text:
    Emma Ferrier, Wife of Dasilya, v. Auguste Ferrier.
    Action to annul an adjudication of community property made to plaintiff’s father. The grounds for setting aside the adjudication were, that :
    1. The family meeting was not composed of the nearest relations.
    2. No representative of the then minor was cited to show cause why the decree of adjudication should not be reversed
    8. The members of the family meeting were not notified three days before it was held.
    4. The notarial inventory, to which the decree of adjudication refers for the price, is null, because the appraisers were not appointed by the Judge. I£dd: That there was no authority to annul the adjudication by reason of these informalities — the minor having been regularly represented— and there being no fraud, or other matter alleged, that would make it against good conscience to enforce the decree. If the informalities were remediable at all, they were remediable by*appeal.
    "Where a special mortgage has been lawfully given in lieu of the general mortgage on the property j^of the surviving spouse, for the minor’s interest in the succession of the deceased parent, the minor, when he becomes of age, should not be heard in an attempt to burthen the property of his parent with a general mortgage, the special mortgage being sufficient to secure his rights, and the attempt to substitute the general mortgage, resting upon mere informalities in a family meeting.
    0. P. G15.
    APPEAL from the District Court of the Parish of Point Coupee, Cooley, J.

      Jcmin, for appellant:
    There is nothing more familiar in our law, than that, if a minor receives, after coming of age, the proceeds of his property, illegally sold during his minority, he ratifies the sale. 8 Toullier, 707. ó. C., Arts. 2252, 1778, sec. 6, 1809. 2 A. R. 367. 9 La. R. 304. 2 R. R. 20. 3 R. R. 256. 10 R. R. 129. 4 R. R. 127.
    The first point is, that the family meeting was not composed of the nearest relatives — that relatives were excluded and friends taken in their place. The testimony of Zénon Porche, the under tutor, and uncle of the minors, indeed their nearest relative in the parish, shows that those relatives who were excluded, lived in distant parts of the parish, and were not on visiting or intimate terms with the family ; that one of them was a confirmed drunkard, and that those persons who were taken in their place, were respectable and intelligent business men and friends of the family. Speaking of such subjects, Toullier says: Les circón stances, impriment-elles á ces contraventions (si contraventions il y a,) un caractére assez grave pour prononcer la nullité des actes, ou. elles ont été commises ? Car e’est toujours le plus grand bien des mineurs, qui doit servir aux tribunaux de guide á leurs decisions. 2 Toullier, 329.
    The law of March 18, 1809, which is not repealed, (see 2 Ann. 162,) says, “the property is to bo adjudicated according to the estimated value of the inventory.” And the law of February 18, 1817, sec. 6, says, “that when a surviving father or mother wishes to take the property specified in the legal inventory made after the decease of either, at the price of appraisement mentioned in said inventory,” &c. This has been, ever since, the universal practice throughout the State, and this is no doubt the true sense of Article 398 C. O.
    And all those fancied irregularities were anterior to the decree of adjudication, and could not affect, under any circumstances, bona fide purchasers. 13 La. R. 434, Lalanne v. Moreau; Fdbre v.' Mepp, 7 A. R, 9, and numerous other cases.

      After the argument, the court submitted to the counsel the following question :
    “ Ferrier v. Ferrier. — The court desires argument, in writing, on the question whether a judgment of adjudication to the surviving spouse, is a judgment in such a sense as to subject it to the rules respecting nullity and rescission of judgments contained in the provisions of the Code of Practice-on the nullity and rescission of judgments, in Articles 604 to 61G inclusive, one of which, 615, has been amended by Act of 1826 [Greiner’s Digest, No. 1957]; and also, whether in this case, there is any legal ground under provisions of Code of Practice to annul or rescind the judgment, or whether, on the contrary, the remedy should not have been by appeal. 0. P. 564, 572, 593.
    “ The same inquiry as to the action to annul the judgment substituting a special for a general mortgage.
    “ The above does not relate to the question as to what property was included in the judgment of adjudication, or in other words the interpretation of the judgment, which has been sufficiently argued.”
    On this question, the following brief was filed by Ogden & Leovy:

