text:
    Marcelin Major et al. v. Virginie Esneault.

      A mere defect of hearing, or of sight, does not render a person incompetent to be a witness to a nuncupative will.
    There is neither a substitution, nor jidci commissum, in a will to the following effect: “In consequence of the affection I bear to my grand neice, A., a child whom I have brought up, and who has always taken care of me, I give and bequeath the whole of my property, after my debts are paid, willing that, at my decease, my executor shall put the said legatee in possession of my land and slaves; that the whole shall be administered and preserved in kind by my executor, for the best interests of the said legatee, until she shall have attained the age of majority, or have married.” The evidence showing, that the legatee was of age when the testatrix died.
    APPEAL from the District Court of Pointe Coupée, Farrar, J.

      Provosty, for plaintiffs.

      Lacoste and T. J. Cooley, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs, who are the heirs at law of Mrs. Simon Porche, late of the parish of Pointe Coupée, instituted the present suit for the purpose of annulling her last will and testament. The testatrix died in December, 1850. The will bears date the 23d of October,-1846. It is in the nuncupative form, by public act; was made at the domicil of the testatrix, in the parish of Pointe Coupée, and is signed by her, by the notary, and by three witnesses. The case was tried before a jury, who rendered a verdict for the defendant; and from the judgment on the verdict the plaintiffs have appealed.

The grounds for the nullity of the testament, relating to matters of form, as presented by counsel, are, that the instrument was not dictated by the testatrix and written by the notary, in the presence of the witnesses, and that one of the witnesses to the will was deaf. All tlie formalities required by law for the validity of this class of wills, appear, on the face of this instrument, to have been complied with. The case was tried in September, 1851, nearly five years after the making of the will. The plaintiffs introduced, as witnesses on the trial, the three witnesses to the will, Fame, Monceret and Boiteux. The two first, Fame and Monceret, prove a compliance with the forms required by the article 1571 of the Code. The testimony of Boiteux does not support that of the other witnesses, as to the dictation of the testatrix and the writing of the will in their presence. But there would be no propriety in perniittinghis testimony to outweigh and contradict that of the two other witnesses offered by the plaintiffs themselves. Giving no more than its due weight to the act of a public officer; considering that the dissenting witness signed the act, in which he bore witness that the formalities had been complied with, which his testimony now tends to falsify; and bearing in mind the uncertainty attending the precise recollection of facts occuring at so distant a period, we are bound to hold this part of the plaintiffs’ case as not proved.

The counsel for the plaintiffs has urged, that a person too deaf to hear the testatrix dictate her will, is not a competent witness to it, according to the article .1584 of the Code. This article declares persons insane, deaf, dumb, or blind, are absolutely incapable of being witnesses to testaments. We do not think that the witness, Fame, can be considered as laboring under this incapacity, at tho time of his being a witness to this will. We think, the contrary results from his testimony.

It is impossible to extend this article, which establishes an absolute incapacity of being witnesses to last wills, to persons whose sense of hearing or seeing is merely defective. The incapacity is based upon the physical impossibility of the deaf, the blind, the dumb and the insane, fulfilling the duties of witnesses. The law does not exclude from being witnesses to wills, those whose organs of sight pr hearing are not perfect; and an infirmity of a witness, in this respect, can only be considered as operating upon the effect of his testimony. The partial deafness of the witness, Favre, appears to have been disclosed on his cross-examination. He was offered as a witness by the plaintiffs. No allegation of the deafness or incompetency of the witness was made in the petition, as a substantive ground for annulling the will and taking his testimony together; and, making allowance for the manner in which the testimony of witnesses is reduced to writing by the clerk on the trial, we think it proves a compliance with the requisites of the law, in the making of the will.

¡Such being our conclusions, after an attentive examination of the evidence adduced by the plaintiffs, against the formalities of the will, it is unnecessary to consider that offered by the defendant.

Other grounds are alleged, on which the nullity of the will is asserted. It is said that the will is null, because the clause by which the executor was directed to keep in his hands, all the property bequeathed to the universal legatee, and to preserve the same for her until she became of age, constitutes a jidei commissum, and is prohibited by law. The clause of the will is to this effect: “In consequence of the affection I bear to my grand neiee, Victorie Virginie Esneault, daughter of the late Louis Esneault, and his wife, Aspasié Major, a child whom I have brought up, and who has always taken care of me, I give and bequeath to her, the whole of my property, (my debts being first paid, and the legacies made by me being satisfied,) willing hereby, that at my decease, my executor shall put the said legatee in possession of my land and slaves; that the whole shall be administered and preserved in kind by my executor, for the best interests of the said Victoria Virginie Esneault, until she shall have attained the age of majority, or have married.”

Gosseraucl, the executor named in the will, died two years before the testatrix. This clause creates neither a substitution nor a jidei commissum. The property is given to the legatee absolutely, and she is to be put in possession. There is no disposition in favor of one person, of property to be preserved and to be returned to another. There is no right of property established in the executor. Miss Esneault, the legatee, was born in December, 1827. She was eighteen years of age in 1846, when the will was made, and was of age when the testatrix died. There is nothing illegal in a testamentary disposition of this kind. The other testamentary dispositions present no ground whatever for the plaintiffs’ action. The testatrix gave to the mother of the universal legatee, the usufruct of two arpents of land front, with the buildings, &c.; she gave their liberty to certain slaves, and the usufruct of three arpents part of land to a free woman of color. The plaintiffs have no interest in contesting the validity of those legacies, if they fail, they inure to the benefit of the universal legatee. Prevost v. Martel, 10 R. R., 513. C. C. 1697.

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


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Avery Breed v. Purvis, Wood & Co.
    One who has received a sum of money on deposit, cannot plead compensation against the depositor by a debt which did not arise from the deposit. C. C. 2927.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      J. Ad. Bozier, for plaintiff.

      Bonford and Finney, for defendants.
   The judgment of the Court (Eustis, C. J., absent,) was pronounced by

Rost, J.

The plaintiff, Avery Breed, sues upon the following receipt: “New Orleans, 11th January, 1849. Received from Dr. J. J. Henderson, for Avery Breed, Esq., one thousand and twenty-one dollars, which we hold subject to Mr. Breed's order.” (Signed) Purvis, Wood & Co.”

The defendants first plead the general issue. But on the day of the trial, they filed an amended answer, alleging that at the time the receipt bears date, Breed was a partner of the commercial firm of Hand and Breed, which firm is largely indebted to them, and that he is personally liable for the debts of the firm. They pray to be authorized to retain the sum claimed by way of offset. There was judgment against them, and they appealed.

It is urged inbehalf of the appellants, that the deposit made by Henderson in this case, was what is termed in law, an irregular deposit; that under art. 2934, C. C., such deposits produce no legal effects, and that article 2927, which prohibits the retention of things deposited, by way of offset, exclusively applies to cases in which a real deposit is shown. This view is inconsistent with the theory of compensation under the civil law : compensation was there considered as an equitable remedy, and never took place where it would have been against good conscience. Pardessus Droit Commercial, vol. 2, No. 325. Merlin Rep. verbo Compensation, parag. 2, No. 11. Nolan v. Shaw, 6th Ann. 46— Opinion of Mr. Justice Slidell.

In conformity with this principle, -under the laws of Rome, compensation never took place in cases of confidential contracts, and the maxim in causa depositi compensationi locus non est, was considered as applicable to deposits of all kinds. We take this to be the law here at the present day.

The articles of the code, which prohibit compensation in cases of deposit and of loan for use, are instances of the general rule, and not the rule itself. Whatever may be the true meaning of article 2934, it is undeniable, that irregular deposits are made every day, and that however irregular they may be, they are still confidential contracts, which the depository cannot be dispensed from executing without a breach of good faith. This was clearly the view taken by the defendants, down to the very day of the trial. Hand wrote to them that he would try to get Breed to authorize them to credit the firm with the amount of the deposit. But it seems Breed would not consent, and although the defendants pressed the firm so hard, that Hand remonstrated, saying that their complaints were mortifying to him, they kept, to the last, Breed’s money distinct from the partnership transactions. The only reason that can exist, why it nowhere appears in their accounts, is that, in their own opinion, it would have been inequitable to appropriate it to themselves. Being still under that impression when this action was instituted, their only defence was a general denial. Their subsequent plea of compensation was an after-thought, and is untenable, as after-thoughts usually are in courts of justice.

It is ordered, that the judgment in this case be affirmed, with costs.


author: Preston, J.

text:
    Dickson & Co. v. B. K. Sharretts & Co. et al.
    The testimony of a single witness is not sufficient alone, to establish a contract of guaranteeing the paym ent of the price of goods purchased, for an amount exceeding five hundred dollars.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Goold and Howard, for plaintiffs.

