well as the Canal Bank, claim-from the sheriff the proceeds of the sale. The court below ordered the plaintiff to be paid by preference, and the other parlies appealed.

The plaintiff asks the affirmance of the judgment on two grounds: 1st. That Hoffman never had his domicil in the parish of Rapides, and that the recording of mortgages in that parish against him, on the slave in controversy,, could not affect the right of third persons. 2d. That his mortgage was the only one recorded in the parish of Catahoula, where Hoffman resided, and had his domicil, in 1842.

It is in evidence that the boundary line between the parishes of Rapides and Avoyelles, was run and marked by a surveyor after the removal of Hoffman to Catahoula, and that his house was found to be within the limits of (he parish of Avoyelles. The jurisdiction previously exercised over it by the parish of Rapides was tho result of a common error, which, under the maxim of the law, “ I’errear commune fait le droit,” cannot prejudice tho rights acquired by mortgage creditors during its continuance.

The other ground involves a question of registry, which was.newwhen raised in this suit. It has since been settled by two decisions of the Supreme Court, in which we concur. Hoopeŕ v. Union Bank of Louisiana, 10 Rob. page 63. The New Orleans Improvement and Banking Company v. Jewell, 11 Rob. page 20.

The reinscription in the parish of Catahoula was not necessary to preserve mortgages inscribed in the parish of Rapides, where Hoffman had his domicil, de facto, .when the .right of mortgage accrued.

It is therefore ordered,that the judgment in this .case -be reversed, ¡and that that the Canal and Banking Company be paid by preference out of the proceeds .of the sale of the slave York, after deducting costs, the sum of §375, with,interest at the rate.of eight per cent per annum from the 20th May, 1843, until paid, and §4 for costs of protest. It is further ordered that if any surplus remain, it be paid over .to the seizing creditor, Biossatt, up to the amount of his judgment, interest and costs. It is further ordered that if any balance remain after those two claims are satisfied, it be paid o,v.er to tho plaintiff; and that the .said plaintiff pay the costs in both courts.


text:
    Thomas et al. v. McNeil.
    Bail not fixed with tho debt before the passage of tho act of 28 March, 1840, “ abolishing imprisonment .for debt”, were discharged by that act.
    APPEAL from tho District Court of Natchitoches, Campbell, J.
    O. N. Ogden, for the plaintiffs. P. A. Morse, contrft,
    contended that the bail (was discharged by the passage of the actof 28 Mareh, 1840, abolishing imprisonment for debt, citing Cooper v. Hodge, 17 La. 478. Atchafulaya Bank v. IIozey, 17 La. 510. Nicolls ,v. Ingersoll, 7 Johnson’s Rep. 115. Frey v. Ilebenstreit, 1 Rob. 565.
   The judgment of the court was pronounced by

Slidell, J.

In 1839, the plaintiffs obtained a writ of arrest against McNeil, who gave bail. Judgment was rendered against McNeil, in 1842: a writ of fieri facias was issued, and returned nulla bona. A rule was then taken against the surety on the bail bond, to show cause why judgment should not be rendered «gainst him for the amount of the plaintiffs’ claim. The defence urged by the defendant in the rule is, his discharge, by reason of the act of 1840, entitled “an act to abolish imprisonment for debt.” There was judgment in favor of the defendant in the rule, and the plaintiffs have appealed.

The question thus presented cannot bo considered an open one. It has been settled by numerous decisions, which are cited in the case of Frey v. Hebenstreit, 1 Rob. 565. Soe also Jartroux v. Debergue, 5 Rob. 127. Waring v. Crawford, 9 Rob. 291. Judgment affirmed.


author: King, .T.

text:
    Chew v. Police Jury of Rapides.
    An application for a now trial on the ground of newly discovered evidence, must be supported by the affidavit of the party making the application, and not by the oath of his counsel, unless same sufficient reason be shown why the party cannot take tile required oath. The counsel may be ignorant of evidence material to tlio defence of the cause, and the client fully informed of its existence.
    Appeal from the District Court of Rapides, Boyce, J.

      Hyams, for the plaintiff. O. N. Ogden, for appellants.
   The judgment of the court was pronounced by

King, .T.

