author: Preston, J. Eustis, C. J. Slidell, J.

text:
    Henry G. Burrows v. P. LePage Peirce et al.
    tPhe damages which may be recovered by the vendee from the vendor of real estate does not extend to the increased value of the property which has been caused by the mere fluctuation of estimated value. If the vendee has been unable to get possession of the property he is entitled to be reimbursed the price he lias paid with interest from the date of payment.
    from the Fourth District Court of New Orleans, Slrawbridge, J.

      Hite and Gaither, for appellant.

      Waits and Sprifig, for appellees.
   The judges of the court gave their opinions seriatim,

Preston, J.

In 1845, a separation of property was decreed between R. F. Nichols and his late wife, and on the 16th of June, 1846, in pursuance thereof, they made a partition of their property before a notary public. In making the partition, four lots of ground in the town of McDonogh were conveyed to Mrs. Nichols. It was expressed in the conveyance that it was made without warranty.

It appears that one of the lots did not belong to Nichols, he having sold it some years before to George A. Puddy and his wife. In the sale to Puddy and wife, Mrs. Nichols had joined to renounce her matrimonial rights.

On the 6th of January, 1847, Mrs. Nichols sold the four lots to IP. G. Burrows, for the price of two hundred and fifty dollars. It appears that Puddy and wife had improved their lot, and that, at the time of the sale to Burrows, it was worth, with the improvements, several thousand dollars.

Burrows sues Puddy and wife for their property, but makes the heirs of Mrs. Nichols parties, knowing she had acquired no title, and claims from them four thousand dollars for the value of the property and damages.

The heirs call R. F. Nichols in warranty. Puddy and wife call both them and R. F. Nichols in warranty.

R. F. Nichols pleads that he and his wife committed an error in subjecting the lot to their partition, and admits that Burrows acquired no title to it; but denies that he is liable to any of the parties, because in conveying to his wife, he expressly exonerated himself from warranty.

We have no doubt Mrs. Nichols, in conveying the lot to Burrows, believed it to be her property, under the conveyance from her husband, and acted in perfect good faith. The fact, that several years before she joined her husband in the sale to Puddy and wife to renounce her matrimonial rights, affords no presumption to the contrary. It was community property, of which he had the sole management and disposal. It does not appear by the partition afterwards, that she had any matrimonial rights upon it; but whether she had or not, like nine wives in ten, she probably hardly inquired what particular lot belonging to their community the husband was selling.

As, therefore, she had no intention to defraud Burrows, her sale to him of this particular lot is simply null, because it did not belong to her. What is the measure of Burrows’ claim against her heirs? We think nothing more than the price he paid for the property.

It is true, the principles of speculation in this trading community give countenance to the rule claimed by Burrows, that he should recover the value of the property which was fifty times the price paid for it. But speculation should not mislead us from the true principles of the contract of sale. It is the rule of morality, favored as far as possible by both law and equity, that the buyer should give the full value of the thing purchased and seek to acquire it for no less; and the seller should dispose of it for its fair value and seek for no more; and that the only basis of the transaction should be that the property and its use is more convenient and useful to the purchaser than the money and its interest, and vice versa, that the money and its interest is more useful to the seller than the property. Keeping these principles in view, if from any cause without fault on either side, the sale is annulled, the price paid should alone be restored. Damages indeed may be given, but they must grow out of other circumstances than that the purchaser got a great bargain or made a fine speculation out of the Vendor.

It is urged that the increased value of the property sold since the sale should be allowed to the purchaser in edition to the price paid, as damages against the vendor and warrantor, under article 2482 of the Code. By an express article of the Code of 1808, the buyer when evicted, was entitled to recover from his warrantor the increased value of the property sold in addition to the price paid. This provision was literally translated from the 1633d article of the Napoleon Code, and probably well suited to the French Empire, where the value of property was stable, the resources of the country developed, and its currency not subject to sudden fluctuations. The rule, however, operated most injuriously in this State, so much so as to deter persons from disposing of their property or warranting their sales. Whoever sold in the vicinity of this growing city, although in the most perfect good faith, was liable- to be ruined by some dormant claim hunted up by litigants and speculators. And the same effect was produced in the rich parishes whose resources were rapidly developing. So a man selling when our monied institutions contracted the currency to the lowest point of depression, and perhaps forced to sell from that cause, was liable to be totally ruined when a bloated currency doubled or quadrupled the apparent value of property, and made it the interest of the vendee himself to have adverse claims raked up that he might recover quadruple the price from his -warrantor.

The evil was so crying that it did not escape the attention of all fair dealers, and was brought to the notice of the jurisconsults who were selected to revise the Code of 1808. Indeed, the very year they made their report to the Legislature, our Supreme Court had made a decision in the case of Castellano v. Peillon, 7 N. S. 472, disregarding the provision of the Code of 1808, by condemning the warrantor to pay only the price he had received for a slave, and not the price for which his vendee had sold him, in' opposition to the judgment of the district court.

The jurisconsults, therefore, recommended • that the clause in the Old Code should be suppressed. It was in these words: “If, at the time of the eviction, the thing sold has risen in value, éven without the buyer having contributed thereto, the seller is bound to pay him the amount of said augmentation of value above the price of the sale.” The Legislature suppressed this clause of the law and substituted nothing for it.

They repealed it for the following reasons, submitted by the jurisconsults: The article which requiresjhat the seller shall not only restore to the purchaser the price he has received, but shall pay him the increasing value, which the thing sold may have acquired in the ordinary course of things and without any act of the purchaser, is a provision evidently dangerous, and might cause the ruin of a vendor selling in good faith, in á countiy where the fluctuations in value are so great. If the thing sold were diminishing in value, we should think it unjust that the buyer should only receive the price it is worth at the time of the eviction, and that the seller should profit by the excess. It is equally contrary to justice that the buyer should be reimbursed beyond what he has actually given or expended.”

Immediately after the repeal of the provision of the Old Code, the case of Morris v. Abat et al. occurred. Millaudon purchased property from McCarty for $1500, and sold it to Abat, who was evicted, for $3000. Abat recovered $3000 from Millaudon, and he $1500 from McCarty. Millaudon appealed; insisting upon his right to the increased value of the property by way of damages, as is done in the present case. The district court had given very able reasons for deciding, that under the above mentioned legislation, the increased value of the property sold could not be considered in affording the buyer indemnity under the warranty. His judgment was affirmed by the Supreme Court; Martin, Chief Justice, interpreting the legislation in this strong and conclusive manner: “We are called upon to test the correctness of the decision of the district judge on the legal extent of the vendor’s liability on an eviction. It is not denied that under the Code of 1808, this liability extended to an indemnification for the loss which resulted of the profits arising from the difference of value of the thing sold by events to which the vendee had not contributed; an article of that code providing that if, at the time of the eviction, the thing sold has risen in value even without the buyer having contributed thereto, the seller is bound to pay the amount of this augmentation of value beyond the price of the sale.

“The compilers of the New Code recommended the suppression of this article, as containing a provision evidently dangerous, which might cause the ruin of a vendor in good faith, in a country in which the fluctuation of value is great. This article was accordingly suppressed and the vendors liability restricted by article 2482: 1. To the restitution of the price. 2. To that of the fruits or revenues, if the party has been obliged to return them. 3. That of costs of suit. 4. In fine, all the damages the party has suffered, besides the price which he has paid. To say that the word damages in the above article includes, as a loss of profits, the augmentation of the value of the thing sold above the price of sale, would be to thwart rather than cany into effect the express intentions of the Legislature. It would be to reinstate the whole of the former code, suppressed on the recommendation of the compilers of the new one, and since formally repealed. The construction adopted by the district judge appears to us perfectly correct.”

The same controversy soon came before the Supreme Court again in the case of Bissell and Wife v. Erwin’s Heirs, 13 L. R. 148. The district court had followed the late decision in the case of Morris v. Abat, and rejected evidence of the increased value of the property as a matter to be considered in fixing the indemnification to be paid by the warrantor to the evicted vendee, and limited it to the price paid by him. The Supreme Court reversed the decision and remanded the cause to receive the evidence; but admitted that it was only to be considered in estimating the damages to be recovered by the vendee, and which might be moderated by the judge according to circumstances, the chief of which were, that the increased value contemplated by the parties at the time of the sale should be taken into the account, and not such as resulted from accidental and transient causes.

The two decisions being directly in conflict, we are compelled to decide, in the present case, which is the true interpretation of article 2482 of the New Code.

