text:
    Ellen Wood, Widow Neely, v. J. O. Stokes, Administrator.
    A donation of a sum of money at a future time by a marriage contract does not require a delivery* neither is it necessary that it should be in the form of a testament to render it vaiid.
    donations by marriage contract cannot be impeached or declared void on pretence of want of acceptance. C. C. 1782.
    The Act of the Legislature of 81st March* 1850, amending Art. 1789 of the Civil Code, did not remove the restriction imposed by Art. 1745 of the Code, upon persons contracting a second or a subsequent marriage who have children by a former one, from giving to the spouse of the second or subsequent marriage more than the least child’s portion as an usufruct and not to exceed one-fifth of the donor’s estate — the latter Article is unrepealed and in full force.
    from the District Court of the parish of East Baton Rouge, Beale, J.

      J. M. McGutcheon, for plaintiff and appellant.

      A. M. Dunn, for defendant.
   Merrick, C. J.

James Stolces, having three children living by a former marriage, entered into a marriage contract with the plaintiff, wherein, “as a further proof of the friendship which he bore his said future spouse, he made a full and entire gift to his said intended wife of the sum of five thousand dollars, to be levied off his estate and paid to her without the interference of law by his executors, heirs or administrators after his decease, should his said intended wife survive him, and in the event of the death of the said future wife before the decease of the said husband, then the aforesaid sum of five thousand dollars is to descend to her lawful heirs and to be paid to them according to the law of the State.”

The parties were duly married, and lived together until the death of the donor, James Stolces.

The suit in its present form is brought to claim from his succession the amount stipulated in the marriage contract.

The District Judge reduced the donation to the usufuct of one-fifth of the estate of James Stolces, deceased, during plaintiff’s life, and she has appealed.

It is contended by defendant’s counsel that the $5000 promised must be considered as a donation; and because there was no delivery, and the act is not formal as a donation mortis causa, it must he considered void, «5 initio.

A donation of a sum of money at a future time by a marriage contract, does not, we think, require a delivery, neither is it necessary that it should be in the form of a testament to render it valid. C. C. 1728, 1788, 1735.

It is next objected that* the donation was not accepted in its precise terms. Donations made by marriage contract cannot be impeached or declared void on pretence of want of acceptance. C. C. 1782.

It is further urged by defendant’s counsel that if the instrument be valid as a donation it must be reduced to an usufruct of one-fifth of the estate.

This raises the important question, whether the Act approved 31st of March, 1850, amending Article 1739 of the Civil Oode, was intended to remove the restrictions imposed by the Code upon persons contracting a second or a subsequent marriage who have children by a former one.

The statute read by itself has doubtless given rise to the impression, that the broad and comprehensive terms used are applicable to all marriage contracts entered into in due form, or testaments made since the passage of the statute. The Act is as follows: “ Be it enacted, &e, That Article one thousand seven hundred and thirty-nine of the Civil Code which reads thus: ‘ One of the married couple may either by marriage contract or during the marriage, in case of his or her leaving no children nor legitimate descendants, give to the other in full property all that he or she might give to a stranger. And in case the donor leaves children or legitimate descendants, he can give to the other a tenth-part in full property or the usufruct of one-fith of all his property,’ be and the same is hereby altered and amended so as to read as follows : Either of the married couple may, either by marriage contract or during the marriage, give to the other in full property all that he or she might give to a stranger.”

This statute which, in conformity to Art. 116 of the Constitution, reenacts and publishes at length the Article or section amended, contains no repealing clause. It cannot, therefore, repeal any other Article of the Civil Code, unless it contains provisions irreconcilable with such Article, for “The law does not favor repeals by implication, and when laws in pari mateo'ia are to be interpreted, that construction is to be preferred which will give effect to all their provisions.” 5 An. 122, Succession of Hébert.

The statute of 1850, consequently, must be read in its place as Article 1739 of the Civil Code. It then becomes a general pi’ovision of law forming a part of the Civil Code, subject to the limitations and exceptions found in other Articles of the Code hot irreconcilable with the same. As it does not purport to repeal any Article, it must be construed in reference to all the Articles on the same subject-matter. C. C. 17.

We then find the general rule prescribed by the Article 1739 as amended, and the exception in the unrepealed Article 1745, in the case where a man or woman contracts a second or subsequent marriage having children by a former one. In such exceptional case the husband can give to his wife or she to her husband only the least child’s portion, and that only as an usufruct and in no case shall the portion of which the donee is to have the usufruct exceed the fifth-part of the donor’s estate. C. C. 1745.

This, then, limits the Article 1739, as the District Judge correctly observes, to persons who have no children by a former marriage.

