author: IiiSiiEsr, J.

text:
    No. 1591.
    Police Jury of Pointe Coupee v. Ponce Colomb.—Citizens’ Bank of Louisiana, Intervenor.
    The act of the Legislature of 1859 No. 82 authorizing the Police Jury of the Parish of Points Coupee to levy a tax on all the lands of the parish, for the purpose of constructing levees on the banks of the river, is constitutional; it having but one object in view, which is clearly expressed in its title.
    A JA. PPEAL from the District Court, Parish of Iberville, Posey, J.

      A. Provosty, for plaintiff.

      F. II. Farrar and T. J. Cooley, for Citizens’ Bank.
   IiiSiiEsr, J.

Tile Police Jury of Pointe Coupée sues Ponce Colomb tó recover from him fourteen thousand two hundred and nineteen dollars and eighty cents, as a sum paid by them for building a levee on his plantation in the parish of Pointe Coupée, which contract was made and the work done, as they allege, according to law. They pray that the land be seized and sold to pay their claims with privilege.

The defendant, Colomb, answered by a general denial, and specially alleged that he was not bound by law to make the said levee; that it was made in 1859, when by law the said Police Jury was bound to make said levee at their own expense, and that' if they ha re paid for it, they have no recourse against him, nor the land on which it was made. The Citizens’ Bank intervened in the suit, claiming a mortgage and privilege on the land, sought to be affected to the parish, and adopting the defendant’s answer, and asked that the plaintiff’s demand be rejected.

The only question we deem it necessary to solve in this case is, whether' the defendant, Colomb, was bound to make the levee, or whether under the act of the Legislature of the 14th March, 1859, No. 82, which was to take effect from and after the first Monday in June, 1859, the Parish was not bound to make it at their own expense, to be refunded them by a tax on all the lands in the parish.

If this law is constitutional, which the plaintiff contends it is not, it repeals all laws and parts of laws in contravention therewith, and the defence set up by Colomb and the Bank must prevail. The act entitled “An Act in relation to lands and levees,” in the parish of Pointe Coupée, -was evidently intended to supercede all levee laws then extant in that parish; to establish therein a uniform, efficient and equitable system in regard to levees; and by means of a tax, general throughout the parish, to relieve the riparian owners from the onus of making and repairing levees, which they had been heretofore compelled to bear exclusively.

In the case of The State v. Harrison, 11 An. 723, to which the plaintiff has called our attention, the Court said, “It is contended that this act, (an act relative to slaves and free colored persons,) is in violation of the article 115 of the Constitution, which reads as follows: ‘Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.’” This article of our present Constitution is copied, word for word, from the Constitution of 1845. Chief Justice Eustis, who was a prominent member of the Convention which formed the Constitution of 1845, has given us (in the case of Walker v. Caldwell, 4 An. 297,) the following reasons for the article under consideration:

“The condition of our statute law was such at the time of the formation of the Constitution, as to impose on the Convention the necessity of providing in the Constitution itself for the’forms of legislation.

“The title of a law often afforded no clue to its contents; important general provisions were found placed in acts, private or local in their operation; provisions concerning matters of practice or judicial proceedings, were sometimes in the same statute, with matters entirely foreign to them.

“It was to prevent such anomalies that the Constitution requires the Legislature to confine each act to a single object, and to indicate distinctly that object in the title of the act,”

We look in vain in tlie act now under consideration to discover any of the mischiefs which the constitutional provision was designed to guard against.

The great object of the act under consideration was to protect by sufficient levees, the lands in the parish bordering on the Mississippi river, and those in the rear of them, from inundation; and all the other provisions of the law, besides the main ones, were merely subsidiary thereto, such as the manner, by taxation upon all the, lands of the parish, indiscriminately, of providing the pecuniary means to do the necessary work; and also the prescribing of the administrative mode by which the levee system was to be carried out.

It would have been useless and supererogatory for theLegislature to pass as manj'separate acts as there were means devised to subserve the one great object in view, particularly in a case like this, in which the whole subject-matter of the law is so interwoven as to be almost inseparably blended.

No one could be misled by the title of the act as to what it related, and the perusal of the different sections of it, would show that the subject-matter of the act conforms to its title.

The design of a title to a statute is merely to indicate the general subject of it, and not to furnish a detailed exposition of its provisions. It, however, must embrace but one object, which must be expressed in the t.i Te.

The'objection to the law in the Harrison case was that it embraced two objects, entirely distinct aá persons, slaves and free colored persons; the difference between them being, as then held, the same, with some exceptions, as between a white man and a slave.

This can hardly be deemed a reproach to the title of the act in question, as the terms “lands” and “levees,” placed there in juxtaposition, form what mental philosophers style a “ complex idea;” at any rate, the terms are so homogeneal in the connection in which they are placed as to indicate plainly the purpose and end of the law, which was the protection of the lands of the parish from inundation by overflow of the river, or crevasses in its banks.

We fully recognize the doctrine universal in all American courts, that no legislative act should be declared void, unless its incompatibility with the paramount law be clear beyond a reasonable doubt; and we are not prepared to pronounce the law in question unconstitutional.

This view of the case dispenses us from examining any other point raised in the case, and it disposes of the intervention of the Citizens’ Bank, which simply for its protection, as claiming the first privilege and mortgage on the land, joined in the defence simply to defeat the plaintiff’s claim.

It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered,adjudged and decreed that judgment be and it is hereby rendered in favor of the defendant, Ponce Colomb, and also in favor of the intervenor, the Citizens’Bank, according to the prayer of its petition, and against the plaintiff, the Police Jury of Pointe Coupée, with costs in both courts,

Labauve, J., recused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 1266.
    Hezekiah Posey, Administrator, v. M. H. Driggs, et als.
    Tiie sale of a person (slave) at probate sale after the Proclamation of Emancipation by the President of the United States, conferred no title to the purchaser, and by the doctrine settled in the case of Wamwright v. Bridges, (19 An. page 234,) he is relieved from the payment of the price.
    APPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      Collins & Leake, for appellees.

      S. J. Powell, for appellant.
   Howell, J.

The defendant, M. H. Driggs, has appealed from a judgment condemning him to pay the amount of two promissory notes, given on 7th January, 1863, for the price of a negro sold on that day, at probate sale.

As contended by the appellant, the slaves in the parish of West Feliciana, having been emancipated on the 1st January, 1863, by the operation of the Emancipation Proclamation of the President of the United States, the binding force of which was one of the effects of peace, he acquired no title to, nor property in, the said negro, and cannot be compelled to pay the alleged price.

In addition to this, the doctrine in the case of Wainwrighi v. Bridges, (19 An. 234,) relieves him from any obligation to pay.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, M. H. Driggs, with costs in both courts.


author: Hyman, C. J.

text:
    No. 1068.
    John Davidson v. Carroll, Hoy & Co.
    A security, by paying the debts of his principal, becomes subrogated to all the rights which the creditor has against the property of the debtor, for whom he stands as surety.
    Where the debt has become extinguished by confusion, the mortgage given to secure it becomes extinguished also. There can be no mortgage to secure the payment of an extinguished debt.
    PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Geo. S. Lacey, for plaintiff and appellee.

      Bandolph,. Singleton <& Bardie, for defendant and appellant.
   Hyman, C. J.

On the 29th of March, 1855, John Davidson bought from the widow and heirs of Poydras de Lalande, a tract of land in the Parish of St. Bernard, and one hundred and twenty-five slaves, and for a part of the price, he gave his promissory notes, payable at different periods of time. He also gave a special mortgage on the land and slaves to secure the payment of his notes. On the 18th December, 1860, he sold the tract of land and slaves, with other slaves, to Davis & Cofield. In the act of sale from him to Davis & Cofield, they assumed, as a part of the price, “to pay and take up to his acquittance and discharge ten of the notes given by him to the widow and heirs of Lalande. They also gave to him, as another part of the price, their eight promissory notes, amounting to §249,300, and secured their payment by special mortgage on the land and slaves.

To the act of sale, Carroll, Hoy & Co., became parties, and bound themselves as securities, in solido, for Davis & Cofield, for the punctual payment of four of the notes given by Davidson to the widow and heirs of Lalande,. assumed by Davis & Cofield, as above stated. These four notes amounting in the aggregate to §30,870, Carroll, Hoy $; Co. paid, and they were subrogated, on paying thorn, to the lights of mortgage and pi’ivib ege, to secure their payment, by the holders and owners. This suit is brought by Davidson to obtain a judgment of the Court, decreeing that he is not bound on the notes to Carroll, Hoy & Co., and that they have neither privilege nor mortgage on the land to, secure payment of them.

Davidson was released by payment of the notes by Carroll, Hoy & Co., for Davis & Cofield had agreed to release him from their payment, and (Darroll, Hoy & -Co. had bound themselves as securities for Davis & Cofield, that they should by payment discharge him from responsibility on them. Carroll, Hoy & Co. were securities bound to him, not for him; his debts were, paid when they paid; and there can be no mortgage or privilege to secure payment of extinguished obligations. But the assumption by Davis & Cofield to pay the notes has not been complied with by them, and Carroll, Hoy & Co. have remedy against their principals to recover debts they paid for them, with the right of subrogation. Civil Code, Arts. 3021; 3022.

Article 2157 of the Code, which declares, “That subrogation takes place of right for the benefit of him, who being bound with others or for others, for the payment of the debt, had an interest in discharging it,” is only applicable, in case of suretyship, to the principal for which the surety is bound, and it follows that when there are any mortgages or privileges that the debtor (for which the security is bound) has given or others have given to secure payment by him, the security is subrogated to their rights on payment by him of his principal’s debt.

