author: Slidem,, J.

text:
    Wilson et al. v. Churchman.
    A consignee, not a bond fide purchaser, and who has made no advances on the shipment, hut is the mere agent of a consignor who had attempted to defraud his vendor of the price of the merchandize, has no greater rights than the vendee, and cannot defeat the vendor's privilege, where the vendee could not.
    "Where, after the shipment of merchandize and the delivery of bills of lading to the shipper, the merchandize is sequestered at the suit of the vendor claiming a privilege for the price, and the master of the ship gives the consignee prompt notice of the sequestration, and, m the mean time, takes such steps in the case as will arrest the action of the court until the consignee can assert his rights, the master will be excused for not delivering the merchandize, and may recover from the plaintiff in the sequestration an indemnity for his trouble and loss in unloading the goods, &c. But where the master, as agent of the ship owners, bonds the property, after having been notified by the sequestration that the vendor had been defrauded, it will be his duty, on arriving at his port of destination, to inquire into the circumstances of the consignee's title; and if he has any doubt as to it, to protect himself by a bill calling upon the vendor, the consignor and consignee, to litigate their rights among themselves; or, to refuse to deliver the property, if satisfied that the consignee was a mere agent, and not a consignee for value. Where the master, in such a case, after bonding the property, offers no proof that he has delivered the merchandize, nor that it is not still in his possession, he will he responsible for its value; and where the sequestration is set aside foz* irregularity, and no recourse can be had upon the bond, a personal judgment will be rendered against him for that value.
    Though a bill of lading be a negotiable instrument, and import a title to the shipment in the holder, excusing him, as a general rule, from the necessity of proving that he has given any value for it, yet such proof is necessary where evidence has been offered to establish the want, or failure, or illegality of the consideration, or that the bill had been lost or stolen before it came into the possession of the holder. In this respect the exercise of the vendor’s privilege under our Code is similar to the common law right of stoppage in transitu» which can be defeated by the negotiation of the bill of lading only where the transferree has received it in good faith and for value.
    Where there was a want of due diligence on the part of one who applies for a new trial, and the evidence to introduce which it was prayed for was not discovered after the trial, and its character was such that the party was bound to know its materiality before the trial, and the affidavit does not disclose enough to make out a defence, a new trial will not be granted.
    Where a writ of sequestration lias been improperly issued, it cannot be aided by proof adduced at the trial on the merits, nor by admissions of fact contained in the subsequent pleadings, the observance of the requisites prescribed by law being in the nature of a condition precedent.
    An affidavit for a sequestration, which states that the defendant is indebted to the plaintiff “in about the sum of $4950,” and that the “deponent verily believes the defendant will dispose of the property, or send it out of the jurisdiction of this court,” not stating any specific sum as being due, nor the apprehension of tne party that the property will be removed during the pendency of the suit, is insufficient. Per Cm\ The word daring the pendency of the suit” may not be sacramental; but the necessity of the conservative process should substantially appeal*. Sequestrations, and other conservative remedies, by which the property of a party is wrested from his possession and taken into the custody of the law, before judgment, without notice, and upon the ex parte showing of the plaintiff, are extraordinary and rigorous, and hence the doctrine has been uniform that they are to be strictly construed, and that the requisites of the law must be observed upon pain of nullity.

      from the Fourth District Court of New Orleans, Strawbridge, J.

      Hunton and Micou for the plaintiffs.

      Lockett and Gootd, for the third opponents, appellants.
   The judgment of the court (Eustis, C. J. absent,) was pronounced by

Slidem,, J.

On the 5th of January, 1848, the plaintiffs made a cash sale to Churchman of a quantity of flour, which was delivered. Churchman shipped it on board a vessel commanded by Gilchrist, bound to Philadelphia. Churchman received, as shipper, a bill of lading in the usual form, for the delivery of the cargo, in Philadelphia, to Fleming, or his assigns. After this bill of lading was dispatched by mail to Philadelphia to the consignee, the plaintiffs commenced suit against Churchman, and seized the flour on shipboard at New Orleans, under a writ of sequestration and a claim of the vendor’s privilege. The sequestration was levied on the 10th January, and, on the 11th, Gilchrist, as agent of the ship owners, gave bond for the property, and was reinstated in its possession. On the 27th of January, Gilchrist filed a petition, by way of third opposition, in which he alleges himself to be master and part owner of the vessel. He states that the bill of lading had been given before the sequestration, and had been forwarded to the consignee; that the plaintiffs had made no offer to return the bill of lading; that he is bound to deliver the flour at Philadelphia to the consignee, or whoever may be the holder of the bill, and is entitled to the possession and custody of the properly, in preference to the plaintiffs.

The cause came to trial, as between the plaintiffs and the third opponent, on the 28th February, 1848. No application was made for a continuance. The execution of the bill of lading, and its being mailed to Fleming's address before the levy of the sequestration, were proved. The plaintiffs proved the sale of the flour, Churchman’s failure to pay, and that he was in failing circumstances.

We will not undertake to enter into a general discussion of the rights and duties of shipmasters, consignors, and consignees, but will confine our opinion to the rights and duties of the parties litigant, under the peculiar- circumstances presented by the record.

It is certain that the plaintiffs’ goods are gone, without their having received any equivalent for them. It is also certain that, if the Philadelphia consignee was neither a bona fide purchaser nor advancer, but was the mere agent of the consignor, who has attempted to defraud his vendor, the consignee would have no greater right to defeat the vendor’s privilege than the vendee himself would have had.

The vendors took the risk of the consignee’s being neither a bond fide purchaser nor advancer, and caused the goods to be sequestered. The allegations of the petition gave the captain full notice that the plaintiffs had been defrauded; and the judicial process would have excused the captain to the consignee for not delivering the goods, provided he gave the consignee prompt notice of the sequestration, and took, in the mean while, such conservative steps in the cause as would arrest the action of the court until the consignee could come in and assert his rights. Unquestionably the court would have given time for that purpose upon a proper application, and would also have indemnified.the captain, at the plaintiffs’ expense, for his trouble and loss in unlading the goods, &c. But the captain undertakes to bond the goods, and to carry them to Philadelphia. We are not prepared to say that he had not a right to take this course. It is unnecessary to determine that point. But if he had, the question is, what he should have done when he arrived there 1 With full notice that the plaintiff ha'd been defrau’diid, it was his duty to inquire into the circumstances of the consignee’s title and rights. If he had doubts as to those rights, he might probably have been permitted to protect himself by a bill of interpleader, calling upon the plaintiffs, the consignor and consignee to litigate inter se. Or he could have refused to deliver the goods, if satisfied upon inquiry that the consignee was a mere agent, and not a consignee for value. But the captain has not thought proper to show that he took any precaution whatever; or even that he has delivered the goods at all. Non constat, that they are not still in his possession. At any rate, if he has delivered the goods to the consignee, he has not offered any evidence whatever to show that the consignee was rightfully entitled to receive them, as against the plaintiffs.

Under these circumstances, we think that the case is with the plaintiffs; and that the captain has no right to rely upon the naked fact that, he had signed and issued a bill of lading.

It is said that a bill of lading is a negotiable instrument, and imports a title to the goods in the holder of it. But must this be taken without qualification ? A bill of exchange is a negotiable instrument, and the holder is prima, facie a holder for value. He is not bound to establish that he has given any value for it,- until the other party has established the want, or failure, or illegality of the consideration; or that the bill had been lost or stolen before it came into the possession of the holder. It is then incumbent on him to show that he has given value; for, under such circumstances, if he has not given value he ought not to be placed in a better situation than the antecedent parties through whom he obtained the bill. See Story on Bills, § 193.