      C. A. Jones, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Preston, J.

This suit is instituted against B. K. Sharretts Sf Co., on a promissory note, and Pliney E. Davis as having guaranteed the payment for merchandise, for which the note was given. The note is signed by B. K. Sharretts Sf Co., and passing through various endorsements, is now sued upon by the original parties. B. K. Sharretts Sf Co. confessed judgment; Davis plead a general denial

Franklin Roberts was the agent of the plaintiffs in selling the goods, and he is the only witness to charge the defendant, Davis, with having guaranteed the payment of their price. He states, that Sharretts Sf Co. applied for the purchase of the goods, but that he declined selling to them without further information ; that in a day or two, Davis called upon him, and stated that they were perfectly good ; and asked the witness if he considered him good, to which the witness replied, that he considered him perfectly good; that Davis then said, if you consider me good, consider the sale as made to me; that Sharretts afterwards called upon him, and purchased twelve hundred dollars worth of goods, for which he paid five hundred dollars cash, and gave his note at six months for the balance. The witness testifies that he made the sale on credit, because he considered he was making the sale to Davis.

The evidence leads to the conclusion, that the sale was made to Sharretts 4' Co. The goods wore applied for by them ; were delivered to them ; the cash payment made by them, and the note for the balance was given by them. They are now sued for the amount of their note, or balance of the purchase. They had a store, as is proved, and purchased other goods from the plaintiffs in the course of the season. Davis had no store; the goods were not delivered to him. There is no proof that he knew the amount of the sale?; he made no payment on the goods; did not sign the note ; and had no other transaction with the plaintiffs. There is no proof that he was interested with Sharretts 8f Co. as a partner, or in the goods, in any other manner. He can be charged, therefore, only as having, by contract, guaranteed the payment of the price of the goods, or rendered himself liable by giving credit to the purchasers. The contract to guarantee the price of the goods is only proved by a single witness. The sum claimed exceeds live hundred dollars. To render the defendant liable, the testimony of the witness should be supported by corroborating circumstances. C. C. art. 2257.

We are unable to find in the record any corroborating circumstances, which are not proved exclusively by the same witness ; and those stated by him are so light, as to give no weight to his direct testimony. A single other fact, remotely corroborates the testimony. It is, that Davis was security for the rent of the store. But, when we consider that no amount of goods to be purchased, wag fixed at the interview of the witness with Davis; that he does not appear to have communicated the amount to Davis afterwards, or that a note payable at six months had been taken for the credit part of the purchase; that the witness did not apply to Davis to draw or endorse the note; that though negotiated, the credit of Davis was not given to it, and though sent to Philadelphia to the plaintiffs, no notice appears to have been given ; that the drawers being doubtful, Davis guaranteed the price of the goods ; that though the note was due in January, 1849, no application appears to have been made to Davis for more than a year afterwards. We consider the circumstances alluded to, as a corroboration of the testimony of the witness, too feeble to satisfy the law.

The judgment is reversed, and judgment of nonsuit rendered against the plaintiffs, who are condemned to pay costs in both courts.


author: Rost, J. Slidell, J.,

text:
    Mills Judson v. J. L. Lewis, Sheriff, et al.
    A sale will not defeat an attachment ■which is levied before delivery.
    To constitute a valid delivery, the consent of the seller must be made to appear. The mero taking possession of the thing sold by the purchaser, without the consent of the seller* does not amonnt to a delivery.
    The plaintiff brought suit against the sheriff for a trespass, in levying certain attachments against a third person, upon his property. The sheriff called the attaching creditors in warranty. The plaintiff had purchased the property of the debtor. Held: That, as the attachments were levied before the delivery of the property to the plaintiff he had no right to obstruct, or embarrass, the process of the court against the debtor.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J#

      Hoffman and Ogden, and Benjamin and Micou, for plaintiff.

      J.R. Q-rymes* J.B. Bemiss, T. L. Bayne, and M. M. Cohen, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

The plaintiff sued the sheriff of the parish of Orleans as a trespasser, for having seized, under writs of attachment against John S. Caldwell, an absconding debtor, movable property, which he claims under an authentic act of sale from Caldwell, and delivery before the seizure. On the call of the defendant, the plaintiffs in the attachment suits, made themselves parlies to the record, and joined issue with Mills Judson. They subsequently entered into an agreement with him, that the property attached should be sold by the sheriff; the proceeds to be held by him, subject to the respective claims of the parties to the agreement, and without prejudice to their rights. The property was accordingly sold, and the plaintiff became the purchaser, at the price of $5750, cash. The district judge appears to have considered, that the sale, under which Judson claims, was, in fact, an informal pledge, given to secure a loan of $5000, upon which it is shown that six hundred dollars have been refunded; and being of opinion, that the attaching creditors had failed to make out their case, he gave judgment in favor of Judson, for $4400, to be paid out of the proceeds of the property. The attaching creditors have appealed.

The agreement entered into between the plaintiff and the attaching creditors, and the sale under it of the property attached, amount to a waiver of the dainty of damages against the sheriff. He is now a mere stakeholder; and the only question before us, is in relation to the distribution of the funds in his hands. We accede fully to the argument of the plaintiff’s counsel, that the agreement is not to be considered as admitting the respective claims of the parties to it; and that the proof required of them is the same, as if no such agreement had been made.

Whatever be the nature of the plaintiff’s title, it is incumbent upon him to establish, beyond all reasonable doubt, that he was in possession of the property under it when it was first attached; for, if he was not, after the attachment, the property was in the custody of the law, and could no longer have been delivered to him. The district judge considered the possession of the plaintiff most equivocal, and doubted whether it had preceded the first attachment. The circumstances under which the plaintiff pretends to have taken possession, after the vendor had absconded, are of so suspicious a character, that we cannot give to the testimony adduced by him, on this part of the case, greater weight than our learned brother gave it; and it would, perhaps, be sufficient to say, that the evidence of anterior possession is not such, as excludes all reasonable doubts of the reality of that fact.

But there is another difficulty in the way of the plaintiff, resulting from the nature of his contract with Caldwell, as ascertained by the evidence of his own witnesses, and the manner in which it has been partially executed. The plaintiff is a money dealer, and did not intend to become the keeper of a dram shop and ten-pin alley. The act of sale was required by him, under the belief, that it would secure a loan of $5000, which he made to Caldwell, at a rate of interest, which is ignored. The sale bears date the 2d day of May, 1850. It is in proof, that after that date, Caldwell remained in possession, as before, until the beginning of June, when he absconded; and that, during that time, he was paying the plaintiff two hundred dollars a week on account. It is manifest, that a loan to be refunded, in this manner, excludes the idea that the possession was ever to be delivered to the creditor. Caldwell had no other means of refunding the loan, than those arising from the profits of the Phoenix House; and he could only realize those profits, by retaining the possession of the establishment. The intention of the parties is placed beyond all doubt, by the testimony of Caldwell’s ■ legal adviser. He states, that Caldwell remained in possession, as owner, up to the time of his departure; and that, before he went away, he left instructions to him, the witness, and to his clerk and agent, Turnbull, in relation to the administration of the property in the Phcenix House, during his absence. He said he was going to California, to get some money owing to him there, and would soon return; and he requested his attorney to keep off, if possible, his creditors, till his return,- when he would pay them all. The plaintiff was one of those creditors, and his claim was the largest of any; so that, so far from Turnbull hp.ving authority to make the delivery to him, or to allow him to take possession, he was ordered to retain the possession himself, and positive instructions were given to the attorney to keep off the plaintiff and his claim, if possible.

The facts, in relation to the delivery, are ns follows: After making three weekly payments, Caldwell absconded, without the knowledge, and to the great consternation of the plaintiff. On the next day, the plaintiff went to the Phoenix House, as an act of possession, and sent a notary there to make an inventory.

Article 2453,. C. C., provides, that the tradition or delivery of movable effects, takes place either by their real tradition, or by the delivery of the keys of the building in which they are kept, or even by the bare consent of the parties, in certain specified cases. Here, there was no real tradition or delivery of keys by the vendor. Under the nature of his contract with the plaintiff, his consent cannot be presumed; and the evidence shows, most conclusively, that he never intended to make that delivery. We conclude, therefore, that no delivery has been shown.

