text:
    F. & R. Billiot v. J. B. Robinson.
    Without a technical contestavio Vttis existing at the time of a sale, the acts of the parties may he such as to estop them from denying that the right purchased was a litiguous right.
    A tender made to the attorney of a party is sufficient.
    APPEAL from the District Court of the Parish of Terrebonne, Roman, J

      J. H. Illsley and F. S. Goode, for B. A. Long, warrantor and appellant:
    On the 5th February, 1846, S. G. Moore sold to J. B. Robinson, with other property, lot No. 102, in township 20, range 18 east.
    On the 7th April, 1848, the administrator of Moore’s estate brought suit against Robinson for a balance due on the purchase, to which, on the 2d October, 1848, Robinson filed an answer, alleging want of title in Moore, and the pendency of a suit by B. A. Long, claiming the land. (This was an error, as no suit was pending nor had one been brought).
    On the 25th March, 1849, Rosette and Frederick Billiot entered into the following agreement with B. A. Long :

      “ Whereas, the said Rosette Billiot and her son Frederick claim as their property a quarter section of land, situate on the east bank of Petit Oaillou, known as the quarter section sold J. B. Robinson by S. G. Moore, and to which deed reference is hereby made for a more accurate description of said land, and believed to be lot No. 102, in township No. 20, of range 18 east, containing about 160 acres, more or less. Now as the said party of the first part are unjustly kept out of the possession of said land, and it requiring a suit to establish their claims thereto and put them in possession of the land, the said party, B. A. Long, agrees and binds himself to pay all the expenses attending said suit, and establish the title of the said Rosette and Frederick to the said land, so far as the same can be done, and hold the said party of the first part harmless against all costs of suit and other contingent expenses. And the first party agrees if upon a full hearing of the matter the said land'shall be adjudged and decreed to them, to sell the same to said B. A. Long for the sum of one hundred and fifty dollars, and convey to him their interest aforesaid, in fee simple, upon his paying the sum agreed upon at such time as the title is clearly vested in the said Rosette and Frederick.”

    This act was recorded on the 6th April, 1849.
    On the 31st March, 1849, suit No. 356 was instituted by Rosette and Frederick Billiot, against J. B. Robinson, claiming the land ; citation issued and was served on the 2d April, 1849. The administrator of Moore’s estate filed an intervention on the 19th October, 1850, and on the 22d October, 1851, he filed a supplemental petition of intervention, alleging that plaintiffs had parted with all their interest in the land by the act aboye quoted, dated the 25th March, 1849, praying that Long be cited, and that he be decreed to have purchased a litigious right, etc. This suit was dismissed on the 8th October, 1852, the plaintiff having been called at the courthouse door and not appearing.
    On the 21st April, 1853, the petition in the present suit was filed by Rosette and Frederick Billiot against Robinson, claiming the land, alleging that he has taken possession of the land without a shadow of a title. Service of this petition was accepted by the defendant, but the acceptance is not dated. Default was not taken until the 21st November, 1853, and the' defendant filed his answer on the 25th November, 1853, calling the administrator of Moore’s estate in warranty, who came in and answered on the 2d December, 1853. In his answer to the call in warranty, the administrator of Moore’s estate asked to have Long made a party, alleged that he had purchased a litigious right, and prayed to be released on paying to Long the price of his purchase, and strenuously contested the validity of the original claim of the Billiots. Default was taken against Long on the 14th July, 1857, who filed his answer, claiming title, on the 6th October, 1857.
    On the 26th April, 1853, Rosette and Frederick Billiot passed a formal act of sale of the land in question to B. A. Long.

    These being the facts, two questions arise :
    1. Did Long purchase a litigious right in the intendment of Articles 2622 and 2623 of the Civil Code.

      2. Was the tender valid.
    First—Is this a Jitigious right subject to the provisions of Art. 2622 of the Civil Code?
    By the Roman law the transfer of a litigious right was originally prohibited, and the suit continued as if no such transfer had beenomade. Tam quam si nihil factum sit lite peragenda. The right conferred by Art. 2622 was established by Anastasius in the law per diversas, and confirmed by Justinian in the law ab Anastasio.

    Art. 2622 of the Civil Code, found under the head “ of the assignment or transfer of debts or other incorporal rights” provides “ he against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer together with the interest from its date.”
    Art. 2623. “ A right is said to be litigious whenever there exists a'suit and contestation on the same.
    Another definition of a litigious right is found in Art. 3422, which provides, “ whenever the terms of law employed in this Code have not been particularly defined therein, they shall be understood as follows ; ” and sec. 22 of that Article defines litigious rights to be “ those which cannot be exercised without undergoing a law suit. ”
    Now we contend that section 22 of Article 3522 has no application to the litigious rights spoken of in Article 2622, for the next Article particularly defines what litigious rights are subject to the provisions of Art. 2622. And it is, as if the language of Art. 2622 had been, “ he against whom a right has been transferred on which there exists a suit and contestation may get himself released, etc.”
    Now, what constitutes “a suit and contestation?” It is necessary that there should be a petition filed and served on the defendant, the cause must also be at issue.
    C. P., Art. 357, “ The cause is at issue when the defendant has answered, either by complying or denying the facts set forth in the petition, or by pleading-such dilatory or peremptory exceptions as he is bound to plead in hmini litis, pursuant to the provisions of this Code.”
    O. P. Art. 358, “ when the defendant pleads some declinatory exception, without answering to the merits, there is no issue joined.”
    C. P. Art. 359, “ the joining of issues is in fact the foundation of the suit, as citation is that of the action. It is only after this is done that the suit begins; the parties are then in a situation to discover what evidence is necessary in support of their respective claims.”
    C. P. Art. 360, “ when the defendant suffers judgment by default to be taken against him, the issue is joined tacitly, etc.”
    In the case of Prevost’s Heirs v. Johnson, et al., 9 Martin, Judge Martin in construing a provision in the Old Code, similar to Art. 2623 of the present Code, says : “ It seems that a suit brought does not alone suffice, that it is not enough that there should be a petition, that a copy of it and a citation should be served on the defendant, it is necessary there should be an answer, perhaps any plea will not suffice. In the words of the statute there must be a contestation."

    In Pearson v. Grice, 6 An. 137, Judge Preston said : “ that the Article 2623, and sec. 22 of Art. 3522 were not inconsistent, and that the impossibility of exercising the right without undergoing a lawsuit is never ascertained until the lawsuit is commenced,” which, according to Art. 359 of the C. P. is only after issue is joined, and the term litigious right being-particularly defined in Art. 2623, Art. 3522 if inconsistent with it must yield.
    Provisions similar to Articles 2622 and 2623 of our Code are found in Articles 1699 and 1700 of the Code Napoleon. In fact the language of the two Codes is exactly the same. Let us, then, see what interpretation has been placed on these Articles in France.
    Répertoire G-énéral, volume 5, page 910, sections 70, 71 et 72 :
    “ Pothier enseignait que ces expressions comprenaient toutes les créances qui sont contestées ou peuvent l’etre, en total ou en partie, par celui qu’on pretend débiteur, soit que le procos soit déjá commence, soit qu’il ne le soit pas encore, mais qu’il y ait lieu de l’appréhender. Au contraire, le Président de Lamoignon, n’admettait le retrait que lorsqu’il y aurait litige engage, ce qui était également. professé par Rousseaud de La Combe et par Mornac. Les rédacteurs du Code ont adopté cette derniere opinion, et ils ont déclaré dans l’Art. 1700 que la chose est censée litigieuse des qu’il y a procés et contestation sur le fond du droit.”