    "We cheerfully comply with this request, but beg leave first to submit very respectfully to the court, whether any such issue is presented by the pleadings in this case, and if not, whether it can be supplied by the court. The question could only have been raised by a peremptory exception in limine litis, and before answering to the merits. “ Exceptions are means of defence used by the defendant to retard, prevent, or defeat the demand brought against him” (O. P., Art. 330); and “ Peremptory exceptions are those which tend to the dismissal of the action.” O. P., Art. 343. Of these, there are two kinds, those relating to forms, and those founded on law. The point now under consideration falls within one of these two kinds of exception, and in either case must be specially pleaded. If it is an exception to form, “ it must be pleaded in limine litis, that is to say at the beginning of the suit, and before answering to the merits. After the defendant has pleaded to the merits, such exceptions shall not be heard ; all nullities are cured.” O. P. 344. If the exceptions be “ founded on law, they must be pleaded specially, and sufficient time allowed to the adverse party to bring his evidence. 0. P. 346. “ The defendant must plead in his answer all the dilatory or peremptory exceptions on which he intends to rely, or which he is bound to plead expressly and specially, pursuant to the provisions of this Code.” — 336.
    The defendant, by answering to the merits, is presumed to have waived all exceptions. In the case of Singleton v. Smith, 4 La., 432, the court says, “This suit is brought on a judgment rendered in the sixth district, and an exception was filed to the right of the plaintiff to maintain two actions within the State for the same cause. Whether this exception was not well taken cannot be inquired into, as it does not appear to have been passed on by the court below, and the defendant waived it by filing an answer in which the merits were put in issue.” See also 3 R R. 357. Not only must exceptions be filed in such cases, but if they be filed and not insisted upon, as where an apswer to the merits is filed and the case tried on the merits, the exceptional points are considered as waived, and the court cannot regard them. 0. P. 334. 12 R. R. 194. 3 R. R., 357.
    It has been the invariable practice to disregard all questions not put at issue by the pleadings. Even the plea of prescription cannot be supplied by the court, though it is so highly favored that it may be made in every stage of an action previous to a definite judgment, even in the Supreme Court. The legal presumption of waiver of exceptions by answering to the merits, is strengthened in this case by its peculiar character, and the relations of the parties, rendering it probable that the defendant preferred a trial on the merits. No exception can be supplied, or, as we believe, ever has been supplied by the court, but that of the absolute incompetency of the court below ratione mate-rúe, and it cannot be contended that any defect of jurisdiction existed in this case.
    “VVe further submit that if these decrees are judgments in such sense as to subject them to the rules of the Code of Practice referred to; that the causes for which the nullity of a judgment may be demanded, as stated in Articles 604 to 616 of the Code of Practice, are not exclusive of other causes. Those causes are divided into two kinds, one relative to the form of proceedings, the other appertaining to the merits of the question tried. C. P. 605. The vices of form are four, and are enumerated in Article 606, O. P., and in the French of that article are said tobe ‘‘Les seules causes pour lesquelles on peut de-mander la nullité des jugemens.” But Article 607 naming the causes appertaining to the merits for which the nullity may be demanded, does not declare that they are the sole causes, and contains nothing that excludes other good reasons for demanding nullity. The language used is not more restrictive than that of Article 560 C. P., stating what are causes for now trials, and yet our Supreme Court has granted new trials for many other causes than those enumerated in that article. But wo are not left to mere speculation on this point. It has been presented to the Supreme Court in two cases, and in both instances our construction is sustained. In Oliinn v. The First Municipality, 1 R. R. 523, the plaintiff sued for nullity on a ground not included in the Code of Practice. Judge Martin, delivering the opinion, says, “ This action does not expressly present one of those cases in which the Code of Practice declares that an action of nullity will lie, but we are not ready to say that after a judgment has been obtained by which the party shows that he will sustain a real injury unless he can obtain relief and that relief cannot be sought in this court, it may not be obtained in the lower' court, where the case presents facts, on which, in the other States of the Union, a court of equity would interfere.” And in the case of Norris v. Fristoe, 3 Ann. 647, Judge Slidell, delivering the opinion of the court, “it is provided by the Code of Practice, Article 607, that a definite judgment may be annulled in all cases where it appears that it has been obtained through fraud,” &c.,. “ we concur with the plaintiff’s counsel in the position that the relief by action of nullity is not to be restricted to the cases specially enumerated. They are put by way of illustration, and the article may be considered as enunciating the principle that even after judgment a party may be relieved.”
    We further respectfully suggest, that it isa mistake to suppose, that if in this case there is no legal ground under the provisions of the Code of Practice to annul or rescind the judgments, the only remedy 'was by appeal. We have shown, we trust, that the causes of nullity enumerated in the Code, are not exclusive. There are four modes by which definitive judgments may be revised, modified or reversed. 1st. By a new trial. 2d. By appeal. 3. By action of nullity. And..4th. By rescission. C. P. Art. 556. And in many cases a party may choose either mode. The nullity may be demanded on the appeal, provided it is apparent-o?i the face of the records. Code of Practice, Article 659. But in many cases the appeal would not be a complete remedy, because the nullity might depend upon matters' of proof not found in the record. If, then, one institutes an action in the same court which rendered the judgment, it would be no ground of exception that he ought to appeal. He has his choice of remedies. The jurisdiction is expressly given both in the aetion of nullity and in that of rescission to the court that rendered the judgment.
    We also respectfully submit to the court whether the minor, after coming of age, could appeal from these decrees. By the Code of Practice, Article 567, “ the party against whom judgment has been rendered cannot appeal if such judgment have been confessed by him, or if he have acquiesced in the same by executing it voluntarily.” These judgments were rendered on the advice and with the consent of the representatives of the minor, empowered by law to give such consent, and acting under oath. The validity of the adjudication does not depend on the judge’s deeroeproprio vigore, but upon that consent, ■which his decree ratifies and confirms. They could not appeal. Could the minor, after attaining majority, appeal from a judgment so rendered? And is it not probably for this reason, and with a view to the harmony of the various provisions of the Code, that the action of rescission is given to the minor and restricted to four years after his majority. “A judgment against a minor may be rescinded if such minor show either that his cause has not been well defended, or that he has been aggrieved by such judgment. But that action shall be prescribed if four years have elapsed after the minor has arrived at the ago of majority, nor can it be brought bjr the curator or the tutor, during the minority of their ward.” Art. 615 C. P.
    If, however, these views are insufficient and your honors should still think the plaintiff was bound to bring his case within the special provisions of the Code of Practice referred to, we think it is within this Art. 015. It is true, the amendatory Act of 1826, to which your honors have called our attention, provides that this article “ shall not he taken or construed to imply the nullity of a judgment when a minor has been regularly represented in a suit according to law.” But this evidently applies to judgments properly so called, rendered contradictorily in suits or contested cases. Every decree or order of a court is not necessarily a judgment. In the case of the Union Bank of Louisiana v. Marin, 3 Ann. 34, this court held that a decree rendered by consent of parties “is not, legally speaking, a judgment; a judgment is the decision of a controversy given by a court of justice between parties who do not agree. Consent decrees decide nothing. They merely authenticate private agreements, and render them executory between the parties. Their effects as to third persons are those of transactions made in an authentic form. Merlin Rep., verbis homologation, Jugement.” And in the case of leoarpentier v. Lecw-pentier, 5 Ann. 497, it was held by this court that “ a sale under a consent decree has not the effect of a judicial partition, and does not affect the rights of mortgage creditors.” Such orders and decrees as arc now the subject of examination have been regarded by the court rather in the light of contracts for the conveyance of property in which the strictness of legal forms is made to supply the consent of the minor. A suit to annual such proceedings bears a closer analogy to actions to annul contracts for fraud, error or lesion, than to actions to annul the judgments of a court. In the case of Sar-in) v. Sarpy, 8 New Series, 518, this subject was carefully examined and fully decided upon by this court. All the various Articles of the Code of Practice to which your honors refer were reviewed. It was a suit brought in the Court of Probates in 1830, “by the heirs of Sarty, for the purpose of obtaining a decree to annul a judgment of adjudication of certain property which was made to their mother, as having been common between her and them at the death of their father,” &c. A plea to the jurisdiction was made, and the court sustained the jurisdiction on the grounds that the provisions relating to the nullity and to the rescission of judgments are so identical in their effects, that they may properly be considered together; and that the Arts. 608 and 616, both gave the jurisdiction over such actions to the same court that had rendered the judgment.
    After determing another question, the court says, “ It now remains to ascertain whether this transfer or alienation was made in pursuance of the requisite formalities.”
    On careful examination, it was found that all the requisite formalities had been complied with except one, and the want of that was held fatal to the adjudication. The record offered no evidence that the members of the family meeting had been sworn, and on that ground the judgment of the Probate Court, annulling its former decree of adjudication, was affirmed. In that case, the court used the following language; “ This is a privilege granted to the parents in derogation to general rules, established for the protection of those who, from want of age and experience, are supposed to be incapable of guarding their own interests; and ought to be restricted, within the precise limits of the provisions under which it is awarded. The alienation allowed by it has all the principal features of a sale — parties, property and consent. The incapacity of the minor to consent is supplied by that of his relations or friends, and his under tutor.” The nullity of this adjudication was not demanded on any of the grounds enumerated in the articles of the Code of Practice referred to. Prom that day to this no doubt has been entertained that an action of nullity or rescission could be brought by a minor within a limited time, after coming of age, when his rights had been injured, although his case might not fall under any one of these provisions.
    Many fatal causes of nullity are shown by the proofs in this case to exist, which would not have appeared on the record of appeal from the decrees complained of, and therefore an appeal would have been fruitless. Those causes are not found in the rules of the Code of Practice, because they evidently apply to judgments properly so called, rendered in the trial of suits.
    To restrict the right of the minors to an appeal, or to an action of nullity or rescission, for some of the causes in the Code, would often deprive him of all redress, and render nugatory the provisions of law intended for his protection.
   Slidell, C. J.