The views of the district judge, in relation to the evidence, did not differ from our own; and he expressed the wish that he had it in his power to extend to the plaintiff, the rule applied in the case of Nicholls v. Bolts, 6th Ann. 437, But he thought he was not authorized to do so, because the attaching creditors had omitted to prove their claims. We are unable to assent to this view of the law as it bears upon the present case. The ruling of the court would undoubtedly be correct, if the plaintiff had been in possession of the property when the attachments were levied upon it. But as he was not, he has no right to obstruct or embarrass the process of the court; and against him, the writ sufficiently justifies the seizure. The law of the case is laid down as follows, by Mr. Greenleaf: “If the plaintiff has never had possession of the goods, so that the sale, whatever it was, is incomplete for want of delivery, the proof of this fact, alone, will suffice to defeat the action against the sheriff, for taking the goods of the plaintiff. But if the transaction was completed in all the forms of law, and is assailable only on the ground of fraud, the sheriff must first entitle himself to impeach it, by showing, that he represents a private creditor oí the debtor; and this is done, by any evidence which would establish this fact, in an action by the creditor against the debtor himself, with the -additional proof of the process in the sheriff’s hands, in favor of that creditor, under which the goods were seized.” 2 Greenleaf Ev., 597. The appearance of the attaching creditors, on the call of warranty of the sheriff, does not change the legal aspect of the case.

We are of opinion, that the plaintiff has no claim upon the fund in the hands of the sheriff, and that it must remain subject to such judgments as the attaching creditors may obtain against John S. Caldwell, and be distributed among them according to their rank.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that there be judgment against the plaintiff, on his claim upon the fund in the hands of the sheriff; and that said fund there remain for distribution among the attaching creditors, subject to the order of the Fourth District Court, from which the first writ of attachment issued. It is further ordered, that the plaintiff, Mills Judson, pay costs in both courts.»

Slidell, J.,

dissenting. That Judson is a creditor for a large sum of money actually advanced to Caldwell, is established beyond dispute; and it seems to me just, that he should have the fund in court applied to his claim, unless the persons claiming as attaching creditors have shown a better right. They have omitted to show such right.

If my brethren had thought it consistent with precedent, and in view of the peculiar circumstances of this litigation, to remand the whole cause, and so to give the defendants, by a new trial, an opportunity of remedying the oversight they have committed, I might have yielded to such a disposition of the cause* But I am unable to concur in the decree now made.


author: Slidell, J.

text:
    Lopez & Co. v. Thomas McAdam & Co.
    When a party has been induced, by misinformation and a suppression of material facts, to talce a joint interest in a shipment of merchandise to a foreign port, he is entitled to have the contract annulled, and to recover from the other party any sums he may have paid on account of the shipment.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      L. Castera, for plaintiffs.

      B. L>. Howard., for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The object of this action is, to have declared null and void a contract between the plaintiffs and the defendants, by which they took an interest with the defendants in a shipment of beef to London. The contract was embodied in the following memorandum : “ Invoice of 188 tierces of prime mess-beef, shipped on board the bark Saone, Robertson, master, consigned to Messrs. Jones, Brothers, London, on joint account of Messrs. T. J. Lopez Sf Co., and Thomas McAdam Sf Co. New Orleans, December 26, 1848. 188 tierces of prime mess beef, at $16, $3008; drayage, 63 loads, at 50c., $31 50 — $3039 50. Advanced on the purchase by Thomas McAdam Sf Co., $2,000 — 1,039 50. Thomas McAdam Sf Co’s half is $519 75; T. J. Lopez Sf Co’s half is $519 75. The profit on the half of the above transaction, Thomas McAdam Sf Co. will direct being paid to Messrs. T. J. Lopez Sf Co’s friends in London or here, when account sales are received. (Signed) Thomas McAdam & Co.”

At what date, whether on the 26th, 27th, or 28th December, this invoice was furnished to the plaintiffs, does not appear. On the 28th December,

the plaintiffs paid the defendants $519 75, and took the following receipt: “ Received, New Orleans, 28th December, 1848, from T. J. Lopez, five hundred and nineteen dollars seventy-five cents, for one-half interest in the shipment of 188 tierces of prime mess beef, per Saone, to London, as per invoice rendered. (Signed) Thomas McAdam & Co.”

The matter may have been, and probably was, the subject of previous negotiation ; but we find no positive evidence of a final consent by plaintiffs to share the adventure prior to the 28th December. On the 27th December, 1848, the defendants addressed the following letter to Jones, Brothers : “ New Orleans, 27th December,- 1848. Messrs. Jones, Brothers, London. Dear Sirs: By the bark Saone, Robertson, master, we have shipped you 188 tierces’ prime mess beef; 160 packed by Thom,as McCarthy and Peter Cany, and 28 by /. S. Bates. We purposed shipping more by this vessel, but found she was getting too deep; the cargo all being heavy. On this shipment you will please make insurance for ¿6700.

“ We have drawn on you at sixty days sight for ¿6500, which please honor. This bill was intended to cover a large shipment, which would have been made, had the vessel been capable of taking more ; but by the Russia, now loading, we will send the balance, and such other as we can conveniently get. Any of the parties advancing here, will readily give fifty shillings per tierce, and until you raise your limits, you will not get much, unless we, as now, take the responsibility and risk, which is not pleasant often. Your obedient servants, (Signed) Thomas McAdam & Co.”

On the 26th of January, 1849, Jones, Brothers, addressed to Lopez Sf Co. and McAdam 8¡- Co. letters, advising them of their refusal to accept the draft of £500, upon the ground that McAdam Co. had exceeded the limits for which they were authorized to draw, and also, in consequence of the receipt of the letter of Lopez Co. on the one hand, and on the other, the silence of McAdam Sf Co. respecting the subject of that letter, which circumstances they properly characterized as extraordinary.

Upon the refusal of acceptance by the drawees, Edward Morn, of Liverpool, accepted for the honor of James Robb Sf Co., to whom McAdam S¡- Co. had negotiated the bill, together with the bill of lading. Morn had the beef sold and returned the account sales to Robb Co. They exhibit a large loss on the transaction. There was a bill of exceptions to the admissibility of the account sales, which it is unnecessary to consider."

There is no binding contract without a valid consent to contract, and a consent induced by misrepresentation and suppressio veri with regal’d to a material subject matter of the contract, will not hold the party. He may demand a rescisión. C. C. 1813, 1841, et seq.

In the piesent case, the defendants stated in the invoice furnished, that they had advanced on the purchase §2,000. Taking the view of this expression most liberal to the defendants, and supposing it to mean that they had obtained an advance, as is common here upon European shipments, it was certainly a representation that they had not obtained an allowance for more than §2000. But how did the matter stand when the agreement for joint account shipment was proposed, or at all events, at the time when the plaintiffs manifested their final assent to the contract, by paying their money l The defendants had actually negotiated a bill of exchange for ¿6500, together with the bill of Jading, and this, in contravention of their arrangement with the house who .were the selected consignees of the joint account shipment; and they had also advised those consignees of the shipment, without making any mention of the plaintiffs’ actual or expected interest, or any provision for placing their share of the surplus proceeds, if any, to the credit of the plaintiffs. Now the just and the mercantile inquiry in such a . case, is this : would Lopez Co. have assented to take an interest in the adventure, and have advanced .their money, if they had known the true state of the case ! This question cannot be answered affirmatively. All the probabilities are the other way. As prudent men, the plaintiffs would have foreseen what took place; the prompt refusal of the drawees to honor the draft. Again, they would also have seen, that in whatever hands the shipment might alternately go, its proceeds would have to be first applied to the reimbursement of the holder of the bill of the excess over the stipulated advance of$2,000, which excess had gone into the pockets of the defendants, inconsistently with the understanding with the plaintiffs; and they would also have seen, that no provision had been made for putting their share of the capital and profits, if any, at their disposition in London.

We are therefore of opinion, that the plaintiffs must be considered as having consented to the joint adventure and advanced their money in error, induced by misrepresentation and suppression of material foots on the part of the defendants ; and that, upon discovering the true state of the matter, they had a right to repudiate the transaction, and, by an action of recision, recall the money paid.

It is therefore decreed, that the judgment of the district court be reversed, and that the plaintiffs recover from the defendants, the sum of five hundred and nineteen dollars and seventy-five cents, with interest thereon from the 20th December, 1848, until paid, and costs in both courts.


author: Etjstis, C. J.

text:
    C. Toledano v. William Relf.
    Where a party in an authentic act, confesses the existence of a debt, and authorizes the creditor to enter up judgment without notice or delay, courts have the power, upon the exhibition of such an instrument, to carry into effect the agreement between the parties in the same manner as if the parties were present and confessing in open court. Parties can confess judgment by special power of attorney as well as in person.
    Where a judgment rendered with a stay of execution for a certain time, has been recorded in the mortgage office, it operates as a judicial mortgage from the date of its recordation; although the delay for the issuance of the execution may not have expired.
    APPEAL APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. In this suit the controversy was between the plaintiff and William Ryan, third opponent.