      It was decided by the Cour de Cassation in the case of Besserve v. Langlomé, 5 juillet 1819, that Article 1700 C. N. was restrictive of Article 1699, and was adopted to define accurately what rights were subject to the provisions of Art. 1699, and put an end to all uncertainty on that subject. See also Cour de Cassation, 24 janvier, 1827, Soujjlet c. Héritiers Collin ; Troplong, de la vente, vol. 2, p. 493 ; Dalloz, Jurisprudence du Royaume, vol. 12, p. 926.
    Marcadé, vol. 6, p. 352, says: “Il faut d’abord qu’il y ait actuellement proces, et il ne suffirait pas des lors que ce proces parüt imminent, inévitable, et que le droit ait été qualifié de droit litigieux dans l’Acte méme de cession, puisque cette qualification n’a pas alors le sens de notre Art. 1700.” Duvergier, Vente, vol. 2, No. 362.
    Guillaume, Code Napoléon, p. 579 : “ La chose n’est censée litigieuse que quand il y a proces sur le fond du droit. La loi a voulu qu’il fut certain que le droit est contesté, c’est-a-dire, qu’il y a des chances douteuses sur son principe et son existence. Ainsi le déclinatoire ou la nullité d’exploit proposée contre l’action ne suffirait pas; mais il en scrait autrement si Pon contestait la validité du titre du demandeur méme sous le rapport de la forme.”
    The Court of Cassation, in Guirail c. Epoux Bavancens, 11 fév. 1851, held that Art. 1700 O. N. did not apply to Art. 1597, which corresponds with Art. 2422 of our Code, prohibiting transfers of litigious rights to public officers connected with courts of justice and others.
    Journal du Palais, vol. 1,1846, p. 127, in the case of Grassiere c. Abeille, the court held, “ Attendu que l’Art. 1699 du Code Civil est une exception au droit eommun en matiére d’achat et de vente, que des lora il doit, dans 1’application, étre restreint au cas qu’il a prévu.” See also Guyonné c. Fallampin, 5 mai, 1836.
    In Grejfulhe et autres c. Mille, 7 juillet, 1837, the court held, “ La chose cédée est réputée litigieuse dfes qu’il y a proces et contestation sur le fond du droit. Que d’aprés cette définition, qui reproduit les principes du droit remain, que Pancienne jurisprudence avait modifiés, il est certain que la loi n’imprime au droit cédé Ie earactfere litigieux que lorsqu’au moment de la cession le droit est déjá l’objet d’un débat judiciaire entre le cédant et le débiteur.” See also Journal du Palais, vol. 1,1840, p. 657 ; Reden c. Chazal, 16 mai, 1839.
    Journal du Palais, vol. 1,1841, p. 461, the Court of Cassation held : “ Attendu, en droit, que le retrait autorisé par l’Art. 1699 du Code Civil ne peut, suivant l’Art. 1700 du méme code, étre exercé que lorsqu’il existe, au moment méme de la cession, proces et contestation sur le fond du droit. Que cette derniére disposition est limitative. Qu’ainsi il importe peu que le droit ait été cédé comme litigieux, que la vente ait été faite aux risques et périls de l’acheteur, et qu’elle ait un caractére aléatoire, parceque ces circonstances ne constituent pas le proces et la contestation impérieusement exiges par l’Art. 1700 du Code Civil.” See also Cour de Cassation, 20 mars, 1843 ; Journal du Palais, vol. 2 of that year, p. 194; also, Journal du Palais, vol. 9,18 Dec. 1811, p. 787.
    Marcadé, vol. 6, p. 404 : “ 11 faut d’abord qu’il y ait proces ; il ne suffirait pas des lors, ni d’une citation en conciliation, puisqu’elle n’est qu’un acte tendant a empécher le proces, ni méme du proces-verbal de non-conciliation, puisqu’il n’y aurait alors qu’imminenco d’un procSs et non proces existant. Il n’y aurait pas non plus proces légalement, si le défendeur ópposait une exception de chose jugée, et qu’elle füt admise, puisqu’il serait ainsi décidé que le litige n’était pas possible. Si une simple nullité d’exploit était opposée á Faction intentée la veille de l’expiration du clélai de prescription, la circonstance de fait que l’annulation de l’exploit entramera par contre-coup l’extinction du droit, n’empéche pas que le proces est étranger au fond du droit, puisque la question n’est pas l’existence du droit, mais seulement la validité de Pinstance actuelle.
    Rogron, Code Erangais Expliqué, Art. 1700 : “ Bien que le boAdroit du vendeur soit évident, il suffit qu’il y ait proces et qu’on le lui conteste, pour que la chose soit censée litigieuse et que l’acheteur puisse étre écarté. Ainsi, il faut qu’il existe non-seulement une contestation, mais encore proces né sur le fond du droit. Be dominio causa movetur, comme le voulait la loi romaine.”
    Now, tested by these principles, the right purchased by Long was not a litigious one, subject to the provisions of Art. 2622 Civil Code. It is a mistake to suppose that that Article was adopted to prevent litigation; it was adopted for the purpose of putting an end to litigation already commenced. Now, Long acquired his rights by the Act passed on the 25th March, 1849, at which time no suit had been brought. The Billiots did not sue until the 31st March, 1849, six days after Long had acquired these rights, and this suit was afterwards abandoned. It is true that a subsequent act was passed by the Billiots, but not signed by Long, on the 26th April, 1853, five days after the petition in the present case was filed, but long before any default was taken or answer filed ; so, whether we consider the act of 26th March, 1849, or the act of 26th April, 1853, there did not exist the “ suit and contestation on the some," necessary to constitute a litigious right.
    In France it was once held that the Art. 169.9 O. N. did not apply to transfers of land. It seems now to be settled, that one in possession and contesting the right of a claimant, can avail himself of the right to purchase, from one who buys the claimant’s litigious rights, at the price of the cession. See Cour de Cassation, 24th Nov., 1818 ; Commune de Laroche, Canilhac c. Ipcher ; Bourdeaux, 20 juin, 1819, Ponter c. Duplan; Cour de Cassation, .28 janvier, 1836, Perez c. Commune, etc.; Journal du Palais, vol. 1, 1853, p. 557 ; Journal du Palais, vol. 1,1840, p. 421; Répertoire Général, vol. 5, p. 912.
    We might object that the administrator of Moore’s estate is not in possession, and we do object that it is only Robinson, the defendant, who could under any circumstances require us to surrender to him our rights. The Billiots had no claim and brought no suit against Moore’s estate; their claim was against Robinson alone, and it is Robinson, and not the Billiots, who brings the suit against Moore’s estate. If Robinson should transfer his rights against Moore’s estate to a third person, after the call in warranty had been made, and after a contestation should arise in that call, then Moore’s estate could claim and exercise the right provided in Art. 2622. Our claim is against Bobinson and Robinson alone, but if your Honors should decide differently, then we say, that when the Billiots transferred their claims to Long, in 1849, no suit was pending in regard to the ownership of the land between any parties, and that when the Billiots signed the act of 1853, ratifying and confirming the act of 1849, do suit and contestation existed between any parties ; a petition had been filed by the Billiots against Robinson, but no default had been taken Dor answer filed. And the administrator of Moore’s estate, who claims that a litigious right against him had been sold, had not even been mentioned.
    2. If the right was a litigious right, has the requisite legal tender been made ?
    If the right acquired by Long was a litigious right, (which it clearly was not,) and Robinson’s warrantor might avail himself of the privilege of substituting himself to the purchase of the said right, has he placed himself in the legal position to do so, by actually tendering and depositing, at once, the real price of the transfer, together with the interest from its date, and instantly ceasing all judicial contest as to the validity of the original claim.
    The first transfer or promise of sale was made to Long on the 25th March, 1849, and recorded on the 6th of April, of the same year ; this was known to Moore’s administrator on the 22d October, 1851. (See his intervention in suit No. 35G.) The last transfer was passed on the 26th April, 1853, five days after the filing of the Billiots' petition. And if the right or title of the Billiots became a litigious one, simply because this petition had been filed, then from that instant the penalty imposed by Art. 2622 might have been invoked, and no subsequent transfer by Long to a third person could have defeated the right of substitution to Long’s purchase of the land in controversy.
    On the 2d December, 1853, the warrantor filed his answer in this suit, and therein sets up against the Billiots and Long, whom he makes a party to the suit, a controverted defence against the original claim for the land, thereby defeating the very object of the law, instead of abandoning the litigation and asking to be substituted to Long’s purchase, of which he certainly then had full knowledge, as he actually refers to it, and claims the benefit of it in his answer.
    When the warrantor filed his answer, on the 2d December, 1853, and asked to take Long’s place, why did he not then do effectually what he absolutely attempted to do when the case was called for trial four years afterwards, make a legal tender of the price of the transfer and deposit the money in court, and at once cease all further contest? For the very plain reason, that he thought he might perhaps defeat the Billiots’ claim and thus rid himself of Long, and save the price paid by Long to the Billiots, And if he failed in this, then he would be legally substituted to Long’s transfer.
    This is a stronger case than any previous one submitted to and decided by this court, among which are those of Pearson v. Grice, 6 An. 338; Winchester v. Cain, 1 Rob. 424; Leftwich et al, v. Brown, 4 An. 104.

      But if the warrantor was in time to make the tender, did he make it according to law ?
    He proved that he had offered to the attorney of Mr. Long, on the — day of -, 1857, $227 78, being $150 principal, $34 40 interest, and $43 70 costs. Interest at five per cent, per anmim was calculated to the date of the tender from the 26th April, 1853, the date of the confirmatory act passed by the Billiots.

    This tender was held sufficient. If it was, we must disregard entirely the agreement between the Billiots and Long in 1849 ; for, if we consider that Long acquired the rights of the Billiots at that time, the amount tendered is not sufficient, as interest should have been calculated from the date of that agreement.
    The law requires the defendant in such cases to reimburse the plaintiff his entire outlay. It may be true that Long did not pay the Billiots the price until the 26th April, 1853 ; but Art. 2622 O. 0. expressly provides that interest must be allowed from the transfer. Besides, Long agreed to pay the fees of counsel, and all other expenses, and we contend that a sum sufficient to cover these fees and expenses should have been tendered.
    Nor can the administrator contend that he was not notified of the agreement of 1849, for in his intervention in the case No. 356, filed 22d October, 1851, he expressly mentions that agreement, and prays to be released on paying Long the price paid by Km. This conclusively shows that it is to the agreement of 1849 that we are to look both for the purpose of considering whether the right was a litigious right and for the purpose of calculating interest on the amount paid by Long.

    We contend further that a tender to Long’s attorney was not sufficient. O. P. 404, 407 ; O. 0. 2164 ; Mudd v. Stille, 6 La. 19.
    The administrator cannot contend that Long being absent he could only tender the amount to his attorney, for he had been informed ever since the 22d October, 1851, that Long had purchased the rights of the Billiots, and he had six yeais in which to make the tender to him personally, most of which time Long was present in the parish.
    Both a tender and deposit should have been made. 0. 0. 2161; Benton v. Roberts, 2 An. 243 ; Degoer v. Hellen, 2 An. 496 ; Small v. Zacharie, 4 Rob. 144. It is true that the administrator asked and obtained leave to deposit the amount in court, but non constat that he did it.
    We, therefore, respectfully contend that the judgment of the District Court should be reversed ; because—
    1. The right purchased by Mr. Long was not a litigious right.
    2. Even if the right was a litigious one, the tender was insufficient; because— First. The amount was not sufficient. Second. The tender should have been made to Long, and not to his attorney. Third. The formalities of the law were not complied with in making the tender.