It is urged, that the last decision is correct, because it adopts the Spanish jurisprudence by which we were governed before the enactment in the Code of 1808, which was repealed by the Code of 1824; that it conforms to the French jurisprudence before the adoption of asimilar provision in the Napoleon Code, and also to the principle on the subject contained in the great and equitable system of Roman jurisprudence.

It is to be observed, that all the civil laws in force in the State previously to the adoption of the Code of 1824, were expressly abrogated by the 25th section of an act approved the 25th of March, 1828; and, therefore, we are not obliged to adopt the principles of the civil law on the subject before us if we think the rule of the common law more equitable and better adapted to the circumstances of our State.

Before expressing an opinion as to the respective merits of the principles of the civil and 6PB)B)o» law on the subject before us, it should be observed that, there is reason to believe that the Legislature intended to adopt the principles of the common law. The reasons submitted to the Legislature for excluding the increased value of the property as a standard of indemnification in case of eviction, bear intrinsic evidence that they were penned' by the Jurisconsult Livingston. He was educated in the principles of the common law. The simple and invariable rule of indemnification to the evicted vendee in that system, is the restoration of the price paid by him, and nothing more. It has existed from time immemorial, for it is laid down in the black letter of Bract on & Broke, and in the year books of Edward the III. and Henry the VI., the Justinians of England. Mr. Livingston commenced his distinguished career as a lawyer in the State of New York, where the grantor with warranty has no concern with the increasd value of the thing sold, but restores only the price received by him.

It was natural that'in recommending the repeal of one rule of law on the ground that it was ruinous to the State, he should recommend that rule under which he was educated, and which all the great writers on English and American equity have recommended as a moderate, safé and just principle. It is believed that the principle was adopted in every State in the Union,, except Massachusetts, Connecticut, Virginia and South Carolina; and although the rule of the civil law was originally adopted in Virginia and South Carolina, it has since been abandoned and the rule of the common law embraced.

If the legislation itself on the subject before us admitted of any doubt, this reminiscence would leave none, that the great jurisconsult who controlled this part of the code, recommended and succeed in inducing the Legislature to adopt a simple, just and certain rule in harmony with that of almost every sister State, all to some extent interested in a uniform system of warranty and not that of foreign countries, from whose principles, in the very article of the code he was amending, he was endeavoring to disenthral our legislation.

The community generally believed that the principle of the common law had been adopted; and this led to the careful investigation of titles to real property about to be sold by the vendees, and has eminently contributed to the settlement of titles in our State. Incalculable frauds growing out of the principle in the Old Code were suppressed, and its intolerable injustice counteracted.

The principle that the return of the price paid should be the only standard of indemnification, had the advantage of being a fixed and invariable rule in all cases, and removed a great objection in any system of jurisprudence — that of leaving everything to the discretion of a judge on a subject with regard to which there might be a precise rule of law. The Roman, Spanish and French jurisconsults feeling that to allow the increased value of the property as an indemnity, would often lead to great injustice, and even the ruin of vendors in the best faith, left the amount to the discretion of the judge ; thereby admitting that it was a vicious principle, and to be moderated by an arbitrary discretion. Our Legislature chose to abolish the principle and the discretion, and have done so by repealing the law and leaving in the code a fixed rule for all cases.

The rule of the common law conforms to the rules as to damages in all other cases. Damages are allowed for injuries flowing immediately and not consequentially from the acts of the parties. The increasing value of property sold by a vendor does not flow from his acts, but from extraneous circumstances over which he has no control. If the vendee sells the property for an advanced price which he loses when the title fails, it is a kjss growing immediately out of his sale, and not that of his vendor. The loss growing out of the sale of his vendor is the price he paid, for which he is indemnified exactly by its restoration.

The rule of the common law conforms to one of the most common maxims of Roman equity, while the principles of the civil law on this subject are entirely inconsistent with it. Cujus eommodum, ejus debet esse incommodum. The vendor and vendee being both in good faith, if the sale fails without the fault of either, if the rule of our code is adopted, the price is restored and the perfect equality of the contract remains established. But if the rule of the civil law is adopted, the vendee gains all the increasing value of the property, there being no defect in the title; and yet could loose nothing for having, like his vendor, failed to discover the defect, if any existed ; whilst the vendor, for the same misfortune, would loose not only the price received, but the increasing value of the property, without the possibility of participating in it under any circumstances. Again, if the thing sold has greatly depreciated in value far below the price received, still the price paid is to be restored, in case of eviction, by the express provision of the article of our code; showing clearly that an ever varying rule could not have been contemplated by our Legislature, and that in place thereof they have established a fixed rule for every case.

I may be induced by necessity, or having no use for a thing, to sell it for half its value. Am I, in case the sale fails, to restore not only its value at the time of sale, but perhaps double, by its increase in value. Mrs. Nichols sold the premises which are the subject of this suit for a fiftieth part of their value at the time of sale. No reason can be given for the restoration of a dollar more than she received, which would not equally require the restoration of the whole value then and all the increase since.

A sale is a commutative contract, in which the most perfect equality of liability should prevail. The vendor is bound to warranty; the vendee to pay the price at the time agreed. If the .vendee fails to pay the price at the time, no damages are allowed except five per cent interest; and that only when the thing sold produces or might have produced fruits. But many cases may occur where the non-payment of the price at the time agreed subjects the vendor to ruinous suits, the seizure and sale of hid remaining property, and the suffering of himself and family from poverty and want. He can recover no damages for all this except the interest fixed by law. Cases have occurred, growing out of the demoralizing system of speculation, in which the vendee has withheld the price for the express purpose of purchasing it at a sacrifice when sold under executions against his vendor. So, if the vendor could have realized the price at the time of payment, he might perhaps have purchased other property worth ten times that which he sold; yet he can recover no damages, even although the vendee should have withheld the price for the express purpose of securing the speculation himself.

The principles of law and morality recognize none of these schemes and speculations, and do not endeavor to settle an account of them. Those who receive money for the transfer in good faith of something equal in value, as they supposed, must return the money, and no more, if it turns out that nothing was transferred. The sale of the property of another is null; it may give rise to damages, but only when there is fraud or negligence, as in all other acts of man.

Instead of the price alone as the rule of indemnification, the court, in the case of Bissell v. Erwin’s Heirs, added also the increased value contemplated by the parties, and not that which arose from transient or accidental circuipstances. It would be perfectly illusory to attempt to come to any certainty as to the contemplations of the parties at the time of the sale. The buyer probably dreamed of thousands, while the seller contemplated a depreciation in the value of the thing sold. The buyer may have known, certainly, of an invaluable gold mine in the premises, unknown to his vendor, and contemplated the wealth of Croesus from a fact neither accidental nor transient. It is impossible, too, to conceive a reason for allowing any part of the increased value as damages, which would not apply to and require the allowance of the whole. Thus, Pothier puts a case in which the increased value by the improvement of the country quadrupled the value of the property when sold, and says damages should be allowed in that case to only the amount of double the price. There is no reason whatever for this arbitrary rule, if the increased value is considered at all.

The increased value, as a rule of indemnification, is subject to every possible fluctuation of property and money, and therefore in no two cases of sales could be the same. The seller could never know the extent of his obligations ; at one time they might be thousands, at another hundreds, and vice versa. The increase in the value of property most frequently occurs by the improvement and peopling of a new country or city. In almost all such cases, the actual settlers and occupants fully pay for the increasing value of the property by the social advantages they forego, the hardships they endure, the public and private duties they perform, the money they expend in taxes, labor and improvements. This is so universal, that it may always be presumed until the contrary is clearly established by proof. This increased value, therefore, is an improvement of the aggregate property by the aggregate means and industry of the occupants, and should, in my opinion, under our equitable system of laws, be paid by the speculator and purchaser or possessor of dormant claims or old titles, who bes by until, by the toil and suffering of the occupants, the improvements are added to the property in good faith. The increase in the value of the property growing out of the melioration of the country falls most equitably under the denomination of useful improvements to be reimbursed, under article 2485 of the Code, by the person who evicts the vendee and possessor'in good faith. Such a possessor has a right, in case of eviction from the thing reclaimed, to retain it until he is reimbursed the expenses incurred upon it, or, as expressed in the French of article 3416 of the Code, Jusqu’au remboursement des imponges qu’el peut y avoir faites. And probably this just indemnification to the possessor in good faith would be much more generally and liberally allowed by courts and juries, if it was as clearly settled as it is just that they should have no recourse for the same against their warrantors. This principle, if fully established, would thus have a most salutary effect in discouragingjnequitable litigation.