      H. H. Strawbridge, for plaintiff.

      John Oedge, for third opponent.
   The judgment of the court was pronounced by

Etjstis, C. J.

This appeal is taken by the plaintiff from a judgment of the court of the Fourth District of New Orleans, by which the proceeds of certain slaves in the hands of the sheriff, were awarded to Ryan, a creditor by judicial mortgage, in preference to the plaintiff.

The plaintiff claims the proceeds of the slaves by virtue of a special mortgage, bearing date the 14th of February, 1848. This mortgage was given to secure the payment of a draft, of which the plaintiff was the acceptor; which draft was paid at its maturity. We determined, in the case of Salaun v. Relf, in which Toledano was a party, that Toledano, in paying this draft, paid his own debt, which the mortgage was given to secure; and the purpose of the mortgage being thus accomplished, as there was no reservation or qualification in the act of mortgage, and no other object disclosed in it, the mortgage could not be kept alive for any other object, or for the benefit of any other person, not resulting from the tenor of the draft itself. We held, that other mortgage creditors being strangers to the secret equities subsisting between the parties to the draft, their rights must depend upon the record of the debt and mortgage. 4th Ann. 576, We find no reason to doubt the correctness of this decision,and deem it sufficient to refer to the opinion of the court delivered in the case.

The plaintiff also claims precedence of the judicial mortgage of Ryan, by virtue of a subrogation to the rights oí Salaun, a judgment creditor, whose case we have just stated. But the judgment of Ryan was recorded in the mortgage office on the 16th July, 1847, previous to the recording of Salaun's judgment.

Ryan, the appellee, is a judgment creditor of the debtors, John A. and Edward Weysham. The judgment was rendered, on confession, by the Third District Court, on the 15th of July, 1847. Its validity has been assailed on various grounds by the counsel for the appellant. It appears, that Ryan sold his stock in trade of hardware to the Weysham's for $17,401 40, of which $3000 was received in cash, and for the balance, $14,401 40, the purchasers subscribed eight several promissory notes, payable at different-periods. The sale was by authentic act, which, among other things, provided that the act should import confession of judgment, and that the said Ryan should have the right immediately, and before the delivery of the goods, to have judgment entered thereon for the amount of said notes, with interest, without any previous citation or notice; that no appeal should be taken from said judgment, or any notice thereof to the defendants be required, provided that no execution should betaken on said judgment, except on the respective maturity of the notes.

On a petition filed on the same day by Ryan, judgment was rendered on this instrument, with a stay of execution, as therein provided, the plaintiff remitting to the defendants the sum of one thousand dollars; an execution was taken out on this judgment, and the defendants appeared, by attorney, for the purpose of setting said execution aside, which rule, after an appearance, was discharged.

We understand the act on which the judgment was rendered, to contain a power to the creditor to enter up, formally, a judgment in a court having competent jurisdiction, which can be legally given to a plaintiff, when the defendant recognizes his right of action and confesses the debt. On the exhibition of an act of this kind, we think, courts have the power to carry into effect the agreements of parties, in the same manner as they would act, were the parties actually present and confessing in open court. In other words, that parties can confess judgment by a special power of attorney, as well as in person. We think, there is nothing in this judgment which rendered it invalid.

We concur with the district judge in the opinion, that there is nothing in the release of Ryan of part of the property of the debtors from his judicial mortgage, which affords ground of complaint to the appellant.

The judgment of the district courtis therefore affirmed, with costs.


text:
    Valmont D. Terrebonne v. Michael Walsh.
    The plaintiff had sold a slave, having with her a youug child. In the act of sale, no mention was made of the child. He instituted suit for the child. Held: That as the right to rescind the sale of the mother was not claimed in the suit, and that, as it appeared, the purchaser was aware of the existence of the child at the time of the sale, the plaintiff must be regarded as the owner of the child, and was entitled to its possession when it reached ten years of age, or upon the death of the mother, if she died before that time; and that, in the meantime, the purchaser must bear the burden of supporting the child.
    APPEAL from the District Court of Lafourche, Randall, J.

      J. C. and A. Beatty, for plaintiff.

      Winchester Hall, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff is the, administrator of the succession of Bridget Lyons. The succession is the owner of a slave, named Polly, sold to Mrs. Lyons; and the plaintiff claims, by virtue of that sale, the ownership of a young child, which was born of Polly before the sale. It does not expressly appear, that Walsh intended to part with the ownership of the child. The deed of sale expresses no such intention; his retaining possession of the child after the sale of the mother, contradicts, so far as the acts of the parties go, such an intention; and there is, therefore, nothing for the plaintiff’s claim to rest upon, but the implication, which, it is said, the law will make in such a case. The law forbids the mother to be sold, separately, from the child, which has not attained the age of ten years; and1 therefore, it is argued, the child must be considered as an accessory, and as passing with the sale of the mother.

The legislation invoked was dictated by considerations of humanity, and was intended to secure to the child the maternal care during its tender years. We are excluded in this action, and under the circumstances of the present case, from the inquiry, whether the sale of the mother, by reason of her being sold without a simultaneous and concurrent sale of the child, could be rescinded. The ownership of the mother is not now disputed. The sole inquiry which can be entertained in this cause, is, in whom are vested the ownership and right of possession of the child ? Our opinion is, that the defendant has not lost the ownership of the child, it being not an accessory of the mother, in an unqualified sense. But until the child has attained the age of ten years, or the death of the mother prior to that event, it cannot lawfully be separated from the mother; and therefore, the plaintiff’s action for the possession of the child is well founded.

It is proper to observe, that under the evidence, we must consider the vendee as knowing the existence of the child at the time of the purchase of the mother. If, therefore, the rearing of the child be onerous, the burden is the result of the purchaser’s own fault.

It is therefore decreed, that the judgment of the district court be reversed; that the plaintiff recover the possession of the child, mentioned in the petition; that the defendant be enjoined from attempting to separate the child from its mother, until the said child has attained the age of ten years, at which time, or on the death of the mother, if she should sooner die, the said defendant may resume said possession as owner of the child; that the costs of the suit in the court below be paid by the defendant, and that the costs of the appeal be paid by the plantiff.


author: Smdéll, J. Rost, J.

text:
    J. Bermudez v. Union Bank of Louisiana.
    The stipulation in bonds given to the Union Bank, that in case of non-payment at maturity, the borrower is to pay ten per cent interest after that time, is obligatory, and the party will be condemned to pay it.
    Where a stockholder in the Union Bank, in addition to the usual amount loaned on stock, borrows fifteen per cent on his stock, it will be regarded as a stock loan.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Benjamin and Micou, and C. Roselius, for plaintiff.

      H. R. Dennis, for defendant.

      Eustis, C. J., declined sitting in this cause. The other judges delivered separate opinions.
   Smdéll, J.

This litigation arises out of two obligations, executed by Bermudez in favor of the Union Bank. One of them, is for the loan made to Bermudez, as a stockholder, under the 31st section of the charter. The other, is for an additional loan. Both were secured by mortgage.

The first question presented for our consideration is, whether, upon the first obligation, the bank is entitled to ten per cent, after maturity, on the entire principal. This obligation is in the form universally adopted in such cases by the bank since its establishment. It’s tenor is as follows:

“ Be it known, that I have, this day, received from the Union Bank of Louisiana, the sum of nine thousand nine hundred and forty dollars, being the whole of my credit as a stockholder of two hundred and eighty-five shares of said institution, which sum I will pay at the banking house in New Orleans, on the first December, 1839, fixed, or renew, according to the provisions of the charter of said bank. The payment of the aforesaid sum of money is secured by a deed of mortgage, passed before A. Mazureau, notary public, in and for the parish and city, under date of the 13th day of December, 1838. New Orleans, 1st December, 1838. (Signed) J. Bermudez.”

The mortgage, by which this obligation is secured, and whose terms must also be considered as incorporated in the obligation, contains the following clause: “ If the whole amount of his loan, or any part thereof, shall not be punctually paid, whenever he shall be required so to do by the Board of Directors of the Union Bank of Louisiana, then, and from that moment, this present mortgage, by virtue of the 24th section of the act of incorporation aforesaid, shall bear ten per cent interest per annum; and the said Union Bank of Louisiana shall have the right to cause to be seized and sold, the said mortgaged premises, in whose hands soever the same may be found.”

The 24th section of the charier enacts, that “the mortgages for stock and loans granted, by virtue of this act, shall bear ten per cent interest per annum, after maturity, if not punctually paid.”

The 31st section enacts, that “ each and every stockholder shall be entitled to a credit, equal'to one-half of the total amount of his shares; provided, that as use may be made of such credit, notes or obligations for the amount, so used, shall be furnished! and the interest thereon shall be annually paid in advance ; and the principal shall be paid in equal installments, so that the whole shall be paid at the expiration of twenty years from the passage hereof.”