      Connolly Rightor, for defendant and appellee :
    This suit was instituted as a petitory action, on the 21st of April, 1853, to recover a tract of land in the parish of Terrebonne; and the facts are as follows : Plaintiffs claim title to section 102 in township 20, range 18 East, then and now in the possession Of the defendant, Robinson, who holds by virtue of a purchase from S. G. Moore, dated February 5th; 1846. Defendant answered on the 23d of November, 1853, 'by a general denial, setting forth his title as derived from Moore, and calls in warranty James L. Cole, administrator of the estate of Moore, on the 2d of December, 1853. Cole answers by a general denial; avers that Moore had sold to Robinson two tracts of land, one of which is that now in dispute ; that when the price fell due, Robinson refused to pay the same ; that being sued, he answered, on the 2d of October, 1848, that D. A. Long claimed a part of the land and threatened him with eviction; that afterward, Long, being then Robinson’s overseer, agreed with the Billiots to pay the expenses of a suit against Robinson to recover section 102, and on the establishment of their title, to buy the land for one hundred and fifty dollars ; that on the 31st of March, 1849, suit was accordingly instituted against Robinson in the name of the Billiots, which suit respondent verily believes was instigated by Robinson himself—but which suit was dismissed without ever having been brought to a trial. That on the 26th of April, 1853, (after the filing of this suit) Long bought the land from the Billiots for one hundred and fifty dollars ; that from all the circumstances of the ease respondent believes that D. A. Long is an interposed perspn by Robinson, who stirred up this suit in order to avoid paying the price of the land; and that Long
      having really purchased for Robinson, said Robinson has thus quieted his own title. He further alleges, that if Long be really a purchaser for his own account—he was knowingly the purchaser of a litigious right, and that respondent has the right to 'release himself from this suit and quiet his title, by paying to Long the sum of one hundred and fifty dollars, paid for the land, with interest and costs. The answer closes with a prayer that Long be made a party to this suit, &e., &c. Such was the state of the pleadings up to the 6th of October, 1857, (the case having already been fixed for trial,) when Long first makes his appearance in court, by filing his answer and petition in intervention, in which he admits the two acts under private signature, described and referred to in the answer of J. L. Cole, said acts bearing date 25th of March, 1849, and 26th of April, 1853, and duly recorded, avers himself to be, in virtue of said acts, the sole owner of the land in dispute, as transferree of the Billiots, whose allegations and averments he adopts and makes his own, and prays that he be declared owner of the tract of land in dispute.
    The court will observe the confusion and uncertainty prevailing in our original answer, on the part of Cole, warrantor; that uncertainty concerning the nature of Long’s transactions with the Billiots, resulting from his relations towards Robinson, and irom all the circumstances of the case, which made it doubtful whether he was not the mere cat’s paw of Robinson, who would thus have covertly quieted his own title. That uncertainty was only removed by Long’s appearance in the suit, and positive claim of title for himself, personally. His appearance dispelled all legal doubts as to the position of the parties; and we were then, and only then, clearly given to know who was the real claimant— who was our real adversary. It was only when he had assumed this fixed identity, that we were in a position to use all the weapons of the law in our defence. We chose to avail ourselves of the wise and equitable provisions of Article 2622 of the Civil Code, and on the 5th of October, the very next day after the filing of Long’s petition in intervention, we made a tender to Long’s attorney of record, of the sum of $227 76, the amount of the principal, interest and costs of the purchase from the Billiots, which being refused, we deposited in court.
    It is objected:
    1st. That this is not a case of the purchase of a litigious right.
    2d. That the offer of payment comes too late.
    A right is said to be litigious, when there exists a suit and contestation on the same. 0. C., 2625. Litigious rights are those which cannot be exercised without undergoing a law suit. C. 0. 3522, No. 22.
    Judge Preston reconciles the apparent inconsistency of these definitions, by saying that “ the impossibility of exercising the right without undergoing a law suit, is never ascertained until the suit is commenced. And it becomes a litigious right by the commencement and existence of the law suit.” Pearson v. Grice, 6 An. 137. The question of the litigiousness of the rights purchased, is then to be decided by a simple comparison of dates. The second agreement made by Long, with the Billiots, by which he became the purchaser of their title, bears date April %Uh, 1853. This suit was “ commenced and existed,” on the 23d of April, 1853. Robinson had accepted service of the petition. It would seem that this simple statement would put the question at rest; but the plaintiffs insist that the mere inception of the suit was not sufficient to render litigious the rights which it asserted; but that they only became litigious when their validity was put at issue by defendant’s answer, filed on the 25th of November, 1853.
    In support of this view of the subject, they cite the case of Prevost’s heirs v. Johnson et al. 9 M. 123. Tour Honors will observe, that the question before the court in that case, was not whether the commencement of a suit rendered the rights which it enforced, litigious, but whether “ the right purchased by the defendants can be said to be a litigious one, although no suit was ever instituted for the recovery of the premises.” That is a very different question, and no one will impugn the propriety of the negative decision of the court. It is true that the court declare arguendo, and for the purpose of preparing an argument a fortiori, that “ it is necessary there should be an answer.” But such obiter dicta are not entitled to any weight as authority. However that may be, the present case is to be decided under laws different from those which prevailed at the time the case referred to was decided. The Code of 1825 presents, with regard to the question at issue, a marked difference from the Code of 1808. The latter of which contains no supplemental definition as that contained in Article 2522, No. 22, C. C. That Article modifies and enlarges the definition previously given in Article 2625, and gives a broader scope and application to one of the wisest and most salutary rules of the civil law. The authority of Judge Preston, which we have already invoked, gives a simple and sensible interpretation of the apparent conflict between the two Articles, which, taken together, show no contradiction, but rather the fuller development and extension of a principle whose operation was too much restricted under the former Code. According to Marcadé, vol. 6, p. 351, there was great diversity in the ancient jurisprudence of France, as to what was necessary to constitute a litigious right. “ Les parlements de Paris et Toulouse, s’arrétant au fait matériel, déclaraient droits litigieux tous ceux et uniquement ceux sur lesquels il y avait litige au moment de la cession. Mais cotte idée était vivement critiquée,” &e. The parliament of Bordeaux, on the other hand, determined by an appreciation of the circumstances of the case, the character of the ceded right. The Code Napoleon has adopted and consecrated the former system as being the best calculated to relieve the courts from long and interminable inquiries : “ II a trouvé plus sage de s’en teñir au fait matériel. The legislators of our present Code, adopting the jurisprudence neither of the parliament of Paris nor that of Bordeaux, have taken a middle ground between the two. N ot requiring, like the former, that there should be actual contestation of the right in order to render it litigious; nor permitting, like the latter, an inquiry which would, of itself, be a lawsuit. The commencement of the suit, according to the result of the two Articles of our Code, on the subject, taken in conjunction, renders litigious the right asserted by the suit.
    The plaintiff urges that even if the right is litigious, it is too late for us to claim the right of purchasing it. There is no provision of law limiting the time within which parties may avail themselves of the privilege conferred by Article 2622. But we submit, that the offer and tender of payment to Long of the price of his purchase, with interest and costs, was made as soon as it could possibly have been made. It was made the very next day after he had appeared in court and demanded the enforcement of the right. Up to that time, we were totally in the dark as to the real ownership of that right; we thought, and the circumstances of the case justified the belief, that Robmson was the real purchaser. But so soon as Long appears and asserts liis right, we offer to pay him the sum for which he bought it. How then can it be said we are too late ? “ II a été jugé que le retrait litigieux pent étre exereé pour la premiere fois en appel, alors surtout que c’est seulemont depuis l’instance ouverte devant la cour que celui qui l’exerce a en connaissance des clauses et conditions de la cession. Cette action constitue en efíet une simple défense a la demande principale.” Répertoire G-éneral, vol. 5 ; Droit’s Litigieux, Nos. 138 and 143. For further elucidation of this case we refer to the able opinion of the Judge of the lower court in this case, and respectfully ask that the judgment of said lower court be affirmed.
    Plaintiff denies the validity of the tender made by us of the purchase price of the litigious right. There is no law or rule of practice requiring a legal tender in such a case, and the mere word “ tender” used by the court in the decisions cited, cannot introduce a rule not contained in the Codes. The word “ tender” is not there used (in the decisions) in its strictly legal sense, but only to signify offer to pay—not “ offres réelles.”
   Merrick, C. J.

The parties to this suit present the question as to the manner in which Articles 2622, 2623 and 3522, No. 22, should be construed.

Plaintiff’s counsel contends that a thing cannot become litigious until there is a contestation concerning it, viz : an answer putting the cause of action at issue. On the other hand, the defendant contends that there is a litigious right whenever a suit is commenced ; that it becomes a litigious right by the commencement and existence of a lawsuit.

The plaintiff bases his argument upon Article 2623 of the Civil Code, which is in these words : “ A right is said to be litigious whenever there exists a suit and a contestation on the same,” and the commentators upon the corresponding Article of the Napoleon Code.

The defendant relies upon No. 22 of Article 3522 of the Civil Code, which declares that litigious rights are those which cannot be exercised without undergoing a lawsuit.”

We do not feel called upon to decide these questions, but shall dispose of this ' case upon its peculiar facts.

The intervenor’s title was acquired after suit brought, and in pursuance of a previous contract, in which it was expressly recited that plaintiffs were unjustly kept out of possession, and that a suit was required to establish their claims thereto and put them in possession, and in which the intervenor bound himself to pay all expenses attending the suit, and to save the plaintiffs harmless from all costs and other contingent expenses.

It further appears, from defendant’s answers to interrogatories, that the intervenor bought the interests of the plaintiffs at about one-twentieth of the value of the tract, at the instance, and after a consultation with Robinson, the defendant, and that the suit itself was instituted by lawyers employed by Robinson at the request of Long, the intervenor. And now Robinson, in the event of an eviction, demands judgment over against Cole, administrator of Moore, his warrantor. We think that the parties plaintiff and intervenors are estopped by their recitals and their conduct from now denying that the right which Long purchased was a litigious right. There is evident collusion between them and the defendant, and we think we shall do justice by holding them to their admissions, and considering them within the spirit of Articles 2622 and 2623 of the Oivil Code. If a technical contestatio litis had not yet been formed, the parties have admitted in their solemn acts that a real one was before them.

We see no objection to the form in which the tender was made and the money paid into court.

i There being collusion between these parties we think the party cited in warranty was justified in making the tender.

Judgment affirmed.

Cole, J., recused himself.


source: Caselaw Access Project

author: Mebrick, C. J.

license: Public Domain

text:
    Wright, Allen & Co. v. C. R. Railey and Wife.
    Where the wife sells lior property ancl the husband receives the price in negotiable paper, the husband may sue on the note in his own name, or in that of the commercial Arm of which he is a member.
    Tho knowledge of the husband of any equities which might be pleaded against the note, must be considered as tho knowlodgo of the firm.
    Tho wife, not separate in property from her husband, cannot be made liable for the amount of a note executed by her husband during the marriage, although the consideration of the note was the price of property purchased in the name of the wife, tho object being to replace her paraphernal property, which the husband had alienated.
    from tbe Fourth District Court of New Orleans, Price, J.