Land was given by the Creator to man for improvement and cultivation by the possessor in good faith, not for speculation. His security and encouragement should be the great object of civil laws; and speculation in the soil and in lawsuits should receive no encouragement from legislation or courts of justice. Right, according to strict law, should be accorded to such speculations, and nothing more. It may then be asked what is meant by damages allowed as an indemnification for eviction in the New Code. The answer is plain : precisely what was meant by damages in the Old Code ; for the provision as to damages in it is preserved verbatim, in the New Code. Now, damages in the Old Code did not mean the increased value of the property, because that was established as one item of indemnification in a separate and independent clause of the code. Therefore, the provision for damages preserved verbatim in the-New Code does not mean or include the increased value of the property.

The damages referred to are those suffered by the buyer when the vendor has knowingly and wilfully sold the property of another to a vendee ignorant of the outstanding title. They are referred to in article 2486 of the Code, and include all expenses, even those of the embellishments of luxury, that the buyer has been at in improving the property. And even although the sale be made in good faith, yet if the warrantor, though cited, fails to appear and defend the suit, he is liable to the defendant for the fees of his counsel, for his trouble and neces- . sary expenses beyond costs incurred in defending it. The veiy mode of expression, however, in the article, “ damages, if any ” indicates that but little, and that not often, would be allowed under this head of indemnification. In this very case, Burrows is to be allowed damages because he never had nor could obtain the possession or enjoyment of the lot. He should recover interest on the price paid for it from the day of sale, and which he could not have recovered if he had enjoyed the fruits and revenues of the property. The heirs of Mrs. Nichols are therefore liable to Burrows only for sixty dollars and fifty cents, being the fourth of the price of the four lots sold to him in block for two hundred and fifty dollars, and for interest from the day of sale.

Mrs. Nichols sold with this clause in her act of sale, that “she does sell, convey and transfer and set over, with all legal warranty and with substitution and subrogation to all her rights of warranty against her own vendors or authors.” This clause entitles Burrows to all her rights against R. F. Nichols. Although the latter did not warrant the title of the lot to his wife, yet he is bound by his own act, in selling the property long before the partition with her, in which he purported to convey it again, and 'could not exonerate himself from warranty against this act. Code, art. 2480. He is also liable, without warranty, for the consideration he received. Art. 2481. He has not shown for what the lot was estimated in the partition; and in the absence of that estimation, the loss suf fered by Mrs. Nichols and her heirs affords a fair criterion of the indemnification for which he is liable.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with this amendment, that said plaintiff recover interest from the 6th day of January, 1847, until paid, on said sum of sixty dollars fifty cents, from said heirs of Mrs. Nichols and said R. F. Nichols in solido, and that said heirs of Mrs. Nichols, upon payment by them, recover like interest from their warrantor, R. F. Nichols. It is further ordered and decreed, that the costs of this appeal be paid by said heirs of Mrs. Nichols and R. F. Nichols.

Eustis, C. J.

The article of the Old Code requiring the seller to reimburse to the purchaser in case of eviction, if at the time of the eviction the thing sold had risen in value, even without the buyer having contributed thereto, the amount of the increase of value above the price of the sale, is identical with the article 1633 of the Napoleon. In adopting the amendments of the code, this article was deliberately expunged; and the reasons for this change of the law were given. It has no place in the Code of 1825. Any introduction of the repudiated principle, 1 think, would be in conflict with the declared will of the Legislature. I understand the district judge as disallowing the claim of the purchaser who has been evicted against his vendor for the increased value of the lot at the time of eviction. I think, from the evidence before him he decided correctly, under the article 2482 of the Code, in limiting the claim to the price of the lot, and excluding the amount of the increased value.

The implied warranty of the contract of sale imposes no restraint on parties in relation to the extent of the indemnity in case of eviction, which they may choose to stipulate between themselves, With but two exceptions: one is, that the seller cannot exonerate himself from the consequences of his own acts; the other, that he is always bound to return the price, unless the purchaser was aware of the danger of eviction, and purchased at his own risk. Code 2479, et seq.

Parties may provide in their covenants of warranty for any contingency which may arise after the sale and affect the value of the property sold. I wish my opinion to be understood as confined to cases similar to the present, which may present the fact of a naked increase in the saleable value of the property sold. Cases may occur in which the rule acted upon in this case may not be applicable.

I think the judgment of the district court ought to be affirmed.

Slidell, J.

The Code of 1808 contained the following provision: “If at the time of the eviction the thing sold has risen in value, even without the buyer having contributed thereto, the seller is bound "to pay him the amount of said augmentation of value above the price of the sale.” — p. 354, art. 57.

The jurisconsults who were charged with the revision of that code, in presenting to the Legislature a body of “additions and amendments,” proposed the suppression of article 57, and gave the following reasons for doing so. “This article, which requires that the seller shall not only restore to the purchaser the price he has received, but shall pay him the increased value which the thing sold may have acquired by the ordinary course of things, and without any act of the purchaser, is a provision evidently dangerous, and might cause the ruin of a vendor selling in good faith, in a country where the fluctuations of value are so great.”

The suggestion of the revisers was adopted by the Legislature, and the article 57 was omitted in the Code of 1825.

In view of these facts, I am unable to assent to the doctrine, that a vendor in good faith can be held liable for the increased value of the property sold, upon the eviction of his vendee, even with the limitations borrowed from the Roman law restricting the liability to double the price paid.

If the seller is answerable at all for the increased value, I do not perceive on principle how that liability can be partially released by judicial discretion. In the Roman law the limitation was a matter of positive legislation.

It appeal's to me that there is another very grave objection to the doctrine laid down in the opinion prepared by one of my brethren in the present case; and that is, the uncertainty of the standard borrowed from the Roman law. It leaves too much to the discretion of the judge. The price is a certain standard.

It seems to me inequitable to throw upon the vendor the grievous burden of restoring double the price if the buyer is evicted, when we consider that an, increase in value, no matter how enormous, gives the seller no right to demand a further sum from the purchaser; and when we also consider, that if the value should depreciate and the purchaser be evicted, he still is entitled to the restitution of the entire price under the article 2483.

For the above reasons, which, with others, are more fully stated in the opinion prepared by Mr. Justice. Preston, I think the judgment of the district court should be affirmed, with the amendment, as to interest, suggested in the decree prepared by Mr. Justice Preston.

Rost, J. In a partition of the community property between R. F. Nichols and Mary C. Nichols, his wife, made in execution of a judgment of separation of property, four lots in the town of McDonogh had previously been sold by Nichols to Puddy and wife, and Mrs. Nichols had appeared in the sale and renounced her rights of mortgage thereon.

In 1847, Mrs. Nichols sold the four lots to the plaintiff for $250. Under this sale the plaintiff now sues Puddy and wife, who are in actual possession of the lot, and have made valuable improvements upon it. He has made the heirs of Mrs. Nichols, who has since died, parties to the proceeding; and in case he should fail to recover the property, he claims from them $4000 damages for its increased value since the sale to him. The heirs of Mrs. Nichols have called R. F. Nichols in warranty, and Puddy and wife have called both them and Nichols in warranty.

Nichols, in his pleadings, admits the previous conveyance to Puddy and wife, and avers that the lot in controversy was included in the partition through error. He concedes, that the plaintiff has no title to the lot, but alleges that he transferred it without warranty, and that the defendants have no, claim against him.

The evidence in the record leaves no doubt in my mind as to the good faith of Mrs. Nichols when she sold to the plaintiff. She could have had no motive to receive it in part payment of her share, unless she believed that it belonged to her husband. It is true, she had joined in the act of sale to renounce her rights of mortgage; but we all know, that although married women are daily called upon to make such renunciations, there is not one in a hundred who in sales of vacant lots, preserves such a recollection of the description of the property sold as will subsequently enable her to identify it. We are satisfied that the statement of R. F. Nichols, that this lot was included in the partition through error is correct.

The good faith of the vendors being ascertained, the question is as to the measure of damages against them. The district judge was of opinion that Mrs. Nichols was only bound to return the price she had received, and gave judgment accordingly. He also gave judgment in favor of her heirs against Nichols, under ai'ticle 2481 C. C. The plaintiff alone has appealed.

The amount involved in this controversy is inconsiderable, but the principle upon which it is to be decided is of the highest importance. Art. 2482 of the Code provides, that when the buyer is evicted, he has the right to claim from his vendor, 1st, the restitution of the price; 2d, that of the fruits or revenues when he is obliged to return them to the owner who evicts him; 3d, all the costs of suit; 4th, the damages, when he has suffered any, besides the price he has paid.