The’ interpretation which the bank, in its dealings with its stockholders, has uniformly, since its establishment, insisted upon, and which it now invokes, is this, that the stockholder, at the end of the year, should pay the twentieth of the principal, and the annual interest on the balance, in advance, at the rate of seven per cent; and on the fulfillment of this condition, would enjoy the privilege of renewal. But if he fails to fulfill this condition, the whole amount of the loan matures, and is exigible, with ten per cent thereafter, and the mortgaged property may be seized and sold, to enforce payment. The term, says the appellant, was granted only on condition, that you, the stockholder, diminish your indebtedness and pay interest in advance. In not doing so, you weaken the security of the bank; for your slaves are growing old, your buildings are wearing out, and besides, you deprive the bank of the profits it might make, by using, in its banking business, the money you ought to have paid, and which you seek to keep at seven per cent interest, although you borrowed it at the higher rate of seven per cent discount. Your punctual fellow-stockholders, since the existence of the corporation, have acquiesced in this view of their duty, and have paid their installments and interest, in advance, accordingly; thus contributing to enrich the funds of the bank, in which, when a distribution of profits takes place under the charter, you will claim to be an equal participant. 1

On Ü10 other hand, the appellee contends, that in no event is he bound to pay more than the twentieth at the end of each year; and that even, if he neglects to pay an installment at the end of the year, and to pay the interest on the balance in advance, the balance of the principal is only exigible by installments, and interest on that balance runs only at seven per cent. To charge him ten percent interest, is to charge him, it is said, a penalty for not having paid what is not due.

We have stated the conflicting pretensions of the parties, but we do not consider it necessary to discuss them at length. This same question was, some years since, considered by this court, after elaborate argument at bar, in the case of the Union Bank v. Guice, 2d Ann. 250, and was then decided. We are still satisfied with the opinion, for the reasons then stated. But it is proper to add, that, at this late day, when the bank is liquidating its affairs, after having dealt with its stockholders who stand towards each other in the relation of partners, upon that view of their liability during nearly twenty years, we would scarcely be permitted to treat the question as ud open one.

The next question presented for our consideration is, whether the bank is entitled to recover more than seven per cent interest, after maturity, upon the other bond. Our conclusion is, that the stipulation for ten per cent interest, after maturity, must be enforced. The subject has been considered in the opinion prepared by Mr. Justice Rost. There has been some difference as to our reasons for adopting this conclusion ; but, in the conclusion itself, we all concur.

The only remaining matter is, what credits are to be allowed for alleged payments. It seems to us, there was error in the decree below, in allowing a credit of eight hundred and seventy-five dollars on the 25th June, 1844 ; and that the view taken, as to that item, by the appellants counsel, is correct. We have also doubts as to the allowance of another item of credit, claimed by the debtor, beyond the amounts credited in the bank’s account. As the account has to be reformed, in consequence of the opinion of this court, on the subject of interest, we shall, before expressing a definitive opinion as to the credits claimed, direct a reference to auditors, unless the parties can agree upon a statement.

January 26, 1852.-^Since the foregoing opinion was read, some days have elapsed, and the parties have not agreed upon a statement. We have concluded to remand the cause, for the purpose of having the question of credits re-examined.

It is therefore decreed, that the judgment of the district court be reversed ; and it is further decreed, that this cause be remanded for a new trial, and for further proceedings, according to the legal principles on the subject of interest, stated in the opinion of the court; the appellee paying the costs of the appeal.

Rost, J.

The district judge was of opinion, that the additional loan of fifteen per cent on the amount of the stock, was not a stock loan within the meaning of the charter, and that ordinary mortgage loans do not come within the penalty attached by the 24th section to a default, but under the dispositions of the 9th section, which is the law of the corporation in regard to the rate of interest it may exact. He accordingly reduced the interest on the bond given for that loan to seven per cent. In this, we think there is error.

This loan was reviewed by the board who authorized it, (the defendant being one of them,) as an extension of the stock loan, and we are not prepared to say that it might not be viewed in that light against all the stockholders who availed themselves of it. But we will consider the case as one of an ordinary loan on mortgage.

The provision of die 24th section is, that the mortgages for stock and loans granted by virtue of the charter, shall bear ten per cent interest per annum after maturity, if not punctually paid.

The expressions used are extremely ambiguous ; but we are of opinion, that the interpretation by which the section is extended to ail loans on mortgage, is the only one by which effect can be given to every part of it, and that it is most consonant with reason.

The subscription for stock is not to be paid np; there is, therefore, no such thing as the maturity of the stock itself, and if the literal sense is to be followed, the first part of the section is entirely without meaning. But a reasonable meaning is easily found, if the letter of the law be disregarded, and the intention of the Legislature ascertained. The charter provides that every stockholder shall be entitled to a loan of fifty per cent on his stock, and contains no express provision that any mortgage, besides the stock mortgage, shall be given to secure that loan. The Legislature evidently viewed the stock mortgage as the security for the stock loan, and they must have meant by the maturity of the stock, the maturity of the installments of the loan made upon it, or they meant nothing at all; a conclusion to which a court of justice cannot come.

We must believe that the first part of the 24th section applied to stock loans, and that the loans subsequently mentioned, are the ordinary mortgage loans. The two together, constitute the mortgages granted by virtue of the charter, to which this section has express reference.

This construction is corroborated by other dispositions of the charter. Sections 26 and 27 provide, that the right of the bank to cause to be seized and sold, property mortgaged to them, shall remain unimpaired by respites obtained, or voluntary surrenders made by their debtors. Although these sections would seem to have reference to ordinary mortgages only, the board has uniformly claimed and enjoyed the privilege which they give in cases of loans on stock.

So, the section which authorizes married women to bind themselves with their husbands, though not including in terms stock loans and mortgages, was clearly intended to apply to them.

But if it were true, that the 24th section was originally susceptible of a different interpretation, it has been so understood by the stockholders, the board of directors, and the customers of the bank, during the entire existence of the charter; and this understanding of it, has materially increased the profits soon to be divided between the plaintiff and the other stockholders. To disregard now that interpretation, would be contrary to justice and subversive of all rules of sound construction.

Preston, J. I concur in the opinion delivered by Judge Rost.


author: Súdele, J.

text:
    Greenwood Leflore v. James G. Carson.
    The vendor lias no privilege, unless his act of sale be recorded in the office for recording mortgages.
    A sale cannot be annulled for the non-payment of a portion of the price, whore the parties, from tlicir transactions, have rendered it impossible to place each other in the same situation they were in before the sale was made.

      APPEAL from the District Court of Carroll, J.

      N. T. Richardson, Stacey and Sparrow, for plaintiff.

      A. B. Caldwell, for defendant.
   The judgment of the court was pronounced by

Súdele, J.

The plaintiff sues as endorser of a note, given by the defendant to Halsey, the payee, for part of the price of a plantation, bought by the defendant from Halsey. The note, on its face, states its consideration, and that its payment is subject to the conditions contained in the act of sale.

The defendant excepted that the suit was premature. He also excepted,that if it was not premature, all further proceedings should be suspended, until the plaintiff, or Halsey, should give him security to protect him from disturbance, with which he alleged he was threatened by J. F. Butler, the transferees of a claim formerly held by A. P. Merrill. ■ These exceptions he founds upon a stipulation contained in the act of sale for the suspension of the payment of this and other notes, upon certain contingencies. The stipulation, which is prolix, need not be set out at length. It is sufficient to quote the averment in the defendant’s plea, which is in these words: “The true meaning of the above stipulation is, that said Carson was thereby to be protected from all danger of having to pay the note sued on in- said suit, number 537, in order to preserve his title to the land conveyed to him by said act of sale.”

For the proper consideration of the defence, it is necessary to state the material facts, which are complicated.

In May, 1837, McDonald mortgaged to the the Union Bank, a plantation and slaves, in the parish of Carroll, to secure a loan of $50,000. In June, 1837, he executed another mortgage on other slaves in the same parish, as security for the same debt. Both mortgages were, in June, 1847, inscribed in the mortgage book, kept in the office of the parish judge of that parish. At the time of executing these mortgages, all the property was unincumbered, and-McDonald appeared on the public records as its sole owner. In 1836, McDonald had given a bond sous seing privé, to J. M. and B. H. Payne, to make them title to half of the plantation and slaves; and a few days afterwards, thePaynes and McDonald formed a partnership as cotton planters, which lasted until 1841. On the 21st June, 1837, immediately after McDonald had completed his loan from the Union Bank, he, in compliance with his bond, executed before a notary public, a deed of sale to the Paynes, of an undivided half of the plantation and slaves, for the price of $60,000, namely, $10,000 cash,- and the balance in six notes. One-of these notes was transferred to Merrill in 1838, or subsequently.