The petition alleges the estate to be worth $20,000. The donation of $5000, therefore, exceeds the usufruct of one-fifth of the entire estate, and must be reduced accordingly. If the plaintiff is unable to give the security required, the courts can manage the property, under Art. 556, for the benefit of the usufructuary. See case of Succession of Antoine Tassin, 12 An., 885.

The court did not err in dismissing the demand for one-half of the value of the community. The widow in community can q|aim this only after the settlement of the estate by the administrator, and to this end she has a right to call upon him to render his account, and to provoke a partition. She cannot, in the first instance, sue for a sum of money, the supposed value of one-half of the community, as appears to have been attempted in this case.

Judgment affirmed.


source: Caselaw Access Project

author: Buchanan, J. Merrick, O. J.

license: Public Domain

text:
    A. P. Bertaud v. Zenon Blouin.
    The buyer has not the right to suspend payment of the price, under Art. 2585 of the Code, where he has made a sale of the land by the same description and for the same price, without warranty against the disturbance which is made the ground of resisting payment, and which was specially mentioned in the conveyance to his vendee.

      APPEAL from the District Court of the parish of St. James, Duffel, J.
    Li. J. R. Ilsley, for plaintiff and appellant.

      Lacy & Upton, for defendant.
   Buchanan, J.

The plaintiff sued out an injunction in August, 1852, to prevent the collection of $6000 and upwards, being two-thirds of the price of land purchased by him from the defendant.

There are two grounds for plaintiff’s injunction. The first is a disturbance occasioned by the claim of Bloi Rebert to a portion of the land sold, (the said claim stated in the petition as seven acres, but proved by actual survey to be only four acres). The second ground of injunction is the existence of predial servitudes not disclosed at the time of sale.

Upon the first ground. The purchaser has in general the right to suspend the payment of the price of the sale, when he has just reason to fear that he may be disquieted by the claim of a third person, until the seller gives him security. C. C. 2535.

But it is in proof that plaintiff has sold the land purchased by him from defendant, by the same description and for the same price, without warranty against the disturbance pleaded in this suit, although specially mentioned in the conveyance from plaintiff to his vendee; which act of plaintiff amounts'to a waiver of the right reserved to him as vendee 'of defendant, under the Article 2535 of the Code. Goodwin v. Chesneau's Heirs, 3 N. S.

Upon the second ground of ¡injunction (the existence of servitudes not mentioned in the deed of sale) the plaintiff has offered no proof.

Under the peculiar facts of the case, we do not think proper to award damages, as for a frivolous appeal.

Judgment affirmed, with costs.

Merrick, O. J.

In my opinion, neither the law in regard to sales per aversionem nor redhibition are applicable to this case.

It matters not whether the sale has been made per mersionem or otherwise, the warranty against eviction covers every part of the tract sold. Neither is it of any consequence how inconsiderable the part evicted may be, considered with reference to the whole quantity sold; it is still covered by the warranty. Were it otherwise, a planter might be evicted of a small fraction of his plantation, yet embracing his sugar house, and he would be without redress: or, as in the present case, his plantation might be entirely severed and all communication between the two portions cut off by an adverse claim, and because he was evicted of less than one-twentieth of the whole tract he would be informed that he was deprived of all warranty.

The. obligation of warranty in Louisiana is personal. 1 N. S. 352, 6 N. S. 321, 11 Rob. 522. It does not run with the land as at common law, and hence the vendee cannot avail himself of it except by a transfer and subrogation from the former owner. It would thus seem that in a proper case the person in whose favor a covenant of warranty was stipulated might have an action on the case for a breach although he had parted with possession.

Suppose A sells for cash to I? a tract of land as containing 1000 acres. Immediately after the sale it is discovered that the tract contains but 500 acres. Or suppose B is evicted of 500 acres. Thereupon B’s creditors seize the tract under execution, and B being unable to make payment, they sell the same. Now, is B without remedy ? Perhaps his land has not sold for one-third as much as it would have done had there been the full quantity. If a Sheriff’s sale would not defeat the warranty, neither would a private sale. If a private sale would not, the plaintiff has lost none of his rights by the guarded manner in which he has transferred the land to his mother since the institution of his action. The defendant was no party to that sale, and I do not think it can fairly be construed as a gratuitous release in his favor.

In the case of Goodwin v. The Heirs of Chesneau, 3 N. S. 422, it is said that “ by the warranty the vendor contracted, not only that the vendee should not be evicted, but that all other persons who held under the buyer should enjoy the thing.” The exception to the rule, the court says, an'guendo, being where the first vendee was “ without interest” by having alienated without warranty. In the case of Simms v. Pao'lcer it is said, that the vendee’s right to sue was complete the moment the person to whom he sold was evicted. 4 N. S. 210.