So in the case of a bill of lading. The plaintiff having established his claim as vendor, the bad faith of the vendee, and a clear right to the vendor’s privilege if Churchman’s interest had not been divested in favor of Fleming for value given bona, fide, Fleming, in a contest with the plaintiff, would have been driven to show the nature and circumstances of his interest.

By what right can the captain undertake Fleming’s case, and claim to stand in a better position ? His argument for withholding the goods from the plaintiffs is, thathe has signed a written promise to deliver them to Fleming; but, if Fleming was in bad faith, or was a mere agent, he could not have succeeded in doing what the captain insists upon doing for him.

It is very true that the right of stoppage in transitu, under the law merchant, which bears, in some respects, a strong analogy to the exercise of the vendor’s privilege under our Code, is defeated by the negotiation of the bill of lading. But this rule must be understood with this qualification, that the transferee has received it in good faith and for value.

In Cumings v. Brown, Lord Ellenborough said that, if the assignee of the bill of lading knew that the consignee was in insolvent circumstances, and that no bill had been accepted by him for the price of the goods, or that, being accepted, it was not likely to be paid, in that case the interposition of himself between the .consignor and consignee, in order to assist the latter to disappoint the just rights .and expectations of the former, would be an act done in fraud of the consignor’s right to stop in transitu, and would therefore be unavailable to the party taking the bill of lading under such circumstances, and for such purpose. He recognized, as the true criterion, that suggested by Mr. Justice Buller—does the purchaser take it fairly and honestly? See also Eden on Bankruptcy, 313 et seq. See Lickbarrow v. Mason, Smith’s Leading Cases, 507. Cumming v. Brown, 9 East, 514. In re Wisbyinthus, 5 B. and Ad. 817. 3 Kent’s Com. 216. Abbott on Shipping, 514 et seq.

The court below gave judgment dismissing Gilchrist’s opposition, and a motion was made by him for a new trial, which he accompanied by affidavit that he arrived at the port of New Orleans, on his return from Philadelphia, a few hours after the trial of the cause; that he could prove by a witness at Philadelphia, that he had delivered the flour to Fleming, who had received the bill of lading in due course of mail, and accepted bills to the amount of $3000 ; that he had not discovered the materiality of this testimony until after his arrival here, and had no representative here who knew the facts. The affidavit referred to a certificate by the proposed witness, who states that he was in the employ of Fleming; that the letter enclosing the bill of.lading was received in due course of mail, and that Fleming accepted drafts for $3000, drawn against the shipment. The new trial was refused.

We cannot with propriety interfere with the ruling of the court below, nor say that the discretion which the law confers with regard to new trials, was improperly exercised. There was a want of due diligence. The testimony itself was not discovered after the trial. Its materiality the party was bound to know before he went to trial, and he might have asked a continuance. Besides, the affidavit does not disclose enough to make out a defence. It is not stated when Fleming made-the advances, nor that they were made in good faith and before notice. Non constat, that the consignee involved himself before Gilchrist arrived at Philadelphia with the goods. It would be a very dangerous precedent to reverse a judgment and remand a cause for new trial on so loose a showing. There may be hardship in this case; but if there be, it must be attributed to the party’s want of diligence and caution. We cannot break down well settled and wholesome rules of practice, in order to reach the supposed hardship of a particular case. It is proper also to observe that the third opponent, on his part, has held the plaintiff to strict practice.

It remains only to consider the correctness of the refusal of the District Court to set aside the sequestration.

For the purposes of this inquiry it is necessary to lay out of view the subsequent testimony in this cause, and to look only to the proceedings which preceded the levy of the writ. If the writ improperly issued, it cannot be aided by the proof adduced- at the trial on the merits, nor even by the admissions of fact contained in the subsequent pleadings, the observance of the requisites prescribed by law being in the nature of a condition precedent. It is proper to add that there was-no implied waiver of irregularities, the rule to set aside having been taken in limine litis.

The- grounds of the rule were that the affidavit is insufficient, the party not swearing to any specific sum as being due, nor to his apprehension that the property would be removed during the pendency of the suit. The affidavit is1 in the following words:

George W. Wilson, one of the firm of Wilson 8f Gleason, merchants, trading and residing in the city of N ew Orleans, being duly sworn, deposes and says that Samuel Churchman, merchant, trading and residing in the city of New Orleans, is-justly and truly indebted to the said firm of Wilson Gleason in about the sum of forty- nine hundred and fifty dollars, for this, to wit: On the 6th day of January, 1848, Wilson Gleason sold to the said Samuel Churchman, through his broker, about nine hundred barrels of flour, at five dollars and fifty cents per barrel; the said flour so sold has been delivered, and payment for the same has not been made. Wherefore deponent prays, in consideration of lien or privilege, that the said Wilson Gleason have as vendors of the property sold, that a writ of sequestration issue, and the said flour so sold be sequestered, as deponent vefity believes the said Churchman will dispose of the same, or send it out of the jurisdiction of this court.”

It will be observed that, the amount sworn to is not a sum certain, and that the necessity of a sequestration for the protection of the parties privilege, is not clearly deducible from the language used. It was correctly said in Sellick v. Kelly, 11 Rob. 149, that it is not the mere existence of a privilege that gives the right of sequestering property; there must be also a well founded apprehension that the party will be deprived of its exercise, unless aided by the process of the court. If there is not danger that the property will be removed before the party can have the benefit of his privilege, the writ ought not to issue, and the existence of this danger should appear from the affidavit. We are not prepared to say, that the party should in this particular case, have sworn totidem verbis, that he feared the property would be disposed of, or removed, “during the pendency of the suit.” Those expressions may not be sacramental under the Code and statutes in this particular case, but the necessity of the conservative process should substantially appear. The affidavit does notsay when Churchman will dispose of the property, or send it out of the jurisdiction of the court. The affidavit would be consistent with truth, even if, at the time, the plaintiff was convinced that the property would not be disposed of, or sent away, before a judgment could be obtained and a fieri facias issued. Nor is this uncertainly-cured, but, on the contrary, it is increased, by considering the context of the affidavit. Non constat, that the price was due, or even if due, that it had never-been demanded. The whole showing is loose and uncertain.

Sequestrations and other conservative remedies by which the property of a party is wrested from his possession, and taken into the custody of the law, before judgment, without notice, and upon the ex parte showing of the plaintiff, are extraordinary, and rigorous, and hence the doctrine has been uniform, that they are to be strictly construed, and that the requisites of the law must be observed on pain of nullity. Graham v. Burckhalter, 2 Annual 415. Bres v. Booth, 1 Annual, 308. Friedlander v. Myers, 2 Annual, 920. Sellick v. Riley, 11 Rob. 158. Lacey v. Kenley, 3 La. 18.

As we deem it our duty to set aside the sequestration, and the plaintiffs are thus deprived of a recourse upon the bond, it is necessary to make provision for a personal recourse upon the third opponent, and we shall do so, by remanding the cause for the purpose of ascertaining the value of the flour at the date of the bonding, and for the rendition of a judgment accordingly against the third opponent.

It is therefore decreed that, the judgment dismissing the opposition of Gilchrist be affirmed. It is further decreed that, the judgment on the rule to set aside the sequestration be reversed, and that the said sequestration be set aside; the costs of the sequestration, of said rule, and of this appeal, to be paid by the plaintiffs. It is further decreed that, this cause be remanded for the sole purpose of ascertaining the value of the flour sequestered at the date of the bonding thereof by said Gilchrist, and of rendering judgment for such value, in favor of said plaintiffs, against said Gilchrist, with interest from the date of such bonding and costs, subject to credit for such portion of the price of said flour as the said plaintiffs may have received from Churchman.


source: Caselaw Access Project

author: Existís, C. J.

license: Public Domain

text:
    Hartwell v. Walker.
    Where an agent, authorized to purchase grain for his principal, contracts with a third person to take “ all the grain he could deliver within a certain time,” the contract will not be binding on the principal. Per Cw! The agent undertook to bind his principal for the purchase of grain, but the other party did not bind himself to sell any. Principals may make what contracts they choose; but the power to make a contract of this sort cannot be deduced from any general authority.
    from the Third District Court of New Orleans, Kennedy, J.