The object of this action is to annul an adjudication made to the plaintiff’s father, of certain property which belonged to the community existing between her father and her deceased mother, and of certain other property which was the separate estate of the mother; also to annul a decree by virtue of which a special was substituted for the general mortgage of the father’s property, as tutor of the plaintiff, who has now arrived at full age.

The grounds for setting aside the adjudication presented in the petition are as follows: It is alleged that the meeting was not composed of the nearest relatives ; that no representative of the minor was cited to show cause why the decree of adjudication should not be rendered; that the members of the meeting were not notified throe days before it was hold; that the adjudication is null, because the notarial inventory of the 21st June, 1849, to which the decree of adjudication refers for the price, is null, for the reason that the appraisers were not appointed by the Judge. It is also alleged, that the separate property of the mother was not included in the decree of adjudication, nor could it lawfully be adjudicated; and that a certain house in New Orleans and plantation on False River, having thirteen árpente in front by forty in depth, called the Cheval plantation, were not included in the decree of adjudication; that if included, the decree was invalid, because the plantation and house in New Orleans was not mentioned in the inventory of the 21st of June, 1849. For so much of the property in question as is not included in the decree of adjudication, it confers no title, and it is therefore material to scrutinize the terms of the decree. It is in these words :

The court, considering the application of Dr. Auguste Ferrier, executor of the last will and testament of Delphine Porche, and the deliberations of a family meeting held on the 24th of December, 1849, and being of opinion that the law and evidence are in favor' of said application.

It is, therefore,- ordered, adjudged and decreed, that the deliberations of the said family meeting, be homologated, and that the shares of the minors, Léon, Bosa, and Emma Ferrier, on the property held in community between the said Auguste Ferrier and their mother, Delphine Porche, be adjudicated to the said Auguste Ferrier, at the price it was estimated at, in the public inventory made by Samuel Bush, notary public, on the-•-, and that the said Dr. Auguste Ferrier hold in usufruct, during his natural life, the estimate value of said property, according to Act of 1844.

Done and signed in open court,- the 26th of March, I860, &c., &c.

Under the terms of this decree, we think the adjudication must be limited, 1st, to the property held in community ; 2dly, to so much of the community property as was included and estimated in the inventory made by Samuel Bush. The date of this inventory is not given in the decree; but as there was only one made by him, there can be do difficulty as to the inventory referred to. It is impossible to go out of that inventory, because to constitute an adjudication, there must be a price fixed by the Judge, and no price is fixed in this decree, except the estimate in Bush’s inventory.

"W e conclude, therefore, that the plaintiff is entitled to relief as to the property not included within the double limitation above mentioned; and it remains to be considered, whether the action can be maintained as to the property, which is included.

After a careful consideration of the provisions of the Code of Practice, we are of opinion that the petition does not exhibit a case for an action of nullity, touching that portion of the property now under consideration, even supposing that the allegations of the petition are proved. Let it be observed, that there is no charge of fraud or lesion, or other matter that would make it against good conscience to enforce the decree. The charge is the inobservance of formalities in the proceedings anterior to the decree. The Code of Practice prescribes, in the chapter on nullity of judgments, the causes for which this mdlity may be demanded in an action, and'in a subsequent chapter, it provides for a rescission of judgments. The Article C15, as it originally stood, opened a very wide door in favor of minors. It provided, that a judgment rendered against a minor may be rescinded, if such minor show either that his case has not been well defended, or that he has been aggrieved by such judgment. But this article was amended by the Statute of 1826, which declared that “it shall not be taken or construed to imply the nullity of a judgment where a minor has been regularly represented in a suit according to law.”

Applying these provisions of the Oode of Practice, as now amended, to the case before us, we find in them no authority to annul this judgment, by reason of such informalities as occurred in this case, in which the minor was regularly represented. If remediable at all, they were remediable by appeal.

The plaintiff relies on the case of Harty v. Harty, 8 New Series, 518, in which an adjudication to the surviving spouse was annulled, on the ground that the formality of taking an oath by the members of the family meeting did not appear to have been observed. But this case arose before the amendatory Act of 1826.

¥e have already noticed the absence of any charge of fraud or lesion, or other matter that would make it against good conscience to maintain the judgment, and which could bring the case within those equitable principles, which it has been said exist, and may be enforced by courts independently of the textual provisions of the Code.

With regard to the special mortgage, we think it sufficient to say, that it is not alleged that the property so mortgaged is an inadequate security, nor that the mortgage is not valid against the mortgagor and third persons; and there is, therefore, no equitable reason to set it aside. The object of a family meeting, and a judicial order in such case, is to protect the minor. When the minor comes of ago, (which is the plaintiff’s case,) and has capacity to judge for himself whether the mortgage security is ample, he ought not to be heard in the prayer to burden the property of his parent with a general mortgage, when the existing mortgage is ample, simply because the preliminary steps in family meeting may have been irregular. Upon this ground alone then, independently of any other consideration, the judgment authorizing the substitution of the special mortgage, ought not to be disturbed.

With regard to the proposition of the appellant, that the will of his wife vested in him, immediately at her death, a complete title to all the estate of of his wife, subject only to the condition that he should pay for it at a reasonable estimate, we are inclined to consider it untenable; but we think the question arising under her will, and the application of the Act of 1844, to the rights of these parties, will be more properly considered in the controversy now pending upon the settlement of Ferrier’s accounts, and which has not yet reached this court. A reservation will accordingly be made in our decree.

It is therefore decreed, that the judgment of the District Court be reversed. It is further decreed, that the judgment of adjudication in the petition mentioned, rendered by the District Judge sitting for the parish of Point Cohpée, and signed on the 25th of March, 1850, conferred no title upon the said Au- guste Ferrier, save only for the share of his deceased wife, Delphine Porche, in the community property described as such in the inventory made by Samuel Bush, notary public, under date of 21st June, 1849, whereof a copy is of record in this suit.

It is further decreed, that there be judgment in favor of the defendant upon so much of the petition as demands the nullity of a judgment rendered by said District Judge, on the 8th day of June, 1850, authorizing the substitution by said Auguste Ferrier, of a special in lieu of a general mortgage, of which judgment a copy is of record in this cause.