Possession at the time of eviction is not therefore, under our law, absolutely necessary to enable a party to maintain an action on account of the eviction. Whether the supposed exception exists where there has been a sale without warranty according to the obiter dictum in the case of Goodwin v. The Heirs of Chesneau may on principle well be doubted. But if such exception does exist, it seems to me to be without application to the present case.

The plaintiff was in the possession of the tract of land as owner when he instituted the action of injunction. The survey shows, that he is threatened with the eviction of a strip of land running across the entire tract, severing his plantation in two portions and cutting off all communication between the two parts thus divided.

Now it is clear, that when the plaintiff instituted his suit, his pretentions were well founded, and he was entitled to have his injunction perpetuated unless the defendant gave the security required.

It is now to be considered whether he has forfeited that right or released his action; because, he cannot be deprived of his rights without some act on his part.

If his necessities compelled him to sell, the threatened eviction would of course diminish the price which he could obtain; and, if he were poor, his own warranty would be valueless and the sale would be on a par with one without warranty. Ought not the vendor to make up the difference in either case ? Ought he to profit by the difficulties which his own want of title had increased if not induced? It appears to me not, and that the vendor is not, under such circumstances, the less bound by his covenant of warranty. I can see no reason why he should not be held according to the terms of his contract. But in the sale of plaintiff to his mother it appears to me that the plaintiff, so far from abandoning his demand, was bound to insist upon it for the benefit of his vendee.

In the act of sale the plaintiff says he makes conveyance “ only under the warranty which he holds of his vendors.”

The act, after specifying the amount of cash paid, contains these clauses which have been supposed to be a waiver of plaintiff’s cause of action, viz :

“ And whereas the sum of $6,133 33, which remains to complete the price of this sale, forms exactly the amount of the two promissory notes which are still due to the succession of the said Zenon Blouin as above mentioned, (and for the recovery of the amount of said notes an action has been instituted against the present vendor by the administrator of the succession of the late Zenon Blouin, in the Fourth District Court of the State of Louisiana, in and for the parish of St. James, under No. 274 of the docket of said court,) it is understood and agreed between the parties that the said purchaser promises and agrees by these presents to pay and ■ discharge the vendor therefrom (if she is legally condemned) the amount of the capital, interests and costs of said promissory notes above described to the succession of said Zenon Blouin and to assume the said mortgage to secure the payment.”
“ And the said vendor, in virtue of the agreement which the purchaser here assumes to pay interest and costs, surrenders by these presents in her favor all diminution which may be made in the amount of said notes, wishing and intending that the purchaser shall profit thereby if such be the case."
“ The vendor transfers moreover to the said vendee all his rights and actions in warranty which he holds against his vendors, subrogating the said purchaser to all his rights and actions for her to exercise and enjoy m the same manner as they might have been by himself.”

In this language I discover nothing which sounds to me like a release of plaintiff’s demand. It seems to me, as before observed, that it rather contemplates the prosecution of the plaintiff’s just cause of action for the benefit at least of his mother if not of himself. And what right has the defendant, who is no party to the deed, to insist upon it ? He does not seek to avail himself of the stipulations made therein against the vendee personally, but chooses to press for judgment against the plaintiff in injunction.

The instrument, as already said, was foreign to him and not made for his profit or advantage.

I think, therefore, the judgment ought to be reversed and that the defendant should be compelled to give security against eviction.

Mr. Justice Cole concurred in this opinion.


author: Buchanan, J. Vooriiies, J.,

text:
    A. Giraud et al. v. H. Mazier et al.
    The Article 1965 of tiro Civil Code, which provides that the action to annul n contract made in fraud of tlie rights of creditors, is to be exercised by the representive of the creditors when there has been a cession of property, is no longer in force, having been changed by the Act of the Legislature, of1855, (Revised Statutes, pp. 256, 257,) which authorizes, in express terms, the institution of such a suit by an individual creditor after the cession of property.
    The plea of want of service of a petition of intervention, is a dilatory exception, which is waived by pleading to tho vagueness and insufficiency of the petition.
    APPEAL from the District Court of the Parish of Lafourche, Roman, J.

      C. Belcher and Beatty If Bush, for plaintiffs and appellants.

      Thibodaux Sf Blahe and R. D. Jordan, for defendants.
   Buchanan, J.

After a petition filed by Mazier for a voluntary surrender of property, but before the meeting of his creditors and the appointment of a definitive syndic, some of Mazier’s creditors instituted this suit, charging him with concealment of property and illegal preferences. The petition sets out in detail the frauds complained of, and concludes by a prayer, that all the creditors named as implicated with Mazier in the several frauds and illegal preferences mentioned, be made parties defendant and cited to answer; that the insolvent debtor, Hypolite Mazier, 'be arrested, &c.; and that the several payments and sales made by Mazier to the other defendants, be annulled and avoided, <fcc.

An order of arrest issued against Mazier, and citations to the other defendants.