      Micou, for the plaintiff.

      Chymes, Elmore and King, for the appellant.
   The judgment of the court was pronounced by

Existís, C. J.

The plaintiff, who resides in Cincinnati, sues the defendant, who is a merchant in the city of New Orleans, for the sum of seven thousand three hundred and twenty nine dollars. The cause of action alleged is, that the plaintiff, in April, 1847, entered into a certain contract or contracts with the defendant, represented by his agents, by which the defendant agreed to purchase from the plaintiff certain large quantities of oats, at the price of fifty and fifty three cents a bushel, beside the charges from Cincinnati, where the contract was made, to New Orleans ; that the defendant agreed to pay for said oats in cash on demand, or by the acceptance and payment of drafts drawn on him, for the price thereof, by his said agents. The plaintiff' charges that, under his contract he made several shipments of oats to the defendant, which were paid for in cash by his agents in Cincinnati, or by bills on New Orleans; but that, in consequence of the fall in the market value of oats, and for no other reason he, the defendant, refused to receive and pay for certain other shipments made by him, the plaintiff, under the contract; that under an agreement made between him and the defendant, a portion of these shipments were received by the latter, at the current market price, without prejudice to the ulterior claims of the plaintiff; that other shipments arriving the defendant refused absolutely to receive them, and they were sold at auction, after due notice and advertisement, on his account, at a considerable loss. For the deficit on these operations, and.the loss, charges and damages incident thereto, this action was brought.

The general issue is pleaded by the defendant, and the plaintiff is expressly charged in the answer, with having combined with one of his agents, for the purpose of defrauding him. The plaintiff' had judgment in the District Court for the sum of six thousand two hundred and thirty seven dollars and sixty seven cents, with interest, and the defendant has appealed.

The manner in which tire cause has been presented to us by counsel, limits our enquiry to the operations under one single contract, and, if they are excluded from the general account between the parties, the balance will be in favor of the defendant. This contract was made with the plaintiff by John G. Wasson, the agent ol' the defendant, on or about the 19th April, 1847, and we give it in the language of Wasson, who was examined as a witness; “ The contract was that the witness would take from Mr. Hartwell all the oats he could deliver between that date and the 1st of June, 1847, at fifty three cents per bushel, delivered in Cincinnati. In pursuance of this contract of about the 19th of April, the oats were delivered by Mr. Hartwell in quantities, and at the rates specified in the accounts marked A.”

The plaintiff recovered in the District Court on the ground that, Wasson was the general agent of the defendant, he having been sent to the western country for the purpose of making large purchases of grain and horses, which the defendant was selling for the use of the army in Mexico; and it is contended by the counsel for the plaintiff that this contract was ratified by Davenport, the principal agent of the defendant in the west.

Conceding that Wasson and Davenport had full power from the defendant to contract for the sale and delivery of oats with the plaintiff', it is evident that the contract made by Wasson did not secure to the defendant a single bushel of oatsWasson undertook to bind his principal for the purchase of oats, but Hartwell, the plaintiff, did not bind himself to sell any. Hartwell, by this agreement, had the range of the market, at a time when the article was peculiarly liable to fluctuation in value, for the space of six weeks; if it fell in value, any quantity— all the oats he could deliver—could be put upon the defendant at fifty three cents a bushel; and if it rose, the defendant could have no benefit from the agreement-Principals can make what contracts they choose; but we do not understand, how the power to make a contract of this kind, on the part of an agent, can be deduced from any general authority. Story on Agency, nos. 21, 62, 68. The defendant certainly gave his agents no authority to bind him to this extent.

Under this view of the subject it is unnecessary to enquire whether Wasson, in his contracts for oats, exceeded the limits of prices prescribed by the defendant, or to examine the other questions raised by counsel on the argument of the-cause.

The judgment of the District Court is therefore reversed, and judgment rendered for the defendant, with costs in both courts.


author: Rost, J.

text:
    Terry v. Hennen.
    An entry, and payment of the price, of a portion of the public landa subject to entryrdoes noir divesvjt the title of the United States; the title is not divested until a patent has been issued. The purchaser acquires only an equitable title, subject to the discretion of Congress ; but such a title is sufficient to sustain a petitory action.
    The payment of the price of public lands of the United States, entered without warrant of law, can in no manner affect the rights of the government. No equitable title vests in the purchaser, whose only claim is for the return of the money paid by him.
    The constitution of the United States vests in Congress the exclusive power to dispose of,- and make all needful rules and regulations in relation to, the public lands. The State courts have no authority to interfere with the primary disposal of the soil. That power rests exclusively with the general government, which has from the beginning acted upon it by legislation, through boards of commissioners, receivers, and registers, under the final supervision of the secretary of the treasury; and the decisions of that officer, made within the juris* diction vested in him, cannot be reviewed by us.
    The sale of a thing belonging to another is null.
    The rightful owner of receipts, given by the the receiver of public monies, for the price of public lands sold without warrant of law in the Greenburg land district in this State,» must be considered as the person meant by the word “ grantee ” in sec. 1 of the act of’ Congress of the 29th August, 1842, providing for the refunding, undeT certain circumstances, of money paid for public lands in that district; nor will a sale, by authentic act duly recorded, of the lands, which does not transfer the receipts, or make any mention of them, nor the execution of an act under private signature, purporting tobe a transfer of the lands to a person with whose money the transferrer acknowledges in the act that he purchased them, amount to such a transfer of the receipts as will entitle the vendee or the furnisher of money to claim the amount of the receipts from the treasury. Per Cur: In the transfer of debts to a third person, the delivery takes place between the transferrer and the transferree, by the giving of the title. C. 0. 2612. The titles in this case are the receipts; and by “ grantee” the act of 1842 means the owner of them.
    Without an assignment, or proof oí actual delivery, the possession of the receipts given by a receiver of public moneys for the price of public lands, will give the holder no better title to them than he would have to a promissory note payable to the order of the purchaser of the lands, held by him without endorsement or proof of transfer and delivery. Art. 2612 C C. supposes that when the title is not transferable by delivery, and does not bear upon its face evidence of the lawful possession of the holder, proof of the delivery must be made.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Hoffman, for the plaintiff'.
    Halsey, on the same side.
    Defendant founds his pretensions on a document purporting to be a transfer of the lands from Lea to him, in which Lea states that he had entered them with the money of the defendant; and upon a receipt signed by Lea, dated March 1836, for $900, to be used in entering lands for the defendant. The plaintiff objected to the introduction of these documents, on the ground that they were “ acts under private signature, and inadmissible as evidence against the plaintiff.” As evidence of a sale, the act of transfer was inadmissible. C. C. 2417. As evidence that the lands were entered with defendant’s money, and that Lea received the sum of $900 for that purpose, the act of transfer and the receipt would have been inadmissible, had they been authentic acts ; as private acts, besides that objection, they were subject to this, that they had no date as against the plaintiff, except from the day of their production in court. The sale to the plaintiff was prior to that to the defendant. It was recorded in July, 1837; thatto the defendant was not recorded until 1845. 7 N. S. 662.
    The defendant’s evidence, if admissible, proves that Lea entered the lands in his own name. If he bought them with the defendant’s money, and intended them for the defendant, the defendant had perhaps an action against him for a title. Butthe title was in Lea, and he could convey the lands to any one. The plaintiff purchased them, and in good faith. The title is in him, and he is not affected by the equities existing between Lea and the defendant. The plaintiff is Lea’s grantee, and the claim belongs to him. This is the express provision of the act. It is obvious from the proceedings before the départment at Washington, that the only question at the time the parties were referred to a court, respected the title to the lands. The department could not determine which of the patties was the grantee. The decision of this question is conclusive of the dispute, for the claim does not exist except by the act of 1842, which gives it to the grantee.
    But the defendant, knowing that he had no right to the lands, and could not claim the return of their price as grantee of Lea, alleged that no title passed from the United States to Lea, that there was no purchase by the entry, and therefore the payment of the price was a mere deposit of so much money, for which the United States are responsible to him, as owner of the money deposited.
    It is certainly not essential that a title should have passed to Lea by the entry, and from Lea to the plaintiff by the act of sale. The act of 1842 gives the claim to the person who entered the lands, or his grantee. The plaintiff and the defendant axe both grantees in name, but the priority of the plaintiff’s purchase gives him an equitable preference to the defendant. Supplement, P.
    Butthe position assumed by the defendant, that no title passed by the entry is untenable. There is nothing in the act to the contrary. Congress authorized the return of the price of lands in the district, not because no sale had been made, but because the surveys were erroneous and imperfect; because the lands were incorrectly located, the actual locations either conflicting with prior claims, or the proper locations so conflicting or differing from those exhibited to the purchasers at the time of entry. There isnothing in the act of 1842, that implies that the lands had not been sold. The implication is rather, that the lands had been sold, and the treasury department have so considered, since they have required in every instance of an application under the act, a certificate that there was no mortgage on the land of the applicant, or conveyance of it from him.
    It being certain that the pnblic lands of the district were subject to purchase, the entry by Lea at the land office was a purchase from the United States, and, unless these lands were covered by a prior claim or reserved, vested a title to them in Lea. Beaumont v. Covington, 2 Rob, 190. Carroll v. Safford, 3 Howard, 450-61.
    Let us examine the defendant’s pretensions, without reference to the act of 1842, and as if the United States were responsible as an individual. "We cannot, for the rsason that there was not a valid sale of the lands, consider the money a deposit. It was not left and received in trust, but paid. Admit that the sale was not valid, the transaction was not the less a sale. ' If so, the right to the return of the price arises from the failure to convey the lands, for which the price was paid. If Lea, the purchaser, held the lands, the legal right to demand the price would be in him; but a court of equity, on proof of Lea's fraud, would give the price to the defendant. But Lea has sold to the plaintiff, and as the price is due only in consideration of the loss of the land, it is not due to Lea until the plaintiff has called on him to refund the price between them, and so returned the loss of the land upon Lea. If Lea has no claim, the defendant, whose claim is an equitable preference to Lea, has none, unless its cause exists against the plaintiff; that is, unless the plaintiff was a party to Lea’s fraud.
    Let us now suppose that the United States, being owners of the lands, offer to return to the plaintiff, Lea’s grantee, the price paid by Lea, and that the plaintiff accepts the compromise. Lea and the defendant have no right to the price; and therefore neither of them can prevent this compromise between the United States and the plaintiff. The act of 1842 was such an olieron the part of the U nited States, and the application of the plaintiff for the price an acceptance of the offer. The defendant had no right to interfere and- oppose the payment of the money to the plaintiff.