By effect of sale from Davidson to Davis & Cofield, the vendor’s privilege was created on the land to secure the payment of the assumption they made to pay his notes, as well as to secure payment of their own notes, which they gave to him, and Carroll, Hoy & Co. have, by legal subrogation, the vendor’s privilege on the land, which avails as a mortgage to secure the amount they paid as securities on the assumption of Davis & Cofield, with interest, and they must be paid out of the proceeds of the land ratably with Davidson. The conventional subrogation claimed by defendants, can produce no effect to the detriment of Davidson. They were bound by the contract between him and them, as securities for Davis & Cofield, and they could not, by arrangement with others in taking up the notes, make their rights greater or better than those pertaining to securities.

The land, it appears from the admission of the parties, has been sold for $100,000, by proceedings of court, at the suit of Davidson;, but there is no evidence in the record showing what sum is owing him. The case must, therefore, be remanded.

The defendants are appellants from a judgment decreeing that plaintiff was not bound to them on the notes, and that they had no mortgage nor privilege on the land.

Let the judgment of the District Court be affirmed, so far as it decrees that plaintiff is not bound to defendants for the payment of the notes, and, in all other respects, let it be annulled and reversed.

Let the ease be remanded to the District Court to be proceeded with according to law.

Rehearing refused.


author: Labattve, J.

text:
    No. 1667.
    Henry B. Chase v. Thomas K. Davis.
    Where the defendant has made no appearance in the lower court, he may enter the plea of prescription in i he Supreme Court; but he must do it by filing tue plea: a suggestion of thepleamtho brief will not be noticed.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      W. F. Kernan, for plaintiff and appellee.

      J. E. Wilson, for defendant and appellant.
   Labattve, J.

This suit is brought on a promissory note, dated May, 16th, 1861, for §32-1 28, payable to the order of R. H. Braughn, on the 1st of December, 1861.

The defendant, not appearing, a judgment by default was rendered against him below, and afterwards made final after due proof.The delendant appealed.

The suit was filed on the 24th of December, 1866, and petition and citation served on the 28th of same mouth aud year.

The appellant filed a printed brief, in which he contends that the note is prescribed. Such a plea was not made below, the defendant, having made no appearance in that court. It is tiue, that the plea of preset ition can be filed in this court for the fisst time. C. P. Art. 1)02. But, ib must be specially presented by the pleadings, and not by brief. It is well settled that briefs are merely written arguments, and make no part of the pleadings. We consider, therefore, that prescription has not- been pleaded before this court, as required by the Art. 902 C. P. Dejol et als. vs. Johnson, Administrator, 12 An. 853, and other late decisions of this Court.

The defendant and appellant has raist d no other question in this court, and we are satisfied that plaintiff made out his case below.

The judgment appealed from is affirmed, with costs.


text:
    No. 102.
    Board of Levee Commissioners v. Wm. H. Harris.
    The Acfc of 1852, creating a Board of Levee Commissioners for the parishes of Carroll, Madison and Catahoula, allowed no compensation to parties who did work on the levee without the authority or sanction of the Board.
    Whore the claim is invalid evidence is not admissible to establish its correctness.
    APPEAL from the District Court, Parish of Carroll, Farrar, J.

      Hugh Short, for plaintiff and appellee.

      W. G. Wyly, for defendant and appellant.
   Hyman, C. J.

This is an action to recover the penalties imposed by law on the defendant for not sending his male slaves, above the age of fifteen years and under sixty, at the call of the inspector, to work during high-water in 1858, on the levee, in the levee district of the parishes of Carroll, Madison and Catahoula. See Act of 1852, page 237, sec. 23.

The evidence introduced establishes that defendant had incurred the penalties demanded, and for which the District Judge gave judgment against him.

Defendant, in answer, reconvened and claimed judgment against plaintiff for work done by him on the levee.

The work done by defendant on the levee, was performed by him, as is shown by his answer, without the consent or authority of the inspector or the board of commissioners, who by law had control in erecting and repairing the levee.

The law has not allowed defendant compensation for such work against plaintiff.

Defendant filed a hill of exception on the Judge’s refusal to permit evidence to be introduced by him of his demand.

It would have been fruitless to introduce evidence on an invalid claim.

Let the judgment of the lower court be affirmed at the costs of defendant, who is appellant.


author: Labatjve, J.

text:
    No. 12.
    Pierre Lee v. Trasimon Trahan.
    Where a party complains of errors of calculation, he must point out the item in which the error is found, otherwise it will not be noticed on appeal.
    APPEAL from the District Court, Parish of Lafourche, Roman, J.

      E. W. Blake, for plaintiff and appellee.

      Bush <£ Goode, for defendant and appellant.
   Labatjve, J.

This is a suit to recover of the defendant the price of a tract of land sold.

Judgment was rendered in favor of the plaintiff, and the defendant appealed.

The appellee prays for the affirmance of the judgment.

The only complaint made in this court by the appellant’s heirs, who have been made parties, is, that there is error in the judment in the calculation, and in cpmpelling the defendant to assume a tacit mortgage of one of the minors of plaintiff.

The appellant has not pointed out where lies the error of calculation complained of. It was his business to show the item where it could be found. We cannot review and calculate o^e.1 the statement, in order to find whether there be error or not.

In the act of sale, it appears that it was the intention of the parties, that the purchaser was to assume certain tacit mortgages in favor of the vendor’s minor children, one of whom was omitted; the Court then properly deducted out of the price of the land, the amount coming to this child, and decreed that the defendant should pay it as a part of the tacit mortgage, which he had assumed.

Judgment affirmed, with costs.


text:
    No. 1655.
    Thomas Devall v. F. F. Palms.
    A nuncupative will, by publio aot, must be diotated by the testator, and written down by the notary, as diotated in the presence and hearing of the witnesses; it must show on its face that all the formalities prescribed by law have been strictly complied with, otherwise it will be declared null and void.
    A .nuncupative will, by public aot, being null in tbat form for want of the formalities prescribed by law, may be admitted to probate as a nuncupative will under private signature.
    APPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      J- O. Fuqua and Bunn é Herron, for appellee.

      Favrol & Lamon, for. appellant.
   Howell, J.

This is an action to annul a nuncupative ■ testament by-public act, on the following grounds:

1. It does not appear that it was received by, or dictated to, the notary in presence of the witnesses.

2. It does not appear that it was written by the notary as dictated by the testatrix.

3. It does not appear that the instrument was read to the testatrix in the manner required by law.

4. It does not appear that the reception, dictation, signature and attestation of said instrument were all done at one and the same time, without interruption and without turning aside to other acts.

The portions of the instrument in which the alleged defects of form appear, are as follows:

“Be it known that I, John A. M. Hugh, Notary Public, in and for the parish aforesaid, on the eleventh day of November, A. D., eighteen hundred and sixty-six, repaired to the residence of Eudora Devall, wife of Francis F. Palms, inhabitant of the said parish of East Baton Rouge, and State of Louisiana, when, at her request and at her dictation, the following instrument was written by me, the said notary, and declared by the said Eudora to be her last will and testament

Here follow the dispositions, and the act concludes :

“ In testimony whereof the said Eudora has signed her name hereto in presence of Thomas J. Buffington, Isaac A. Williams and John B. Whittaker, lauful witnesses, residing in this parish, and me the said notary, after having read the same in an audible voice, in the presence of the testatrix and the said witnesses, without interruption and without turning aside to other acts, this 11th November, 1866.

Articles 1571, 1572 and 1573, C. C., prescribe the formalities of this description of will, and by them it must appear from the instrument itself, that it was dictated by the testator, written by the notary as it was dictated, then read to the testator, and signed by the testator, (or the cause of his not doing stated), also by the witnesses (or one of them at least, for all) and by the notary, — all to be done in the presence of the witnesses, and without interruption, and without turning aside to other acts. 9 A. 217 ; 10 A. 212. Article 158'8 declares that testaments are null and void, if the formalities to which they are subject are not observed. 5 L. 387; 6 L. 780 ; 10 L. 319 ; 16 L. 80 ; 12 R. 35; 6 A. 243.

It is quite manifest, from a simple inspection of the instrument before us, that it is defective in not showing that it was dictated by the testatrix and written by the notary as it was dictated, in the presence of the witnesses. No reasonable inference can be drawn from the language used that it was so dictated and written. On the contrary, its terms imply that it was only signed and read in the presence of the witnesses ; that the witnesses, very probably, made their appearance after the dispositions of the will had been dictated by the testatrix and written by the notary. Some expression should, have been used to show, without a reasonable ' doubt, that the witnesses were present throughout the reception and execution of the instrument as a whole. We can find in it no such language or expression. See 8 A. 469 ; 11 A. 3, 108 ; 5 A. 565.

In the cases relied on by defendant there were expressions which justifled the conclusion that all had been done in the presence of the witnesses.

It is suggested in the answer to the petition, but not urged in this court, that if the said testament is invalid, as a public act, it is good as a nuncupative will by a private act, and, as such, should be ordered to be probated according to law. We may consider this position as abandoned in this court, the defendant relying solely on the validity of the will; yet we would feel authorized to make such a disposition of the ma'ter, if we could find in' the record any thing to justify such action on our part.

Judgment affirmed.


author: Howeli,, J.

text:
    No. 1597.
    Succession of J. C. Patrick.
    A Judgment creditor of an estate took a rule on the executrix to file an account of her administration and offered the judgment in her favor as evidence that she was a creditor, to winch the executrix objected, on the ground ’that the note on whioh the judgment was founded was not legally stamped ; plaintiff in rule offered the note which was legally stamped; defendant then offered the whole record in the case to show the absolute nullity of the judgment, to which plaintiff objected, on the ground that collaterally the defendant could not go behind the judgment and prove facts going lo annul the same: Sell — That the record was admissible as rebutting evidence.
    Where an attorney-at-law appears in court and files an answer in a cause, he will be presumed to have been duly authorized by his client, the contrary not being supported by oath.
    APPEAL from District Court, Parish of West Baton Rouge, Posey, J.