      Clarice & Bayne, for plaintiffs.

      Gaither & McPkeelers, for defendants and appellants.
   Mebrick, C. J.

This suit is brought upon a promissory note drawn by Charles R, Railey to his own order and endorsed. The wife of Railey is made a party to the suit, and judgment is prayed for against her and her husband for the amount of the note, with a privilege upon a slave named John, for which the promissory note was given as the price.

The defence to the action is, that plaintiffs are not the owners of the note, and that the consideration of the note has failed, said slave having been sold as a cook, and being affected with the redhibitory vices of drunkenness and inflammatory rheumatism.

In a supplemental answer, it is averred, that said slave is affected with epilepsy and addicted to theft. The supplemental answer having been filed after the commencement of the trial, was properly ordered to be stricken out, as coming too late and changing the issue. Defendants prayed that the note be cancelled and the sale rescinded.

There was judgment against both defendants, and they have appealed.

I. On the question of ownership. The negro was sold by Mrs. Wright, the wife of H. M. Wright, (one of the plaintiffs,) as her paraphernal property. The slave was bought by Railey, in the name of his wife, to replace one of her slaves which Railey had sold. Hence Railey gave his own note for the price. It is contended that the note was Mrs. Wright’s note, as much so as the slave, and that her ownership cannot be divested in favor of her husband, and that the attempted transfer is a nullity, for Wright having no title to the note from his wife, and being by law incapacitated from acquiring any, could transfer none to his firm.

This subject was considered in the case of the Succession of Gilmore, 12 An. 562.

In that case it was (in substance) held, that where the wife sold her property, and suffered the price to be delivered to her husband in negotiable paper transferable by delivery, that a judgment might be rendered upon such paper in the name of the husband, or any other holder, and that such judgment would have the force of the thing adjudged and protect the debtor.

The defendant, in this instance, has no interest in questioning plaintiff’s title, further than it may be in the way of the defence upon commercial paper transferred before maturity. And here we think the knowledge of II. M. Wright must be considered as the knowledge of the firm. We, therefore, see no objection to the action in the name of the plaintiffs.

II. On the second branch of the case, viz : failure of consideration, we are not satisfied with the sufficiency of defendant’s proof .on the two grounds of redhibition alleged, and to which (bills of exception having been taken) the proof must be confined. It has been asserted in argument, and not denied, that an ac. tion of redhibition is pending between the defendants and Mrs. Wright for the causes set up in the answers.

We think defendants’ rights ought to be reserved in the judgment.

III. It is further objected, that there is error in the judgment against Mrs. Railey, because she made no contract whatever with plaintiffs and is no party to the suit.

This objection is well taken. It does not appear that Mrs. Railey is separate in property from her husbnnd. The purchase was, therefore, a purchase on behalf of the community and, perhaps also, a transfer by the head of the community to the wife for the restitution of her paraphernal property. It is clear she cannot bind herself for this debt. Davidson v. Stewart, 10 L. R. 146.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and we do now order, adjudge and decree, that said plaintiffs do recover and have judgment against said Charles R. Railey for the sum of thirteen hundred and eighteen dollars and fifty cents, with eight per cent, interest thereon per annum, from the 4th day of December, 1857, until paid, and three dollars cost of protest, and that the plaintiffs have the ven. dor’s privilege upon said slave John for said debt and interest, reserving to said Hailey and wife, or either of them, the right to set up and prove in an action of redhibition any matters urged as a defence to this action; and it is further ordered, that the defendants pay the costs of the lower court, and the costs of appeal be divided between the plaintiffe and Charles R. Railey.


author: Buchanan, J. Merrick;, 0. J.,

text:
    John H. Pope v. H. O. Anderson—D. Kinney et al., Warrantors.
    Where a sale was made to three persons, and to the survivor of them, and two of the vendees having died, the survivor claimed the ownership—Reid: That there being no forced heirs of the deceased owners and no creditors having an adverse interest, the title vested in the survivor.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Wapples & Eustis, for plaintiff and appellant:
    The plaintiff claims a slave, relying upon a title given by R. W. Long to “ W. C. Pope and Eliza Pope, his wife, and to John Haggerty, their adopted child and the survivor of them, in consideration of $350 to him paid by William C. Pope and Eliza Pope.” It is stipulated in the deed, that “ if the said John Haggerty (who is now an infant of about the age of two years) should happen to die, or be taken away by his relations, or go away from the said William C. Pope and Eliza Pope, his wile, at any time before the decease of the survivor of them, the said William C. Pope and Eliza Pope, then, in such case, the said slave Absolom is to go to the survivor of them, the said William C. and Eliza Pope, and the heirs of such survivor.”
    1. By this contract the plaintiff became joint owner of the slave, having one-third interest. John Haggerty is proved to be identical with the plaintiff, John H. Pope. William C. Pope signed the deed “ for self and John Haggerty,” and must be presumed to have paid for both, and with the money of both, since the plaintiff was but two years old, physically incapable of the act of payment. William C. Pope avers in the notarial deed of sale, that plaintiff is his adopted son. “ The purchase of property by the father in the name of his children is valid.” Hopkins v. Bucle, 5 Ann. 487. Purchase, in the name of an adopted child can form no exception. Whether the purchase be in the name of his offspring, his adopted son or his ward, the intermediary is but an agent, through whom the minor makes the contract and pays the price.
    Considered as a stipulation in favor of plaintiff, as a third person, the title is good. Parsons on • Contracts, page 388; Story on Contracts. The instrument is valid as a deed of gift. Holmes v. Patterson, 5 Mart. 693. It was made before a notary and two witnesses, and there can be no other nullity of form. Solieu, v. Rougeau, 2 An. 766. No formal acceptance was requisite. Art. C. C. 1533 is not prohibitory, and uot followed by the penalty of nullity if contravened. Huplesis v. Kennedy, 6 La. 245. The words “ present and accepting” in the deed, were sufficient, without the signature of the infant, who was incapable of signing, and he may now adopt the signature of his name as made by Wm. C. Pope, who assumes the act as his agent. Vide 6 La. 245 ; Institutes, b. 1, tit. 21; Digest, b. 26, tit. 8,1. 9 ; Gomez, vari® Res. chap. 4, de Donatione; Partida 6, tit. 16,1.17,
    The proposition established, it follows as a corollary that plaintiff had immediate possession ; for “ possession follows title.” It follows also that he received the usufruct, for this the law presumes. C. C. 2256 ; 17 La. 366.
    II. The three joint owners agreed that the survivor should become sole owner : the plaintiff is tlie survivor.

      The jus accrescendi of the common law is not incorporated into our jurisprudence, but it may be created by contract, if it work no injury to third persons. Wm. and Elim Pope a^-e proved to have had no forced heirs. The law presumes them to have had no creditors. The contract of survivorship was based upon valid consideration. The three joint owners were seized per my et per tout. The contract was reciprocal; each party agreeing that the survivor should become sole owner, in consideration of becoming sole owner himself, should he be the survivor. The right to the whole, should he be the survivor, was not to be acquired, but was then complete. By the terms of this contract, the plaintiff could not become sole owner till the death of his co-contractors ; but this did not make the instrument on which we sue a donation mortis causa. This contract could not have been revoked by William and Eliza' Pope: a donation mortis causa might have been. The condition of survivorship was a valid condition. Toulier, lib. Ill, tit. II. Donations and Testaments, sec. 277 and 307, p. 295. The condition of survivor-ship, so common between husband and wife in donations inter vivos, is allowed between strangers. The similarity to the donation mortis causa is destroyed by reason of the irrevocability of the donation. The fulfillment of the condition has a retroactive effect to the date of the contract. Each of the contractors is estopped from disposing of the thing, to the prejudice of his fellow contractors. See Article Tontine in Merlin Répertoire de Jurisprudence, vol. 34, p. 335; Succession of De Bellisle, 10 A. 478.
    The penalty of the contract was not incurred by plaintiff, for he remained with William and Eliza Pope till their death. If not a penalty, it was a condition ; if a condition, it has been complied with. Immediate delivery was not necessary, even if this title be considered an act of donation, as between the Popes and plaintiff. It was an onerous donation. .5 M. 694 ; Toulier, 6, p. 652 ; 0. 0.1510, 1513,1515,1940, 2032,1553.