It is further decreed, that the costs of this suit in the court below, be paid by defendant, Auguste Ferrier, and that the costs of the appeal be paid by the plaintiff.

It is further decreed, that the present judgment is made without prejudice as to any question arising, or rights acquired under the will of Delphine Porehe, or the Statute of 25th March, 1844-, entitled, an Act relative to community property.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Robert Murphy v. The Police Jury (Right Bank) et als.
    Plaintiff leased from Municipality No. One “ the privilege of the ferry front of Municipality No. One.” Reid: if this be an exclusive privilege at all, it is only so as regards the landing on the left side of the river — for the opposite bank was no part of the front of Municipality No. One, as defined in the first section of its Act of incorporation.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      W. F. Murphy, for plaintiff and appellant:
    The ordinance of the Second Municipality establishing said ferry, fixes her landing on the other side at “a point opposite her place of starting,” the defendants had no right to change the same, and that said ferry should make that landing to a point at right angles to the Levee, and perpendicular to and opposite the street from which it starts. Municipality No. 2 v. Municipality No. 1, 17 La., 576. All of which has been recognized and acquiesced in, by the defendants, as appears by the ordinance of said Police Jury, of July 6th, 1846, (p. 22,) which was in force when the other defendants acquired their ferry privileges.
    A concurrent power in two distinct corporations to regulate the same thing is inconsistent in principle and impracticable in action. NcOollogh v. The State of Ma/ryland, 4 'Wheaton, 487. That to conclude, that the State law conferred concurrent power on two independent corporations to regulate and control the same thing, to pull down what one had a right to build up, to destroy what the other had a right to establish and preserve, would be to conclude an absurdity. In the words of Justice McLean in the case of Smith v. Turner, 7 Howard, 399: “A concurrent power in two distinct sovereignties, [Corporations] to regulate the same thing, is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independant wills cannot do the same thing. The action of one, unless there be an arrangement, must necessai'ily precede the action of the other, and that which is first, being competent, must establish the rule.”

      John GuTbertson, and Durant & Somov, for defendant.
   Buchanan, J.

The demand of plaintiff for damages for a trespass and tort, is based entirely upon the assumption that the Act of 1836 to divide the city into municipalities, section 18, conferred upon each of the municipalities, the “ exclusive” right to establish ferries across the Mississippi river, in front of this city, and to regulate the same. The words of the Act do not bear this construction. They are, “ the Oity Council of each municipality of the city of New Orleans, shall have power to establish as many ferries across the Mississippi river as the convenience of the people may make necessary, and to regulate the same.”

It is true, the Legislature of the State by an Act passed in 1881, (p. 20,) had granted to certain individuals the exclusive privilege of a ferry in front of the city and its suburbs, for the space of five years. And in 1838, (p. 147,) the State granted to certain other individuals, a liko exclusive privilege for ten years. But those privileges both ran out before the plaintiff acquired any rights in the promises. He does not claim under those exclusive grants from the State, but under a lease from Municipality No. One, of “ the privilege of the ferry front of Municipality No. One.” If this be an exclusive privilege at all, it is only so as regards the landing on the loft side of the river, for the opposite bank was no part of the “ front of Municipality No. One,” as defined in the first section of its Act of incorporation. Acts of 1836, pages 28 and 29.

The Police Jury of the right bauk of the river, had the right to regulate the ferry landings on that bank, which is a matter of police; and their ordinance 'of 1846, cannot be properly regarded as a contract between them and the plaintiff, which vested a right that could not afterwards be modified without his consent. If indeed, the Police Jury had deprived plaintiff of access to the right bank of the river, by prohibiting his landing on that side, or embarrassing him in landing to such an extern as would have been a prohibition to land his boats, then this would justly have been considered a violation of the legal rights of the plaintiff under his lease from the Municipality No. One; for it seems essential to a ferry, that there should be a landing on both sides of a river or stream. But such a state of facts is not at all presented by the pleadings, evidence or argument, in this cause.

Judgment affirmed, with costs in both courts.


author: Slidell, 0. J.

text:
    Thomas Powell v. J. A. Graves.
    A partner, who, on the dissolution and settlement of the partnership affairs, gives to his co-partner a note for the balance found against him, may, when sued on the note by the partner, impeach its validity for fraud, without resorting to a direct action to annul the contract of dissolution.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Price & Denegre, for plantiff. Rand, & Manly, for defendant and appellant.
   Slidell, 0. J.

The defendant being sued upon his hill of exchange given by him to the plaintiff, pleaded that the bill was given in the settlement of a partnership which had existed between them; and that he was induced to make said settlement upon the faith of representations untruly and fraudulently made by the plaintiff. The answer sets forth the circumstances constituting the fraud, and, if its allegations be taken as true, exhibits a case of fraud entitling live defendant to resist payment of the bill.

At the trial, the defendant offered witnesses and certain books of account, to prove the allegations of his answers, to which evidence objection was made by the plaintiff, and it was excluded by the court, on the ground “ that it was necessary to bring a direct action to annul said contract.of dissolution and settlement, and said bill of exchange.”

"We think the court erred. The bill being in the hands of the original holder, and the defendant being sued upon the bill, had a right to impeach its validity for fraud practiced by the plaintiff in obtaining it from him under the circumstances in the answer stated. The doctrine that the drawer of a bill or maker of a note in such ease, must resort to an action of nullity, and cannot defend himself in a suit upon the bill or note, is unsupported by authority, and inconsistent with well settled practice.

It is proper to observe that in the written agreement for dissolution, signed by the plaintiff, it does not appear that the bill of exchange was given merely for the price of certain property therein conveyed by the plaintiff to the defendant. No separate and specific price for that property is therein stated. His conveyance is cumulated with other matter as the consideration of the bill, to-wit: “ the contract of dissolution, is a phrase embracing all the stipulations of the written agreement; and in the closing clause, is the following language : “ Upon the payment' of said bill of exchange and one-half said policy as before stated, should the same be lost, this is considered and intended by me to be his, said Grave/ receipt, in full of all debts, dues and demands of every character whether copartnery or individual.” It is proper to add, that the petition admits the bill originated in a settlement of the partnership affairs.

If upon a new trial, the defendant should succeed in showing there was fraud practiced upon him in the matter of tile bill and the settlement, we think he should be relieved not only as to the bill, but as to the settlement, and a new settlement ordered. The answer not only resists the bill on the ground of fraud, but contains substantially a reconventional demand for the annulling of the partnership settlement, and an order that a settlement be made de novo ; and no objection was raised by the exception to the form of the answer or any want of detail in its specifications. If an exception had been taken on that score, the question,, so far as the prayer for annulling the settlement and ordering another is concerned, might present a different aspect.