      8. P. Oreves, Favrot & Lamon, for appellee.

      White & Bobertson, for appellants.
   Howeli,, J.

This is an appeal from a judgment on a rule to compel the executrix to render an account of her administration, and the only question is, whether or not the plaintiff in rule is a creditor of the-succession. She bases her right upon a judgment in her favor against the siieoes.rion, rendered by a court of' competent jurisdiction, but the appellau opposes it as “invalid aud of no effect, for the reason that the note, the basis of the same, was used without having been legally stamped, and in violation of the law.” The record shows that the note was stamped ; but on the trial, the plaintiff in the rule, after introducing the judgment, objected to the introduction by the defendant of the whole record of the suit in which it was reudere 1, to prove absolute nullity of said judgment, on the ground that “collaterally the defendant could not go behind the judgment and prove facts going to annul the same and from this record, the appellant contends, in this coart, that the nullity of the judgment appears for want of legal citation of J. C, Patrick, or notice to his representative after his death. The record, we think, was admissible as rebutting evidence; but it shows that, after the cause had been continued for the purpose of making the representative of the deceased a party to the suit instituted against T. C. and J. O. Patrick, an appearance was made and answer filed by counsel for the defendants, and subsequently an appeal obtained by him in their behalf, but not prosecuted. We must presume that the counsel was authorized to represent his clients, the contrary not being supported by oath.

The Judge a quo did not err in refusing to inquire into the consideration of the note in this proceeding.

Judgment affirmed.


author: Hyman, C. J. Howell, J.,

text:
    No. 405.
    James McAllister v. Freeman Burton & Co.
    In a redhibitory action in which, it was proved that a slave purchased by the plaintiff on the 15th of December, 1859, was, at the time of the sale afflicted with “ chronic pleurisy,” of which he died on the 24th of July, i860 : ITeki — That plaintiff was entitled to recover back the price of the slave from his vendor. .. , '
    APPEAL from the District Court, Parish of Tensas, Farrar, J.

      L. M. Bay, and Snyder & Lewis, for plaintiff and appellant.

      L.! V. ■ Beeves and John Turnbull, for defendants and appellees.
   Hyman, C. J.

This is an action brought by plaintiff to recover from defendants the price he gave them for a slave, bought from them, because of latent defects in the body of the slave when bought.

Defendants sold the slave to plaintiff on the 15th December, 1859. On the 6th of May, 1860, the slave came in from the field complaining of' sickness, and Doctor Miller was immediately sent for to attend him. He continued sick until 24th July, 1860, when he died.

Witnesses for both plaintiff and defendants testified that the slave died of chronic pleurisy.

Dr. Miller testified that the slave had chronic pleurisy when he first called to see him ; that he had none of the symptoms of acute pleurisy : that after an acute attack of that disease a person may live for years before he is carried off by it; that if the slave had no fever with other symptoms of the acute pleurisy, from the time plaintiff bought him, 15th December,' 1859, to the 6th May, 1860, the disease of which he died must have existed in his person before he was bought by plaintiff from defendants.

Plaintiff’s overseer, who was constantly with the slave, testified that he had no fever and no symptoms of the acute pleurisy from the time plaintiff bought him, and that he was unable to do a hand’s labor from that time. Taking the testimony of these two witnesses as true, it is clear that the slave died of a disease which existed before plaintiff purchased him from defendants.

The only evidence adduced that does not fortify the testimony of Dr. Miller is that of Dr. McG-ruder. Dr. McGruder testified that the-slave-died of hydrothorax. This may be a symptom of chronic pleurisy. His reply to the seventh interrogatory propounded to him, is not an answer thereto, but evidently an attempt to evade an answer.

We do not think that his evidence should out-weigh that of other physicians who testified in this case.

The judgment of the District Court was in favor of defendants, and from it plaintiff has appealed.

The judgment is erroneous, and must be reversed. Civil Code 2495 and 2508. It is ordered, adjudged and decreed that the judgment of the' District Court be annulled and reversed, and it is further decreed that1 the plaintiff recover of defendants, jointly, the sum of eighteen hundred dollars, with five per centum per annum ¡merest thereon from the 2d'day. of June, 1860, till paid, and the costs of suit.

Howell, J.,

dissenting. In my opinion the decision in this cáse1 is'indirect conflict with the jurisprudence on this subject, as now settled, to the effect that a contract for the price or value of a slave cannot be enforced, and that no warranty in such contracts exists.

If the price cannot be recovered of the vendee, the vendor cannot be compelled to return the price or any part received by him.

The two actions rest upon the same principle, and neither can be maintained.

I think plaintiff’s demand, which rests upon the right of warranty, should be dismissed.


author: Labauve, J.

text:
    No. 1604.
    Eugene LeBlanc and other heirs vs. Andre LeBlanc, and Edward LeBlanc vs. Andre LeBlanc.—Consolidated Cases.

    Where property has been bought during the marriage, in the name of the husband, with the separate funds of the wife, .it becomes community property, and the wife has her recourse against the husband for the restitution of her funds so used, with mortgage on his property to secure the same. O. 0-, 2367.
    Where the estate of the wife has come into the possession of the husband during the marriage, and it is not shown that she administered it separately and alone, it will be presumed that it is under the administration and control of the husband.
    Adjudgment appealed from cannot be amended between appellees.
    APPEAL from the District Court, Parish of Iberville, Posey, J.

      W. B. Robertson, and Barrow <& Pope, for appellants.

      Talbot áPetit for appellees.
   Labauve, J.

Eugene LeBlanc, Beine LeBlanc, Augustin LeBlanc, Belizaire LeBlanc, Ulger LeBlanc, Augustiere LeBlanc, and Apolline Le-Blanc, claim of defendant, their father, the sum of four thousand dollars with legal interest from judicial demand, with a legal mortgage, as paraphernal money received by their father in right of their deceased mother.

The petition alleges in substance that plaintiff’s mother died 29th August, 1860 ; that she had inherited during her marriage from the succession of her deceased father and mother, one arpent of land, which was sold by their father, who received the price thereof, as follows :

That on the 30th of October, 1824, one Charles Gautreau sold to their father one 1 ah' arpent of land; that said sale purports to have been made for six hundred dollars in cash, while, in fact, no money was paid, but the true intent of the parties was a daiion enpaiement made to petitioner’s mother for her rights in the succession of her deceased father.

That on the 17th May, 1832, at a sale of the property of the succession of the widow Jean Baptiste Bourgeois, grandmother of petitioners, the land was sold to Jean B. Bourgeois, one of the heirs and administrator; that thereafter, on the 13th June, 1832, the said Bourgeois, reeonveyed the said land to André LeBlanc, and Beloni Mire, in right of their wives, and that one half arpent of said land was a daiion enpaiement to x>etitioners’ mother for her rights in the succession of her deceased mother ; that said two parcels of land, making one arpent, were the separate property of petitioners’ deceased mother.

That on the 27th of March, 1839, their father sold said land to widow Dominique A. Tureaud for four thousand dollars. That their father is then indebted to petitioners for said sum with legal interest from the 29th, August, 1860.

The petition concludes by praying that their father be decreed to pay four thousand dollars with legal interest from judicial demand- with a mortgage dating on the 27th March, 1839.

Edward LeBianc brought a suit against the defendant on the 3d April, 1866, claiming of the defendant the sum of six thousand six hundred dollars, with interest at eight per cent, per annum, from 10th January, 1862, with a special mortgage on defendant’s land, dating on 21st day .of January, 1861; this suit has been consolidated with that of the heirs of Mrs. LeBianc. He also introduced in the said suit of Mrs. LeBlanc’s heirs or André LeBianc, reiterating his mortgage claim upon defendant’s land, and which he alleges to be superior to all other mortgages or privileges thereon. He denies all the allegations set forth in the said heirs’ petition, and alleges that if said heirs ever had any right, their father settled with them; that they being all of full age, accepted the community ; that the note sued upon, was for borrowed money to pay the community debts; that all of said heirs assented to said mortgage, and that they are bound for their portion of said mortgage debt.

He prays for judgment against the defendant and the .sale of the mortgaged property, and that the said heirs’ demand be rejected.

After a hearing, the Court gave judgment in favor of five of .the plaintiffs, against the defendant, for 52,857 14, with legal interest from judicial demand, and a legal mortgage, from the 27th March, 1839, and rejected two of the plaintiffs’ claims, and dismissed the intervention, and gave judgment in favor of Edward LeBianc against the defendant, André LeBianc, for six thousand six hundred dollars, with interest and mortgage.

The intervenor alone took this appeal. We will first examine the two acts of sale, which, it is alleged, contain dalion era paiement of the rights of the deceased wife.

The first, passed before the Parish Judge of Ascension, on the 30th October, 1824, purports to be a sale, pure and simple, by Charles Gautreau to André LeBianc, for six hundred dollars, paid before the pass-' ing of the act.

The second, passed 13th June, 1832, before the Parish Judge of Ascension, purports to be a sale by Bourgeois, as administrator of the succession of widow Bourgeois, for the plantation which was adjudicated' to André LeBianc and Beloni Mire, but that really the said adjudication was made to André LeBianc and Beloni Mire, in the rights of their wives ; the act then proceeds to state that the said administrator sells and conveys to said André LeBianc and Beloni Mire, the said plantation for the price of three thousand three hundred dollars, payable, one-half in March, 1833, and the other half in March 1834; mortgage retained on the property, the purchasers binding themselves in solido to pay said sum of three thousand three hundred dollars.