      Grymes, for the appellant.

      L>, N. Hennen, appellant, pro se.

    I. The claim of the plaintiff to the land certificates in defendant’s possession, being founded on a notarial act of sale from Lea of the lands therein embraced, while the defendant’s possession and property therein is justified by the evidence on record that the entries were made by Lea for his use and with his money, the question whether lands form the subject matter of consideration, or money held in trust and represented by these certificates must be decided by the laws of the United States. The constitution of the United States, art. 4, § 3, vests in Congress the exclusive power of disposing of, and making all needful rules and regulations in relation to, the public lands. The ordinance of July 13, 1787, 1 Land Laws, pp. 23,187, prohibits the States from making laws interfering in any manner with the primary disposal of the soil by the United Stales. Land can only become subject to the operation of the laws of a State, on being separated from the public domain, and divested from the United States by a patent. Wilcox v. Jackson, 13 Peters, 516, 517. Jourdan v. Barrett, 4 Howard, 184.
    II. The application by Lea for the entry and purchase of the lands in the certificates claimed, conferred no legal or equitable title on him to said lands. The legal title is conveyed by the patent alone. Wilcox v. Jackson, 13 Peters, 498. Stringer v. Young,3 Peters, 320-344. Broadmanv. Lessees of Heed and Ford, 6 Peters, 328-342. Bagnal v. Broderick, 13 Peters, 436-450. Brush v. Ware, 13 Peters, 93, 107, 108. The applicant for entry and purchase acquires at best an equitable title. As such, the holders of land certificates have been considered as having such an interest as would enable them to bring a petitory or possessory action. Metoyex’s case, 6 Robinson, 140. Guidry v. Grivot, 19 La. Beaumont v. Covington, 2 Rob. 190. Boatner v. Fentress, 8 N. S. 653. Upon an analogous principle, this action may be maintained against a trespasser by one who has but a colorable title. Terrell v. Chambers, 12 La. 578.