The deed declared that McDonald was to pay one-half of the loan of $50,000-obtained of the Union Bank, and the Paynes the other half, no mortgage for the price was stipulated in the deed, as is usually done. This conveyance was recorded in the record- book of alienations, in the proper office- of Carroll parish, but was not inscribed'in the record book of mortgages. It is proved, that a separate book for recording mortgages had been kept in the office of the parish judge since 1833. In 1841, soon after the dissolution of the partnership between the Paynes and McDonald, the former executed to the Union Bank a mortgage for $31,656 45, upon the portion-of the property which fell to them in the partition of the property made with McDonald. This mortgage was given in-pursuance of the stipulations of the act of partition, and of the undertaking in the cfeed of purchase in 1837, by which they promised to pay one-half the Union Bank debt. It was accepted by the Union Bank, upon the certificate of the recorder of mortgages of the parish of Carroll, that there was no mortgage-upon: the property in the name of the Paynes, and none in any other personas name, except that of McDonald to the Union Bank for $50,000 above mentioned. It was duly inscribed in tire book of mortgages in Carroll parish, in August, 1841. Under this mortgage, the property was seized and sold to White in 1845. White sold the land to Halsey, and in 1846, Halsey sold to the defendant, as above stated. Merrill, as the holder of one of the Payne notes, claimed the vendor’s privilege on the land; other persons also had claims. White bought at the sheriff’s sale, made under the Union Bank mortgages, for the sum of $41,750 cash, and brought suit against the Union Bank and the other creditors, who claimed privileges and mortgages, in order,to settle the question of priority among them, and determine to whom the purchase money belonged. Merrill, thus made defendant, asserted that, as holder of the note ■of J. M. and B. H. Payne, he had the privilege of vendor upon the property thus sold and its proceeds; he denied the existence of .any mortgage rights in ■favor of the Union Bank, and prayed that he might have judgment for so much of the proceeds of the plantation as would satisfy .his claim. There was judgment classing the creditors as follows : 1st, The Union Bank; 2d, Halsey; Sd, January : thus giving them all precedence over Merrill, whose claim of the vendor’s privilege was rejected upon the ground of non-registry. See the case of Maunsel While v. The Union Bank, 6th Ann. 162.

The correctness of the decision in the case just mentioned, is not now questioned. Indeed, the matter is res judicata between Merrill and White, under whom the present parties hold. There is, therefore, no possibility of disturbance by reason of an outstanding vendor’s privilege in favor of Butler, Merrill’s transferree.

'But, it is said, that there is still danger of disturbance, because the decision in that case turned only upon the question of the vendor’s privilege. A vendor, it is ax'gued, who has neglected to record his privilege, is not remediless as against subsequent mortgagees, but may still relieve himself through the resolutory condition implied in the contract of sale, and recognized in the 2539th article of the C. C-, which declares, that if the buyer does not pay the price, the seller may sue for the dissolution of the sale.

If, for the purposes of the present inquiry, the general proposition be conceded, there are cil'cumstances in this case which would render it unavailable to Butler, who, it seems, has threatened Carson with proceedings for a dissolutioxx of the sale made by McDonald to Messrs. Payne.

If the sale by McDonald to the Messrs. Payne is to be rescinded, this cannot be done without restoring the vendor and the vendees to their original position. The dissolving condition, says the code, (art. 2040, La condition resolutoire,) is that which, when accomplished, operates -the revocation of the obligation, placing matters in the same state as though the obligation had not existed. La resolution replace les parties, dans l’etat oú elles se trouvaient avant la vente. Troplong, vente, No. 654. How -is Butler to replace matter in statu quo ? He is the mere holder of one of the notes. He is not the vendor, nor any thing more than a partial representative of the rights of the vendor. But McDonald, the vendor, and the vendees, have done act upon act inconsistent with a resolution of the sale. They gave the mortgages to the Union Bank, which eventuated in the sale to White. They made a settlement of their partnership accounts and a partition in kind of the land and slaves. It is obvious, .therefore, that the pretensions of ^Butler to sue for a dissolution of the original sale,""are unfounded, and that the apprehensions of eviction by Carson are unreasonable. See C. C. 2535.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed; and it is further ordered and decreed, that the plaintiff recover of the defendant the sum of $5,016, with interest from the 1st of January, 1850, until paid, at the rate of eight per cent per annum, and costs in both courts ; and that the mortgagee! property, described in the act of sale and mortgage between A. Halsey and James G. Carson, annexed to, and made part of plaintiff’srpetition, be seized and sold, to satisfy the judgment aforesaid in favor .of the plaintiff.


author: Prestow, J.

text:
    Robert Garland et al. v. Thomas M. Jackson et al.
    Where, in conformity to an act of the Legislature, the trastees of a sixteenth section granted by Congress for public schools, have leased the same for fifty years, the contract is valid. There is nothing unconstitutional, or contrary to the laws of the United States, in such a contract.
    APPEAL from the District Court of Madison, Copley, J.

      Alonzo Snyder and J. Bemiss, for plaintiffs.

      Stacey and Sparroio, for defendants.
   The judgm'ent of the court was pronounced by

Prestow, J.

By the Constitution of the United States, power is given to Congress, to make all needful rules and regulations respecting the territory or other property of the United States. This has been always construed, as giving Congress power to sell the public lands, or otherwise dispose of them for public purposes.

Shortly after the cession of Louisiana to the United States, by the eleventh section of an act of Congress, approved the 21st of April, 1806, the President of the United States was authorized to offer for sale, such of the public lands lying in the Western District of the Territory of Orleans, as were surveyed, with the exception of section sixteen, which, in the language of the act, “ shall be reserved, in each township, for the support of schools within the same,”

The sixteenth section of every township of the public lands of the United States, have, from the adoption of the Constitution, been reserved from public sales, for the maintenance of public schools in the township; and this reservation has always been considered a grant to the State in which it lies, on the admission of the State into the Union. It must amount to a grant; because Congress have no power, under the Constitution, to administer property for the purposes of education, within the limits of a sovereign State ; and, in selling public lands, Congress, having reserved a portion for the support of schools within the township, as an inducement to purchasers to bid and buy, could never, in good faith, revoke the reservation.

The reservation must, therefore, necessarily be administered under the authority of the State. Still, as there might be doubt as to the title, in case the State should sell the lands reserved for the purposes of education, because the term reserved, instead of granted, was used, Congress, in 1843, passed an act, authorizing the States of Illinois, Arkansas, Louisiana and Tennessee, to sell lands which had before been appropriated to schools. It is unnecessary to inquire into the constitutionality of a-clause in the law, aut hoi ¡zing those Slates to lease the lands, for a term not exceeding four years ; for, however wise the provision, it does not purport to affect anything done by the States, in the previous administration of those lands. On the contrary, a clause in the law sanctioned all sales made by those States, and, by a reasonable inference, all leases previously made.

In 1835, our Legislature directed the citizens of township 17, range 13 east, then in the parish of Carroll, but now in Madison, to elect three trustees, with power to administer all the school property and funds in that township, and, especially, to lease the school lands fbr an annual rent. Being, probably, unable to lease them for an annual rent, at the next session of the Legislature, in 1836, their trustees were authorized to lease them, for a term of years not exceeding fifty years, payable in five annual installments. In pursuance of these acts, in May, 1836, the trustees leased to Honoré P. Moraney, 320 acres of those lands, for the term of fifty years, for twelve hundred and sixty-eight dollars, payable .on the terms prescribed.

The land is now in the possession of the defendants under that lease, and the plaintiffs, the present trustees, bring suit to recover it, and, in effect, to annul the lease. They cannot do it. The State of Mississippi leased their school lands, acquired in the same manner, for a term of ninety-nine years, and the Supreme Court of that State held the leases to be valid. The laws under which the defendants hold the lease, however unwise, expressly gave power to the trustees to lease the land for that term. They conflicted with no act of Congress, or the Constitution of the United States. The lessees acquired a vested right in the lease, by bidding for it at poublic auction, on the terms prescribed by the Legislature, and paying the price; and it would be a violation of our Constitution to deprive them of it.

The judgment of the district court is reversed; and itis decreed, that there be judgment for the defendants, with costs in both courts.


text:
    Eleanor Graves v. Nicholas Barnes.
    The administrator of an estate owes interest, by operation of law, to the heirs from the time of the settlement of his account, and will be condemned by the court to pay it, although not prayed for in the petition. C. P. 1007.
    APPEAL from the District Court of Madison, J. N. T. Richardson, J;

      Hynes and Perkins, for plaintiff.