      W. II. Hunt, for David Kinney, warrantor :
    In construing this contract, regard must be had to all the provisions of the entire instrument, and not to any one by itself. 0. 0.1943. Thus, the clause which purports to sell the slave “ to W. C. Pope and Eliza H. Pope, and to John Haggerty, their adopted child, and to the survivor of them,” ought not, according to the elementary principles of interpretation, to be viewed as conferring on the plaintiff an absolute and immediate property in the slave, but must be construed with the whole context and with reference to the important modification of the plaintiff’s rights which the act proceeds to particularize in its subsequent clauses already quoted.
    These, then, were the rights acquired by John Haggerty under this anomalous act. If he die before Mr. and Mrs. Pope, his heirs could not succeed to any property in this slave, but the property fell to Mr. and Mrs. Pope or their heirs. If he went or was taken away from Mr. and Mrs. Pope during their life, the slave belonged to them and their heirs. In the event of the occurrence of either of these contingencies, he had no right whatever in the slave. But, if he survived both Mr. and Mrs. Pope, and had continued to live with the survivor of them up to the time of the death of such survivor, he was to become then, and for the first time, the owner of the slave. In other words, the act so far as it relates to the plaintiff, contains a donation in futuro, dependent on the plaintiff’s surviving both the donors and his continuing to live with them. It vested in the minor no present property whatever in the slave. To interpret the act as doing so becomes irreconcilable with the provisions by which, if he died or left the donors, his right of property inured to their advantage unconditionally. The donors certainly could not thus have intended to stipulate. If they gave to the minor by that instrument an immediate undivided interest in the slave, which interest was to revert to them or either of them in the event of his death, they created a substitution, which was an absolute nullity. They had no right to dispose of the minor’s property after his death ; and unless the act cannot be understood otherwise, it will not be interpreted as intended to contravene the law. Cole v. Cole, 7 N. S. 417 ; Hen. Dig. p. 432, No. 5. Nor can they, with any greater reason, be supposed to have intended to confer an absolute right of property on the minor, and then if he left them to have at once appropriated it to themselves. It is far more consonant with law and reason to believe that, in view of their being unable to create a substitution, these parties did not intend to create one; that, in view of the modifications of the right of property in Louisiana, which are so simple and so few, they did not intend to make to the object of their bounty, a contract hampered with unusual and complicated conditions, alike subversive of his full right of ownership during his life, and of his right of transmitting it to his heirs after Ills death; and that instead of entering into u a reciprocal contract” with a child two years of age, by which “ each agreed that that the survivor should become sole owner in consideration of the chance that he might be the survivor,” Pope and his wife intended rather to present the negro to the child, at their death, provided he had not runaway from them, as foundlings so frequently do from their benefactors.
    This is the plain and obvious meaning of the clauses of this contract. This is the full extent of right sought to be conveyed to the minor under them. Viewed in this light, it is clear that the act contains a donation inter vivos of the slave in question to the plaintiff, reserving to the donors during their life-time the usufruct of the property.
    That the Popes continued always to enjoy this slave during their lives, is distinctly proved by the evidence of Mrs. Zollers and of Mrs. Aspen, to be found in the record. They both further say that the plaintiff never was in possession of the slave. The usufruct, hence, never was in the plaintiff. The owners, Pope and his wife, retained it always, and never contemplated parting with it, till they died.
    If, from what has been already said, the court has any hesitation in arriving at the conclusion that such was the intention of the parties to this act, then I invoke the rule, that “ when there is anything doubtful in one contract, it may be explained by referring to other contracts or agreements made on the same subject, between the same parties, before or after the agreement in question.” O. C. 1244. And the attention of the court is asked to the nature of the several acts containing gratuities to this plaintiff during his infancy, made by Mrs. Pope, within a few years after the date of the act now under consideration. These acts form part of the Record in the suit of Haggerty v. Corri, which has been introduced in evidence in this case. In that suit, the present plaintiff sued to recover a slave, and based his claim upon titles from Mrs. Pope, so similar in features to the act before the court, that they may well be consulted, as having been prompted by the same motives, and intended to accomplish the same results, by the same means. The first of these titles referred to, purported to be a sale by Mrs. Pope to John Haggerty, of a slave. Its true character, however, having been judicial-, ly determined, the opinion of the District Judge, which wms, without any change, adopted by Chief Justice Eustis, as the opinion of this court, best explains it. The court says : “ The title which the date contained in the petition implies, is found in a document dated 28th May, 1837, a deed from Eliza II. Pope to John Haggerty. Is this deed a sale or a donation ? It purports, in its terms, to be a sale. But it cannot be a sale, for there is no price. The consideration expressed ‘ is the love and affection’ which Mrs. Pope bore to the plaintiff. As a donation, it is bad, because Mrs. Pope therein reserves to herself the usufruct of the slave George during her natural life.” 5 An. 433. The other title, under which the plaintiff also claimed in that suit, is of a like nature, being a donation inter vivos, in the form of a sale.
    That Mrs. Pope herself regarded the act now before the court in the light in which it is here presented, is evident from the recitals contained in an instrument which the plaintiff has introduced in evidence, and which will again be referred to. Prom these recitals, it appears that Mrs. Pope, when about to contract a second marriage with Corri, had made a donation of the very slave now in controversy, together with others, to her intended husband. This is a practical interpretation by her of the act before the court. It shows that she alone held the slaves after her first husband’s death, and dealt with them as though they were hers only. It is subversive of the plaintiff’s hypothesis, that, under the act, he had acquired any undivided interest in the slave Absolom, during the lives of Mr. and Mrs. Pope, and it shows that she considered herself in the possession of the usufruct.
    Upon the whole, when it is considered that R. W. Long, the vendor in the act of sale of this slave, is shown to have had no interest in, or connection with, the minor, John Haggerty, and hence could have had no motive to stipulate in his favor ; that, on the other hand, Mr. and Mrs. Pope speak of him as their adopted child, and look forward to his living with them until their death, and manifest an affection for him, and a desire to confer a benefit on him ; that they pay for this slave, whom they contemplate owning for the rest of their lives; that they put upon record, in the act, the legal and physical incapacity of the minor ; that they afterwards executed other instruments in his favor, by which they gave him other slaves, at their death, reserving to themselves the usufruct of such slaves during their own lives; and, when it is further considered that these were simple people, who are fairly to be presumed not to have been versed in the technical niceties of legal science, the “per my etper tout" of the common law spoken of in the plaintiff's brief, it cannot be credited that they designed to confer a title so intricate and extraordinary in its character, and, to say the least, of such questionable validity, as that which is presented in the ingenious brief filed by the plaintiff's counsel. Let any man with a candid mind and with the honest desire to arrive at the common intention of the parties, but read the whole act, and he cannot fail to conclude that it intended a conditional gratuity from Pope and his wife alone to the plaintiff, and only after their death.
    If this conclusion be correct, the title of the plaintiff, as is shown in the case of Haggerty v. Corrí, already quoted, 5 An. loe. cit., is bad. “ The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reseiwe it for himself.” O. 0. 1520. “ This is,” said the Supreme Court, “ a salutary departure from the Napoleon Code, by which a donor was permitted to reserve the usufruct to himself. The change was dictated by sound considerations of public policy. In the language of the jurisconsults who prepared the amendments to our Code of 1808, “ the reservation of the usufruct in favor of the donor would produce the disadvantage of concealing from the eyes of the public the change of property which had taken place. He who wishes to enjoy during his life a piece of property which he destines for another, can give it by last will; and it is not easy to perceive the use of a donation inter vivos, with reserve of usufruct.” Dawson v. Holbert, 4 An. 37.
    It is said that “ by this contract the plaintiff became a joint owner of the slave, having one-third interest; and it is urged, that W. C. Pope must be presumed to have paid for both, and with the money of both. This presumption is based upon the declarations that Pope signs the act “ for self and John Haggerty," and that the “ plaintiff was but two years old—physically incapable of the act of payment.” It is submitted that this incapacity of the plaintiff does not warrant any such deduction. There is no reason for presuming that a person, because he is physically incapable of making a payment, must therefore possess the pecuniary means of doing so. Minority and money are not correlative terms. Nor is jhe plaintiff's case strengthened by the mere fact that W. C. Pope signed the act for “ self and John Haggerty ; ” since the act itself recites that the consideration is paid alone by W. C. Pope and Eliza, his wife, and does not say that it is paid by or for the minor. The presumption then is, that the money they paid was their own money, and not that of another. ,
    And this presumption receives additional weight, when it is considered that the evidence shows the plaintiff was a foundling without means, whom Mr. and Mrs. Pope took to rear through charity.
    But, if this was the minor’s money then paid, how comes it that the parties to the act, Mr. and Mrs. Pope, undertake to divest him of the title his money must have bought, if he happen to die or be taken away, or go away from them at any time before the decease of the survivor of them ? They could not so have stipulated for him, had the money they paid belonged to any one but themselves. This provision in the act is altogether repugnant to the idea that the money paid was that of the minor.
    By the Roman law, there were six modes of disposing gratuitously of property. The Napoleon Code has entirely abrogated the complicated system of the Roman law, and has substituted a system of the greatest simplicity. “ II n’y a maintenant en France que deux modes do dispositions gratuites : un soul s’accomplissant volúntate viventium, la donation entrevifs; un seul volúntate morientium le legs. II n’y a également que deux formes pour les constater; la donation se fait par un acto qui porte le méme nom qu’elle ; le legs se fait uniquement par testament.” Marcadé, Explic. du 0. 0., Art. 893, No. 437.
    The jurisprudence of Louisiana conforms precisely with that of France ; and the Article 1453 of the Civil Code, which provides “ that property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or mortis causa, made in the forms hereafter established for one or the other of these acts,” is but a translation of Article 894 of the Napoleon Code.
    If, then, the pretensions of this plaintiff were acquired as a gratuity conferred upon him, they could only ripen into rights when acquired in one of the two modes which the Code points out, and according to those sacramental forms which it enjoins. These forms, from sound considerations of public policy, which it is unnecessary here to repeat, but which gave rise to the restriction in Art. 1453 of our Code, are matter of substance in contracts of donation inter vivos.

    Tbe appellant, foreseeing this fatal difficulty, in one part of his brief attempts to meet it; and, whilst he concedes that the title under which he claims is a donation inter vivos, calls it an onerous donation, which is not subject to tbe solemn forms that govern donations inter vivos.

    This attempt is futile. The condition which the notarial act contains cannot be reasonably tortured into tbe imposition of a burthen on tbe donee. Its true object evidently was, to confer a benefit, not impose a burthen, on the plaintiff. It only enhances tbe gratuitous character of the donation, and serves to make it more a liberality than ever, as was shown in the argument at bar. But, even were this not the case, it could not with propriety be deemed to lose its character as a gratuity. '■ La donation ne perdrait pas son caractere d’aete gratuit, parce qu’elle imposerait quelques charges au donataire (pourvu, bien entendu, que ces charges ne fussent pas l’équivalcnt de l’objet donné); ce serait alors une donation onéreuse pour partie, mais qui resterait donation, du moment que, toute compensation faite, elle présente toujours une libéralité. * * * Du moment que le disposant n’est pas payé, son aote est done une libéralité, une donation. Telle est bien aussi la pensée de la loi, qui, dans Particle 945, parle de donations faites sous la condition d’aequitter les dettes et charges du donateur.” 3 Marcadé, Explic. du Code Civil, Art. 894, No. 442.
    It results, therefore, that the instrument under consideration does not, from these clauses, lose its character as a donation inter vivos, and become exempt from the penalty of tbe non-observance of those important forms, without which such a contract cannot exist and have effect.
    The act then being a donation inter vivos, of a slave, is absolutely null and void, as a title to such slave, on several grounds. The donee was not a party to it. It never was accepted by him in precise terms. It never was registered. C. C., Arte. 1523,1521,1530,1531 and 1545; 3 Marcadé, Nos. 632 and 633 et seq.; Rogron, Com., Art. 932, 0. N.; 3 Troplong, Don. et Test., Nos. 1081 and 1093 ; 5 Zachar rise, Sec. 652, No. 4. 1 Biret., Traité de nullités, ch. xix, p. 256 ; 6 Rob. 329. Paclcwood v. Dorsey.