In conclusion, we will briefly notice a point presented on the motion for a new trial below and in argument here. We do not think the plaintiff’s liability to account to defendant for certain items mentioned in the contract of dissolution and settlement should prevent an independent recovery on the bill of exchange, if the defence of fraud be not made out by proof. Those items involve unli-quidated claims in defendant’s favor dependent on subsequent contingencies, and which he can prosecute by suit for an account. But the bill of exchange is a'liquidated and unconditional obligation, and we think its payment was not intended by the parties to be dependent upon the other open items.

Judgment reversed and cause remanded for new trial, plaintiff to pay costs of appeal.


author: Campbell, J,

text:
    Fanny Taylor, v. J. P. Freret, Sheriff et al.
    A- furnished and occupied a room in the house in which B. the lessee, resided. A. sold his furniture to B., who did not remove it from the house. Held: the delivery was, in contemplation of law, complete, notwithstanding the furniture remained in the same house.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Price, for plaintiff. Dw'ant & Horrwr, for defendant and appellant.
   Campbell, J,

The defendant, Fonda, having obtained a judgment against James Garland, issued execution thereon, and on the 10th December, 1851, seized a lot of furnitur% in a house in St. John street, as the property of his debtor.

Plaintiff.claiming the property as her own, under an act of sale sous seing privé, from IF. B. Rogers, dated December 5, 1851, enjoined the execution.

The defendant in his answer to the injunction, avers that the property in fact, belongs to his debtor, Garland; that if plaintiff has possession of it, that such possession was acquired by the fraudulent and simulated contrivances of herself, her pretended vendor and Garland, to conceal it from the pursuit of his creditors, and that the transfer relied on is a simulation, and gives neither title or possession.

It is clearly shown that Garland purchased the furniture in 1851, but at what precise time does not appear. It is further shown that after the purchase, he placed it in the house in which it was seized, where his kept mistress then resided, and which house was leased by Rogers, who also resided there. The house appears to have been a brothel, and Fanny Taylor, who seems to have been'the proprietor of it since December 1, 1851, then resided there.

Plaintiff claims title as has been seen, from Rogers, who she alleges purchased from Garland, and in support of her pretension, has exhibited two acts of sale, under private signature, one from Garland to Rogers, dated May 1st 1851; the other from Rogers to herself, dated December 5, 1851.

The chief question for our consideration is, “ was the sale from Garland to Rogers, real ?” The record contains no positive evidence of the payment of the price, except the acknowledgment of its receipt in the act of sale; yet facts are proven, which, notwithstanding the suspicious circumstances that surround these transactions, bring us to the conclusion that the sale was real, and made at the time of its date.-

J. B. Hubbard, a dealer in furniture, testifies that in May or June, 1851, Rogers offered to sell him this furniture. James H. Jones, of the firm of Flint & Jones, from whom Garland purchased the furniture, deposes that sometime before Garland failed, Rogers called on him and asked if the firm had any claims on the furniture which they had sold to Garland.

R. K. Bonham, who lived with Rogers, states that ho saw the bill of sale from Garland to Rogers, ho thinks in June or July, 1851, but knows that at that time Rogers had possession of the keys and paid the rent of the house in which it was placed.

F. W. Ivens, states that knowing that Rogers had endorsed notes for Garland, he advised him to do so no more, but secure himself, and that shortly after-

wards Rogers exhibited the bill of sale. This was before either Rogers or Garland, went to the north, which was in July.

We are of opinion too, though the furniture remained in the same house after the sale, that a delivery was made, in contemplation of law. Rogers was lessee of the house, and resided in it. Garland and his kept mistress likewise occupied it. After Ga/rland's departure for New York in July, it was occupied hy Smith, the agent of Rogers.

It is in evidence, that the plantiff has been the occupant of the house in St. John street since the 1st December — that a short time before that date, she made large purchases of additional furniture, and that on the 5th of that month, she purchased from Rogers the furniture by him acquired from Garland, and was in possession of it at the time of the seizure complained of.

We concur in the conclusion to which the District Judge arrived, and therefore decree that the judgment by him rendered in favor of the plaintiff, he affirmed with costs in both courts.


author: Campbell, J.

text:
    L. Millaudon v. Benjamin Poydras de Lalande et al.
    The proviso to the Act of 8d March, 1811, declares that until the final decision of Congress thereon, no tvact of land shall he offered for sale, the claim to which has been in due time and according to law presented to the Recorder of land titles in the District of Louisiana. A claim to the land in controversy was made in 1886, and prosecuted until 1844, when patents issued. The plaintiff’s claim rested on entries made in 1839. Held: That under the proviso of the Act of 3d March, 1811, no entry of the land could be made, a claim for it being then pending. And 7>y the Cornet — The entries made in 1889, in which, the floating claims of the plaintiff originated were in violation of law — null and void. And as floating claims are liable to the same disabilities as the original pre-emptions from which they are derived, the nullity extends to them.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      J. & J. Henderson, for plaintiff and appellant. Janin & Taylor and Benjamin <& Micou, for defendant.
   Campbell, J.

The plaintiff acquired from the United States lands in the rear of the defendant’s plantation, and holds as his title to them, seven patent certificates given for floating claims, originating in entries made within the limits of the Houma claim at a distance of more than a league and a half from the front and hearing date 1st April, 1839.

The defendants also claim title to those lands hy purchase from the United States, under various Acts of Congress, authorizing the proprietors of lands fronting on water courses to enter, in the rear, as much land as they owned in front.

With the consent of the plaintiff, the land was sold at public auction by the defendants, in whose possession it was; and in compliance with the agreement entered into between them, ho claims in this suit the proceeds of the sale. There was judgment against him, and he appealed.

The agreement entered into is, that the plaintiff shall sue for the proceeds of the sale, and that if the court is of opinion that he has the better title, he shall recover, &c. He is therefore bound to show a good title.

The contradictory opinions entertained at different times by the officersfjof of the LandjDepartinent, in relation to the Houma claim, has occasioned much embarrassment to the courts. In the case of Foly v. Harrison, 5 A., 90, the late court recognized the weight which those opinions ought to have with the judiciary, but inasmuch as the decisions of the Department upon the Houma grant, so far as they affected the claims under consideration in that suit, were in direct conflict with each other, the court was compelled to elect between them, and in so doing, hold that tire action of Congress in 1814 was final on the whole claim, and satisfied the proviso of the Act of March _D, 1811, which is, that, until the final decision of Congress thereon, no tract of land shallbe offered for sale, the claim to which has been in due time, and according to law, presented to the Recorder ofland titles in the District ofLouisiana, etc.