There is no contest between the parties as to the price and the costs of suit; and the property produces no fruits. But the plaintiff alleges that it has increased in value from sixty-two dollars and a half to four thousand dollars, and claims the difference between the two sums as damages suffered by him, besides the price he has paid. The defendants, on the other hand, insist that they owe no damages beyond the price. This defence prevailed in the district court.

The damages allowed by article 2482 are undoubtedly something over and above the price. They are not those arising from the restitution of fruits by the person evicted; for the article contains a distinct provision in relation to those fruits. They are not those which arise from the loss of the improvements made on the property. Article 2485 provides for their reimbursement. They are damages which arise from the loss of the thing itself propter ipsam remrwn habitam, such as the loss of the increased value of the thing at the time of the eviction.

By a provision of the Old Code, which is also found in the Code of France, if at the time of the eviction the thing sold had risen in value, even without the buyer having contributed thereto, the seller was bound to pay him the augmentation over the price of the sale. Merlin, commenting upon this article, was of opinion, that when the increase of value was enormous and such as could not have been foreseen by the parties at the time of the contract, it did not prevent the judge from moderating the damages according to the rules in force before its adoption. Repertoire, verbo Guarantee. But he appears to be alone in this opinion, all the other commentators within our reach, and the Court of Cassation with them, agreeing that the disposition of the code is too clear and absolute to leave any discretion to the judge ; and that the damages should in all cases be assessed at the full amount of the augmentation of value. ,16 Duranton, 294, 295, 296. Toullier, Obligations, No. 285. Troplong, De la Vente,'No. 506. Rogron on Art. 1633 Nap. Code.

Such appeal’s also to have been the opinion of the compilers of the Code of 1825; and they recommended the suppression 'of the article of the Old Code on the ground, that in a country where the fluctuations of value are so great, such a provision might cause the ruin of a vendor in good faith. The article was accordingly suppressed; and the rights of the party evicted were left as they stood under the Spanish law before the adoption of the Code of 1808, under the general provision that he should be entitled to recover damages, when he had suffered any, besides the price he had paid. Partida 5, tit. 5, law 32.'

The Legislature in suppressing that article acted on the advice given them, to modify the legislation so as not to compel courts of justice to allow the full amount of the augmentation of value when it was enormous and such as the parties could not have anticipated at the time of the contract. But, as they ordained by article 2485 that if at the time of the eviction the property was impaired in value the seller would still be bound for the restitution of the full price, the presumption is irresistible that when it had greatly increased in value they intended that the seller should be bound to make indemnity for some portion of that increase.

Although the damages alluded to in article 2482 are mentioned in general terms, there are other articles in the code by which their nature and extent may be ascertained. Article 2492 provides, that other questions arising from a claim of damages resulting to the buyer from the non-execution of the contract of sale shall be decided by the general rules established, under the title of coventional obligations. Under this article, damages arising from a breach of warranty are of the same nature and are subject to the same rules as those resulting from the inexecution of contracts generally; and it is clear that on principle there ought to be no difference between them.

The general rule as to the measure of damages, established under the title of conventional obligations, when the defendant is’in good faith, is, that he is liable for such damages as were contemplated or may be reasonably supposed to have entered into the contemplation of the parties,'and no more. Art. 1928. If, therefore, it can be reasonably presumed'that at the time of the sale in this case, an augmentation of the value of the property sold entered into the contemplation of the parties, the defendant is bound to, make indemnity to the amount of the augmentation contemplated. Such is the jurisprudence of Spain and of France before the Napoleon Code; and both countries have taken it from that fountain head of all equity, the Roman law. Partidas, Loco Citato, and Commentary of Gregorio Lopez. Pothier, De la Vente, No.' 133. Pothier on Obligations, No. 164.

It is a great,error to attribute the increase in the value of the real estate in a country like this, to speculation. That value increases with the capital of the country, and is the happy result of the industry and intelligence of our people, and of the protection which our institutions and laws give to persons and property. It will be a crying injustice, if in cases of eviction that increase is not to a reasonable extent viewed as a profit made on the original cost.

The amount of damages which may be reasonably supposed to have entered into the contemplation of the parties at the time of the contract is a question left in every particular case to the discretion of the judge or jury. But the civil law had placed limits within which that discretion was to be exercised. By a law of Justinian, damages in casibus ceriis, that is to say, such as relate exclusively to the thing which formed the subject of the obligation, could never be assessed at more than double the value of the object, including that value itself. Cod. De sententia qute pro eo quod interest.

This law is quoted with approbation by Pothier and Gregorio Lopez. It had not, it is true, the force of law either in France or Spain; but it was considered by the jurisconsults of those countries, that Justinian had only established the limit which the law contains, because it was impossible to suppose that the parties should at the time of the contract have had in contemplation, in any case, damages larger in amount than the subject matter of the contract; and they gave to the principle and reason of the law the effect which the law itself could not have. Dumoulin, Tract de eo quod Interest, Nos. 57 and 60.

Pothier puts a case, for the application of that rule, which is of daily occurrence among us, and which gives rise to many claims in warranty: I have purchased a vineyard and house in a remote province, for four thousand francs. When I purchased, the wine made on it was unsaleable for want of means to get it to market. Since that time a canal has been made, which affords cheap means of transportation. The wine has risen to more than four times its former value, and the land has come to be worth over sixteen thousand francs. It is clear, that if I am evicted, the damages resulting from the eviction arising from the loss of the property alone, will be over sixteen thousand francs. But yet, under the principle of the law of Justinian, for all the augmentation of value, and including the price, my vendor, if he is in good faith, shall only be bound to refund to me eight thousand francs. So, with us, men of small means purchase from speculators in public lands as much land as they can pay for, in some remote part of the State. At the beginning they have no means of transportation for their produce, and, besides supplying them with the necessaries of life, it is of little or no value to them. As the neighborhood becomes settled, roads are made, the obstructions of navigable waters are removed, the products of their farms are thus placed within the reach of markets, and their lands soon rise to a, value which exceeds the original cost and the value of the improvements put upon them. Suppose, then, they are evicted by an old grant, are those men who have conquered the wilderness inch by inch, and borne all the hardships and privations of a frontier settlement, are they to be told that they are speculators, and that there is a rule of morals foibidding thorn to claim more than they paid ? Surely, this cannot be law. The land may have risen higher than the parties contemplated at the time of the sale; but the vendor knew that it was purchased to be improved, and that as the neighborhood became settled, means of communication would be established and the land would rise in value.

It is urged that the increase of value resulting from the natural course of things may be recovered as improvements; this could not be done without express legislation to that effect.

The defendants rely on the case of Castellano v. Peillon, 2 N. S. 472. That case was decided under the Old Code, and is clearly wrong. Under the provision of that code, the defendant was bound to refund the entire amount of the increased value; and, as the purchaser had sold the slave for a higher price than he gave, the measure of damages against his vendor after eviction was not the price he had paid, but the price he received.' ■ The vendor was bound to know that the purchaser might sell; and that if he did, he would sell at the highest price he could get.

The question under consideration came before the supreme court in the case of Bissell and Wife v. Erwin’s Heirs, 13 L. R. 147. The district judge in that case had refused to receive the evidence offered' by the plaintiff to, prove the increased value of the property at the time of the eviction. The case was remanded, with directions to the district judge to admit it, for the reasons given in the opinion.

The same doctrine was re-considered and affirmed in the case of Edward et al. v. Martin’s Heirs, 19 L. R. 294. In that case a free woman had been sold as a slave in 1802. She did not bring suit for her freedom till 1829; she was then adjudged to be free. While she was held as a slave by the purchaser, she had six children, who were all living when judgment was rendered in her favor. The case was tried before a jury, who assessed the damages of the purchaser against his vendor at $4800, this being the value of the mother and her children. On appeal, the judgment was reversed; and it having been shown that $625, the price paid for the mother, had already been refunded, the court adopted the principle of the law of Justinian: allowed the like sum of $625 as the highest amount of damages which the parties could have in contemplation at the time of the contract.