      Lea,-in the words of the law, Gordon’s Digest, § 1574, was in the situation of “any person who may apply for the purchase,” &c. The paymentof the money made the United States holder of the land in trust for Lea, the equitable owner. But this is not absolutely, unqualifiedly, and universally true, as the Supreme Court of the United States intimate in the case of Carroll v. Safford, 3 Howard, 450-461.
    Arid this brings us to the question of fact in this case. Were the lands referred to subject, by authority of law, to entry and purchase? The law of August 29, 1842, and the plaintiff’s action based upon that law, is decisive of this point. The act declares “the United States cannot issue patents therefor.” To say thatthe applicants for lands in that district cannot receive titles (patents) from the United States, is equivalent to this, viz: that they have no equitable title to the lands, for he is an equitable owner who “ has entered into a valid contractfor the purchase of land.” 2 Story’s Equity, § 790. Legal and equitable titles are co-relative terms; to deny the right to the first is to settle the condition and character ofthe latter. Non constat, that the lands in question have been surveyed and approved as required by law (2 Land Laws, 890)—that they are not within the reservations for french and Spanish claims, referred to in the second section, prohibited from being offered by 1 Land Laws, 184. The refusal to grant patents is the best evidence to show that acts of officers were illegaland unauthorized by law. Pepper v. Dunlap, 9 Robinson, 288. The granting a patent is not a matter of caprice: where the laws of the United States authorize it, the patent follows as a matter of course. 2 L. Laws, Opinions, p.-. On the other hand, it is not a mere ministerial act, which the President of the United States is bound to comply with and sign, though aware that thereby he violates his oath to support the constitution and laws. 2 L. Laws, Opinions, p. 26. In the present case, the proceedings of the St. Helena land office are an absolute nullity. Vide analogous case, 2 Land Laws, p. 39, Wirt’s opinion.
    III. The receipt of the money by the officers of the St. Helena land district, created a trust on their part to hold the same to the use of the party to whom it belonged. The evidence shews that the defendant’s money was employed in the entry. The certificates or evidence of payment, come under the head of personalty ; they are essentially choses in action. The plaintiff shows no assignment of them; he is without possession and without title.
    IV. The subrogation of warranty granted by Lea, in his sale ofthe lands to Terry, gave him no title. No contract of sale had intervened between Lea and the United States, for the want of authority on the part of the officers of the land district to give consent—the essential element of a sale in behalf of the government. The principal contract not existing, the accessory (warranty) cannot be inferred. Lea had no obligation on behalf of the United States to which he could subrogate Terry, and the latter acquired nothing thereby. Warranty has a fixed and determined signification under the laws of Louisiana. It is quite distinct from the claim which a cestui que trust has upon his trustee for the payment of money. The laws of Louisiana recognize a privilege on behalf of the vendor, but none on behalf of a vendee to pursue trust funds or any other funds, on a failure of consideration or title. Warranty itself, is a personal obligation, and would not pass from the vendee to his vendee, unless by special subrogation. IN. S. 352. 6N. S. 321. Smith v. Wilson, 11 Robinson. By parity of reason, the claim against the officers should -have been specially transferred, which is not even referred to in plaintiff’s title of May 26, 1837. It did not run with the land, with which it had no connection. The subrogation of Lea, was an undertaking on his part that the United States would guaranty the title. The plaintiff has his recourse, in case of eviction, against Lea, but no claim against this fund. It would be carrying construction to the very verge of the law to say, “ut res magis váleat'quam pereat,” that the subrogation of warranty must be considered as an assignment of the claim. Acts not valid in one form, may have effect if they unite the requisites of some other; but it would be treating form and substance as alike, to say that where a contract fails to take effect on one subject matter, it must, on a principle of compensation, take hold of some other.
    V. The acts of the officers of that land district being void, as done without authority and contrary to the dispositions of law, and. so far as the political corporation the of United States are concerned, res inter alios acta, the claim thus assigned existed against the officer who received the money. It is clear that no act of an officer of the United States can bind the interests of the public, unless done within the scope of his official duty, and by authority of law. 7 Crunch, 306. No evidence is found in the record of any notice of assignment, without which, as regards defendant, a third person, it is of no effect. L. C. art. 2613. By the payment of the money into the treasury, the United States did not become the debtor. The rule which holds in individual transactions, does not, in consequence of the extent and intricacy of the affaii-s of the public offices, hold as regards the United States. They are not imputable with the acts, measures, or laches of their agents, nor chargeable with notice, &c. 7 Crunch, 366. They occupy the position of an involuntary stake-holder, ordering, by the act of ’42, the treasury to be voided of money received without warrant or authority of law. If they could be considered the debtor, the provisions of art. 2613 would not apply to them; that, and the other provisions of the Code, applying to legal obligations that may be enforced by suit. No suit can be instituted against the United States. The possession of the title to this incorporeal debt, (in defendant) is the only mode of transfer.
    VI. The sale from Lea to Terry, if it could be considered as an assignment of the certificates, does not comply with the requirements of the circular’ of the land office, the lands not being designated by township, range, and section. 2 Land Laws.
    VII. The sale from Lea to Terry, before the parish judge of St. Tammany, but registered in St. Helena, contains the following description. “ A certain tract, or parcel of ground, at or near the mouth of Terry’s creek, in the parish of St. Helena in this State, containing 700 acres, be the same more or less, which the said seller declares he acquired by purchase from the government of the United States.” The registry of this act was no notice, and can have “no effect” against third persons. Act of 1810, p. 596, § 36, Bullard and Curry. Act of March 20, 1827, 2 Moreau’s Dig. 302, § 2. ITyde v. Bennett, 2 Annual, 800. Jartroux v. Dupeire, lb. 610. Lacourv. Currie, lb. 791. One of the objects of the registry law, is to protect the innocent purchaser from the fraud of the ostensible owner’s making a second sale. The registry is made the legal repository of notice. This court has had occasion in the cases cited, and in that of Shepherd v. O. C. Press Co., to administer wholesome admonition upon the necessity of complying strictly with the law of notice so as to charge the interests of third persons. It is obvious that it would be destructive of the policy of the laws relating to registry, to require that defendant should be compelled to have visited and to have ferreted the land office at Greensburg, for the purpose of ascertaining whether lands registered at St. Helena, as conveyed under the description “situated at, or near- the mouth of Terry’s creek &c.,” were the same called for by certificates, having reference not to natural boundaries, but to land surveys, by base, meridian, and sectional lines.
    VIII. Independently of all these considerations, the plaintiff cannot recover the certificates, because by leaving those certificates in the possession of Lea at and after the time of the alleged sale, he enabled his vendor to act as owner, and thereby prejudice a third party. The principle is well settled by courts of equity, that although the plaintiff may have a right to the assistance of the court to assert his title, yet if the defendant has an equal claim to the protection of a court of equity, the court will not interpose on either side, according to the maxim In cequali jure mélior est conditio possidentis. Mitford Eq. Pleadings, 274. 1 Fonblanque, Equity, B. 1, ch. 4, § 25. 1 Madd. Ch. P’s. 170, 171. The case of Head v. Egerton, 3 Peere Williams, p. 281, seems to be strictly analogous to the present case. See also Bernard v. Drought, 1 Molloy, 38, reported in 16 English Chancery Reports.

      Halsey, in reply:
    The defendant claims as owner of the certificates, and cited authority to show that they were assignable. An assignment in express terms is essential. I refer to the authority cited by the defendant. The court referred to art C. C. 2612. “ In the transfer of debts, rights or claims to a third person, the delivery takes place between the transferrer and the transferee by the giving of the title.” If the certificates are receipts for money paid, they are not the title to the claim for the money. A note is a title, it expresses the obligation to pay; a receipt is not, for the obligation to pay is not expressed in it, but implied. The title is the cause of action; and the title mentioned in the article is the evidence of the cause of action and must express it. The defendant does not own the receipts by mere possession. The plaintiff does not hold them; and though, under the Code, the delivery of them would be essential, it is not under the act of 1842, which gives the claim to the grantee of the land, without requiring the transfer of the certificate. The defendant argued, that Terry is in fault for having permitted Lea to retain the certificates, and so given him an opportunity, as the possessor, to defraud the defendant. The court has remarked that the defendant did not pay Lea for the lands after the plaintiff had purchased them, but had advanced the money long before. Terry recorded his title. But if, as the defendant alleges, Lea was already insolvent, we cannot presume that he suffered any damage by not suing Lea for the money.
   Tne judgment of the court (King, J. absent,) was pronounced by

Rost, J.

On the 19th March, 1836, Franklin W. Lea entered certain lands in the parish of St. Helena, at the land office for the Greensburg land district. Lea paid for the land, and’ received from the land office two receipts for the price, numbered 450, 451. On the 26th of May, 1837, Lea sold these and other lands to the plaintiff, by an authentic act, which was recorded in the parish of St. Helena, on the 10th of July, 1837, without transferring the receipts, or making any mentino of them. In 1842, Congress passed an act, the first section of which provides: “That, in all cases where lands shall have been entered at the land office in the Greensburg, late St. Helena, land district, in the State of Louisiana, where the United States cannot issue patents therefor, owing to the errors and imperfections of the public surveys, or to conflicting claims, it shall be lawful for the person having made such entries, or his or her heirs or legal representatives, or grantees, or their heirs or legal representatives, who may be legally and equitably entitled to the same, after a demand of the patent, and a refusal to issue the same, to surrender his or her certificate of purchase to the secretary of the treasury to be cancelled ; and, upon such surrender, it shall be the duty of the secretary of the treasury to refund, without interest, the purchase money for such lands to the person entitled to the same, out of any money in the treasury not otherwise appropriated.”

In 1844, the plaintiff, considering himself the grantee of Lea, applied to the treasury department for the return of the price paid by Lea, under this act of 'Congress. His claim was approved, but, before the money was paid to him, the defendant made opposition, alleging, as he now alleges, that the lands were purchased by Lea with his money, and for him. The defendant founds this pretension on a document under private signature, posterior in date to the title of the plaintiff, purporting to be a transfer of these lands from Lea to him, in which Lea states that he had entered them with the money of the defendant; and upon a receipt signed by Lea, and dated 10th March, 1836, for $900, to be used in entering lands lor the defendant. The secretary of the treasury being unable to determine to whom the claim belonged, referred the parties to the State courts. In conformity with this decision, the present action was commenced.