The Houma claim filed for confirmation with the board of commissioners, extended from the^Mississippi to the river Amite, and embraced several hundred thousand acres of land. It was confirmed by the board of commissioners, and also by the Act of Congress 12th April, 1814, which limited it to the number of acres contained in one league square. See Story’s Laws of United States, vol. 2, p. 1410, ch. 111.

In 1829, Mr. Graham, then Commissioner of the General Land Office, ordered the claim to be surveyed, with a depth of one and a half leagues, thus giving the claimant the quantity of land contained in a league square, and at the same time instructed the Register and Receiver at New Orleans to treat all beyond that depth as public land, subject to settlement and entry. The land was accordingly surveyed, and a vast number of settlements were soon made in the rear of the survey, without objection from the owners of the Houma claim, who appear to have acquiesced in the decision of Mr. Graham, that those lands were subject to sale and entry, until 1836.

As the case was presented Foly v. Harrison, Congress had acted upon the claim, and virtually limited it to the quantity of land contained in a league square. The Commissioner of the Land Office had determined that its decision was final, and satisfied the proviso of the Act of 1811; that until the final action of Congress thereon, no tract of land should be offered for sale, the claim for which had been presented in due time and according to law. Ho had instructed the Register and Receiver that the unconfirmed part of the claim was no longer protected against sale or entry by that proviso, and the holder of the Houma grant had remained inactive, and had not renewed his claim to the back land until 1836, after the entry upon which the floating' claims held by defendant in that suit had been obtained.

In view of the facts of the case, and considering that the entries under which the defendant held had been made before the claim under the Houma grant had been renewed, the court deemed the construction put by Mr. Graham upon the Acts of 1811 and 1814 consistent with the rules of law, and hold that the entries were not originally made in violation of law, and that the expm'te order of a subsequent Commissioner of the General Land Office, was not a judgment binding upon the defendant, and had been issued unadvisedly. From the remark of the court, that the administrative decisions of the Government and its officers against a claim to land was nothing more than a refusal to recognize it, and did not prevent the claimant from renewing his demand at any subsequent time, it would seem to have been anticipated that cases might arise of entries made after the claim to the back lands of the Houma grant had been renewed.

The claim was renewed in this case in 1836, 'after Mr. Graham wont out of office, and, upon the renewal, Commissioner Brown, who succeeded him, directed the Register and Receiver at New Orleans to withhold from sale all the lands within the claimed limits of the grant. After this new claim and the change of instructions consequent upon it, we are of opinion that the land covered by the gran(, came again within the operation of the proviso of the Act of 1811; and, as the claim was afterwards prosecuted until 1844, when patents issued for it, the entries made in 1889, in which the floating claims of the plaintiff originated, were in violation of law, null and void. And, as floating claims are liable to the same disabilities as the original pre-emptions from which they are derived, the nullity extends to them, and the plaintiff is without title.

He evidently was of the same opinion when he sent testimony to the General Land Office to prove the illegality of the entries, and claimed back the price he had paid. The Secretary of the Treasury, finding this evidence satisfactory, acted upon it, acceded to the plaintiff’s demand and referred the papers to the Eirst Auditor of the Treasury for settlement. What further steps have since been taken, the record does not show.

But it is urged that it was held in the case of Foly v. Harrison, that the canceling the entries made on the Houma grant was not binding upon anybody, and that the Commissioner had no authority to make such a decree:

This proposition is, we think, laid down too broadly. The United States do not part with their title until the patent issues; and until then, or until private rights become vested, it is not precluded from canceling an entry improperly made. It is to bo observed, however that the cases differ widely. In that, the claims had been canceled ex pm'te; in this the title was annulled, not only contradictorily with the plaintiff, but at his request, and upon satisfactory evidence adduced by him, that the original entry was unlawful. A decision made under such circumstances, if not a judgment, may at least be regarded in the light or nature of an agreement, which fixes, the rights of the parties to the land, unless it was entered into in error on the part of the plaintiff, which we have already shown was not the case.

In the case oí Bossier v. Metoyer, 5 Martin R., 680, the title under which the plaintiff pretended to claim, had been taken by him from a bundle of papers in the office of the Oommandante, labeled “ Requétes des concessions de torres reunies au domaine.” It was objected that the fact of the surrender of the re-quéte was not sufficient to destroj7 the written title of the plaintiff, and that nothing short of a written declaration from him, that it was his intention to abandon the land, could do away his grant. But the court held that the surrender of the only existing evidence of an inchoate and conditional title into the hands of the officer from whom it had been obtained, implied an abandonment of the inchoate right. In this case, there was a written declaration of the plaintiff that he intended to abandon his inchoate right, and the evidence which en; titled him to do so, was furnished by himself.

We have dealt with the facts of this case as the counsel have done in their bi’iefs, considering the acts of the Land Department with reference to the Hou-ma claim, as part of the history of the country; but our decision must have been the same if we ,had confined ourselves to the evidence in the record. It shows that the entries upon which the floating claims issued, were within the claimed limits of the Houma grant, and that they were canceled on the application of the plaintiff; and it does not contain the decision and acts of Mr. Graham upon which the court based its interpretation of the Acts of 1811 and 1814 in the suit of Foly v. Harrison.

Without inquiring into the title of the defendants, we are of opinion that the plaintiff has failed to make out his case, and that the judgment must be affirmed.


author: Campbell, J. Slidell, O. J.,

text:
    Joseph Damont v. New Orleans and Carrollton Railroad Company.
    Where cars pass their usual stopping place, and to avoid being carried beyond his destination, a pas senger, when they are in motion, jumps-out, and in doing so sustains an injury, he cannot recover Such an act of imprudence relieves the Company.
    APPEAL from the Eifth District Court of New Orleans, Buchanan, J.

      Ogden & B. 0. Elliott, for plaintiffs. Benjamin, Bradford & Finney, for defendants and appellants.
   Campbell, J.

(Slidell, O. J., and Buchanan, J., dissenting.)

This suit was instituted by the plaintiff on behalf of his daughter, to recover damages for injuries to her person, resulting, as is alleged, from the negligence and misconduct of the servants of the company. The verdict of the jury was in favor of plaintiff, assessing the damages at $7000.

Upon the facts proved, the counsel for the defendants asked the court to charge the jury as follows:

1. That the jury cannot find a verdict for the plaintiff unless they are convinced from the evidence before them that the plaintiff’s daughter was injured by some fault or negligence on the part of defendants or their servants.

2. That if the jury believe, from the evidence before them, that the accident was called either wholly or partially by the imprudence of the plaintiff’s daughter, or that if she had acted with ordinary care or prudence, she would not have been injured, then the jury must find for the defendants, although they believe that the accident was partly the result of the iault or neglect of the defendants or their servants.