      Bemiss, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The tutrix of Joseph Barnes, a minor, sues the administrator of his father’s estate, for seven hundred and seventy dollars and fifty cents; and of his grandmother’s estate, for thirteen hundred and nine dollars and thirty-five cents.

The administrator contends, that the first of those sums has been paid to James Williams, as the owner of a judgment for a large sum, which William Cotton, deceased, obtained against the father.

Williams has intervened, and maintains the same thing; and further claims, that the 551309 35 cents, claimed by the minor, as coming to him from his grandmother’s succession, belongs to him, as holder of the judgment of Collon, against the father. There is no pretence for this last claim. The grandmother died after the father of the minor, and the latter inherited directly from her.

As to the $770 50, claimed for the minor, as coming from his father’s succession, we think the verdict and judgment erroneous. Williams purchased the judgment against the father befoz'e his death. The allegation in the petition, therefore, that the administrator of the father purchased for one hundred dollar's through Williams, the laz'ge judgment against the succession, with the funds of the succession, cannot be well founded.

The objection of the defendant, that interest was allowed on the $1309 35, from the judicial demand, because not prayed for in the petition, is not tenable. The claim bore intez'est, by operation of law, from the settlement of his account, as administrator, with the heirs of Abby Barnes. C. P., art. 1007.

The judgment of the district court is reversed; and it is decreed, that the plaintiff recover from the defendant, the sum of thirteen hundred and nine dollars and thirty-five cents, with legal interest from the 21st April, 1848, with costs in the district court; and that the appellee pay the costs of the appeal.


text:
    William R. Peck v. John H. Overton.
    A petitory action for land, can only be maintained against the possessor or owner-. C. P. art. 43.
    A personal action must be brought in the parish in which the defendant resides.
    from the District Court of Madison, Farrar, J.

      J. L. Amonett, for plaintiff.

      Alonzo Snyder, for defendant.
   The judgment of the court was pronounced by

Preston, J.

Suit was brought by the plaintiff against the defendant, to compel him to make a formal conveyance of a tract of land, which, as he alleged, he had purchased from his agent, and was ratified by his attorney in fact; and, indeed, that by silence, when he should have spoken, he assented to the sale himself. The defendant excepted, that it was a personal action; that he resides in the parish of St. Landry, and that he was not subject to the jurisdiction of the district court for the parish of Madison. The exception was overruled, an amended petition having been filed by leave of the court. The amended petition alleges, that the defendant had the actual possession of the land in controversy, and claimed it as owner. The defendant excepted again, that he had not possession of the land, nor claimed it as owner; that a petitory action could not be maintained against him, because he was not in possession or owner of the land ; and that a personal action could not be maintained in that court, because he resided in the parish of St. Landry.

We have been unable to find, that this last exception was formally overruled by the court. The defendant, however, acknowledges, in his answer, that it was overruled. It appears, by entries and evidence, that it was tried, and the defendant insists upon it in this court. He cannot be deprived of the right by a judgment, by default taken at the very moment of filing papers, of which oyer was asked, without assigning any reasons for the default. He filed his exceptions the next day, which certainly was all that could be reasonably required. The judgment by default seems to have been disregarded by all parties.

On the trial of the exception, the defendant showed that he had made an agreement to sell the land to Mrs. Bemiss, a month before the suit was brought. The agreement was absolutely binding upon him, and, as to him, amounted to a sale, although sixty days was given to Mrs. Bemiss to accept and comply with the conditions. It was proved, further, that Mrs. Bemiss was actually in possession of the land at the time the suit was brought. The defendant was not liable to a petitory action for land of which he was not in possession, and which he had sold. The suit could only be brought against the possessor, or owner. C. P., art. 43. For any personal claim against him, the suit should have been brought in the parish of his domicil. C. P., art. 162.

There seems to be less reason for rejecting the exception, as on the very day it was tried, suit was brought by the plaintiff against Mrs. Bemiss for the land,which suit is still pending, the defendant being called in warranty.

The judgment of the district court is reversed.; and it is decreed, that the defendant’s exception be sustained, and the plaintiff’s petition dismissed, and that he be condemned to pay costs in both courts.


author: Sumil, J.

text:
    M. and B. Mullen & Co. v. Amas and Roe.
    Where an attorney at law purchases a judgment which is pending on appeal, it will he regarded as a litigious right, and the purchase declared void.
    APPEAL from the District Court of Madison, J. N. T. Richardson, J.

      Stockton and Steele, for plaintiffs.

      A. Snyder, for appellant.
   The judgment of the court was pronounced by

Sumil, J.

Under a fieri facias issued against Amas and Roe-, the defendants in this cause, certain lands were seized as their property. A. R. Hynes became the purchaser at sheriff’s sale, at the price of $3,800, and directed the sheriff to credit his bid upon the fieri facias. Afterwards, Hynes took a rule upon M. and B. Mullen Co., to show cause why his bid should not be credited as cash upon the execution, and why he should not be decreed to be subrogated to all the rights accruing under said judgment. These pretensions of Hynes, rest upon an alleged sale, made at auction, to one Devereux, in the insolvent proceedings of Kervan, a member of the firm of IkT. and B. Mullen Co„ which was composed of three partners. The defendants in the rule, resist the application of Hynes, alleging, in their answer, that the claim, when purchased by Hynes, was a litigious right, which, he being an attorney at law, was incapable of purchasing ; that any apparent interest held by Devereux, was held by him as a trustee, for the benefit of their firm; and that Devereux was induced to sell Hynes the judgment, by his representation, as to its value.

The district judge considered the purchase by Hynes void, upon the ground, that it was the purchase of a litigious right by an attorney at law, there being an appeal by Amas and Roe, pending at the time. His decree annulled the sale, and directed that the five hundred dollars, the price paid by Hynes to Devereux, be credited on the bid made by Hynes, at the sheriff’s sale. Hynes has appealed.

Considering the nature of the claims sold, the possession of the purchaser, who was also attorney of record for Amas and Roe, and his representations as to the value of the claim, as testified by Devereux, we are of opinion that the appellant is not entitled to a reversal of the judgment. See Copley v. Lambeth, 1st Ann. 317. C. C. 2422, 2624, 1841.

ft js said, that in consequenee of the previous insolvency of Kenan, M. and B. Mullen Sf Co. were incompetent to bring suit against Amas and Roe, and stand in judgment. We are by no means prepared to say, that Amas and Roe could now make any such objection to the judgment. But, atany rate, the alleged irregularities do not concern the plaintiff in this rule. As an actor, he must rely on the strength of his own title, and not on the weakness of his adversaries. Moreover, in asking a subrogation, he has affirmed the judgment. So, also, the appellant is not competent to raise questions in this proceeding, which concern the creditors of M. and B. Mullen Sf Co. That their interests have been disregarded and violated by the defendants in rule, there is strong reason to believe. But those creditors, if suoh be the case, will have an equitable right to claim the benefit of this large judgment against Amas and Roe, as an asset of their debtors ; while, on the contrary, the success of the appellant would be hostile to their interests. The decree of the district judge has reached the justice of the case, so far as it was in his power to do so under the rule; and it is therefore affirmed, the appellant to pay the costs of the appeal.


author: Preston, J. Slidell, J.,

text:
    Municipality No. Two, for Opening Euphrosine Street.
    The act of April 3d, 1832, for opening streets, &c., in the city of New Orleans, is contrary to the article 109 of the Constitution of the State, so far as it authorizes private property to be taken for public uses, without an adequate compensation previously made.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J,

      R. Hunt and H. D. Ogden, for appellee.

      Lockett and Griffon, for appellants.
   The judgment of the court was pronounced by

Preston, J.

This is an application by the Second Municpality of New Orleans, to open Euphrosine street, from Hercules to Liberty streets, in pursuance to the act of the 3d of April, 1832. For that purpose, a parcel of ground belonging to Francois Saulet, having forty-five feet on Hercules street, and extending through to Benton street, on which it has the same front, is to be taken.

By commissioners of estimate and assessment, duly appointed and sworn, the portion of ground was appraised at two thousand dollars ($2000), and the buildings and improvements on the same, at three thousand five hundred dollars (3500) — $5500.

Provision for his payment was made, by estimating the advantages of the improvement of the municipality to him and to others, in which the advantage of the improvement to the square, from which the property was to be taken, and to other lots belonging to him, was estimated at $1623 50 ; leaving to be paid to him, $3876 50.

He and others opposed the report, and on the 23d of January, 1849, it was referred back to the commissioners for amendment.