    The case of Holmes v. Patterson, on which the appellant relies so strongly, evidently refers to a title created at common law. The authorities quoted by the Judge show this : the terms employed in describing it, characterize it as “ a deed of gift,” a kind of title known only at common law. Besides, tbe validity of the title is, in that case, declared in virtue of the Spanish law, which at that time was still of force in Louisiana. Again too, the minor must have been a party to tbe pretended sale, and hence must have signed it.
    The case of Dwplessis v. Kennedy, which the plaintiff makes so much of, simply declares that the want of acceptance of a donation inter vivos by a curator of a minor above the age of puberty, is a relative and not an absolute nullity. The contrary doctrine, in spite of this single decision of the Supreme Court, might still be urged, since such is the opinion held by very many of the ablest French writers. But tbe opinion of tbe more recent commentators seems to sanction the interpretation of our own court. The form of the act, say they, is not to be confounded with the capacity of the parties.. The Articles in the Code only designate the persons who can make a valid acceptance, not those who can make “ une acceptation quelconque.” The incapacity of the person accepting a donation, is a relative nullity, of which the donee may avail himself; but the violation of the solemn forms by which alone donations inter vivos can exist—the absence of any acceptance by the donee in precise terms—is an absolute nullity, which stamps the instrument as bad. 3 Marcadé, No. 650 et seq.; Zacharise, ab sup., note. This is as far as the Supreme Court wont in the case of Kennedy. The donation there was accepted by the donee, and the Court recognize the necessity of an acceptance in precise terms, of all acts of donation inter vivos, in order to give them effect. 6 La. 245. And besides, this case was also decided with reference to the Spanish law, which was not repealed until 1828.
    Both the cases referred to, then, differ materially from the case at bar. Here the minor did not sign the act, and has never accepted the donation, formally or otherwise. The signing by Pope, for self and John Haggerty, is no acceptance. Being one of the donors, he was absolutely incapable of accepting—incapaele of contracting with himself. His presuming to call the plaintiff his adopted son, is unsupported by any proof that lie was so; nay, it is inconsistent with the fear he expressed, in the act, that the minor might “ be taken away by his relations.” He cannot be presumed to have adopted the minor in the face of the prohibitory law, in regard to adoption.
    The case of Hopkins v. Buck referred to slaves purchased by their father in Mississippi, and for years held by the minors. The facts of that case render it altogether inapplicable to this. It may well bo contended that a father may make purchases of property in the name of his child, and that such titles will be valid. By our law, the father is the administrator of the estate of his minor children ; nay, by the terms of Art. 1533 0. 0., the parents of a minor are expressly permitted to accept a donation for him. But these provisions of the law, it is respectfully submitted, do not warrant strangers in disposing gratuitously of immovables and slaves to minors, in flagrant disregard of the prohibitory statutes and settled policy of our State.
    The alleged renunciation of Corn, which has been referred to by the plaintiff, was passed upon in the case of Haggerty v. Corrí, in 5 Annual Reports, to which the attention of the court is again called.

      “ The modifications of the right of property, under our laws, are few and easily understood, and answer all the purposes of reasonable use. It is incumbent on the courts to maintain them in their simplicity. A stronger case could not occur, than this, to show the dangers and evil consequences of giving effect, within our limits, to the complicated and involved jurisprudence upon which the title of plaintiff has been supported at bar.” 2 Annual, 382.
    There is no equity in this stale claim. The plaintiff has stood by too quiet and too long', seeing’ honest vendors transfer this property from one to another, when he might and should have spoken out and put them on their guard, if he ha!d the latent rights he now asserts. Wooters v. Feeny, 12 Am 449.
   Buchanan, J.

The title under which plaintiff claims the slave Absalom alias Henry, is a sale to William Charles Pope, Eliza Hight Pope, and John Haggerty, and to the survivor of them, his or her heirs or assigns. The sale is made for the consideration or price of three hundred aud fifty dollars cash, paid to the vendor by William Charles Pope and Eliza Hight Pope.

The two latter are proved to be dead, and John Haggerty, the other vendee, survives them, and is plaintiff in this suit. Mr. and Mrs. Pope left no forced heirs, and no creditors having an adverse interest to plaintiff’s claim under the conveyance of the slave in question. His title has vested by the death of Pope and his wife, and by the fulfilment (which is proved) of another clause in the deed of sale, to wit, that plaintiff should continue to live with the two other vendees until their death.

The defendant and warrantors rely upon the prescription of five, ten and fifteen years. The two longest of these prescriptions are manifestly inadmissible, from the fact which the record establishes, that plaintiff attained the age of majority only seven years before the institution of this suit. 0. 0. 3488.

The plea of prescription of five years is based upon Article 3444 of the Code. But the defendant and warrantors have not brought themselves within that Article. The oldest title which they produce is the sale from Henry Corri to David Kinney, of the 11th of July, 1850, less than five years before the institution of this suit, February, 1855.

The only remaining question under the pleadings, relates to the liability of Goold, called in warranty by Kinney. We agree with the counsel of Goold, that this warranty was only conditional upon the insufficiency of the power of attorney from Joseph Newton to Henry Levy, to enable Levy to contract in the name of Newton the engagement of suretyship in the premises, by reason of the said power of attorney not being in an authentic form. No evidence or argument is before us, tending to establish the insufficiency of the power of attorney, and we conclude that the liability of Goold has not attached.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that plaintiff, John Haggerty Pope, recover of defendant, H. 0. Anderson, the slave Absalom alias Henry, described in the petition, with costs in both courts; that H. 0. Anderson have judgment in warranty against James White, for the sum of eight hundred and fifty dollars and costs ; that James White have judgment against David, Kinney, in warranty for the sum of six hundred and fifty dollars and costs ; that David Kinney, have judgment against Henry Corrí, in warranty for the sum of seven hundred dollars, with costs; and that Edmund L. Ooold, be hence dismissed, with his costs.

Merrick;, 0. J.,

dissenting. I am not able to concur with my colleagues in this case. The instrument, the basis of this suit, is in these words, viz :

“ Be it known, that on this twenty-fifth day of March in the year 1830, before me, Hughes Pedesclaux, Notary Public in and for the parish and city of New Orleans, duly commissioned, personally came and appeared, Richard Walter Long, of Tiffin county, of Tennessee, who declared, that in consideration of throe hundred and fifty dollars cash to him paid by William Charles Pope and Eliza Plight Pope, of this city, the receipt thereof is hereby acknowledged and acquittance granted ; he doth, by these presents, grant, bargain, sell, and deliver unto the said William Charles Pope apd Eliza Hight Pope, his wife, and to John Haggerty, their adopted child, and to the survivor of them, his or her heirs and assigns, (the said party being present, acknowledging possession and accepting,) a negro name Absalom, aged about fourteen years, of a copper colored, or grifl'e, a slave for life, the property of the said Richard Walter Long, as set forth in the annexed certificate, obtained from the requisite authority in Tiffin county, Tennessee; which certificate the said Richard W. Long now produceth and deposeth on oath before me, Notary, is true and genuine in all respects, and that the slave now sold is the identical slave, is warranted to be free from the vices and malidies prescribed by law, and also free from all debts, liens, mortgages and incumbrances whatsoever, as appears by the register of mortgages for the city, dated this day.

To hold the said slave unto the said purchasers and the survivor of them, their heirs and assigns forever; and the said vendor hereby binds himself and his heirs, to warrant and defend the said slave, unto the said purchasers, their heirs and assigns, against the lawful claims of all persons whomsoever.

It is understood and agreed by and between all the said parties hereto, that if the said John Haggerty (who is an infant of about the age of two years) should happen to die or be taken away by his own relations, or go away, or of his own accord or otherwise, go away-from the said W. C. Pope and Eliza PI. Pope, his wife, at any time before the decease of the survivor of them, the said W. C. Pope and Eliza PI. Pope, then and in such case said slave Absolom to go to the survivor of them, the said W. C. Pope and Eliza PI. Pope,' and the heirs of the survivor.

Done and passed in the presence of William Rondeau and William Henry Rondeau, witnesses, who hereunto sign their names with the said parties, and me, the Notary.

(Signed) Richard W. Long,
William C. Pope,
for self and Jorar Haggerty.
Eliza Pope.
W. Rondeau.
W. II. Rondeau.
H. Pedesclaux, Notary Public.1

If it be conceded that John Haggerty, the plaintiff, has shown a sufficient acceptance of the foregoing instrument, and that the condition mentioned in the act has been accomplished in his favor, there arises another difficulty in the way of his recovery. It is the stipulation of survivorship in the act. By the act, each joint tenant was bound to preserve for and return to the survivor one-third of the slave. If so, could any one of them defeat the rights of the others by a sale of his interest ? Could he provoke a partition by licitation, and thus defeat the right of the survivorship altogether ? Is not the kind of substitution and Jidei commissum contained in the foregoing act prohibited-by Art. 1507 of the Code ? Can a person, through the machinery of a sale, accomplish what he could not do by a direct donation inter vivos or mortis causa ? If the act of sale contains a disposition in contravention of Art. 1507, does it avoid the entire act, or will it be considered as containing a contract of sale as between the vendors and vendees, and a donation between the vendees themselves ?