The plaintiff asks the delivery of the receiver’s receipts, alleged to be in the defendant’s possession, or $469 37, the value of those receipts. He also claims-damages. There was judgment in his favor in the District Court, and the defendant appealed.

We consider it as undeniable that the application of Lea for the entry and purchase of the land, which has given rise to this controversy, and the payment o-f the price by him, would not have divested the United States of the title, even-if the land had been subject to entry ; and that Lea would only have acquired-an equitable title, which although sufficient to maintain a petitory action, remained within the discretion of Congress, until a patent issued. Lefebvre v. Comeau, 11 La. 321. Stark v. Orillon, 13 La. 56. Guidry v. Woods, 19 La. 334. Lott et al. v. Prudhomme et al. 3 Rob. 141. Metoyer v. Larenaudière, 6 Rob. 139. Wilcox v. Jackson, 13 Peters 498.

We believe it to be equally true that, if the entry was made without warrant of law, the rights of the public were in no manner affected by it—that no equitatable title vested in Lea; and the only claim of his grantees, in this case, is for the return of the money paid by him to the receiver, and placed by the latter in the national treasury. Guidry v. Woods, 19 La. 339. Carroll v. Stafford, 3 Howard 450.

Under this view of the law, it becomes material to enquire whether the land applied for was subject to entry and purchase.

Judge Woodruff testifies that the treasury department has refused to grant patents for the lands entered in the St. Helena land district, and referred to in the pleadings, upon the ground that the acts of the officers at the St. Helena land office were unauthorized and illegal, and that no authority had been granted by law for the disposal and sale of said lands; that the President proclaimed the sale of those lands, but that the act of Congress, under which it was proclaimed, did not embrace that district. The counsel for the plaintiff alleges error in this decision of the secretary of the treasury, and insists that we should disregard it.

The constitution of the United States vests in Congress the exclusive power of disposing of, and making all needful rules and regulations, in relation to, the public lancjs. We have no authority to interfere with the primary disposal of the soil. The matter rests exclusively with the general government, which has, from the beginning, acted upon it by legislation, through boards of commissioners, receivers and registers, under the final supervision of the secretary of the treasury. The decisions of that officer, made within the jurisdiction vested in him, cannot be reviewed by us.

But it seems to us moreover, that the application of the plaintiff to be refunded the sum paid, is an acquiescence on his part in the decision. Upon his application, the comptroller of the treasury wrote to him as follows: “On the 15th of October, 1844, the first auditor of the treasury reported to this, office, in persuance of the act of Congress of the 29th of August, 1842, the sum of $819 37 for a payment to you, as assignee of Franklin W. Lea, for lands erroneously sold to the said Lea, at the land office at St. Helena, per receiver’s receipts, nos. 450, 451, 452.”

After this application, and the action of the treasury department upon it, the plaintiff is estopped from alleging that he acquired an equitable title to the land, and that he United States held it in trust for him. The right of ownership of the United States was no more affected by the illegal acts of their agents, than it would have been if any other person not connected with the land office had attempted to dispose of the land.

The claim being merely for a sum of money, our next inquiry must be whether either of the parties to this suit is the grantee of Lea, within the meaning of the act of Congress.

The plaintiff contends: 1st. That the subrogation of warranty, in the sale from Lea to him, gives him the right to claim the certificates from the defendant, and to receive their amount from the United States. 2d. That by the payment of the money in the treasury, the United States became the debtors of Lea, and the debt was transferred to the plaintiff before the United States had been notified of the alleged transfer to the defendant. 3d. That the transfer to the defendant is under private signature, and has no date against the plaintiff.

The sale from Lea to the plaintiff was the sale of a thing belonging to another, and therefore null. The subrogation of warranty stipulated could not affect the United States as vendors, because they had not sold. That subrogation was upon a contract which did not exist, and can produce no legal effects.

It appears to us that the United States cannot be considered as debtors of Lea, in the ordinary sense, on account of the money paid by him to the receiver, and placed by the latter in the treasury; but, if they should be, the plaintiff has not shown a legal transfer of the certificates. In the transfer of debts to a third person, the delivery takes place between the transferer and the transferee by the giving of the title. C. C. 2612. The titles in this case are undoubtedly the certificates; and, we cannot understand the act of 1842 otherwise than as meaning, by grantee, the rightful owner of them.

The plaintiff having failed to show his right to the certificates, his petition must be dismissed. But this decision is not to be understood as recognizing the claim of the defendant to the fund in the treasury. The private act under which he claims is, like the title of the plaintiff, a mere transfer of land. It seems 'to be admitted thathé holds the certificates, which it is the object of this suitto recover from him. But he has failed to produce them in court, and to show that they were either assigned or actually delivered to him by Lea, Who is admitted to have died in 1838. These are facts which it was in the power of the defendant to prove, if they existed; and we are bound to presume that they did not. Without an assignment, or proof of actual delivery, the possession of the certificates, if shown, would give him no better title to them than he would have to a promissory note, payable to the order of Lea, held by him, without endorsment, or proof of transfer and delivery. Art. 2612 C. C. pre-supposes that When the title is not transferable by delivery, and does not bear upon its face evidence of the lawful possession of the holder, delivery must be made.

It is not material, in a legal point of view, that the’money paid by Lea came from the defendant. The equity of his case is no greater, than that of the plaintiff, who received no consideration for the price he paid. The applications and entiles were made in the name of Lea, and his legal representatives are the owners of the certificates until a valid transfer is shown. As the case is presented to us, the defendant’s possession is the possession of Lea.

It is therefore ordered, that the judgment in this case be reversed, and the plaintiff’s petition dismissed, with costs in both courts.


author: Edstis, C. J.

text:
    Slatter v. Tete.
    Where in a settlement between the father and the heir of the mother of the community which formerly existed between the’parents, notes, which had been given by the husband of the heir for a loan previously made to him by the father, formed a part of the effects to be divided, and were received by the wife as her portion of the effects of her mother’s succession, and delivered by her to her husband, the receipt of the notes and their delivery to the husband will not create a legal mortgage, in favor of the wife, on the property of the husband, in the absence of proof that the husband was solvent at the time his notes were delivered to him as his wife’s share of the succession. In such a case the burden of proof is on the party claiming the legal mortgage. If the husband was insolvent at the time he received the notes, the wife has no mortgage for their amount. O. C. 3280, 2367.
    from the District Court of Assumption, Randall, J.

      Preston, for the appellant.

      J. C. Beatty, for the defendant.
   The of the court was pronounced by

Edstis, C. J.

The plaintiff, who is a judgment creditor of the late Auguste Tete, applied to the court for the sale of certain slaves belonging to his succession, to satisfy his debt. His judgment was recorded on the 30th May, 1842. The defendant, who is the surviving wife of the deceased, claims a prior mortgage on the slaves, resulting from the partition of the estate of her deceased mother, and the receipt of $17,849 35, of her paraphernal effects, on the 12th June, 1838, which her husband converted to his own use, he having the administration and enjoyment of the same until his death, which took place on the 16th July, 1846. The District Court gave precedence and effect to the claim set up by the defendant, and recognized the general mortgage on the succession, by virtue of the receipt and conversion of the paraphernal effects of the wife by the deceased husband. The plaintiff has appealed.