It is clear that these acts do not contain dalion era paiemenl; they are pure and simple sales made to André LeBianc,' and not to his wife. André LeBianc is the purchaser and he binds himself to pay; his wife is not a party to the act, nor does he appear as her agent.-.

On the 27th March, 1839, André LeBianc, sold this land as his own, and his wife renounced her rights in the usual form.

We are of opinion that these parcels of land became community property. C. C. Art. 2371; 5 An. 688.

It is true that André LeBlanc, the surviving husband, being examined, testified that those two half arpents of land were paid for and taken in payment of his wife’s shares in the estates of her father and mother, said shares amounting in both successions, from one thousand eight hundred to two thousand dollars. Admitting this to be all true, the deeds of sale show that the property was purchased during marriage, in her husband’s name, though paid for in whole with the wife’s funds, the same belonged to the community, the wife only retained a claim against the husband, for her funds so paid, with a mortgage. C. C. Art. 2367 ; 10 L. 181; 12 L. 170 ; 17 L. 206 ; 19 L. 406 ; 4 R. 114 ; 5. A. 688. . .

Two acts of acquittance, given by the deceased wife, duly assisted by her husband, to the administrator of the estates of her father and mother, passed before the Parish Judge of Ascension, were introduced in evidence without objection. The first, on the 26th April, 1828, shows that the wife received from the estate of her father, $1,900 37. The second, on the 31st March, 1835, shows that the wife received from the estate of her mother, $909 61; which two sums make an aggregate of $2,800 98, apparently conflicting with the testimony of the husband, who declared that in both estates the amount was from $1,800 to $2,000, but we must presume that the memory of the witness failed him after a lapse of time of over thirty years, and that the receipts are more reliable.

It is not shown that the deceased wife administered her paraphernal property separate and alone ; it is then presumed that the same was under the administration of her husband and that he received said funds and is responsible for the same. O. O. Art. 2362; 14 A. 281; Johns v. Race, 18 A. 105.

The intervenor has failed to show that the defendant had paid his children, nor that the latter had accepted the community to which the said plaintiffs declare in their petition to have renounced ; therefore all the property belonging to the community, belongs to the defendant subject to the tacit morlgage of plaintiffs.

• The appellees, by their answer, pray that the judgment of the District Court be amended so as to allow Belizaire the interest purchased by him of Joseph U. LeBlanc, and that the mortgage given by defendant to the intervenor, be restricted to the interest of the mortgagor in her property, and thus amended, that it be affirmed; Belizaire LeBlanc and Joseph U. LeBlanc and the defendant are all appellees. It is well settled that a judgment.appealed from cannot be amended between appellees. 18 A.; 16 A. 195 ; 10 A. 433.

The judgment is erroneous as to the amount allowed to five of the plaintiffs, and must be reduced.

It is therefore ordered, adjudged and decreed, that the sum of two thousand seven dollars and fourteen cents be allowed in lieu of two thousand eight'hundred and fifty-seven dollars and fourteen cents, and, that as amended, the said judgment be affirmed, at the costs of the appellees.

Rehearing refused,


text:
    No. 1297.
    Oliver P. Robinson vs. Mrs. Sarah B. Doherty and Stephen C. Doherty.
    The burden of proof is on defendant to show that the consideration of a promissory note was the price of a slave.
    APPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      8. J. Powell, for plaintiff and appellee.

      W. D. Winter, and Collins & Lenice, for defendants and appellants.
   Hyman, C. J.

Stephen O. Doherty is appellant from a judgment condemning him to pay plaintiff the amount of his promissory note with interest.

The defence set up by him in his answer is, that the note was given to plaintiff for the price of a slave. That plaintiff warranted title in the slave, and that he, defendant, had been evicted of him by emancipation. There is no proof that the note was given for the price of a slave.

Let the judgment be affirmed at defendants’ cost.

Rehearing refused.


author: Hsu»’, J.

text:
    No. 1615.
    (No. 1138)
    (No. 1252)
    (No. 1315)
    W. Cox & Co. v. Estate of Robert King; W. Cox & Co. v. Estate of R. King and Martha King; Martha King v. Estate of Robert King.—Consolidated cases.

    The rule enunciated in article 2256 of the Civil Code, that parol evidence is inadmissible to contradict or vary the contents of a notarial act of mortgage, only applies to acts intrinsically valid, and nob to such as are attacked to be declared null on account of fraud.
    An intervention by the wife in a pre-existing suit between the creditors and the estate of her husband to annul her renunciation in an act of mortgage executed by her husband, is a direct action, and parol evidence is admissible to prove the nullity on account of fraud, on the general principle that fraud vitiates all contracts.
    Where «.notarial act is sought to be declared null on the ground of fraud, the notary who passed the act need not be made a party to the suit.
    APPEAL from the District Court, Parish of Tensas, Farrar-, J.

      Julius Aroni, and Aroni & Collier, for appellants.

      Mayo & Spencer, and Reeve Lewis, for appellees.

      L. V. Reeves and Thos. P. Farrar, for administrator.
   Hsu»’, J.

These three oases, No. 1138, No. 1252 and No. 1315 were consolidated and tried together in the lower court.

In the two first, No. 1138 and No. 1252, Walter Cox & Co., the plaintiffs therein, claimed from the succession of Robert King, and in the last of these, No. 1252, also against Martha King, his widow, in solido, the amount of several promissory notes, all drawn by Robert King, with a special mortgage to secure them, in virtue of a notarial act, passed before the Recorder of the Parish of Tensas, on the 2d April, 1861, in which act is contained the renunciation of Mrs. Martha King.

Mrs. Martha King intervened in the suit No. 1138, and answered in the suit No. 1252, claiming to be the owner of some of the lands mortgaged, and attacking as a nullity, her renunciation in the act of mortgage of 2d April, 1861. In the suits No, 1138 and 1252 there was an intervention, on the part of the Bank of Louisiana; also of the estate of Robert C. Cammack; and also of Washington, Jackson & Go., holders, as transiences of W. Cox & Co., of some of the notes of Robert King, for which they ask a judgment thereon, with a priority on the proceeds of the sale of the mortgaged property. In the suit No. 1315, Mrs. Martha King claimed from the succession of her husband, the amount of her paraphernal rights, and in this suit Waltér Cox & Go., intervened, contesting Mrs. King’s claim so far as it might affect them.

The administrator of Robert King’s succession, sets up in his answer to Mrs, King’s suit, a claim for improvements placed on Mrs. King’s plantation during the marriage, and consequently community property.

Upon these several issues, the Court below in the same decree gave judgment in favor of Walter Cox & Co., against the succession of Robert King, for the whole amount claimed by them in their two suits, No. 1138 and 1252, and recognized the mortgage in their favor, of 2d April, 1861, on all the property described in the act, except certain property belonging to Mrs. King, admitted to have been properly excluded.

The Court also gave j udgment in favor of the intervenors in suit No. 1138 and No. 1252, the Bank of Louisiana, the estate of R. C. Cammack, and Washington Jackson & Co., subrogating them to the right of mortgage claimed by Walter Cox & Go., to the extent of the respective amounts of their respective notes filed with the petition of intervention, and decreeing that the proceeds of the sale of the mortgaged premises be applied to the payment of the said notes of intervenors by preferance and priority as mortgage creditors subrogated to the rights of Walter Cox & Go.

The Court also gave judgment in favor of Mrs. Martha King against the succession of her deceased husband for the amount of her paraphernal property claimed by her, with a legal and tacit mortgage upon all the real estate of the said succession, from the date of the receipts of her money by her husband, the last of which was paid to him not later than 1855. , '

It was also, by the said judgment, decreed that Mrs. Martha King’s renunciation of her matrimonial rights in the notarial act of 2d April, 1861, was null and void.

From this judgment, Walter Cox & Co. have appealed, and in this court, they say they are aggrieved by the whole judgment, for two reasons:

First — That the District Judge admitted parol testimony to contradict the contents of the notarial act of mortgage, as stated in the bill of exceptions, to which our attention is specially called, and

Second — That some of the notes drawn by Robert King, held and transferred by Walter Cox & Co. to the intervenors, the Bank of Louisiana, the estate of R. C. Cammack, and Washington Jackson & Co., were not covered by the mortgage granted by King.to Cox & Co., and that these intervenors were not subrogated to any right which they acquired under that mortgage.

The correctness of that part of the decree which annuls Mrs. King’s renunciation, depends entirely upon the question whether the Court below correctly overruled the objections urg*>,d by Cox & Co. and the intervenors, claiming to hold under them, to the testimony received by the Court, upon which its decision was based. These objections were:

1st. That the notarial act of mortgage is in due legal form, and no parol testimony can be admitted to contradict what is stated in said act.

2d. That the validity of the act cannot be collaterally inquired into, but it can only be done by a direct action, to which the notary who passed the act must be made a party.

3d. That the renunciation of the wife is binding, if the notary certifies that all the forms of law have been complied with, until the notary is charged and convicted of fraud.

All these objections to the parol evidence received on the trial of the case may be examined together.

The first ground is a mere enunciation of article 2256 of the Civil Code. This salutary rule applies to acts intrinsically valid, and not to such as are attacked to be declared null on account of fraud, in which a different rule, well defined in the case of Williams v. Vance, 2 An. 909, obtains. In that case the Court observed, “The evidence ought to have been received. It went to show that the written contract never had any legal existence or binding force. Fraud vitiates all contracts ; those who practice it rarely commit the imprudence of affording written proof of its existence; and if the injured were not permitted to expose it by oral evidence, they would, in almost all cases, be remediless. Hence the admission of parad evidence for such purpose to defeat written contracts has become a rule of universal jurisprudence. Story’s Equity, vol. 2, §1531. G-reenleaf on Evidence, §2á8. Broussard v. Sudrique, & La. 351.”