The only case in the reports which sustains the pretensions of the defendants is that of Morris v. Abat et al. 9 L. R. 522. It is not out of place to observe, that when the case of Bissell and wife was before the Supreme Court, and the opinion delivered by Judge Martin in the case of Morris was read, he protested that-he never had made such a decision, and that the case was incorrectly reported, his opinion having always been in accordance with the decision in Bissell’s case. This was one of the last opinions which the judge wrote with his own hand after he lost his sight, and the reporter gave as an excuse for the inaccuracy of the report, that it was impossible to read it. To please Judge Martin, he made a second attempt at discovering its meaning, and has appended the result of his labors to the report of Bissell’s case, in 13 L. R. The second reading does not, however, materially differ from the first, and if the judge was right in his recollection, his manuscript opinion still stands undeciphered.

I am well satisfied with the settlement of this difficult question as made by our predecessors, and do not feel justified in assenting to a change of the rule adopted. The plaintiff paid sixty-two dollars and a half for a lot of sixty feet. The lowest estimate put by witnesses upon lots of that size in the same neighborhood at the time of the eviction is two hundred dollars. This is more than double the original price; but I believe justice would be done between the parties by reducing the damages, as was done in the case of Edwards et al.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    The State v. Reason Turner.
    A motion in arrest of judgment or for a new tidal will not be sustained upon the ground that one of the grand jurors who found the indictment, was one of the jurors who tried the case. The objection would have constituted a good ground of challenge, but could not avail after • verdict.
    Where the judgment of the district court does not state reasons and refer to the law on which it is founded, it will be amended in these respects by the Supreme Court.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      Isaac Johnson, Attorney General, for the State.

      Cowgill and Dunlap, for appellant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was tried and found guilty of assaulting one Mayer with a dangerous weapon, and has appealed from the judgment of the lower court sentencing him to eight months imprisonment.

He applied for a new trial, on the ground of newly discovered evidence, which the district court refused to grant, and we cannot say refused improperly. He made a motion to arrest the judgment upon the verdict against him, on the ground that one of the grand jurors who found the, bill of indictment against him, was also one of the petit jury who rendered the verdict under which he was about to be sentenced. ■

It was held in the State of South Carolina, in the case of the State v. O'Driscoll, in which precisely the same circumstances occurred, that though it would have been a good ground of challenge, it was not a sufficient ground for a new trial. So also in the case of the State v. Quarrell, it was decided by the same court that an alien, having set upon the trial, although incompetent by law, was not a sufficient reason for granting a new trial, inasmuch as he was not challenged. 2 Bay’s Rep. 152, 153.

In Pennsylvania, in the case of Duane v. Hollingsworth, it was decided, after much argument and deliberation, and upon an extensive review of the authorities, that alienage might have been a cause of challenge before the juror was sworn, but that advantage could not be taken of it after verdict. 4 Dallas’ Rep. 354. The same principle was maintained by the Supreme Court of that State in the case of McCorkle v. Burns. 5 Binney’s Rep. 348.

So in New York, in the case of Egleston v. Smiley, it was held, that though one of the jurors who tried the cause was related to the plaintiff, yet, as he was not challenged at the time, the objection could not afterwards be made, there appearing to be no unfairness in the trial. 17 John. Rep. 133.

Having found no authority to the contrary, it seems to preponderate against the motion for the accused, even if it had been made for a new trial; which would have been the most proper application.

It is also assigned as error in this case, that the court did not give any reasons for its judgment nor refer to the law in support of the same, and in this respect the judgment should be amended.

It is therefore ordered, adjudged and decreed, that Reason Turner, for having been prosecuted, tided and found guilty by the verdict of a jury of the parish of West Feliciana, on the 17th day of December, 1850, of having on the 23d of June, 1850, assaulted Jacob J. Mayer, with a dangerous weapon, and inflicting wounds upon him short of maiming, and by virtue of the fourth section of an act approved the 7th day of February, 1829, entitled “ an act supplementary to an act entitled an act for the punishment of crimes and misdemeanors,” be imprisoned in the parish jail of the parish of West Feliciana, for the term of eight months; pay a fine of one dollar, the costs of prosecution, and stand committed until the sentence is complied with.


text:
    The State v. Daniel Gomer.
    It is not a valid objection to an indictment against the accused for stealing a calf, that the terms he “ did steal, take and carry away," are used instead of “ drive away." Further, that the property stolen is described as goods and “ chattels," instead of “ cattle;" the term chatties including every species of personal property.
    If the indictment shows the offence to have been committed in the parish, it is sufficient showing of its having been committed within the jurisdiction of the district court of that parish.
    The Supreme Court will not revise upon a writ of error the decision of the district judge in a criminal case upon a matter which is subject to the exercise of his discretion; and consequently will not re-examine his refusal to grant a new trial.
    The judge of the district court should state the reasons and refer to the law on which the judgment is founded. If he omits doing so, the Supreme Court will amend the judgment in these respects.
    from the District Court of West Feliciana, Stirling, J.

      Isaac Johnson, Attorney General, for the State.

      Cowgill and Dunlap, for appellant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was accused, convicted and sentenced for stealing a calf. He made a motion that judgment'on the verdict against him should be arrested, on the ground that the indictment charged that he “ did steal, take and carry away,” whereas it should have charged that “he did steal, take and drive away.” Mr. Archbold gives the latter form of an indictment under a special statute in England, against stealing cattle, and which enumerates each kind of cattle as bulls, cows, oxen, calves, &c.

It is very proper to state the mode of stealing in a prosecution under a statutory offence, though we are not aware of any decision that the common law terms carry away” would not be sufficient as to the asportation even under the statute. But it is to be observed, that we have no special statute against stealing cattle. The offence with us is prosecuted as a larceny at common law. It is therefore as proper to use the common law terms carry away, as the terms drive away, although more expressive of the fact. The terms carry away, in common parlance as well as in common law, means to drive, lead, or even to ride the animal away, although in the last case, the thief causes himself to be carried instead of carrying away.

It was likewise assigned as a ground for arresting the judgment, that the animal should have been described as of the goods and cattle, and not of the goods and chattels of the owner. For the reasons just given, the last, being the common law description of things which are the subject of larceny, is a sufficient description. The legal definition of chattels embraces the animals of the owner, for it is a term which includes all kinds of property except the freehold or things which are parcel of it.

It has been assigned in this court as ■ an error apparent on the face of the record, that the indictment does not show that the offence was committed within the jurisdiction of the Seventh Judicial District Court of the State for the parish of West Feliciana. It was found by the grand jurors'of the parish of West Feliciana, sworn and impanelled to inquire for the body of that parish alone, and at a session of the District Court of the Seventh Judicial District in and for that parish. It charges that the offence was committed at that parish. From these facts it is necessarily inferred that the offence was committed within the jurisdiction of the court of that district. We know this from the allegations made in connection with our Constitution and laws. And although it is prudent, it is not absolutely necessary, to state in indictments what the law necessarily presumes. 1 Maulé and Selwyn, 105. 2 Wilson, 147.

The affidavit filed for a new trial does not enable us to say that the district court did not exercise a proper discretion in refusing it. Moreover, a majority of this court are of opinion that the exercise of his discretion in this respect by the district court cannot be revised upon a writ of error.

It is assigned in this court for error, that the district court gave no reasons for ■its judgment, and referred to no law in support of it, as required by article 70 of the Constitution. We think the district court should have referred to the verdict of the jury as a reason for passing sentence upon the prisoner, also to the statute under which he was prosecuted, and by virtue of which he was sentenced to punishment. The judgment of the district court should be amended in this respect.

It is therefore ordered, adjudged and decreed, that Daniel Gomer, by reason of his prosecution and trial for larceny, and his legal conviction of the crime by the verdict of a jury of the parish of West Feliciana on the 17th day of December, 1850, and by virtue of the first section of an act approved the 19th day of March, 1818, entitled “ an act to amend the penal laws of the State,” be imprisoned at hard labor in the penitentiary of the State of Louisiana for the term of one year; that he pay the costs of his prosecution in the district court, and stand committed until the sentence is complied with. And it is further ordered, that the foregoing decree be entered in the case as the judgment of the District Court of the Seventh Judicial District of the State of Louisiana in and for the parish of West Feliciana.


author: Eüstis, C. J.

text:
    Samuel W. Fullerton v. Kennedy and Foster.
    Where a person entrusts to a merchant engaged in trade in Western produce on his own' account, and also as a factor, a sum of money to be invested in whiskey, and the merchant accordingly buys and keeps stored in his own name a large quantity of the article, giving the party thus advancing a memorandum of the purchase, which be neglects having placed to his account in the warehouse, the merchant, having the indicia of ownership, will be regarded as the real owner so far as third persons are concerned.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      R. Mott and C. Roselius, for plaintiff.