Tire defendants were.sued on a draft, or -warrant, drawn upon a .particular fund. The defences opposed to the action are, that the president of the police jury .was not .authorised to .sign the warrant, and that the warrant was drawn to be paid out of a special tax, which was never collected. A judgment was rendered in favor of the plaintiff. The defendants .then moved for a new trial, on the -ground that new and material evidence had .been discovered, by which a payment could be proved .to have been made on account of the draft. The application was supported by the .affidavit of the defendants’ .counsel, that the evidence by which he expected to establish the payment was discovered by him on the trial of the .cause and after the judgment was rendered, although id.ue diligence had been used to procure the testimony before the trial. The ¡application was overruled, and the defendants have appealed.

The district judge did not, in (our.opicion, err. The application for anew .trial on.-t.he ground of newty discovered evidence, should be supported by the affidavit of the party making the application, unless some sufficient reason be shown why he could not take the required oath. The affidavit in support of •this motion was not made by the defendants but by their counsel, who iras not sworn that his clients were ignorant either of the alleged payment, or-ofthe testimony by which it-could have beea.proved. The counsel may well be ignorant ■of evidence material to the defence.of the cause, and the client fully informed •of its-existence.

The execution of the draft, the authority of the president of the .police jury to sign it, and the construction of the work in payment of which it issued, •were fully proved on the trial. The draft was the evidence of a debt due by the .parish. It was assignable; and .the paliee jury were bound to provide the -means.for.discharging it. ■. Judgment affirmed.


text:
    Reed v. Ritchey.
    An agent employed ,to demand from an executor an account, to receive ,any money coming to his principal, and to effect a partition, &c., takes .from the executor, for a large portion of the shave of his principal] notes and obligations of third, persons, and the principal after-wards receives the notes and obligations from the agent, settles with him for his services, collects a part of the notes, and makes no complaint, nor gives any notice, to the agent, of an intontiou to hold him liable during three years: Held, that those facts, coupled with that of liis having instituted a suit against the executor and her co-heirs, charging them with having combined to defraud her by imposing upon her worthless claims as cash, will amount to a ratification of the acts of the agent, and exonerate him from responsibility.
    Appeal from the District Court of Avoyelles, Cushman, J.

      Taylor and Sioayze, for the plaintiff. Edelen and Waddell, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

In 1841, the plaintiff gave defendant her power of attorney to represent her in the settlement of the succession of Letilia Jones, authorising him to demand an account of the executor, and to receive and receipt for any monies, effect partition, &c. In December, 184L, the agent gave the executor a receipt for $560. as in full for his constituent’s portion of the .estate. Of this amount, however, it appears that in fact but $60 was received in cash, the residue being paid to the agent in the notes and obligations of sundry persons then due. These notes and obligations remained 'in the attorney’s hands for about two years, when the attorney handed them to the principal, stating that lie could make no collections upon thorn ; and not being able to agree about the amount of compensation for bis services, they referred the matter to arbitration. The plaintiff collected one of the claims, and put the other into the hands of an attorney at law for sn'it, but did not succeed in effecting any further collection. About two years after receiving the notes and obligations from the defendant, the plaintiff instituted a suit against the executor of Letitia Jones, who was also a co-heir with the plaintiff, and against certain other co-heirs, alleging that they had combined to defraud her, by putting off upon her worthless claims as cash, for her share of the succession. The uncollected notes and obligations which she had received from Rllchey, were annexed to her petition. The amount claimed was $389. This suit, however, was nut prosecuted; and, about two or three years afterwards, to wit, in December, 1846, the plaintiff brought the present action, in which she claims from the defendant the sum of $500. I't does not appear that any complaint was made to t'he defendant at the time when he settled with the plaintiff by delivering the notes and claims, nor” that any notice of her inability to collect them was given to him, or of her inte :tion to hold him responsible, until this action was brought. The debtor of these uncollected claims has been dead for some years, and his succession is insolvent.

There is no proof in the record of any bad faith on the part of the agent, nor is it charged in the pleadings. It is questionable whether, under the power of attorney, the agent liada right to receive the claims; and the delay in handing them over to his principal is, in itself, in the absence of any satisfactory explanation, indicative of negligence. If he was engaged during the interval in endeavoring to collect them, it should have been proved. If the plaintiff had refused to receive the claims from the agent, and thrown the liability upon him, we are not prepared to say that he could have exonerated himself. But the conduct of the plaintiff in receiving the claims, settling with the agent for his services, collecting a portion of them, and making no complaint nnd giving no notice to the defendant, during an interval of three years, coupled with the allegations in 'her suit against the executor and co-heirs, amount in law to a ratification of the agent’s conduct, and exonerate him from liability.