It is, however, urged that the act being a notarial one, it cannot be attacked collaterally, and that in a direct action for that purpose the notary must be made a party, and that until the notary is charged and convicted of fraud, the renunciation of the wife is binding on her.

The action of the wife to annul the renunciation made by her in the act of mortgage on the 2d April, 1861, was a direct one; but, had it not been so, it should have been excepted to, which was not doné in the lower court.

She pursued the remedy pointed out by this Court in the case of Lewis’ Heirs v. His Executors et als., 5 La. 395. In that case, the Court examined the whole practice in France, in relation to the inscription de faux, the faux principal and the faux incidentals, and pronounced that remedy inapplicable here.

The Court observed : “Our practice in Louisiana, it appears to us, is more simple and direct, and attains the ends of justice just as efficiently. We do not wait for a judgment in the criminal prosecution, because it could not be evidence against those whose civil rights were affected by the instrument. Instead of the faux incidentals, we permit the party attacking the instrument, to introduce the proof in the civil suit; and all we require of him is, that if the act emanates from him, or is alleged to emanate from him, he shall attack it directly, and put his opponent on his guard. 6 N. S. 512.

“We see no reason to change our practice; positive law does not require us to do so — convenience does not. Under our code, we think there is the same authority to bring a suit to set aside an instrument which stands in the way, and obstructs the enjoyment of a right to property, as there is to sue directly for that property itself ; and if the suit can be brought, the proof may be admitted, unless we come to the conclusion that what notaries do, is binding on the whole world, which is not pretended, and could not be maintained.”

The opinion pronounced in Lewis’ Heirs v. His Executors et als., from which we have just made a copious extract, and which meets our full concurrence as a sound exposition of what our practice in Louisiana is in prosecuting suits to annul authentic acts on account of fraud, is not adverted to in the matter of the Succession of Tete, reported in 7 An., page 95, and relied upon as authority in this case. As the opinion and decision in that case, dissented to by Mr. Justice Slidell, was afterwards held up, upon a rehearing, and never finally decided, it can hardly be deemed authoritative.

In the case of Colsson v. Consolidated Association Bank, 12 La. 105, the Court, in a case analogous in subject-matter to the one now at bar, said: “The District Court correctly observed, (in refusing to admit witnesses to prove that the act of renunciation was not read to the plaintiff,) that in the case of an authentic act, judgment, etc., the special informalities or grounds of fraud must be alleged, and cannot be offered Under a mere general allegation of fraud, or want of formalities.’

The evidence of witnesses in that case was properly excluded, not because such evidence was not admissible, but because the special informalities or grounds of fraud, were not, as they are in this case, alleged.

No objection on that score, nor indeed any other, was made, except on the grounds specially stated in the bill of exceptions to which we have adverted.

The Court below did not err in receiving the parol evidence. It is clear, cogent and conclusive to establish the fraud, and we can finally dispose of the case without remanding it to make the notary a party, as' the appellant suggests should be done.

As to the recognition by the court below of the mortgage to secure the payment of the notes held and sued on by W. Cox & Co., and of those transferred to and sued on by the interveners, the Bank of Louisiana, the estate of Robert O. Cammaek, and Washington Jackson & Co., all bearing date prior to that of the act of mortgage, which probably represented a part of the item of fifty thousand dollars, stated in the act to be already due by Robert King to W. Cox & Co., we are satisfied that the Court erred, as no portion of that item, nor of the notes in controversy, was covered by the act of mortgage of the 2d April, 1861, which was given merely to secure future indebtedness “to be evidenced by accounts current between the parties.”

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be so amended as to strike out therefrom, and disallow any mortgage under the act of 2d April, 1861, in favor of W. Cox & Co., or of the Bank of Louisiana, the estate, of Robert C. Cammaek, or Washington Jackson & Co., to secure the payment of the notes sued on respectively by these parties, and that so amended, the judgment be and it. is hereby affirmed, at the costs of the appellant.


author: HsiiBY, J.

text:
    No. 1610.
    Mrs. Rose Cammack v. John Gordon, Estates of J. G. Gordon and John Routh.
    Where the transcript of the record is duly certified to by tfie Clerk of the District Court it is sufficient to enable the Supreme Court to decide the case on its merits, and the appeal will not be dismissed.
    In order to bind the endorser of a promissory note, the holder must give him notice of protest.
    APPEAL from the District Court, Parish of Tensas, Farrar, J.

      T. P. Clinton, for appellant.

      Sparrow <& Montgomery, for appellee.
   HsiiBY, J.

A motion is made by the appellee to dismiss the appeal in this ease, on the following ground :

That the transcript on file in this court does not show what evidence was adduced, nor was there any statement of facts made and filed in the suit as required by law.

The transcript of the record is brought up duly certified by the cleric of the District Court, and this suffices to enable this Court to consider the entire case, and decide it on the merits.

Art. 896 C. P. 5 La. 293 ; 6 La. 211; 16 An. 84 ; 18 An. 262, 282.

The motion to dismiss is overruled.

Suit was instituted in May, 1866, against the defendants in sólido, on three notes, each for four thousand dollars, drawn by John Gordon to the order of J ohn Routh, as executor of the estate of J. G. Gordon, deceased, and endorsed by John Routh as executor and individually.

On the 13fch of November, 1866, Routh, as executor, filed an exception, “ that he was without any legal authority whatever to endorse the obligations sued on as executor aforesaid, and could not by such endorsement bind the succession of Gordon.

This exception was referred to the merits.

On the 19th of the same month, Routh filed a general denial as executor and individually.

J ohn Routh, the executor of J. G. Gordon, having died during the pendency of this suit, George Sargent was appointed by the Court, dative testamentary executor, to succeed him, and judgment having been rendered against both the estates of John Routh and of J. G. Gordon in solido, for the whole amount, etc., claimed, the executor, Sargent, has appealed.

The points for the defence set up in this court are, that an executor without an order of court cannot bind an estate by endorsing notes belonging to it, particularly, when it is not shown that such endorsements are not, as in the present case, shown to have relation to the affairs of the estate.

Also, that there is no proof in the record that any notices of protest of the notes sued on were ever served upon the representative of the estate of J. G. Gordon. It is only necessary to examine the last point.'

There are attached to the protests of the notes, blank certificates of notices of protest, which prove nothing, nor is the defect supplied by any other testimony. R. S. page 45 $ 8; 1 An. page 95.

The endorser of the notes sued on, the estate of J. G. Gordon, if bound by the endorsement at all, is discharged for the want of duly.. legal notice of failure to pay them by the drawer.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that judgment be, and it is hereby rendered against the plaintiff and in favor of the estate of J. G. Gordon, as in case of nonsuit, and that the plaintiff pay the costs of suit in both courts.


text:
    No. 1644.
    N. R. Jennings vs. S. Gosselin.
    An action in damages resulting from a quasi-offenge is prescribed by the lapse of one year. O. O. 3501.
    APPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Ilennen, for plaintiff and appellant.

      Geo. II. Penn, for defendant and appellee.
   Labauve, J.

The plaintiff and appellant claims damages from the defendant for the want of care in the medical treatment of a negro girl while in the possession of the latter, and for expenses paid for medical attention on her.

. The petition alleges that the girl was, with her mother, hired to the defendant, residing in the same house with her, and accidentally was severely burned; from which, she, after sometime, became a helpless cripple, owing to the carelessness, negligence and mismanagement of the defendant in the treatment of her.

The defendant pleaded prescription and other matters in his defence, and a general denial. The case was submitted to a jury, who found a verdict for defendant, and the Court, having given judgment accordingly, the plaintiff appealed.

The testimony shows that the negro girl was injured by burning, prior 'to the 15th January, 1859, and the petition and citation were served on the defendant, on the 24th March, 1860.

This is clearly an action to recover damages resulting from a quasioffenee, and one year’s proscription applies. C. 0., Arts. 2294, 2295, 3501. Judgment affirmed, with costs.


text:
    No. 1625.
    Bank of Louisiana v. A. W. Green.
    The order of Major General Banks appointing commissioners to liquidate the affairs of the Bank of Louisiana, did not, ipso facto, destroy the charter of the hank, nor did the violation of any of the ■ corporate powers by the bank operate a forfeiture of its charter.
    rThe charter of an incorporated institution can only be forfeited by the authority of, and under such proceedings as are prescribed by law.
    APPEAL from the District Court, Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellee.

      W. G. Wyly, for defendant and appellant.
   Hyman, C. J.

The only question in this case is whether the District Judge properly overruled the exception of the defendant, who is appellant from a judgment against him.

The suit is brought in the name of the president, directors and company of the Bank of Louisiana, and the exception is that there is no such corporation, the bank having forfeited its charter by violation of its corporate powers; that it was put into liquidation by order of General Banks, of 13th June, 1863, and that it cannot now sue or be sued.

There is no evidence that the bank violated its corporate powers dr neglected to comply with the provisions of its charter.

Had the bank so done, such conduct does not, per se, destroy it óí produce a forfeiture of its charter. Its charter must be declared forfeited by those whom the law authorizes so to declare under such proceedings as are prescribed by law.

The order did not declare the charter of the bank forfeited. General Banks, believing the bank insolvent, appointed by the order, certain commissioners to effect the liquidation of the bank, to convert its assets into cash, to pay the bill-holders, and to distribute the remainder of the cash as in case of insolvency of individuals.

He did not consider that the order involved the forfeiture of the bank’s charter, for, on 29th September, 1863, he ordered that the affairs of the bank, for the purpose of liquidation be restored to such of its directors who had taken the oath of allegiance to the United States, on or before the first of October, 1862.