3. That it is the duty of the jury to examine the evidence in order to ascertain whether the plaintiff’s daughter committed any fault or imprudence which contributed to the accident; and if they find that such fault or imprudence existed on her part, they must find for defendants.

4. That even if the jury believe from the evidence before them that the cars were in the habit of stopping regularly at the place where the accident occurred, and that the cars did not on this occasion make the usual stop, still, if the daughter of the plaintiff imprudently jumped down while the cars were in motion, the plaintiff cannot recover.

The court charged the jury in accordance with the first, second and third points submitted on behalf of the defendants, with the following modifications:

“ The plaintiff cannot recover damages for the accident if that accident should appear to the jury, under the evidence, attributable to the imprudence of the plaintiff’s daughter; but that this charge may not be misunderstood by the jury, it is deemed proper to state the following hypothetical case: If the jury should find it proved that the railroad train did not stop at a place where it was in the habit of stopping, and that a passenger, bound to that place jumped out rather than be carried beyond his destination, said jumping out, although probably imprudent, would not absolve the railroad company from damages in case he should be hurt, because the accident would be the result of the fault or negligence of the servants of the company in not stopping the train.

“ Again, the court in its charge to the jury reviewed the various decisions quoted in argument relating to steamboat collisions, and to railroad accidents, and oi3S0rye(} that a distinction was to be taken between the two classes of cases, arising from the obvious difference of comparative force of two steamboats in the one case, and of a railroad train and an individual in the other case.”

In the refusal of the court to charge as requested, and also to the charge actually given, the defendants excepted. *•

The exception we think well taken. If the daughter of plaintiff voluntarily jumped from the cars when in motion, even though it was the constant habit of the company to stop at that place, the leap not being made to avoid an imminent impending peril, produced by the misconduct of defendants, but to avoid being carried beyond her destination, she was herself guilty of such imprudence as relieves the company from the consequences of the want of caution on the part of their servants; for in such a case the accideut may be attributed to the fault of both parties, which would destroy plaintiff’s right to recover. See Fleytus v. Pontchartrain Railroad Company, 17 La., 340 ; Lesseps v. same, 18 La., 361.

Even though there be fault on the part of the defendant, it has been held that plaintiff cannot recover, if the injury could have been avoided by the exercise of ordinary caution; a fortiori, then, can ho not recover if by his imprudence, negligence or fault he has contributed to bring about the injury. 3 Mee-son & Wellsby, 242.

The case of Aspell v. Pennsylvania Railroad Company recently decided in the Supremo Court of Pennsylvania, is in most respects similar to this. As reported in the journals of the day, it is as follows:

“ The plaintiff was a messenger in the defendant’s cars from Philadelphia to Morgan’s corner. The train should have stopped at the latter place, but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slackened on account of the switches which were there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car, and was seriously hurt in the foot. He brought this action, and the jury, with the approbation of the court below, gave him fifteen hundred dollars in damages. On the appeal, Chief Justice Black, delivering the opinion of the Supreme Court, said:

“The remark that life and death should not be weighed against time is true, and the plaintiff should have thought of it when he set his own life on the hazard of such a leap for the sake of getting to the ground a few seconds earlier. Locomotives are not the only things that may go off too fast, and railroad accidents are not always produced by the misconduct of agents. A large portion of them is caused by the wrecklcssness of passengers. This is a great evil, which we would not willingly encourage by allowing a premium on it to bo extorted from companies. However bad the behavior of those companies may sometimes bo, it would not be corrected by making them pay for faults not their own.

“The Court should have instructed the jury that the evidence, taken altogether, or even excluding that for the defence, left the plaintiff without the shade of a case.

“Judgment reversed and Dev. fa. de. noo. awarded.”

Being of opinion that the instructions asked for by defendant should have been given, and that so much of the charge as is embraced in the hypothetical case put by the Judge, is erroneous and calculated to mislead the jury, it is ordered that the judgment appealed from be reversed, and this case remanded for a new trial, with directions to the District Judge to charge the jury as requested by defendants’ counsel and in conformity with the principles herein set forth. The costs of appeal to he paid by plaintiff.

Buchanan, J., dissented.

Slidell, O. J.,

(dissenting.) I concur in the opinion of Mr. Justice Campbell as to the erroneousness of a portion of the charge to the jury.

I do not think, however, the cause should he remanded. I think the unfortunate accident was attributable to the imprudence of the plaintiff.

It is proper to observe that the plaintiff has not sustained the allegations of the petition, that she informed the conductor of the cars that it was her purpose to go to Greenville and there get out. I also deduce from the testimony that Greenville was an occasional but not regular and uniform stopping place.

My conclusion that a case of liability is not made out is formed upon a careful perusal of the evidence; and when such is the case, I think a cause should not be remanded.

      From National Intelligencer, May 25th, 1854, Yol 55, No. 8025.


text:
    Patrick Ward, for the use, &c., &c., v. J. A. S. Acklen and Wife.
    A plea of payment which makes no reference to the date and manner of payment, hut which states that at the request of plaintiff the several sums were paid to the persons named, who were hands in his employment, is sufficiently explicit to authorize the reception of-proof to sustain the plea.
    APPEAL from the District Court of West Feliciana, Sterling, J.

      Ratliff & Wicldffe, for plaintiff. Brewer, -Collins, Phillips and John R. Grymes, for defendant and appellant.
   Campbell, J.

(Voorhies, J., absent.)

This suit was instituted for the sum of $11,248 60, or thereabouts, alleged to be due by the defendants, for work and labor performed by plaintiff in erecting an extension levee on the plantation of defendants, during the years of 1851-2, and for provisions, cooking utensils, tools, etc., sold them for the use of their plantation 81st January and 1st February, 1852.

The defendants admit that they entered into a contract with O'Shannessey & Daly for the construction of a levee, and that the work was performed, but aver that all the work done for them and all the materials received by them from those engaged in constructing the levee, have been fully paid for.

In a supplemental answer, the payments relied on are set forth.

The case was tried by a jury, who rendered a verdict in favor of plaintiff for $7,674 46 for work and labor done on the levee, and for the sum of $893 on the account sued on, with interest from judicial demand. The court below approving the verdict of the jury rendered judgment in conformity thereto, from which judgment this appeal has been prosecuted.

Wo find in the record some twenty bills of exception, or more, taken to the rulings of the Judge on the trial, but deem it unnecessary to examine all of them, as the Judge appears generally to have decided correctly, and no principle of law would be settled by such decisions, which is not familiar and of frequent application.

In the 9th bill of exception, the question is presented whether or not, the evidence offered by defendants to establish payment was properly rejected.