With my limited means of research, I am not able to solve these questions in favor of the plaintiff, the suit being a petitory action. Had the decree been for one undivided third of the slave, or had the plaintiff been in possession of the property, defending himself against other parties, after this long period of time, the question might have admitted, perhaps, of a different solution.


author: Cole, J.

text:
    East Pascagoula Hotel Company v. James West.
    When a suit is brought by a corporation upon a note given for shares of stock of the corporation— Held,.- That the maker of the note as a stockholder cannot set up, by way of defence, any illegality in the charter, or any informality in the organization of the corporation.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Mott & Fraser, for plaintiff.

      M. M. Cohen and J. Q. Bradford, for defendant and appellant.
   Cole, J.

This suit is instituted upon a note payable to the order of the secretary of the plaintiff.

It appears that the consideration of the note was for three shares of the stock • of the company.

It is contended that the Legislature of Louisiana cannot authorize a corporation to carry on business solely and exclusively in another sovereign State, and further, that the formalities of law were not all followed in the organization of the company.

These objections, if valid, cannot be successfully urged- by the defendant.

He has become a stockholder in the company, and has thus held it out to the world as a legally incorporated company, and has thus partly added to the credit of the company, and enabled it to make purchases for its benefit. He cannot now, by such objections, refuse to pay his note for stock, for it was on the faith of his note, and notes of a similar character, that the public may have been induced to credit the company.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Bernard Graham v. Eliza J. Egan.
    When a suil is brought against a married woman upon a promissory noto signed by her, with the authorization of her husband, given for the loan of a sum of money, and the petition contains no allegation that the debt inured to the benefit of the separate estate of the wife, or that she was separated in property from her husband—Held: That as the petition shows that the debt was contracted during the marriage, it shows, piittia facie, a debt of the community, and consequently no cause of action against the wife.
    A married woman is in general without capacity to bind herself for a debt of the community, and tho party who would hold her bound for such a debt, must bring her within some of the exceptions to this rule.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Durant Horner, for plaintiff.

      C. Roselius and H. Dugué, for defendant and appellant.
   Merrick, C. J.

This suit is brought against a married woman, upon a promissory note signed by her, with the authorization of her husband, and given for the loan of a sum of money. The petition contains no allegation that the debt inured to the benefit of the separate estate of the wife, nor that she is separate in property from her husband, or a public merchant. The defendant excepted on the ground that the petition disclosed no cause of action, having previously filed a general denial. The exception was stricken out, on the ground that it was not filed in time.

The proof consisted of the note and a notarial act of mortgage, securing the same. The act of mortgage, like plaintiff’s petition, was silent as to the object and purpose of the loan, the consideration of the note.

There was judgment in favor of the plaintiff, and the defendant appealed. We think the exception might have been allowed under the rule of the court cited.

The case presents the question, whether a married woman can be held for a debt contracted during the existence of the community, in the absence of allegations and proof, that it inured to her benefit; the answer being a general denial, coupled with the averment that the petition disclosed no cause of action.

The presumption of law is, that all debts contracted during the existence of the marriage, are the debts of the community. C. C. 2371; 2372; 10 An. 30; 12 An. 265. The wife, as a general rule, is without capacity to bind herself for such debts or for the debts of her husband or with him. C. C. 123, 129, 130, 2412. The cases in which she may bind herself are exceptional.

Hence, when the petition shows that the debt was contracted during the existence of the marriage, it shows prima facie a debt of the community and, consequently, no cause of action against the wife, who is in general without capacity to bind herself for a debt of the community. The party who would hold her bound, must bring her within some of the exceptions to this general rule. And so it was in substance decided in the cases of Scanlan v. Warwick and wife, 10 An. 30, and White v. Baillio, 12 An. 663. See also Campbell v. Roubieu, ante 449.

In the cases of Dumartrait v. Deblanc, 5 N. S. 38, and Rowley v. Rowley, 2 An. 208, the wife was separate in property, and the obligations were contracted by her with the authorization of her husband. Hence, in these cases, an exception to the general rule had been alleged and proven; for the allegation that the wife was separated in property from her husband, implied that there was no community, and that the capacity of the wife to contract relative to the administration of her paraphernal estate, had been retained by her in a marriage contract, or restored to her by the judgment of the court. She was, therefore, properly held to plead any special defence she might have to -an obligation which she had prima facie a capacity to contract.

The judgment of the lower court must be reversed, and one of nonsuit rendered.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that there be judgment in favor of the defendant as in case of a nonsuit; the plaintiff paying the costs of both courts.


author: Buchanan, J.

text:
    Bennett et als. v. W. C. Quirk.
    The vendor of a steamboat is not a competent witness for his vendee, in a suit in which the title to the boat is involved,
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Dunean fy McConnell, for plaintiffs.

      Durant fy.Homor, for defendant and appellant.
   Buchanan, J.

This is an action against a constable for damages alleged to have been sustained by a -wrongful seizure of the steamboat Ariel, belonging to plaintiffs, in execution of a judgment against another party.

It appears that the same day, that the plaintiffs instituted this suit in the District Court, they filed a third opposition, claiming the property seized, in the Justice’s Court, whence the execution issued ; which third opposition is still undecided.

Plaintiffs offered, on the trial in the court below, R. C. Hutchinson, the defendant in execution, as a witness to prove the allegations of the petition. Defendant excepted to his admissibility.

This witness’ testimony shows that the plaintiffs derived title to the Ariel from himself. He is therefore bound to warrant their title. The objection to his competency was, in our opinion, well taken.

Plaintiffs offered in evidence, to prove their ownership, two bills of sale, under private signature, also a coasting license and an enrollment issued from the Customhouse in the port of New Orleans, on the oath of one of the plaintiffs.

These documents were objected to as evidence, on the ground that they were ex parte and not binding on defendant. The objection should have been maintained. No evidence was offered of the signatures of these bills of sale, or of their dates, except the witness, Hutchinson, above mentioned. The coasting license and enrollment, granted a few days before this suit was commenced, upon the oath of the plaintiff, was not evidence in his favor in a contest respecting the ownership. 1st Greenleaf’s Evidence, sec. 494.

Judgment reversed, and judgment in favor of defendant, as in ease of nonsuit, with costs in both courts.


text:
    Ambrose Lanfear v. James H. Harper.
    A notarial act of transfer of property by an executor, without the production of the proces verbal of the adjudication, cannot be received to prove title per se} or to show the order of court or a Sheriff’s sale under it.
    PPEAL from the District Court of the parish of St. Charles, Burthe, J.

      Henry St. Paul, for plaintiff.

      A. G. Semmes, for defendant and appellant.
   Merrick, C. J.

This is a petitory action. The plaintiff is the claimant of a large tract of land, formerly known as “ Les coteaux de Prance,” on the line of the New Orleans, Opelousas and Great Western Railroad, ^embracing between six and seven thousand acres. He claims title in virtue of the Toups and St. Armand confirmations, (referred to in the case of Ranson v. Long just decided,) alleged to have been conveyed to him by certain mesne conveyances, and also confirmed to him by Act of Congress of date the 18th August, 1856. Private Acts, p. 29, chap. 158.

The defendant claims in virtue of a preemption and settlement made in 1854, within the bayous Crocodile and Saut d’Ours.

Thus, the land in controversy is clearly within the confirmation to the children of Paul Toups, made in 1812, (American State paper, vol. 2, p. 524, No. 74,) and another confirmation to Haspit St. Amand, in 1816 (vol. 3 Am. St. papers, p. 225, No. 329.)

The Toups claim appears, as alleged by plaintiff in his petition and brief, to have been confirmed by Act of Congress of April 12,1814, (vol. 3 Statutes at large, p. 121.) The Daspit St. Amand claim, as alleged by plaintiff, was also confirmed by Act of Congress of May 11,1820, (Stat. at large, vol. 3, p. 573.)

The defendant being manifestly within both of these confirmations, and having possessed for more than one year, contends that he has the right to compel the plaintiff to exhibit his titles, and in default of a perfect title, to be maintained in his possession.

The plaintiff produces the Act of Congress of 1856, and insists that the defendant being a possessor without title, cannot question this, the highest evidence of title. The defendant replies : you rely also on the Toups and St. Amand confirmations, and if those conveyed title to the parties, as you assert in your petition and brief, then the Act of Congress of 1856 conveys none, for the Government of the United States, by confirming the Spanish grant, which contained a special location, vested the title in the Toups’ heirs, and St. Amand, their vendee, he himself also holding a confirmation.

This reasoning, resting upon an estoppel arising from plaintiff’s pleadings, appears to us to be conclusive, and the test is, could the United States have recovered by an action the land in controversy? We think it is clear it could not. It would have been repelled by the Spanish grant and the two confirmations of the United States. Lanfear has acquired no greater rights. And this is the view we have just taken in maintaining the plaintiff’s right by prescription or usucaption in the case of Ranson v. Long, above referred to. See also Doe v. Eslava et al., 9 Howard, 446.

Thus the plaintiff is thrown back upon the St. Amand title, which he afeserts to be valid, and which defendant now sets up as a defence to the action, as he is authorized to do under our law; for the defendant may protect himself by any outstanding title. This raises the question, whether, the plaintiff has shown a transfer of the St. Amand title to himself. He produces, as a part of the claim of title, a notarial act of sale from Lucius C. Duncan, dative testamentary executor of Francis M. Ward, passed August 5, 1848, to William Polk. This act recites an order of sale of the Probate Court and a probate sale made by the Sheriff. The defendant excepted to the introduction of this instrument, and insisted that it was not evidence of the original order of sale, or that the sale had been made by virtue of any legal order or decree. This objection was not cured by the production of other proof.

It appears to us that this act ought not to have been received to prove title per se, or to show the order of the Probate Court, or a Sheriff’s sale under it. The executor, as such, has no right to transfer property belonging to the succession which he administers. Hence, his notarial act can make no proof of the transfer of the property of the succession, without the production of the proces verbal of such sale. See case of Ranson v. Long, just decided. C. C., Art. 2601.