Nor did his successor, General Oanby, consider that the order of the 13th June, 1863, forfeited the bank’s charter, for on the 5th January, 1866, he ordered an election to be held under the direction of inspectors for directors of the bank, in accordance with the laws of theState and the bank’s charter, and on the 26th of the same month, he ordered the assets and property of the bank to be turned over to the directors,. elected under the order of 5th January, 1866, who were to proceed with the liquidation. . . ■

Let the judgment rendered against defendant be affirmed.


text:
    No. 1629.
    W. A. Mangum v. J. W. Bell.
    In 1862 plaintiff removed temporarily to the State -of Texas, aplace of refuge during the war, leaving his plantation and affairs in charge of his son-in-law, N. A. Bacon, with full power to manage the same as he, the agent, would his own affairs. The agentsold some of the ootton and some lumber, and notified the ownor thereof by, letter. Plaintiff returned from Texas after the war had ended, but made no objection to the action of his agent in the sale of the cotton until the institution of this suit for the recovevy of the value: HrH — Th-it his knowledge of the action of his agent in selling the property, and failing to make any objection thereto, amounted to a ratification thereof, binding on the principal.
    A PPEAL from the District Court, Parish of Carroll, Farrar, J.

      DeFrance & Deloney, for plaintiff and appellant.

      W. Q. Wyly, for defendant and appellee.
   Labatjve, J.

The plaintiff alleges, in substance, that the defendant is indebted to him in the sana of $3,200, with interest; that in the year 1862, petitioner moved, temporarily, to Texas, as a place of refuge during the late war; that when he left his home in the parish of Carroll, he left houses upon his place, and a large amount of cotton; that during his absence from home all his cotton was taken by unauthorized persons, who appropriated it to their own use; that said James Bell took sixteen bales, pretending to have purchased it, and sold the same and used the pro*' ceeds thereof; that petitioner authorized no one to sell said cotton.

The petition concludes by praying accordingly.

The defendant pleaded the general issue.

The Court below, gave judgment in favor of defendant, and the plaintiff appealed.

N. A. Bacon, a son-in-law of plaintiff, testified “ that he acted as agent for plaintiff during his absence, and as such, sold some cotton and lumber; that Mr. Mangum told him to do with ilia cotton and lumber just as he would do with his own, or if it was his own. This authority was given wmiess in 18(33, previous to the sale of said cotton; he sold other cotton and lumber of Mr. Mangum’s, besides this; he sent word to Mr. Man-gum, whenever he would sell any property; he never heard of any objection on the part of Mangum, to the sale of the cotton, until this suit was brought; he further states, on cross-examination, that he knows that plaintiff received some of his letters, in which he informed him that he had sold the cotton; that plaintiff stayed at witness’ house several weeks, on his return from Texas, and during that time, he never objected to the sale of the cotton; this was after the sale of the cotton, which was delivered to Bell, on the 16th January, 1864; he further states that he was agent to dispose of the effects left on the place."

This suit was only brought on the 3d September, 1866.

It appears to us, from the declaration of the plaintiff, that he moved to Texas, as a place of refuge during the war, his silence after being informed of the sale, and his return from Texas, and all the circumstances of the case, that he had intended to authorize his son-in-law to do with his cotton what he might do himself; besides we are satisfied that his conduct, and his tardy suit amount to a ratification of the sale, and that this action is an after-thought.

It is therefore ordered, and decreed, that the judgment appealed-from, be affirmed, with costs.


text:
    No. 1618.
    E. J. Delony, Administrator, v. Evan George and the Sheriff.
    A, having sold tract of land to B. retained a mortgage thereon for the unpaid portion of the price, - with the pact de non alienando in the act of sale. B, subsequently sold the same tract of land to G, without an assumption in the act of sale of the existing mortgage. A lost his mortgage by allowing ten years to elapse without reinscription; Held — That 0, the third purchaser, held the property free irom the mortgage of A, after the lapse of ten years from its inscription, notwith- ' ' standing the pact de non alienando contained in the act of sale from A to B, and that the third pur* , chaser could successfully enjoin the order of seizure and sale taken out by A.
    APPEAL from the District Court, Parish of Carroll, Farrar, J.

      DeFrance & Deloney and Hynes & Gordon, for plaintiff and appellee.

      M. DuBose, for defendants and appellants.
   Howell, J.

On the 13th day of November, 1855, the defendant, Evan George, sold to Mrs. Emily A. Knox, a plantation in the parish of Carroll, contaning 585 acres, with the slaves, stock, etc., thereon, for the sum of $34,000, part in cash and the balance in notes secured by mortgage, duly recorded on the next day, (November 14th, 1855,) and reinscribed on the 10th of April, 1866. On 21st August, 1856, Mrs. Knox sold the said land with other to Daniel McNeill for $30,000 in notes secured by mortgage duly réeorded.

The first vendor, Evan George, having, on 26th May, 1866, obtained, an order for a Writ of seizure and sale, and caused the land to be seized on the 30th of June following, the plaintiff as administrator of the sue-'cession of Daniel McNeill, deceased, instituted this suit to'have the said order of seizure and sale declared illegal, on the ground, that said George has no right or privilege upon said property, which belongs to said succession.

The defendant excepted to the petition on the grounds: “1st, That plaintiff is without interest to intervene in his suit, being the owner of the property seized, by the title from Mrs. Knox, vendee of defendant, he has not, nor can have, any mortgage upon the same, and is neither injured nor benefltted, whether defendant’s mortgage retains or loses its rank for want of reinscription or otherwise. 2d, That actions by intervention or third opposition are not admissible under the law to arrest or interfere in executory proceedings. 3d, That'no sufficient cause is stated in the petition to arrest the proceedings.” He subsequently filed an answer, alleging in substance, that by reason of the pact de non alienando in his sale to Mrs. Knox, the plaintiff, who holds by purchase from her, cannot avail himself of the omission to reinscribe defendant’s mortgage within ten years.

The exceptions were referred to the trial on the merits, and judgment was rendered in favor of plaintiff, declaring the mortgage given to defendant, George, to be invalid as to the former for the want of reinscription; from which defendant appealed.

To the first ground of exception, it is successfully replied that the plaintiff, as owner, had an interest in showing that his property had been relieved of an encumbrance placed on it by his vendor, not assumed by him in his purchase, as between his vendor and her vendor he was a third person, and the stipulation of non-alienation in favor of the latter, only deprives him of the right to notice of proceedings against the mortgaged property.

The second and third grounds might be good against an order or any action of the Court suspending the executory proceedings of defendant; but we presume the sheriff acted upon his own risk and responsibility in suspending them.

Upon the merits, we think, the judgment of the lower court is sustained by the law. The plaintiff in his act of purchase did not assume the mortgage in favor of defendant, and as to him the effect of the inscription ceased at the end of the ten years, within which a reinscription should have been made, and the property having passed from the mortgagor, was relieved of the mortgage as his property.

Judgment affirmed.


text:
    No. 1630.
    John H. McIntyre v. David Hall.
    Interest'will not be allowed in the judgment unless prayedfor in the petition»
    APPEAL from the District Court, Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellee.

      DeFrane <fi Deloney, and W. G. Wyly, for defendant and appellant.
   Hyman, C. J.

Plaintiff sued to recover of defendant the value of nine bales of cotton, weighing á-,500 pounds, as having been shipped’and sold by defendant for him.

The jury, before whom the case was tried, gave a verdict against defendant for $1,350. The Judge having rendered judgment pursuant to the verdict, defendant appealed.

Defendant received the cotton to ship and sell it for plaintiff.

There is no evidence of what the cotton was worth at the time of its delivery or sale, except defendant’s declaration.

When defendant received the cotton, he stated that by shipping, forty or forty-five cent3 a pound could be gotten for it; but there is evidence that before it was shipped its value had very much decreased, and it would certainly be unjust to make defendant pay such value as he stated on its delivery, when there is no evidence that there was neglect on his part in shipping the cotton.

With the evidence before us, we can only fix the value of the cotton when sold; by an offer made by defendant, about the time of sale, to buy cotton at twenty-seven cents a pound.

We think judgment should be against defendant for what he was willing to give for cotton about the time of the sale of plaintiff’s cotton, in the absence of other proof of value.

At defendant’s valuation, the 4,500 pounds of cotton were worth $972. There is evidence that he paid plaintiff $110, which reduces the amount owing by him to plaintiff to $862.

As no interest is claimed by plaintiff, none can be allowed him. Code of Practice, Art. 553.

It is decreed that the judgment of the District Court be annulled and reversed. It is further decreed that plantiff recover of defendant the sum of eight hundred and sixty-two dollars, and the costs of suit in the District Court, the cost of appeal to be borne by plaintiff.

Rehearing refused.


text:
    No. 717.
    Oliver Rose v. T. Smith, Syndic.
    Merchandise that has been stored with a store-beeper, who afterwards becomes insolvent, and mabes a surrender of his property, may be recovered by the owner, novvuthstanding it has been included in the surrender.
    APPEAL from the Sixth District Court of New Orleans, luplnntier, J,

      B. Egan and A. Saucier, for plaintiff and appellee.

      Miles Taylor, for defendant and appellant.
   Howell, J.

This is a suit for certain merchandise, alleged to have been stored with C. K. Gallagher before his surrender, and sequestered in the hands of the defendant, his syndic.

, A judgment was rendered in the lower court, decreeing the plaintiff to be the owner of the property, and the defendant has appealed.

We have carefully examined the evidence, and can see no reason to disturb the judgment. The witnesses testify that plaintiff had a lot of sugar and playing-cards, corresponding with those sequestered herein, in the store of the insolvent when it was closed, and the receipt of the insolvent for the same as the property of plaintiff is also in evidence. The rebutting evidence is not such as to defeat plaintiff’s title.