It has been seen that in the original answer, payment was pleaded generally. In the amended answer^ the names of the persons to whom the payments were made and the anjounts paid, were specifically set forth, and in many instances the dates of such payments. A portion of them, however, (those referred to in the bill of exceptions No. 9) were stated in the answer without reference to the date of payment, though it was expressed that the several sums were paid at the request of plaintiff to the persons named, who were hands in his employment.

The District Judge being of opinion that the plea of payment was not sufficiently explicit as to dates and the manner of payment, rejected the evidence. We think that in coming to this conclusion, he construed too strictly the rule which requires that payment should he specially pleaded and with sufficient certainty to prevent surprise. We think that the allegations gave sufficient notice that defendants would prove payment of the amounts set forth, to the persons indicated. The verdict and judgment we think fully sustained by the evidence before the jury, but inasmuch as evidence of payments made, which if proved, would have further reduced the demand of plaintiff,, was improperly rejected, the case must he remanded to enable defendants to offer such proof.

We have taken the course of affirming the judgment with a qualification, because the case was extremely complicated, occupying a great deal of time in the trial, and appears to have been very accurately considered by the jury. To make this verdict fruitless, would impose unnecessary expense upon the parties and would not promote the ends of justice.

It is for these reasons, ordered,, adjudged and decreed that the judgment of the District Court, in so far as it establishes the amount to which plaintiff is entitled on his respective claims, to wit: $14,470 96, and the credits to which defendants are entitled, by virtue of payments proved,, to writ: the sum of $6,903, be affirmed, and that the case be remanded solely to ascertain to what further credits, if any, defendants are entitled by virtue ©f payments alleged by them, in their amended answer, to have been made,, with instructions to the District Judge not to reject the evidence offered, under the amended answer, to establish the items contained in bill of exceptions No. 9,, on the ground that the plea of payment is not sufficiently explicit as to dates and the manner of payment.

It is further ordered that no execution shall be issued on this judgment, except for the sum of five thousand six- hundred and fifty-nine dollars nineteen cents and interest at the rate of $57 per annum from January 10, 1853, which is due, independently of the unascertained credits, until a final decision shall be rendered, ascertaining and establishing the amount, if any, actually due after allowing such additional payments as may be proved. The costs of this appeal to he paid by appellees.

Rehearing refused.


text:
    Mrs. Sophie Buisson v. S. D. McNeil.
    The reference to a plan in an act of sale makes the plan as much a part of the act as if appended
    APPEAL from the District Court of the parish of Jefferson, Olarke, J.

      Bedmond, for plaintiff and appellant. Boselius, for defendant.
   Campbell, J.

The defendant being the owner of a tract of land bounded by St. Mary, Felicity, Camp and Chesnut streets, caused a survey and figurative plan of it to be made by Hugh Grant, City Surveyor. The land as represented on the plan, is divided into seventeen lots, numbered from one to seventeen inclusive ; nine of whieh lots, front on St. Mary, and the remaining eight on Felicity street. Midway between St. Mary and Felicity street and parallel with them, is an alley ten feet wide, opening on Chesnut street ; the lines of the alley on either side, representing the rear lines of the lots fronting respectively on St. Mary and Felicity streets. On the space representing the alley is written “ Alley w'ay of ten feet in common to all the lots.” The plan is dated March 13, 1849, and signed by Hugh Gi’ant, City Surveyor. By this plan, the defendant sold several of the lots fronting on Felicity street, making in the different acts of sale express reference to it, as deposited in the office of T. 8. Gilly, a Notary Public. One of these sales was made to Elkin, and the act, (which is dated July 16, 1849,) contains the following description of the lot: “A certain lot of ground situated in the city of Lafayette,” etc., “in the square bounded by Felicity, St. Mary and Camp streets, designated by the number sixteen, on a plan drawn by Hugh Grant, City Surveyor of Lafayette, dated the 13th March, 1849, and deposited in the office of T. 8. Gilly, a Notary Public, in this city, said lot measuring twenty-seven feet,” etc., “front on Felicity street, etc., and twenty-seven feet, etc., on the rear line, fronting on an alley ten feet wide, for the common use of all the lots fronting on Felicity street.”

This lot, on the 7 th January, 1850, was purchased from Elkin by plaintiff; the description and recitals of the deed being substantially the same as in the deed to Elkin. The alley is described in the reference to it, as “common to this and other lots fronting on Felicity street.” Similar recitals are found in other deeds of sale from MeHeil of lots on Felicity street. The sales are all made with special reference to the plan of Grant, nor could the lots be identified without consulting the plan.

In April, 1851, defendant advertised for sale at auction, the lots on St. Mary street, numbered from one to nine inclusive, and exhibited a plan resembling in all respects, the map of Grant, except that the space between Felicity street and the alley was not represented as divided into lots, nor were the words “ common to all the lots,” written between the lines representing the alley, its width alone being given. In the auctioneer’s advertisement, the lots are described as fronting on St. Mary street, and having on their rear line an alley of ten feet width, opening on Chesnut street.

The sale of this property has been arrested by an injunction obtained at the suit of plaintiff, on the ground that there has been an appropriation of the alley way for the benefit of the lots fronting on Felicity street, and that the intended sale will cause a loss of her exclusive right to the alley way in common with the owner of the other lots fronting on Felicity street.

Under these facts, which are perhaps slated with unnecessary particularity,, the only question which arises is whether the proprietors of the lots fronting on Felicity street have acquired an exclusive right to the use of the alley, or whether the right of use is common to them and the proprietors of lots fronting on St. Mary street. In other words, did the defendant, in establishing the alley, create a servitude in favor of the whole property, or only of that part of it fronting on Felicity street?

The words, “ for the common use of all the lots fronting on Felicity street,” though not necessarily exclusive, apparently, so limit the use, that, standing alone, we would be disposed to give to them the effect claimed by plaintiff; but when considered in connection with the surrounding transactions and particularly in connection with the plat of Grant, which by the reference made to it, becomes as much a part of the act of sale as if appended to it; we cannot doubt but that the intention of defendant in laying out the alley was that the proprietors of all the lots, whether on Felicity or St. Mary street should equally enjoy and use it. This interpretation is consistent with what may be supposed was the object of the parties, and gives effect to every clause of the act.

That the plat produced in court is the plat referred to in the various acts of sale, has been satisfactorily proved; for although it seems that an ineffectual search was made for it in the office of the Notary before the institution of the suit, it was produced in court by the Notary with whom it was deposited on the day first fixed for the trial, and was some weeks afterwards, on the morning of the trial, taken from his office and brought into court, the Notary being then absent from the city. The plat was properly received in evidence and the words “in common to all the lots,” between the lines which represent the alley are conclusive that the dedication was not for the exclusive use of the lots fronting on Felicity street, but that it was intended equally for the benefit of those fronting on St. Mary street.

Judgment affirmed.

Rehearing refused.