After long investigation and consideration, on the 1st of October, 1849, they filed an amended report, in which they estimate the lot, to be taken from Franpis Saulet, for the contemplated improvement, at $3000, and the buildings and improvements on the same, at $3000 — aggregate, $6000; and estimated that his square and other property would be benefited to the amount of $1947, leaving to bo received by him, $4053.

Francois Saulet, also opposed this report, alleging, that the property to be taken from him was valued too low; and without denying the right of the cipalify to assess his property for the improvements to be made, alleged, that the amount assessed was too high.

He also claimed, under article 109 of the Constitution, that he should be paid, in cash, before the property was taken from him, its value.

The additional value that would be added to Francois Saulet’s property, by the contemplated improvement, is fully proved by his own witnesses. Moore, a real estate broker, Souihmayd, a vendor of lots in the vicinity, and William, Stackhouse, who, by the particulars he mentions, is manifestly well acquainted with the value of property in the neighborhood, and its advantages and disadvantages, all agree that he would be benefited about two thousand dollars.

The Commissioners allow him six thousand dollars for the aggregate value of his ground and buildings, to be taken for the improvement. Stackhouse, his own witness, states, that it is a pretty high estimate, and none of the witnesses prove that the estimate, in the aggregate, is too low; although Souihmayd and Rub think the lots, to be taken separately from the buildings, should be estimated higher than three thousand dollars.

The testimony of the witnesses satisfies us, that the commissioners, on the whole, have done Mr. Saulet full justice. If, however, the evidence left any doubt on the subject, it is to be considered that the commissioners of estimate and assessment, in the words of the act of 1832, “ are discreet and disinterested persons, competent to serve as juroi's in the court, and sworn, faithfully, impartially, and according to the best of their skill and judgment, to perform the trust and duties required of them by the act;” that they are not chosen by lot, as ordinary jurors, but selected and appointed by the judge, and should be so appoint-" ed, on account of their great skill and competency to perform the special duties Required by the act, and are to be allowed four hundred and fifty dollars, with the fees of a clerk, for their services in this very case; that they made two reports, or rendered two verdicts, if we may so speak, for the law likens them to jurors; the last of which, being more favorable to Mr. Saulet, was approved by the court, after hearing witnesses in opposition, for reasons which are entirely satisfactory to us. "VVe are bound to give as much weight to his judgment, approving the report, as we would to an ordinary judgment, based upon the verdict of a jury, and the refusal of a new trial, after examining new evidence, in opposition to the verdict.

We do not think, however, that the district court should have altered the report, by allowing Haywood Stackhouse any part of the appraised value of the buildings. If the evidence had justified it, the assessment should have been referred back to the assessors, for the purpose of making the amendment under' the decision of this court, in the application for the opening of Claiborne street. 4th Ann. 7. We think, however, the evidence would not justify the reference. The buildings became the property of Saulet on the 1st November, 1848, as appears by the contract between them. For the building? erected underthe first lease, were estimated in the second lease, made the 5th of October, 1847, at three thousand dollars, and to be insured at that sum. We presume, these are the buildings to be taken for the improvement, as we have no evidence that Stack-house had erected the additional buildings contemplated by the second lease, and to cost a thousand dollars. On the contrary, he left the premises, the first of February, 1848, a few months after the second lease was signed.

Had Stackhouse presented a distinct claim for damage, which the conteJnplated improvement would cause him as lessee, it is possible something would have been allowed him by the commissioners, because he was. entitled by the lease, from Saulet, to occupy the buildings until 1852, upon the conditions of paying four hundred and eighty dollars rent per annum, and erecting other buildings of the value of one thousand dollars, to become Saulel’s at the expiration of the lease.

But instead of claiming indemnification, as a lessee in case of eviction, he left the premises, even before the second lease was to commence, and claimed the value of buildings, which, did not belong to him, because erected under the first lease, and became Saulet’s before his claim was filed.

The demand of Saulet, to be paid in cash the value of his ground and buildings, before the municipality is put into possession of the same for the purposes of public utility, is clearly accorded by article 109 of the Constitution. The provisions of the act of 1832, to the contrary, are repealed by article 142 of the Constitution ; and the strict enforcement of this equitable and salutary provision of the Constitution, is not only a sacred duty of this court, but will, probably, greatly tend to restrain the waste and extravagance growing out of public improvement, which, we fear, will become a burden to this, as it has been to many other cities.

The judgment of the district court is therefore reversed, and it is decreed, that the report of the commissioners of estimate and assessment of damages and benefits, made on the first of October, 1849, be approved and homologated; and it is further decreed, that the delivery of the property to Municipality No. Two, for the purpose of opening Euphrosine street, shall not be enforced, until payment to Francois Saulet, of four thousand and fifty-three dollars ; and that the municipality pay one-half the costs of this appeal, the other half to be paid by JHaywood Stackhouse.

Slidell, J.,

dissenting. The principle that private property should not be taken for public use, without provision being made for a just compensation to the owner, was undisputed before the adoption of the present Constitution. An express recognition of it, in a particular case, is found in the 489th article of our Civil Code. But the framers of the Constitution of 1845, have wisely protected the citizen by an additional safeguard, and have forbidden the divestiture of a vested right, for purposes of public utility, unless an adequate compensation be previously made. Without this clause, there might be room for difference of opinion, whether the compensation should precede, or might follow, the exercise of the right of eminent domain. Authorities might be found to sustain the position, that a previous provision for making such compensation, would suffice; while other minds, more strongly impressed with the necessity of jealously protecting private right from the encroachments of public power, would adopt the stringent doctrine of previous indemnity. Under the 109th article of our Constitution, it seems to me, that question is put at rest.

It is necessary, then, to apply that clause of our Constitution to the statute, under which these proceedings for the opening of Euphrosine stree, have been conducted", and consider whether some provisions of the statute are not incompatible with it.

The theory of the statute is, that where a proprietor has a piece of land, of which a portion only is taken for the proposed street, or public highway, he is to be paid, not the value of the land so taken, but the excess of damage over benefit; that is to say, the commissioners shall estimate the value of the land taken, and the enhancement, if any, which, in their opinion, will result to the land left, and award him the excess.

The Constitution guarantees to the citizen, that his property shall not be taken from him, for a purpose of public utility, without an “ adequate compensation previously made and, in m.y opinion, -the .only safe construction of those terms is, the previous payment to him of the money value of the property taken.

When you pay him, in the supposed prospective benefit which may accrue to other property belonging to him, you do not pay him in money, but in that which is uncertain and dependent on opinion and accident.

The constitutional difficulty is not at all o'bviated by the fifth section of the statute, which gives the proprietor, a part of whose land is taken, a right to surrender the whole at the estimated price of the whole. This right is clogged with many disadvantages and unconstitutional conditions. The citizen is obliged to declare his election and surrender his title, before the money is tendered to him ; and when he has so elected, he is bound, and the public are not. For it has been held, that until the tableau of assessment is confirmed, the municipal body may discontinue the proceedings, and the whole matter then falls to the ground.

The system of expropriation, provided in this statute, which was borrowed from another State, is not only liable to gross abuse, but, as far as my observation of its working enables me to speak, has been often an instrument of hardship and injustice. In one of the northern States, as I have been informed and believe, the evil wras, at one time, carried to an alarming extent, and substantial landholders, under this system of improvement, were sometimes converted into paupers.

Wbat is the practical working of the system in the present case ? Saulet is in the quiet enjoyment of a piece of ground, and a rental of four hundred and eighty dollars a year for a portion of it, which is built upon, the rest being vacant. The municipality says : We consider the public good will be promoted by taking your house and a part of your land from you, to make a street. The house and lot are worth six thousand dollars. We will pay you a part of this in money. But, we think, if you will put up houses on the rest of your land, or sell it, you will do better with it, than if the street had not been made. Squlet may, perhaps, reply: I have no means to build; I do not want to sell; and the expectation of enhanced value, is not a certainty. But the municipality rejoins, that does not matter. Here is part of the value of your house and ground, in money. For the residue, we give you, in payment, the opinion of our commissioners, that your vacant land will be hereafter worth more, and the chance of that opinion being realized.' Instead of gold or silver, we give you a probability.

Whether after the effects of an opening of a street have been actually developed, and the advantage, in an increased value of the portion left to the proprietor, has been actually realized, he might not be lawfully assessed with reference to such benefit, is another question, which need not now be considered.

Being of opinion, that the judgment of the district court, in this matter, rests upon an unconstitutional basis, I think it should be reversed.

Besides these considerations, the tableau of assessment seems to me, on its face, inconsistent in several instances with the theory upon which it purports to be made, and the theory of the statute; and there are, also, discrepancies between this and the.previous tableau o.r report, which I am ¡unable to comprehend.