      Wolfe and Singleton, for defendants.
   The judgment of the court was pronounced by

Eüstis, C. J.

This is an appeal taken by the defendants from a judgment rendered against them in the Third District Court of New Orleans. The learned judge kept the case for a long time under advisement, under the hope, as he states in his opinion, that his researches would lead him to some legal ground on which relief might be extended to the defendants, as he considered it essential to the security of commercial dealings and to the protection of good faith. In his researches, however, he came to the conclusion that the defendants could not be relieved, and gave, though with great reluctance, judgment against them.

Fullerton, the plaintiff, was, at the time of the transactions which gave rise to the present suit, in the steamboat business; he had his office in the building, No. 93 Tehoupitoulas street in the Second Municipality. He was in New Orleans during the whole month of February, March, and up to the 15th of April, 1847, when he purchased a plantation, and passed most of his time there. Fullerton's office was up stairs. Below was the counting-house of William A. Bennett, who was doing business on his own account, as a merchant. He had been doing business as a merchant in New Orleans for several years, and was engaged in buying and selling. He was known as a produce commission merchant and a dealer in western produce. There was an intimacy between Fullerton and Bennett, such as exists between persons in the same house.

The defendants, Kennedy and Foster, are,merchants in New Orleans, doing a general commission business, making advances on consignments, &c. They were in the habit of making advances also on.produce deposited in warehouse.

On the 12th of March, 1847, Kennedy and Foster made an advance to Bennett of five thousand dollars in their notes on 778 barrels of whiskey stored at Orr’s warehouse, for which Bennett then transferred to them the warehouse receipt. Kennedy and Foster paid their notes; and after a delay, the cause of which it is not material to notice, they sold the whiskey, with the exception of a few barrels, and applied the proceeds to the payment of their advance.

Bennett in the mean time had failed, and left the city in the latter part of May. Bennett’s clerk gave Fullerton’s clerk in the month of June an order for the barrels of whiskey, which were still in the warehouse of Or, but the latter made no demands of the defendants for them, considering it unnecessary to insist on the delivery of so small a quantity; and as the counsel in argument have made no distinction between these and the rest of the lot, the case will be considered on the obligations and rights of the parties to the whole lot.

In the month of February, 1847, at three different times, the plaintiff gave Bennett money amounting in all to the sum of sixteen thousand dollars, for the purpose of purchasing whiskey for him, and shortly afterwards, under date of the 15th of February, Bennett rendered an account to the following effect: Memorandum of 1920 barrels of whiskey purchased by Wm. A. Bennett for account of S. W. Fullerton. The dates, the names of the sellers, the number of barrels and quantity, the price of each lot, and the aggregate are then given, together with the total cost, ^16,021 64. The warehouses in which the whiskey is stored, in four several lots, are then named and the memorandum is signed by Bennett.

The present action is instituted to recover from the defendants one of the lots of whiskey, 778 barrels stored in Orr’s’ warehouse, or its value. The ground of the action alleged is, that the whiskey was, at the time of the advance made by the defendants, the sole property of the plaintiff, and that the defendants knew the fact; that Bennett had no right to pledge the whiskey, as it is charged he did, to the defendants; and that they acquired no rights under their contract with Bennett in relation to it, except such as were subordinate to the right of property of the plaintiff.

There is no evidence that the defendants had any knowledge or notice of the interest of the plaintiff in the whiskey until the demand for the remnant of the lot was made on the warehouseman by the plaintiff’s clerk, as before stated : indeed, we find nothing in the evidence impugning in the slightest degree their good faith. The plaintiff’s case stands before us on the payment of the money by him to Bennett to be laid out in whiskey, an'd on the account or memorandum before recited; and t.he defence rests upon the bona fide advance, the delivery of the property, and the sale made by the defendants for the purpose of reimbursing themselves. At the time of these transactions, Bennett was a dealer in whiskey, and bought largely on speculation. The defendants in February had advanced the sum of ten thousand dollars to him on two lots of the article, one of which corresponds in number — 778 barrels — to that which is the subject of the present suit. Witnesses have been examined from whom in that season Bennett made purchases of whiskey. They were all made in his name, nor does it appear that the purchases made by Bennett, which it is alleged were paid for with the plaintiff’s money, were made differently or could be distinguished in any one particular from those conceded to be made by Bennett on his own account. No difference is attempted to be established by the evidence.

On the subject of the relations between Fullerton and Bennett, which, from the general aspect of the case we think ought to have been explained, the testimony is meagre and unsatisfactory. It is in evidence that subsequent to the purchase of the whiskey there were business transactions between them. The plaintiff’s principal witness states that he is not aware that Bennett paid over any money to Fullerton after this transaction, unless it were for some previous transaction. It does not appear that the accounts between them were ever settled, and as to what is their state there is no evidence before us. In a case of this kind, as the plaintiff alone can be in possession of the facts, it is but natural to look to him for the information, or for some proper reason for its not haying been given. But giving to this omission no other consequence than one of the facts of the case, they present a state of things which we think brings it within pripciples which we have on several instances been called upon to enforce.

No change of the possession of the whiskey was made by Bennett until its delivery to the defendants. It remained in his name in the warehouse on storage. The plaintiff, under the evidence, appears knowingly to have enabled Bennett, who was known in the market as a dealer and speculator at that time in the article, to appear in the market with his, the plaintiff’s, property as his own, with possession and the muniments of title in his own name, and without the public having any possible means of discriminating between the plaintiff’s property and that in which he was speculating on his own account. Suppose the defendants to have been put on their inquiry. The different sellers of the ar icle from whom Bennett had purchased, and the warehouse books would have corroborated the warehouse receipts and the assurance of Bennett that the property was his own.

The opportunity which the plaintiff every day had of knowing the movements of Bennett, the business between them, the risk which always accomplishes large speculations, ought to have cautioned the plaintiff against permitting Bennett to have the benefit of the credit which the possession of this property under the circumstances necessarily gave to him and which he might abuse.

There is no evidence as to the purpose for which the plaintiff advanced money for the purchase of the whiskey, whether it was on speculation, for sale or shipment; nor is any reason assigned why it was bought and retained by Bennett in his own name. None of the ordinary purposes of commerce required the property to be kept in this condition. The circumstance to which we have previously alluded, that some portion of the whiskey remained unsold at the time Kennedy and Foster were apprized of the plaintiff’s claim, would confine the Claim to this portion. For that part which was sold, of which the proceeds were applied to the payment of their advance, there being no fraud on the part of the defendants, and no notice whatever of any pretensions of the plaintiff in relation to the right of property, our impressions would be that the plaintiff’s action must fail. We state this to prevent any misconception which might result from deciding on the principle which controls the whole case, without reference to this matter of defence.

It appears, from the dates of the purchases in the memorandum which the plaintiff has offered in evidence, that about the time Bennett purchased other lots of whiskey from different merchants in the city, and it not appearing that any other acknowledgment was given by Bennett to the plaintiff than the memorandum, it follows that the plaintiff had no means of knowing which lot was bought for him until the delivery of the memorandum. This state of facts closely assimilates the transaction between these parties to a sale on the part of Bennett of the lots of whiskey he assigned for the plaintiff’s use; and there being no sign of any delivery whatever, it is assimilated to the case of a vendor after the sale retaining possession of the thing sold, and subjected to the consequences of the vendor’s retaining possession.

On a very thorough consideration of the facts in evidence, we cannot consider it other than an ordinary case in which a man puts his property in the possession and name of another, and thereby voluntarily subjects it to the obligations which persons in good faith contract in relation to it. Were the property real estate, under such circumstances, we should hold it liable to seizure for debts of the ostensible owner and of. the mortgages created by him upon it. Foster’s Heirs v. Foster’s Administrator, 11 L. R. 408. Stockton v. Craddick, 4th Ann. 285. Dozier v. Squires, 13 L. R. 130. As it does not appear that Bennett held the property under any commercial relation of consignee, factor or bailee, it appears to us necessarily to fall under the condition of being in the open, public and exclusive possession of Bennett, and thereby subjected to his right of ownership, so far as respects all persons dealing with him in relation to it in good faith. Pickering v. Bust, 15 East. Rep. 37. Packard, v. Sears, 33 Common Law Rep. 115. McMasters v. Commissioner of Atchafalaya Bank, 1st Ann. 11. Leverich, Executor, v. Richards. Ib. 348. Moorev. Lambeth. 5th Ann. 69. Conner v. Hill, ante p. 7. Gregg v. Wells. 37 Common Law Rep. 54.