It appears that, on a settlement of the community which had existed between the defendant’s deceased mother and her father, made extrajudicially before a notary in New Orleans, on the 12th June, 1838, the share of the defendant was found to amount to the sum of $17,849 35. On the same day, in a notarial act, she acknowledged to have received that amount from her father; and in that act, to which her husband was a party, she declares her intention of leaving to her husband the administration of this sum, the amount of her hereditary rights, which he acknowledges to have received,, and to become indebted to his wife therefor. In fact, however, there was no money paid by the father to either husband or wife, under this settlement.

Among the effects to be divided between the father and the heirs of the deceased mother, were several notes drawn by Auguste Tete, the defendant’s husband, to the order of the father, and appear to have originated in a loan made previously by the father to his son-in-law. The portion of the defendant in her mother’s succession, was received by her in the notes of the husband, which she delivered up to him.

These filets present the naked question, whether the receipt of these notes and the delivery of them to the husband under the circumstrnces thus stated, constitute a legal mortgage in favor of the wife on the property of the husband.

Article 3280 of the Code, which provides that no legal mortgage shall exist except in cases determinedo by the present Code, limits the enquiry as to whether the Code has given a mortgage .to the wife in cases of this kind. The article under which the district judge gave the defendant her legal mortgage is the 2367th. It provides that: “The wife may alienate her paraphernal property with the authorization of her husband; or, in case of refusal or absence of the husband, with the authorization of the judge; but should it be proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of the husband for the reimbursement of the same.” The decisions- which have been made by our predecessors on this article, we do not understand as extending its operation beyond cases-in which the husband receives money belonging to his wife, or has disposed of her property for his individaul benefit. Johnson v. Pilster, 4 Robinson, 73. Campton v. her Husband, 6 Robinson, 157. Turner v. Parker, 10 Robinson, 154.

In the case of Compton the wife was allowed her legal mortgage for the portion of the price of purchases made by the husband at the sales of the succession of her father and. mother, which portion the husband retained, having settled for the balance of the price with the other heirs. He thus received her share of those successions in property without paying for- it, and his estate was benefited by so much. The fact was incontestable that her property had inured to his benefit.

In the present case the debt had previously existed. It has been permitted to remain as it originally stood, and to what extent it has inured to the benefit of the debtor is a matter of conjecture, resting for its certainty entirely on the state of his affairs. Of this we have not the proof which the article itself requires-This article has a feature not usual in the Code. It imposes the burthen of proof on the party claiming the legal mortgage ; and when it is considered that the mortgage is tacit—not recorded, and that there are no means by which the publie is notified of the receipt of the paraphernal property by the wife' or the husband, the necessity of this provision is obvious, as well as that of strictly observing it.

In point of fact there was nothing transferred to the wife, but.a^ preexisting debt of the husband. This debt bore neither privilege nor mortgage, and the only security the creditor had, consisted in the means and will of his debtor to pay. It seems to be a paradox, that by the transfer of this note to the wife and its delivery to the husband, this debt should be invested with the real security of a mortgage, to the detriment of other creditors. A construction which would operate this injustice, we cannot adopt. The abuses to which it would inevitably give rise, are an insuperable objection to its soundness. The object of the law is to protect married women in their just rights, and not to enable them to wrong their husband’s creditors. This construction virtually calls upon the court to add another case to those provided in the article of the Code, in which the Wife has a tacit mortgage on her husband’s estate, to wit, when she receives his notes as paraphernal property and hands them to him.

To conclude: if the husband’s estate is solvent, the wife can loose nothing by it; if it is insolvent, she has not, in our opinion, proved a case within the provisions of article 2367.

The circumstances of the ease were such as to throw upon Mrs. Tete the burden of showing the solvency of her husband, at the time his notes were delivered to him as his wife’s share of the succession of her mother. The notarial receipt executed in favor of Gabaroche by Mrs. Tete and her husband, is so framed as to disguise the manner in which the share was settled for, and give it the appearance of a cash settlement. When the testimony of Gabaroche and his son was first taken in this cause, on behalf of Mrs. Tete, both deposed that the share of Mrs. Tete was paid to her in cash. It was only upon a subsequent examination, at the instance of tire plaintiff, that the true manner of the payment was developed.

The judgment of the District Court directing the claim of the defendant to be paid by preference over that of the plaintiff out of the proceeds of the slaves ordered to be sold, is, therefore, reversed; and it is further ordered that the proceeds of said slaves be applied to the payment of the plaintiff’s judgment, in preference to the claim set up by the defendant; he paying the costs of this appeal and those of this suit in the District Court.


author: King, J.

text:
    Badon et al. v. Bahan.
    Where a party relies on a verbal sale of lands, alleged to have been made while the laws of Spain were in force, it is incumbent on him to show that the sale was made at a time when such transfers were authorized by law.
    Where proof of the vacancy of a succession is indispensable to .support a plea of prescription, the burden of proving that the succession was vacant rests upon the party pleading the prescription.
    The institution of an action does not interrupt prescription only while it lasts. Prescription being once interrupted, the previous time can never afterwards be computed to make up the time necessary to prescribe.

      [froin the District Court of St, Tammany. Penn, J.

      J. R. Jones, for the plaintiffs,
    on the question of the prescription of ten years, contended: That there is no evidence in the record of the acceptance of the succession of Henry Badon by his heirs, and that therefore it must be considered a vacant succession, and that prescription runs against vacant successions. “ A succession is called vacant when no one claims it, or when all the known heirs to it have renounced it.” Civil Code, art. 1088. The evidence shows that Henry Badon died, leaving a widow and four minor children present, and according to the foregoing definition his succession could not be vacant. He who claims title to property by prescription, must establish his title by evidence as strong as if he claimed by purchase. Prescription is an entire thing, and must be proved to the extent laid. Had the succession of Henry Badon been a vacant succession, it was a fact susceptible of proof; and if that fact was necessary to establish title in defendant, he should have proved it on the trial. See 1 Phillips’ Evidence, p. 206. 1 Greenleaf’s Evidence, secs. 58, 71. 2 Greenleaf’s Evidence, sec. 539. Andrews v. Rhodes, 10 Rob. 52.

      Halsey, for the defendant.
    It does not appear that the succession of Henry Badon was ever claimed by his heirs until they instituted their suit in 1839. “ An estate is called vacant when no one claims it.” C. C. 1088. “ When no person claims its possession, either as heir, or under any other title. Code of 1808, p. 172, art. 118, Henry Badon died in 1815 or 1816. His succession remained vacant, at leastuntil 1839. “ Prescription runs against a vacant estate, though no curator has been appointed to it.” C. C. 3492. Code of 1808, p. 486, art. 62. And the heirs take the succession without prejudice to the rights which have beren acquired by third persons upon the property of the succession by prescription, &c. C. C. 1024. The prescription continued as it was running against Henry Badon, to run against his succession, both under the Code of 1808, and that of 1825. “We consider that, for the purposes of prescription, successions now represent, as they did under the Code of 1808, and under the roman law, the person of the deceased, as long as the heirs leave their rights in abeyance, and avoid the responsibility and charges of asserting them." McCullough v. Minor, 2 La, Rep. 468. As in that case the prescription of ten years was held sufficient, though some of the heirs resided out of the State, so here it must be considered that prescription continued to run, notwithstanding the minorily of the heirs.