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


author: Rost, L

text:
    Hynson v. Meuillon.
    The right of a master, under art. 181 of the Civil Code, to exonerate himself from responsibility for the offences or guasi-ofFenees of a slave, by abandoning the slave to the person injured, is not affected by .tho circumstance of the slave being at the time confined in prison at hard labor, under a judgment of a court condemning him to imprisonment for .a term of years as a punishment for the offence .committed by him; and a notarial act of abandonment transfers-to'tbe party in \vhose favor it is made, all the possession which the law will, in such a case, permit the master to give. .C. C. 2*155.
    Appeal from the District Court of Rapides, Cushman, J.

      O. N. Ogden, for the plaintiff;. Edelen, for the appellant.
   The judgment of the .court was pronounced by

Rost, L

The defendant recovered from the plaintiff $500 damages, for an outrage committed upon her person by a slave belonging to him, who was sentenced therefor to fifteen years imprisonment at hard labor. On the day that .the-verdict allowing the damages was rendered in favor of the defendant, the plaintiff, Hynson.,.abandoned tho slave to her in open court, by a notarial act, a copy of which w.as then and there filed. Tho defendant having caused execution ,to issue under the judgment rendered on the verdict, and property of tho plaintiff to be seized notwithstanding the abandonment, the latter enjoined the proceedings on the ground that, he is released thereby from all further responsibility. The injunction was perpetuated, .and ,tho defendant appealed. The .appellant asks a reversal of the judgment .on the ground that, the abandonment contemplated by ar.t. 181 of the Civil .Code implies a corporeal delivery of the .slave abandoned; and further, that the plaintiff did not take the proper steps to obtain the possession .of the slave., .and refused to authorise the defendant to take them in his name.

The dispositions of the Code authorise the abandoment of slaves who have committed.crimes, and make no exception in relation to those who .are undergoing the p.unishmentof their offences. Tlioir temporary confinement by the State, does not affect the rights of property of the master. In the eye of tho law, he continues to possess, though he may not enjoy; and the notarial act of abandonment transfers to the party in favor of whom itismado, all the possession which the laws of the State will, in such .cases, permit the master to give. C. C. 2455.

It has been .contended, in argument, that the sentence condemning the slave was illegal, and that he is not confined in the proper place. This may be true, hut the plaintiff believes the punishment inflicted to be just; and there is no legal obligation .on his part to take any steps to have the sentence reversed. By .the express disposition of art. 181 of the Code, the title will be in the defendant ,as soon as .she accepts the abandonment, and she requires no authorisation from the plaintiff to resume the possession of the slave, if it be true that h.e is unlawfully detained in custody. The confinement of the slave for fifteen years operates, no doubt, a hardship in this caso; but it is the inconvenience of all fixed rules of damages, that they, at times, fall short of the actual damage sus- • ained. Judgment affirmed.


author: SniDEim, J.

text:
    Hyde v. Bennett et al.
    Decision in Shepherd v. Orleans Colton Press Company, antep. 180, silirined.
    Where on owner of property subject to mortgage is divested of his ownership by a salo of the property under execution at the suit of a third person, the subsequent bankruptcy, and discharge of the debtor, under the act of Congress of 1841, cannot affect tho property, so far as the necessity of re-inscribing the mortgage within ten years from the date of the first inscription is concerned. C. C. 3333.
    The institution of suit by a mortgagor will not do away with the necessity of re-inscribing a mortgage in tho books of the register'of mortgages, within ten years from the date of the first inscription, in order to preserve its rank.
    The inscription in the office of the register of mortgages of a copy of a judgment obtained by the mortgagee, which, after decreeing that the plaintiff recover of the debtor a certain sum, orders that his “ mortgage bo recognized and affirmed on the property described in the petition,” &e., containing no description of the mortgaged property, bat merely referring to tho petition in tho cause, will be insufficient as a re-inscription of the original mortgage. Per Curiam,: Inscriptions must be renewed in the manner in which they were first made. C. C. 3333. An inscription of a conventional mortgage must describe substantially the mortgaged property. It must be reasonably accurate and full in itself, so as to inform tho public what property is covered, and they must not be referred elsewhere for information which should be patent on tho record.
    Appeal by the defendants and -warrantors from a judgment of the District Court of Natchitoches, Olcotl, J.