To decide that the plaintiff could recover in the present case from the defendants, without any evidence of the state of the accounts between the plaintiff and Bennett, would sanction a principle which would put it in the power of persons in this situation to commit a fraud. They might have been paid or have taken security from their faithless agent, and still exact the same debt from a party in good faith who had purchased the property.

The contract being perfectly fair and mercantile between the defendants and Bennett for the advance made by them, we think the plaintiff has nothing to do with its forms, and that situated as he is, he can only claim the rights which Bennett himself had; he is bound by Bennett’s acts as apparent owner of the property.

The judgment of the district court is therefore reversed, and judgment rendei'ed for the defendants, with costs in both courts.


author: Eustis, C. J.

text:
    Samuel W. Fullerton v. J. and R. Geddes.
    The same principle decided in the preceding ease.
    APPEAL from the Third District Court of New Orleans, Kennedy, J. R.

      Molt and C. Roselius, for plaintiff.

      Wolfe and Singleton, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This case was argued at the same time with that of Fullerton v. Kennedy and Foster, and it is agreed by counsel that it only differs from that case on a fact disclosed by a witness, which it is contended establishes a full knowledge of the ownership of the plaintiff of the lot of whiskey which is the subject of the present suit.

The same judgment was rendered by the judge of the first instance, as in the other suit, and the defendants have taken this appeal.

The witness was a deputy sheriff and was serving process, at the instance of J. and R. Geddes against some other parties, for the seizure of the lot of whiskey on which the defendants had made an advance; he swears, that in the spring of 1847 he had a writ of sequestration for the seizure of some whiskey; the suit was J. and R. Geddes v. Ellmaker and Viosca; witness went to the store of Messrs. Ellmaker and Viosca, in company with Mr. John Geddes, to sequester the whiskey, and witness being very intimate with Captain Fullerton, and knowing of these transactions, remarked to Mr. Geddes that the whiskey belonged to Captain Fullerton; he replied, he knew that Captain Fullerton's money had paid for the whiskey; but that he thought Bennett had the control of it and could do as he pleased.

We think this evidence makes no material difference between the two cases. The absence of any designation of the time at which this knowledge came to the party renders the testimony of no avail. Nor do we think the admission, if taken together and weighed under the caution with which evidence of this kind ought always to be considered, would establish bad faith on the part of the defendants.

The judgment of the district court is therefore reversed, and judgment rendered for the defendants, with costs in both courts.


text:
    John Crow, Tutor, &c., v. Thomas M. Griffin.
    An objection to the admissibility of parol proof to establish the contents of a lost instrument in -writing must be made in tbe court of the first instance.
    A contract by which an heir capable of contracting, sells his entire interest in a succession to an administrator, is not forbidden by law, and is consequently binding on the parties. Such a sale differs from a sale by an administrator to himself through a person interposed.
    from the District Court of Tensas, Selby, J.

      George S. Sawyer, for plaintiff.

      Stacey and Sparrow, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff claims for his ward a third of the estate of Samuel Miller, deceased. The evidence leaves no doubt .on our minds that George W. Miller, the father of the minor, and who Was the heir to one-third of Miller’s estate, sold his interest to Thomas M. Griffin, the curator of the estate, for twenty-five hundred dollars.

The testimony was objected to, on the ground that it was offered to prove the sale of real estate by parol; which could not be done. The testimony shows, that the sale was made in writing; that the instrument had been burnt; and establishes the contents of the writing.' Moreover, it was a sale of an interest ip promissory notes, and not of real estate.

It is urged in this court, that it was not proved that the loss of the instrument had been advertised; and, therefore, proof of its contents could not be received. This objection to the testimony was not made in the district court, and therefore cannot be sustained in this court.

The objection, that Griffin, being a curator of the estate, could not purchase the interest of one of the heirs, was fully considered by this court in the case of Ross v. Ross, 3d Ann. 533. We adhere to the opinion then expressed, that the sale by An heir of his whole interest in an 'estate to the administrator, by which the relation between them is terminated, is not prohibited by law. The case is entirely unlike the sale by an administrator to himself, through a person interposed, of a part of the estate. On the contrary, it is an agreement between two persons capable of contracting, and upon a subject on which they are not forbidden by law to contract.

The judgment of the district court is therefore affirmed, with costs.


author: Edstis, C. J.

text:
    G. W. Denton v. James Erwin et al.
    The court will not give effect to an agreement entered into for an immoral and fraudulent purpose; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. This principle has been established in favor of public justice, and not for the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiff.

      C. Roselius and R. Mott, for defendant.
   The judgment of the court was pronounced by

Edstis, C. J.

This is an appeal taken by James EruAn and Andrew Erwin, from a judgment of the Third District Court of New Orleans, rendered against them in favor of the plaintiff on the verdict of the jury. By the judgment a certain judgment in the name of James Erwin against the plaintiff, rendered in the late Parish Court of New Orleans, for $63,333 33 with interest, bearing dale 6th June, 1842, was adjudged to be satisfied and execution thereof to be perpetually enjoined; the plaintiff also recovered from the defendant, James Erwin, the sum of $17,043 59, and also one undivided half interest in certain lots of ground situated in the Second Municipality and the adjoining parish of Jefferson.

It appears that for years previous to 1842, the plaintiff and James Erwin were on the most intimate and confidential terms, and were extensively engaged in speculations in real estate in New Orleans; that, in 1842, the whole real estate, which was the subject of their speculation, was in the name of James Erwin. The fund from which the judgment was held to be satisfied, was composed of different sums, which Erwin received, belonging to the plaintiff in the course of their joint dealings ; and the contest between these parties arises in the attempt of James Erwin to appropriate to himself the whole proceeds of the joint property from time to time sold by him, and the property remaining unsold. The judgment of the district court recognizes the joint interest of Denton; and this question, which is one purely of fact, is the point on which the case turns. The verdict of the jury being thus in favor of the plaintiff on the question of fact, as the case has been presented and argued before us, it only remains for us to consider whether on principles of law the judgment can be maintained. The details of fact have not been gone into by the counsel in this court, and we will proceed to consider the several questions of law which have been presented in argument.

Andrew Erwin, it appears to be conceded, was a mere nominal party, and we leave him entirely out of view in the consideration of the case. In the case of Gridley v. Connor, 2d Ann. 92, we had occasion to observe: “It must rarely happen that in the settlement of a partnership by the verdict of the jury, full justice is done to the parties. The relations of partners are too intimate, too confidental, to be determined otherwise than by a spirit of truth and justice among themselves. They are the agents of each other, in many circumstances completely in each others power, and soeium vero cavere qui possumus.” The present controversy between these parties has been conducted with unusual bitterness; there are mutual accusations of purloining documents, and their former intimacy appears to have been succeeded by a spirit of injury and revenge. The trial in the court below was protracted to an unusual length. It occupied the court and jury for several weeks; the evidence was voluminous; and every point appears to have been most perseveringly contested by both parties. The property, the subject of their joint speculation, as we have seen, was in the name of James Erwin, and the plaintiff relied upon the existence of a certain counter-letter which he alleged he had received from James Enuin, and which established his joint interest. This counter-letter, it was charged, Erwin had obtained from the person to whom the plaintiff had intrusted it, and suppressed it. "We do not think the existence of this counter-letter is proved; and if the case rested upon this fact of the existence of the counter-letter exclusively, we do not think the verdict of the jury could be sustained. But the defendant in his answer alleges, “ that he, said petitioner and respondent, had some business transactions together previous to the 12th of May, 1842, but on that day a settlement was made of partnership affairs between them, and respondent was fully acquitted of all liability and responsibility in any way or manner of form to or for the said G. W. Denton.” If we consider this as an ordinary action between partners for the settlement of accounts, and the answer of the defendant as pleading a release, and separate this case entirely from the circumstances attending it, the question that this plea of release presents is not difficult to solve.