      Preston, on the same side.
    The defendants are fully protected by the prescription of ten years against majors. They hold under the will of Maria Badon, their mother, dated the 17th of August, 1820,. The will is a formal title. This suit was commenced the 13th of September, 1847. The plaintiff, Henry Badon, became of age 11th May, 1831, sixteen years before the commencement of this suit. Duncan M. Badon became of age 19th July, 1832, fifteen yeai's before the commencement of the suit. Edward Badon became of age April 21st, 1834, thirteen years before the suit. Harriet Badon, 23d March, 1836, eleven years and six months before the commencement of this action.
    A suit, however, was instituted for the same cause of action the 31st August, 1839. It was dismissed in June, 1840. See 15 La. 455.
    The term on which to base the ten years’ prescription was interrupted therefore less than a year; which, deducted from the term that had run even against Harriet, leaves more than ten years on which to prescribe against her under the will of Maria Badon, she being of full age.
    This is a complete defence, unless the court should adopt the doctrine that a pew term of prescription must run after every interruption by suit, and thus by allowing a new suit every twenty-ninth, or even ninth year, render litigation absolutely interminable. This would be utterly inconsistent with the common place meaning of the word “ interruption.” Interruption, by acknowledgment, necessarily produces the consequence of the entire new term; and therefore the Code declares that prescription ceases to run after acknowledgment of right.
    But suit only interrupts the term of prescription while it lasts. C. C. 3484.
    The defendant does not, in such a case, acknowledge plaintiff’s right, but resists his claim by all means in his power till the suit is dismissed. The dismissal of the suit places them in statu quo ante helium.

    If nine years of the term of prescription runs before the suit, one year after it is defeated completes tire term of ten years. This is reasonable: any other construction of the law is absurd; and this court substantially adopted this principle in the case of Calvit v. Mulhollan, 12 Rob. 260.
   The judgment of the court, (Eustis, C. J. absent,) was pronounced by

King, J.

The plaintiffs claim three-tenths of a tract of land, alleging that they acquired it by inheritance from their ancestor Henry Badon, and their uncle Zenon Badon. The defendant avers that Robert Badon and wife were the legal owners of the entire tract, and that they and their heirs possessed it peaceably and without interruption for more than forty years; that he acquired a legal and equitable title to it, at a judicial sale of all the rights of the heirs of Robert Badon, made on the 3d July, 1847. He further pleads the prescriptions of ten, twenty, and thirty year's, and calls his vendors in warranty. The warrantors set up substantially the same defences pleaded by the defendant. A judgment was rendered in favor of the plaintiffs in the court below; and the defendant has appealed.

The land in controversy was granted by the Spanish government to Mrs. Badon, who devised it to her three sons, Robert, Henry and Zenon. Zenon died without issue, leaving as his heirs his two brothers, Robert and Henry, and three sisters. Thus far the facts are not contested. The question at issue is, whether Henry Badon, the ancestor of the plaintiffs, was ever divested of his interest thus acquired by devise from his mother, and by inheritance from his brother. The defendant contends: first, that Robert Badon, under whom he holds, acquired the undivided interests of both of his brothers, by a verbal sale; and secondly, that Robert Badon, his widow and heirs have possessed the land as owners, without interruption, for more than thirty years, and have thereby acquired a perfect title.

On the trial of the cause witnesses were permitted to give in evidence the conversations and admissions of the parties, for the purpose of proving a verbal sale of the land under the Spanish law, which prevailed at the date when it is said to have been made, to which a bill of exceptions was taken. We do not consider it material' to inquire into the correctness of the ruling of the district judge, as the evidence does not, in our opinion, establish such a sale.

Three witnesses were introduced to show circumstances and conversations, from which it is contended a sale must be inferred. The first deposes that Robert lived on the land from the time of his mother’s death until his own death: believes he lived there as owner: never heard Henry and Zenon claim the property as theirs: has often heard them say it was Robert Badon's place. Heard Robert say to Henry and Zenon that he had finished paying them, to which the latter assented, and said they would give him receipts at any time. The memory of the second witness is evidently veiy inaccurate, and not to be relied on. Many of the facts which he details are contradicted by admissions in the record, and the conversations which he undertakes to detail were conducted partly in French, a language which he admits he did not understand.

The third testifies that he knew Robert Badon as early as 1804, at which time he resided on the property in controversy, and held it as owner. He resided there until his death, and subsequently the property was possessed by his widow, until her death, since when the heirs of Robert Badon have had possession of it. Never heard of the claim of the heirs of Henry Badon until within a year. Henry Badon never lived upon the land in controversy as owner or claimant, and the witness never heard that he made any claim to it. Never heard that Zenon Badon made any claim to any part of the land in controversy.

These are the only witnesses relied on to prove the verbal sale. In aid of the facts which they disclose, the defendant also shows that Robert Badon died in 1819, and that the tract of land in controversy was inventoried as his, and adjudicated to his widow.

This testimony is too vague and weak to authorize us to draw from it the conclusion that Henry sold his interest to Robert Badon, even if it stood unopposed by circumstances strongly tending to repel that inference. No fact is testified to inconsistent with Henry Badon’s being a part owner of the land at the time when the conversations and acts detailed by the witnesses occurred. There is no distinct admission of a sale; and neither of the witnesses say that the parties ever spoke of a sale having been made. The conversation in relation to the state of the accounts between the parties, is not shown to have had any connection with, or reference to, a sale; and it is quite as probable, from the evidence, that it related to the accounts of Robert with his brothers, as their curator, during their minority. If it could be considered as relating to a sale, it is not shown whether the alleged sale was made under the dominion of the Spanish laws or subsequently.

As the defendant relied upon a verbal sale, it was incumbent on him to show one made at a time when such transfers were authorized by law.

But independently of the loose and unsatisfactoiy character of the evidence adduced in support of a verbal title, other facts are disclosed opposed to the presumption of a sale. Although two witnesses state that Robert lived upon the land, as owner, from the death of his mother until his own, it is shown by several other witnesses, whose testimony is unimpeached, that Zenon also lived upon the land until his death, which occurred in 1815; and that Henry likewise lived upon it from the time of his mother’s death until 1814, and that he built a house upon it, which he occupied for several years after his marriage, and finally removed to an adjoining tract. His possession must be considered to have been in accordance with his title, no divestiture having been shown. The subsequent uninterrupted possession of Robert, and of his widow and heirs, and the omission of the heirs of Henry to assert then- claim, may well have arisen from the long minority of the latter.

The next ground relied upon is, the prescription of thirty years. This plea cannot avail the defendant. We have seen that Henry Badon, the ancestor of the plaintiffs, resided upon the land in controversy until 1814, and in the absence of proof of a divestiture of title, he must be presumed to have possessed as owner. Prescription could only commence at that date, and could not have been completed until 1844. But, in 1839, it was interrupted by the intervention of the plaintiffs in a suit in which the heirs of Robert Badon were claiming a partition among themselves of the land in controversy, alleging that it belonged exclusively to them. In that suit the present plaintiffs asserted the same title under which they now claim. See the case reported in 15 La. 455.

The defendant next relies on the adjudication of the land to the widow of Robert Badon, as a title on which to base the prescription of ten years against the succession of Henry Badon, which he contends was vacant. There is neither averment in the pleadings, nor proof in the record that the succession was vacant, and the fact is not to be presumed. If it was vacant, it must have been susceptible of easy proof, and was indispensable to support the prescription often years. It is a fact relied on by the defendant to establish his title, otherwise defective, and the burthen of proof rested upon him. 10 Rob. 52. 1 Green-leaf on Evidence, secs. 58, 71, 72. 2 Ibid, sec. 539.

It is further contended that, more than ten year’s elapsed from the time that three of the plaintiffs attained the age of majority, until the inception of the present suit; and that the defendant’s title is protected, as far as relates to them, by the prescription of ten years.

We have seen that the plaintiffs were parties to a suit instituted in 1839, asserting title to the land in controversy. At that time the three plaintiffs referred to had attained the age of majority; but the suit interrupted prescription. The proposition that a suit only interrupts the term of prescription while it lasts, is untenable. In the case of Baker v. Thomas et al, 4 La. 418, it was held that, the prescription having been once interrupted, the previous time could never after be computed to acquire a right by prescription.