      Campbell and M. Boyce, for the plaintiff. P. A. Morse, for the defendants, appellants. Sherburne, J. B. Smith, and M. C. Dunn, for the warrantors, appellants.
   The judgment of the court was pronounced by

SniDEim, J.

This is an hypothecary action, in which the plaintiff prays that a tract of land in the possession of the defendants may be adjudged to be subject to a mortgage executed by Cockerille in favor of plaintiff, and that the defendants be ordered to surrender the property, that the same may be seized and sold to pay the plaintiff’s claim. The facts material to the decision of this case are, as follows: On the 10th June, 1834, Cockerille gave Hyde a mortgage on the land, for the sum of 554,604 16. This mortgage contains no pact de non alienando. It was recorded on the day of its execution. In 1840, Dominique Rachal recorded a judgment rendered in his favor against Cockerille. Upon execution of this judgment the land was sold, and the City Bank became the purchasers, on the 13th October, 1841. It was afterwards sold by the bank to McKnight. In 1842, Hyde obtained judgment against Cockerille for the balance due upon his mortgage claim, with a recognition of his mortgage, which judgment was recorded in May, 1842. The present action was brought iu September, 1844.

One of the grounds of defence is, that the plaintiff has lost his hypothecary right, by the failure to re-inscribe his mortgage within ten years. McKnight being a third possessor in good faith, the failure to re-inscribe must, under article 3333 of the Civil Code, be fatal to the plaintiff, (See the case of Shepherd v. Orleans Cotton Press Company, ante p. 100,) unless some of the reasons by which he endeavors to take his case out of the general rule be tenable. These we proceed to consider.

It is in evidence that Cockerille is a discharged bankrupt; and it is said that his bankruptcy relieved the plaintiff from the necessity of re-inscription. Art. 3326 of the Civil Code, and the case of Bethuny v. His Creditors, 7 Rob. 62, are cited. It is unnecessary to enquire what would have been the rights of the parties, if CocJcerille had continued to be the owner of the land when he was decreed a bankrupt. The precise date of the decree of bankruptcy is not shown ; but it could not have been before 1st February, 1842, at which time the bankrupt law went into effect. In 1841, Cockerille had been divested of his ownership by tho sheriff’s sale to the City Bank,, and the subsequent bankruptcy cannot be considered as affecting the property.

But it is said that the plaintiff is saved by the institution of his suit against the mortgagor in 1842, at which time ten years had not elapsed from the inscription of the mortgage. The analogy of the rules of law regulating prescription is invoked. We had occasion to consider this subject very carefully in the recent case of McElrath v. Dupwy, ante p. 520, and our opinion remains unchanged, that the institution of suit does not arrest tho peremption of the- inscription. It is to be observed that the circumstances of the present case are even less favorable to the plaintiff, for McKnight was not a party to the suit against the mortgagor.

The analogy derived from the case of a suit for the recovery of land, which defeats an alienation made pending the action so far as concerns the plaintiff, is not sound ; nor, if it were, could it apply in the present ease, since Cockerille’s rights were divested, and the title under which the defendant holds was ac quired, before the institution of the plaintiff’s suit against the mortgagor.

But it is contended that the inscription of the judgment obtained by plaintiff in 1842, at which time the ten years had not expired, is equivalent to a re-inscription. A copy of the judgment was recorded. Its language is as follows: “It is decreed that the plaintiff recover of the defendant the sum of,” &c.; “ and it is further decreed that the plaintiff’s mortgage be recognized and affirmed on the property described in the petition; for the payment of the-above sum and interest,” &c. There is then no description of the mortgaged property; but a mere reference to the petition in the cause. Inscriptions must be renewed, says the Code, in the manner in which they are first made. Art. 3333. An inscription of a conventional mortgage must substantially describe the mortgaged property. It must be reasonably accurate and full in itself, so far as to inform the public what property is covered; and they are not to be referred elsewhere for information, which should be patent upon the public record. See the cases of Jartroux v. Dupeire, ante p. 608. Succession of Falconer, 4 Rob. p. 5. McElrath v. Dupuy, ante p. 520. See also as to the hypotheeary action against a third possessor, the case of Brou v. Kohn, 12 La. 104.

It is therefore decreed that the judgment of the court below be reversed, and that the're be a judgment in iavor of the defendants, with costs in both courts.