The plaintiff fails, therefore, in his claim of title, and it is unnecessary to con. sider whether or not the description in the act of sale can be made to cover the land in controversy.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and there be judgment as in case of a nonsuit, the plaintiff paying the costs of both courts.


text:
    Love & Savage, for Savage, v. B. P. Voorhies.
    Where the attachment has never been dissolved the surety of a defendant upon a bond given to release the attachment, is bound to pay a personal judgment against the defendant property rendered in the suit, to the amount of the value of the property attached, notwithstanding there is no express recognition of a privilege upon the property attached, in the final judgment of the court.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Duncan & McConnell, for plaintiffs.

      Durant & Hornor, for defendant and appellant.
   Cole, J.

The opinion in this case having been prepared by Mr. Justice Spofford previous to his resignation is adopted as the opinion of the court.

The only question in this case is, whether the surety of a defendant upon a bond given to release an attachment, is bound (to the extent of the value of the property attached) to pay a personal judgment against the defendant property rendered in the suit, notwithstanding there was no express recognition of a privilege in the final judgment of the court.

We say this is the only question, because it appears in this case that the defendant, Voorhies, is sued upon a bond signed by.him as surety for Samuel Cloon to release the attachment of the steamer Sam Oloon, which had been seized in the suit of Love, Savage & Co. v. McComas & Cloon, under an alias writ of attachment, sued out on the 25th January, 1853 ; that this attachment was never quashed; that there was, however, a judgment in favor of the defendant, Cloon, upon the merits, in the District Court, from which the plaintiffs appealed to this court; and that here that judgment was reversed, and a judgment rendered in favor of the plaintiffs against McComas S Cloon severally, decreeing also a privilege upon the property seized under the attachment issued on the 29th May, 1852, and that the same be sold to pay said debt, interest and costs.

No allusion was made in the' final judgment to the attachment issued 25th January, 1853, for the release of which the bond now sued upon was given. But that attachment has never been quashed by order of any court.

We are of the opinion that it is not indispensable, in order to bind the surety in such a case, to insert in the final decree the usual phrase, “ with privilege on the property attached.” The rights of the parties are not made to depend upon that formula.

Under Article 259 of the Code of Practice, as amended by the Act of 17th March, 1852, p. 155, the defendant, if he appear either in person or by his attorney, may, moreover, in every stage of the suit, have the property attached released by delivering to the Sheriff his obligation for the same, exceeding by one-half the value of the property attached, with the surety of a good and solvent person residing within the jurisdiction of the court where the action was brought, that he will satisfy such judgment, to the value of the property attached, as may be rendered against him, in the suit pending."

When a party defendant in attachment gives this bond, although he thereby releases the property attached, he yet brings himself within reach of a personal judgment, because he appears and undertakes to defend the suit, which otherwise might have been in rem only. Rathbone v. Ship London, 6 An. 440.

The surety on the bond to release the attachment in this case bound himself in accordance with the law; there was a personal judgment against his principal; the order of attachment under which this bond was given has never been set aside by order and judgment of any court; an execution against the principal debtor for the judgment has been returned, no property found; the surety is, therefore, liable.

The case might be different had the attachment been quashed by judicial order. For it is well settled, that the act of bonding the property attached, although it releases the seizure, does not debar the party giving it from subsequently moving to quash the order of attachment. Baker v. Hunt, 1 M. 194; Pailhes v. Roux, 14 L. 82; Quine v. Mayes, 2 Rob. 510; Myers v. Perry, 1 An. 372; Brinegar v. Griffin, 2 An. 154.

And in Pailhes v. Roux, 14 L. 83, it was said “ the defendant gave bond with a view to be restored to the possession of the property attached, in pursuance of the 259th Article of the Code of Practice. He afterwards obtained a rule on the plaintiff to show cause why the attachment should not be dissolved, on the ground that it had been obtained on a false allegation. C. P. 250. This became necessary in order to relieve himself and his surety from, the obligation resulting from, the bond which he had given to the Sheriff, to regain the possession of this property illegally attached."

But it becomes unnecessary in the present case to decide whether the dissolution of the attachment upon motion, by judgment of a competent court, after bond given to release it, would absolve the surety, as is intimated in the above case. It suffices to say, that although the final judgment makes no special allusion to the property attached under this writ, that attachment has never been dissolved by judicial decree.

It is objected that there is not sufficient proof of the large amount of costs in the suit of Love, Savage & Co. v. McComas & Cloon. No special issue was made upon this point in the court below, and the entire 'record of the former suit was introduced in evidence. The fieri facias shows for what amount the court ordered execution to issue in that case, and it is prima facia correct.

Judgment affirmed.


author: Land, J.

text:
    L. J. Dolsen & Son v. E. Brown & Son.—John Swazey & Co., Intervenors.
    The creditors of a consignor cannot attach merchandize, or its proceeds, in the hands of the consignee, ■when the consignments are made with express instructions, that the proceeds of the sale are to be paid to a third party who accepts this stipulation made in his favor ; nor can they attach when the consignor, having made the consignments without instructions, subsequently orders tho proceeds to be paid to a third party, and the consignee promises to pay in pursuance of the order.
    When the consignments are made without instructions, and a draft is drawn subsequently by the consignor in favor of a third party, upon the consignee and against the consignments—Held: That an expression of mere willingness, on the part of the consignee, to pay tho amount of the draft out of tho proceeds of tho consignments, coupled with a refusal to accept the draft, is insufficient to give to the holders of the draft a right of action, or to create a legal tie. tho essence of a perfect obligation.
    APPDAL from the Sixth District Court of New Orleans, Howell, J.

      Durant & Horner, for plaintiffs and appellants.

      Clarice <& Bayne, for defendants.
   Land, J.

This suit was commenced by attachment. G. W. Betterton Co. were garnished, and answered the interrogatories propounded to them, as. follows :

First. “We have a balance due E. Brown & Son, of Cincinnati, on book account, as per account hereto annexed, two hundréd. and eighty-three dollars and twenty cents, and one hundred and forty-eight packages of butter, valued by us at $1200, which we hold subject to the order of your honorable court. Against the balance of account and goods on hand, there is a draft by Messrs.. E. Brown If Son, and indorsed to Messrs. Swazey If Co. for $1,500, which was presented for acceptance the day and prior to the writ of garnishee being served on us, which draft was not accepted by us.”
Second. “ We are indebted to the firm of Messrs. Brown If Son to the amount of two hundred and eighty-three dollars and twenty cents.”.

John Swazey if Co. intervened, and alleged that' they were the holders of the draft drawn by E. Brown & Son on G. W. Betterton & Co. for $1,500. That although they refused to accept it, they, nevertheless, were notified of the draft, and agreed to hold the property and funds in their hands for its payment. That said draft was drawn against the property and funds, and that Betterton Co. received the same, with instructions to pay the draft out of the proceeds.

There is no proof, however, that the garnishees received the merchandize with instructions to pay the proceeds to Swasey Sf Có. or any one else. The evidence shows that the draft was drawn on the proceeds of the shipment, and that the garnishees refused to accept it. That although they were willing that tho proceeds should go to the payment of the draft, they were unwilling to incur a legal obligation to that effect. And that they hold the proceeds subject to the order of the court.

There are two classes of cases, in which the creditors of a consignor cannot attach merchandize or its proceeds in the hands of the consignee.

In the first, the consignments are made with express instructions to pay the proceeds of sale to a third party, and the stipulation in favor of the third party is accepted by him. Burnside v. McKinley, 12 An. 512.

In the second, the consignments are made without instructions, and the consignor subsequently orders the payment of the proceeds to a third person, and the consignee promises to pay the proceeds in pursuance of the order. Cutters v. Baker, 2 An. 572.

In the first class of cases, the obligation to pay is a part of the original contract, and gives to the third party a right of action against the consignee for the proceeds of sale. C. C., Art. 1884.

In the second class, the obligation of the consignee, to pay to the third party, is created by a new and independent contract, and the right of action arises from his express promise to pay.

This case is not within either of the classes mentioned. The consignment was without instructions to pay the proceeds to any one, and the consignee refused, after the receipt of the merchandize, to accept the draft of the consignor, or to bind himself legally to pay the amount of proceeds to the holder.

If the intervenors are entitled to the proceeds, they have a right of action against the garnishees for their recovery. The original contract between consignor and consignee gave no right of action to the intervenors, for there is no stipulation in it, expressed or implied, in their favor. There is no subsequent contract between the garnishees and intervenors, in which the former obligated themselves to pay to the latter the proceeds of the merchandize. The intervenors are holders of the bill of exchange drawn by the consignor on the consignees, but on this they have no right of action, for the reason, that the holder of a bill of exchange cannot sue the drawee, on his . refusal to accept, for the funds on which it was drawn. Ohitty on Bills, p. 308. The intervenors, therefore, having no claim to the merchandize in the hands of the garnishees, at the date of the service of the attachment in this case, it was, consequently, the property of the defendants, subject to their control, and liable to be seized for the payment of their debts. Wilson v. Lizardi, 15 La., 258; Goodhue v. McClarty, 3 An., 58. The expression of a willingness on the part of the garnishees, that the holders of the draft should, receive the proceeds of the shipment, coupled with a refusal to create a legal obligation to pay them, was insufficient to give a right of action, or to create a legal tie, the essence of a perfect obligation. 0. 0., Art. 1750.

An account in the record shows the net sales of the property in the hands of the garnishees, to have been $999 21, and less than its estimation in their answers to interrogatories.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that there be judgment against defendants for $2262, with interest from judicial decree and with privilege on property attached ; and that the plaintiffs recover of the garnishees, Betterton & Co., the sum of nine hundred and ninety-nine dollars and twenty-one cents, the proceeds of the merchandize, and the further sum of two hundred and eighty-three dollars and twenty cents, the amount of debt acknowledged to be in part payment of said debt; and that appellees pay the costs of this appeal, and the petition of intervention be dismissed at the costs of the intervenors.