The instrument offered in evidence by the defendant as proving this settlement of the partnership and release from the plaintiff to the defendant, is to this effect: “Know all men by these presents, that Gabriel W. Denton of this city, having this day, in a final, full and complete settlement with James Erwin of this city, received payment in full from him of all debts, dues, demands of whatever kind I have or could hereafter have had growing out of our various business and different joint speculations in real or personal estate; now, therefore, in consideration of said settlement, and for the further sum of $50 to me paid, the receipt of which I acknowledge, I hereby release, remise and quit claim unto the said J. Erwin, his heirs or assigns, all debts, dues or demands, actions or causes of action growing out of our various business transactions up to this date, either in writings, bills, bonds, notes or obligations of any kind whatever, either in law or in equity from the beginning of the world to this date. And I hereby furthermore transfer and convey to the said Enoin all my rights, title and claim, either in law or equity, to all lands, lots, houses or tenements not heretofore conveyed to him, or all rights, title or interest I could have either in law or equity, which said lands may have been bought on joint account, but where the titles were taken in the name of said Enoin, but held by him for the mutual benefit of Erwin and the said Denton, all of which said interest, title or claim, legal or equitable, it is now understood to be relinquished by me and vested in full in said Erwin, he having this day paid me in this settlement for same; and I hereby convey away and relinquish to said Erwin all my title, interest and claim, positive or contingent, to all batture rights acquired by purchases originally made on joint account from John R. Pully of this city, or on all claims against said Pully, or on the batture rights acquired by purchase from M. Morgan, J. Collins, H. Hozoard and the heirs and representatives of S. B. Sloaomb, all of which has been included in this settlement, and which in fact is intended as a full relinquishment to said Erwin of all interest to property ever held in his name, or on joint account; and as an acknowledgment that I have this day, on a final settlement with him of all our affairs, received satisfaction .in full of all demands of every description whatever. In witness whereof I have hereunto set my hand and seal this twelfth day of May eighteen hundred and forty-two. G. W. Denton.”

It appears that by an act passed before Cenas, notary public, and bearing date 12th May, 1842, the same date as that of the instrument above recited, the plaintiff conveyed to James Enoin a large amount of real estate, which is the subject of the present suit, in which Enoin was previously jointly interested. The consideration stated in the act was $63,800 acknowledged to have been received in cash, and three notes of $12,688 33 each, payable at six, nine and twelve months date. The document signed by Denton is under private signature, and was recorded in the office of a notary public on the 30th of June, 1842. The defendant, by relying on it in his defence and producing it in evidence, has produced written evidence of the existence of a partnership between himself and Denton, for the objects of which that document treats. True, it is not in his handwriting; but by seeking to avail himself of it and producing it, he makes it his own. If, therefore, this document should not be conclusive evidence of the settlement of the partnership and the release of Enoin, and of the transfer to him of Denton’s interest in the concern, it is good evidence of the existence of the partnership and of the interest of Denton in the real estate which was the subject of the partnership'. The inquiry then is as to the validity and verity of the instrument as a discharge on the part of Denton in favor of Erwin, which was to put an end to the partnership concern and to transfer the interest of the former to the latter. It is to be observed that this document is alone, and without any accompanying evidence, written or verbal, which combates or explains it. It is not mutual; purporting to emanate from Denton alone, and Erwin not binding himself to any part or portion of it. So far from this instrument closing the partnership relations between these parties, the evidence furnishes conclusive proof of the reverse. It is not satisfactorily proved that the notes given by Erwin to Denton, under the act of the 12th of May, 1842, were paid; and the collection of the rents of the property after the date of that act by Denton, standing as it does entirely unexplained, is a fact in direct conflict with the validity and verity of the instrument signed by Denton as a termination of their partnership concerns.

The whole tenor of the evidence is to the same effect, and we are satisfied that the partnership was not terminated in 1842, but continued on the same footing as before. The evidence by which the interest of Denton is established, we consider strictly legal and in every respect sufficient; inasmuch as the writing of Denton, produced by Erwin for the purpose of appropriating the partnership property to himself, is to all intents and purposes of the same force and effect, as to the existence of the partnership, as though written by himself. We have already stated the extreme difficulty of ascertaining the truth in relation to partnership matters, of which the partners themselves are the sole depositaries of the secret, and where the investigation is obstructed by the interests and the temper of the litigants. From an examination of the testimony, weighing that of those who know most about the concerns of the parties, we find no sufficient ground for disturbing the verdict on any question of fact at issue between the parties. The appeal of the counsel for the defendants to this court, that the action of the plaintiff cannot be maintained as originating ex turpi causa, we do not feel ourselves at'liberty to act upon. There was no plea to that effect in the court below, or exception filed in this court. As we held in the case of Denton v. Wilcox, 2d Ann. 66, we will not give effect to an agreement entered into for an immoral and fraudulent purpose ; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. When such a case is brought before a court of justice, the court is bound, from a sense of self respect, to withhold its sanction and dismiss the parties ; but this is in the interest of public justice, and not in the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant. On this point there is no sufficient evidence requiring any action on the part of the court. This view which we have taken of the merits of this case has rendered unnecessary any notice in detail of the exceptions taken to the ruling of the judge on the trial in the court below, to which bills of exception weretaken by the counsel of both parties. Neither party has asked that the cause should bo remanded ; and the counsel for the defendant himself has requested that it should be closed in this court.

There is a part of the verdict, not dependent upon the merits, which cannot be sustained. The petition charges, that the judgment was paid and satisfied by compensation, by reason of monies received at various times by Erwin from the sales of the partnership property and the rents thereof; and an account was filed by the plaintiff, which we understand the jury to a certain extent as affirming. The verdict holds the judgment to be satisfied at the date of its rendition. We consider that the judgment must be considered as satisfied by the receipts of money at different times, as set out in the account of the receipt of the different sums by Erwin, and that in this respect the judgment ought to be changed, and in other respects affirmed.

It is therefore ordered, adjudged and decreed, that the money judgment rendered for the plaintiff by the court below be reduced from the sum of $17,043 59 to the sum of $3272 64, which sum the plaintiff do recover from the defendant, James Erwin, and that in all other respects the judgment of the court below be affirmed; the costs of the appeal to be paid by the appellee.


author: Rost, J.

text:
    R. C. Hyatt v. James Gallier et al.
    Neither the bankruptcy of the defendant, nor the institution of an hypothecary action before the expiration of ten years from the date of the recordation of a mortgage dispense with the reinscription of the mortgage within the ten years, so far as third possessors in good faith are concerned.
    APPEAL from the District Court of Jefferson, Ciarle, J.

      J. Dunlop, for the plaintiff,
    amongst others, _made the following point: That the plea of “failure to reinscribe,” made by defendants, was not sustained by any proof, and the onusprohancli lays on the party making the plea. In support of this ground he referred to decisions in reference to pleas of prescription, which he contended were analogous, viz: Andrews v. Rhodes, 10 R. R. 52. 5 N. S. 341. As to the onus prohandi, he referred to 9 M. R. 48. 6 N. S. 88. Greeuleaf on Evidence, No. 74.

      G. B. Duncan, A. Maries, and JR. M. Carter, for defendants.
   The judgment of the court was pronounced by

Rost, J.

This is an hypothecary action, founded upon a judicial mortgage arising from a judgment obtained by William McLean against Charles Byrne in 1840, and transferred to the plain ¿¡If on the 20th of April, 1850. At the time the judgment was rendered, Byrne appeared by the public records as the owner of the three lots, now in possession of the defendants, upon which the mortgage is claimed. Among other pleas, the defendants set up as .a defence the peremption of the mortgage for want of reinscription during more than ten years. The district court sustained this defence, and the plaintiff has appealed.

The judgment against Byrne was recorded on the 20th February, 1840. The judgment in this case was rendered on the 15th of May, 1850, and at that time no reinscription had taken place.

The plaintiff contends that the reinscription was unnecessary on two grounds: 1st. Byrne went into bankruptcy in 1843. The'lights of the plaintiff to the judicial mortgage were then fixed, and could not be affected by the omission to reinscribe. 2nd. The defendants were cited in this suit before the expiration of ten years from the original inscription, and the suit should be decided upon the facts as they then existed.

Those two questions came up for our consideration in the case of Hyde v. Bennett et al, 2d Ann. 799 ; and we then held, that so far as third possessors in good faith are concerned, neither the bankruptcy of the debtor nor the institution of the hypothecary action within ten years from the recording of the mortgage dispensed from reinscription. This decision is is conformity with the principles recognized in Bron v. Kohn, 12 L. R. 104. Shepherd v. Cotton Press, 2d Ann. 100. McElrath v. Dupuy, 2d Ann. 520.

We believe those decisions to contain a sound interpretation of the registry laws; and as they were known long before the expiration of ten years from the date of the original inscription in this case, there is no excuse for the failure to comply with them. This view renders it unnecessary for us to examine the other points raised by the counsel for the defendants, some of which have great weight.

The judgment is affirmed, with' costs.