Judgment affirmed, with costs.


text:
    No. 1648.
    S. Durbin v. E. & L. Spiller.
    Where the holder of a promissory note has failed to bring suit until after prescription has obtained, and the evidence shows that he might have brought suit at any time for several months previous, the plea will be maintained, 20 An. page, 131.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      E. J. Ellis, for plaintiff.

      Thos. G. W. Ellis, for defendant.
   Howell, J.

Defendants have appealed from a judgment against them as makers of a promissory note, bearing ten per cent, interest from its date, and due on the 31st January, 1861, to which, among other defences, they set up the plea of prescription,

Citations were served on 3d October, 1866, and consequently prescription had been acquired, unless interrupted. To show an interruption and suspension, plaintiff proved that the defendants were, for sometime, in the rebel army, and that when exceptions were filed by soldiers in said army, because of being in the said service, the suits against them were dismissed.

No suit was brought by plaintiff against these defendants, although they were most of the time in their parish.

These facts do not establish a legal interruption or suspension of prescription. Service at any time might have been made at the respective domicils of the defendants; and besides, suit might have been brought during a period of sixteen or seventeen months after the close of the war, before it was actually brought. The plea should be maintaind.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.


author: Ilsley, J.

text:
    No. 1675.
    Adelaide C. Gill and Josephine R. Guinault, Tutrix, v. Wm. B. Hosmer, Administrator.
    The question of prescription, and of the interruption of prescription, cannot be considered on an application for an order of seizure and sale* The doctrine in the case of Perroux v. Zacoste, (19 An page 266,} reaffirmed.
    APPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      J. M. Thompson, for plaintiffs and appellees.

      G. II. Penn, for
    defendant and appellant.
   Ilsley, J.

This is an appeal from an order of seizure and sale, and the ground relied on, in this court, to have the order rescinded is, that the notes sued on were upon their face prescribed when the order was granted; and there was no authentic evidence to'show that prescription had been interrupted.

The question presented in this case was carefully considered in the case of Perroux v. Lacoste, (19 An. p. 266) upon a rehearing thereon; and it was there held, that the questions of prescription and the interruption of prescription cannot be considered on an application for an order of seizure and sale. That the debtor is amply protected by Art. 739 C. P.

We reaffirm the doctrine taught in that case, and for the reasons therein given, and'now again adopted, it, is ordered, adjudged and decreed that the order of seizure and sale appealed from, be maintained, and the appeal dismissed, with costs.


author: iLenEY,

text:
    No. 1130.
    S. B. Smith & Co. v. R. S. Morse & Co.
    On 28th of April, 1859. S. B, Smith & Co., of Now1 Orleans, made a written contract with R. S. Morse &> Co., proprietors of the Oi ty and Arcade.hotels, to furnish them with all the ice they migut req fire for the use of said hoti Is, for the term of five years, to commence on 15th of June. 1859. at the rate of $15 00 per ton. On the 31st of October 1861, the contract was so modified a*» to Increa'e the price of the loe furnished, to $1 50 per hundred pounds, or $30 per ton; this agreement to remain in force during the continuance of the blockade. The blocuade was formally raised July 1, 1862. On the 16th* f April, 1863. S B Smith Co., bring suit against R. S Morse, liquidating partner of R. S. Morse & Co., for $1,252 10, balance due for ice furnished. R. S. Morse, liquid,itor, filed a plea in reconvention, settingup, that notwithstanding the contract with S. B. Smith &Co. to furnish all the ice required for the two hotels, from I5th of June, 1859. to 15th of June, 1864, at fixed rates, he was compelled to buy ice at various times at a much higher rate, thereby increasing the expenses for ice for the two hotels, in the sum of $2,564 61, for which he prays judgment in reconvention.
    S. B. Smith & Oo. sought to avoid the contract on the ground, first, that Morse was not bound by it; that he might never want any ice at all. and in that event Smith would have no remedy. On this point it was held by the Court th t the legal principle, that there can be no contract where only one of the parties to it is bo'ind, has no application in this case, because, under the contract, R. S Mors* & (Jo. were bound to purchase all the ioe necessary for their hotels, at a fixed price, from tí. B. Smith & Co. Tne second objection was, that the parties were released by afortuitous event, tO'Wit. the war. To this objection the Court held that the terms of the contract showed that the parties contracted with reference to the war. ani were bound by it. Tne evidence adduced on trial shows that R. S Morse & Co., or R S. Morse, liquidator, did no act which amounted to a waiver of his claim to a performance of the contract, It was finally held by the Court, that S. B. Smith & Co. were bound by their oontract with R, S. Morse & Co. and that R S Morse liquidator, recover m i'econvontion, of S. B. Smith & Oo., the amount of $2561 *L, bheincreased price which they had to pay for ice, on account of the failure of S. B. Smith Js Co. to comply with the contract.
    APPEAL from the Fifth District Oourt of New Orleans, Leamnont, J.

      JE. J. Goode, for plaintiffs and appellees.

      W. II. Hunt and W. O. Denegre, for defendants and appellants.
   iLenEY,

This is a suit against R. S. Morse, as surviving and liquidating partner of the late firm of R. S. Morse & Co., for the recovery of a bill of ice, furnished for the City Hotel up to 16th April, 1863, and amounting to $1,252 10 with interest.

The answer is a general denial, and there is also a plea by which the defendant claims in reconvention from the plaintiff) $¿564 60 with interest.

The reconventional demand proceeds from certain agreements, between the parties, of the following tenor :

New Orleans, April 28th, 1859. ”

“ Having made a contract with R. S. Morse, and agreed to furnish him with all the ice he may require for the use of the City Hotel, Arcade Hotel, &c., at the rate of seventeen dollars and fifty cents per ton, eighty-seven and a half cents per hundred, for five years, from the 15th day of June, 1859, until 15th June, 1864, we agree hereby for a certain consideration in hand paid, to pay back or hand over to Mr. R. S. Morse, or his assigns, connected with him in the above-mentioned hotels, purchases of us, the same to be settled and paid over at the time the ice-bills are settled, or at the time Mr. Morse may require, leaving the net costs of his ice fifteen dollars per ton. ”

(Signed) “ S. B. Smith & Co.

Testimony of George Moore : “It may be asked by some friend why• We make the above deduction, and favor him over his neighbors ; because lie has favored us in former times, and in time of need, and we feel fully satisfied to get cost for our ice of such, but not so with others.”

(Signed) “ S. B, S.”

“ New Orleans, October 31, 1861.”

“ We hereby mutually agree that the price to be paid for ice shall be temporarily raised to one dollar and fifty cents per one hundred pounds.The agreement to remain in force during the continuance of the blockade. It is further agreed, that the written contract is not in the. least impaired by said temporary agreement.”

(Signed) “S. B. Smith & Co.”

(Signed) “R. S. Mouse & Co:”

The account set up in reconvention, is thus stated : . '

“Messrs. S. B. Smith & Co., To R. S. Mouse, De.”

“For amount paid for ice furnished from May, 1861, to June, 1864, as per statement, etc................................ $3,908 60

Credit — By amount due on the above quantity of , iqe, if furnished by S. B. Smith, as per ice contract................. 1,343 99

Difference between the amount paid by R. S. Morse for ice, and the amount he was bound to pay under his contract with S. B. Smith & Co., to furnish ice at three-quarters of a cent per pound............................................... 2,564 61

The first question presented is, are the agreements which are transcribed above, legally binding upon the parties to them ; if so, they must be enforced. C. C. 1895, 1940, $ 1 and 2.

A careful perusal and due consideration of the two contracts,- of the. 28th April, 1859, and of 31st October, 1861, have satisfied us that the contract was always understood by the parties to it, as entered into between the proprietors of the ice depot, on the one part, and the proprietors-of the City and -Arcade Hotels, on the other part.

True, in the act of 28th April, 1859, the name only of R; S. IVTorse figures in the body of it, and it is not signed by him, and that his partner, George Moore, seems to have subscribed it as a witness; but all this is unimportant, as in the act of 31st October, 1861, wherein the price of the ice was temporarily augmented, $1 50 per “ during the continuance of the present blockade,”, it was mutually, specially and distinctly agreed that the contract of the 28th April, 1859, was not in the least impaired, by the temporary agreement of ike 81st October, 1861, and the parties to the original and supplemental agreements, themselves admit by signing the names of both firms, S. B. Smith & Co. and R. S. Morse & Co., to the’ last agreement, who the contracting parties really were throughout.

The first contract did not require the signature of Morse & Co. to it, to bind Smith & Co., as the acceptance of a contract need not be made by the same act, or in point of time, immediately after the proposition. C. 0.1798. A party need not accept a contract expressly, or by his signature. He does so, by availing himself of its stipulations. Hen. Dig. p. 1002, No. 16.

Several objections are urged by the plaintiff against the contract. The first objection is : That Morse is not bound by it, as he might at pleasure refuse to get ice from Smith, and Smith would' be without remedy ; as the contract only stipulates that Morse shall pay for such ice as he' may require from Smith; a certain price on delivery, and he might not have required any, and Smith would have no redress.

This involves the legal proposition, that there can be no contract-where only one of the parties to it is bound ; but it has no application here; unless it be supposed that the contract contemplated that it was optional with Morse & Co;, to dispense entirely with the use of ice in their large hotels, which is not sanctioned by any reasonable construction that can fie placed upon the contract.

The obligation imposed on Morse & Co. by the contract, was, that all the ice that would necessarily be required for their hotels should be taken from Smith, & Co. at a stipulated price, which was regulated more than once between the parties, to adapt it to the state of the times. Had Morse & Co., purchased ice from other parties, it would have been a violation of their agreement with Smith & Co., who would have been legally entitled to redress for its infraction.

The second objection is, that Smith & Co. were excused from a compliance with the contract, by a fortuitous event, and irresistible force, the war.-

. This ,we deem wholly untenable, as we are satisfied that the agreement contemplated a state of war, and that the parties contracted with reference to its consequences.

The plaintiffs, however, were not prevented from furnishing ice under their contract during the period embraced in the bill sued on. The blockade was formally raised July 1st, 1862, and the plaintiffs sue for the value of ice furnished the defendant up to the 16th April, 1863; while, by their contract, they were to furnish it, and did furnish it, until the 15th June, 1864. From the 1st of July, 1862, to 15th June, 1864, there was no actual blockade.

The, third objection is, that the conduct of Morse amounted to a waiver of his claim to a performance of the contract.

It is said that after the blockade, Morse “purchased ice regularly from Smith at much higher rates than the contract called for, and when Yenard, Smith’s agent, raised the price of ice, and notified Morse, among other customers, Morse did not object.

What says Yenard on this point ?

“I.do not recollect,” he says, “that Morse & Oo. set up any claim or deinand that ice should be furnished them at a less price under any previous contract, when they were notified of the enhanced prices being charged them; but Morse, at one time during the period when I was collecting an account, said they had a contract with Smith & Co., but he knew Smith would make it all right when he saw him.” And he says that the first time he presented the account sued on, Morse claimed that he had a larger account against Smith & Co., on account of a contract fpr ice not being fulfilled; and again: “ Mr. Morse, I took for granted, from what he said, admitted the correctness of the account; he did not deny he owed the amount of the account, without reference to his books or book-keeper. His opposition to pay it grew out of the non-compliance with the' contract. He said he had a larger amount due him by Smith & Có. ”

From this testimony of Yenard, it is clear that Morse made no waiver of his claim, but asserted it.

It appears that from the 22d April, 1863, to 15th April, 1864, Morse & Co. paid witliout’objection, the various bills for ice furnished by J. F. Krantz and Krantz and Smith, and it is contended by the plaintiffs, Smith & Oo., that the ice furnished under these names “ was in fact furnished by the house or firm of S. B. Smith & Co., represented during said Smith’s absence, by Krtm e S. B. Smith & Co., and Krantz and Smith, except á small quantity furnished by Warner, of all of which the defendant was well aware.”

We do not think the testimony in the record brings home knowledge of the identity of the houses of Krantz & Co., Krantz, Sandes & Co., with that of S. B. Smith & Co.

The last objection to the reconventional demand of Morse & Co. is, that Smith was never put in default.

It is not pretended by the plaintiffs, that ice was furnished Morse & Co. by any others than .themselves, carrying on business by different names; but really the identical S. B. Smith & Co., with whom Morse & Co. contracted. No default therefore was necessary, as the ice had been furnished by S. B. Smith & Co., and it became only necessary therefore to carry out the contract, which on the part of Smith & Oo. was to supply Morse & Co. with ice at a net cost of $15 per ton; and “to pay' back and hand over to him the excess above that price, which he might have paid, at any time he might require it.”

We think the defendant’s demand in reconvention is satisfactorily proved.

It is therefore ordered, adjudged and decreed, that the judgment Of the District Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the defendant, E. S. Morse, as liquidating partner of E. S. Morse & Co., and against the plaintiff, S. B. Smith & Co., upon their' demand; and it is further ordered, adjudged and decreed, that jndgment be and it is hereby rendered in favor of E. S. Morse, as liquidating partner of E. S. Morse & Co., on his demand, in reconveniion and against S. B. Smith & Co., and the members of said firm, S. B. Smith and John1 E. Krantz, in solido, for the sum of two thousand five hundred and sixty-four dollars and sixty-one cents, with interest thereon, at the rate of five per cent, per annum, from the 15th June, 1861, till paid, and that the said plaintiffs pay costs of suit in both courts.


author: InsiiEX, J.

text:
    No. 1277.
    Joachim Kohn et als. v. James A. McHatton—John H. Schenck, Third Opponent.
    Inscription in the office of the Recorder of Mortgages ceases to be evidence of a mortgage after the ’ lapse of ten years, and it is not Bubjeot to the rules of prescription.
    APPEAL from the District Court, Parish of East Baton Eouge, Posey, J. ,

      Pavrot & Lamon, for plaintiffs.

      T. G. Morgan, A. M. Dunn, and,,

      R. E. McHatlon, for defendant.

      S. P. Greeves, for John Schenck, third, opponent.
   InsiiEX, J.

The plaintiffs, in virtue of a final judgment which they had obtained against the defendant on certain mortgage notes, had caused to be seized and advertised for sale the hypothecated property, when John H. Schenck, claiming a prior lien on the property seized, to secure the sum of $36,000, which said sum he avers James McHatton undertook and assumed to pay when he bought the property. He prays that this amount be retained by the sheriff, and that his said claim be paid out of it. Against the claim thus set up, the plaintiffs in their answer contend, among other things, that the pretended mortgage to Schenck has lost its rank and effect by lapse of time and non-registry ; and that by the operation of law and the laches of said Schenck, the plaintiffs’ mortgage takes precedence.

The court below, on the ground also that the opponent’s mortgage had not been legally reinscribed, dismissed his opposition, and gave judgment therein in favor of the plaintiff's, and Schenck has appealed.

The third opponent, in his brief, complains that the record is unnecessarily voluminous, which it certainly is, involving as it does, as he properly contends, but two questions, which is, whether by the want of reinscription of his mortgage, its effect as to the plaintiffs is gone, and the effect of the clause in the sheriff’s sale, to which allusion will be made.

The mortgage to him from Holt and Hutchinson, the one he claims under, was recorded on the 1st of May, 1855, and it was cancelled and erased at the request of the plaintiffs, on the 3d of March, 1866, for want of reinscription.

The necessity for the registry and reinscription of a mortgage cannot be questioned. O. O. 3333, 2 A. 100. 6 A. 321. 10 A. 596. 12 A. 216. 11 -A. 390. 13 A. 569.

The opponent, Schenck, however, pleads vis major as a legal excuse for having failed to reinscribe the mortgage, and invokes the maxim, Contra non valentem agere non curritprcescriplio, and he relies on a clause in the sheriff’s deed to McHatton, under a fieri facias, by which it appears that of the price at which the property was adjudicated to him a part of the price w’as paid in cash and “ the balance of the said adjudication retained in said purchaser’s hands, to satisfy the mortgage in favor of John H. Schenck for $36,000.

As to the vis major, admitting that the mortgage notes held by Schenck were mislaid in his counsel’s hands, that did not prevent his obtaining from the proper office a copy of his act of sale and mortgage to be reinscribed, particularly, as the original act was on record upon the spot at which the reinscription should have been made, and he had ample time and opportunity to make it.

This Court has lately held that inscription ceases to be evidence of a mortgage after the lapse of ten years, and that it is not subject to the rules of prescription. 18 A. 133. Britton & Koontz v. Jas. Norment, Recorder, Op. Book 35, p. 740.

McHatton purchased the property at a sale made by the sheriff several years previous to the date of the mortgage granted by him to the plaintiffs; and in the sheriff’s deed is a clause which the opponent relies upon to place his lien above that of the plaintiffs.

By this sale, which was a cash one, it appears that McHatton paid the cash portion of the price, and as the deed shows “ the balance of said adjudication was retained in the said purchaser’s hands to satisfy the mortgage in favor of John H. Schenck for 836,100.”

This claim of Scheuck’s being an hypothecary one, formed a part of the price of adjudication, and the purchaser bought the property subject to that lien; but no mortgage resulted directly irons, the sheriffs sale to secure it, beyond the original lien.

The whole unpaid price, however, of the sheriffs sale, was secured by the vendor’s privilege, but for want of due and timely inscription of the sheriff’s deed in the proper office, theprivilege which the law accorded to Schenck as a mortgage creditor on the land adjudicated to McHatton, “ degenerated,” as this Court said in the case of Taylor et al. v. Crain’s administrator, 16 La. 292; 3240-41, into an ordinary mortgage, which took effect only from the date of the inscription, long previorrs to the date of the plaintiffs’ lien, acquired by them long afterwards from McHatton. But was there any lien inscribed against the land in controversy, when the case was tried in the court below ? We must presume not, as by the certificate of the recorder in evidence, dated about the time of, or shortly previously to the trial, not opposed or rebutted, and which we deem prima facie evidence, it appears that no mortgage whatever was recorded in favor of Schenck. Art. 3356, C. C.

Believing however that the opponent relied upon the recorded sheriff’s deed, and did not therefore offer evidence to rebut the recorder’s certificate, we think justice requires that the case be remanded to enable him to show that his mortgage, resulting from the sheriff’s sale, was never cancelled, and that it is still extant upon the records of the recorder. C. P., Art. 906.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded for a new trial, and for further proceedings according to law, at the costs of the appellees.


author: Idsdey, J.

text:
    No. 1131.
    Chas. E. Spencer & Co. v. Bloomfield & Steel.
    Where fcherecord discloses the fact that the appeal was taken for delay, damages will be allowed as for frivolous appeal.
    A lx. PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Geo. L. Bright, for plaintiffs and appellees.

      Henry J. Leovy, for defendants and appellants.
   Idsdey, J.

The defendants have taken a suspensive appeal from a judgment rendered against them on a money-claim in favor of the plaintiffs.

We can perceive no error in the judgment rendered by the lower Court, and none has been pointed out to ns by the appellants, and it seems evident that delay was the object of the appeal.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with five per cent, damages, at the costs of the •appellants.