As soon as a definitive syndic had been appointed, and before issue joined, the syndic, Cleophas Lagarde intervened in the suit, with leave of the court, adopting the allegations and joining in the prayer of the petition. A default was subsequently taken on motion of plaintiff's counsel, against those creditors who had been served with citation. After this default taken, those creditors filed various exceptions to the original petition and petition in intervention ; of which exceptions, only two require notice.

The first is, that after the cession of property is made by an insolvent, and an order granted staying proceedings, the syndic appointed by the creditors is alone authorized to institute such an action as this.

And the other exception is, that the intervention of the syndic discloses no cause of action, and has not been served upon the defendants.

The first named of these exceptions is based upon the Article 1965 of the Civil Code, which provides, that the action to annul a contract made in fraud of the ■rights of creditors, is to be exercised by the representative of the creditors, when there has been a cession of property. If this were still the law, the irregularity in the institution of the action would have been cured by the intervention of the syndic and his adoption of the allegations of the petition; especially as that intervention was made before any exception taken.

But the law on this subject has been changed by the Act of 1855. The 22d and 24th sections of that Act (Session Acts, p. 436 ; Revised Statutes, pp. 256, 257), are copied from the 11th and 13th sections of the Act of 1840 (Bullard & Curry, 474, 475), and authorized in express terms the institution of a suit like this by ah individual creditor, after the cession of property. See section 21, p. 435 of the Sesión Acts of 1855 and p. 256 of Phillips’ Revised Statutes. And upon this point a radical change of legislation must be specially noticed. The change is found in Article 21st of the Act of 1855, which is identical with the 10th section of the Act of 1840, (Bullard & Curry, 474,) with the exception that the Act of 1840 applies to debtors who have not voluntarily surrendered their property; while the Act of 1855 applies to debtors who have surrendered their property. The cases in 3d Louisiana, 461, and 4th An. 365, which were decisions previous to the Act of 1855, are therefore no longer to be viewed as authority upon this point of practice.

The other exception, so far as it regards the want of sufficient precision or detail in the petition of intervention of the syndic, is not tenable. The syndic therein "adopting all the allegations of the petition herein filed, prays judgment against the defendants as prayed for in the original petition, and for general relief.” Now, the defendants who except, cannot pretend ignorance of the allegations of the original petitiou which the record shows had been served upon them. But it is excepted, that the intervention has not been served upon the defendants, who except. This portion of the exception can lead to no result, considering' that the exception to the vagueness of the intervention, shows that exceptors have seen and taken cognizance of its contents. Even granting that, under Article 393 of the Code of Practice, defendants are entitled to have the intervention served upon them, what is the legal consequence ? Why, assuredly, only that they are not obliged to answer the intervention until it is served upon them. But no default had been asked for against these defendants upon the intervention, only upon the original petition. Evidently, the plea of want of service of the intervention, is nothing but a dilatory exception, not at all a ground for putting the intervention out of court. We think the defendants have waived service of the intervention, by pleading, as they have done, to its vagueness and insufficiency. ’ ,

The judgment of the District Court is, therefore, reversed; the exceptions filed by the defendants overruled; and the cause remanded, to be proceeded in according to law ; defendants and appellees paying costs of appeal.

Vooriiies, J.,

dissenting. The object of this suit is to subject the defendant, .HMazier, whom the plaintiff’s allege to be their debtor, to the penalties and forfeiture of privileges consequent upon a fraudulent surrender of property; and to annul the payments made by him to other creditors, his co-defendants, and recover from them the amounts which they have received unjustly and by preference. The petition was filed three days after the surrender made by Mazier had been accepted by the District Judge for the benefit of his creditors.

A writ of arrest was issued against the insolvent debtor, but ineffectually; and eight out of the other defendants were cited in the latter part of September and begining of October, 1857. In the meantime, and previous to the citation being made on any of these parties, a provisional syndic was appointed, a meeting of creditors held, their deliberatoins homologated without opposition, and a syndic appointed, who qualified immediately. On the 27th of October, a judgment by default was entered against all the defendants, except the insolvent debt- or, who had not been arrested, and Vignerie and Cardillac, upon whom citation could not be made, as appears by the return of the Sheriff. But the day previous, the syndic had filed a petition oí intervention, in which he adopted the allegations of the plaintiff’s petition, praying for judgment accordingly. There was no prayer for the citation of the defendants, nor were any steps taken to have them cited to answer the intervenor’s demand.

Some of the defendants filed seperate peremptory exceptions, claiming the dismissal of the action and of the demand of intervention on the ground, among others, that the surrender having been accepted, individual creditors could not institute such an action. The court below having decreed that the plaintiff’s action and the intervenor’s demand be dismissed, they have both appealed from that decree.

In order to arrive at a correct conclusion touching this matter, it is necessary to keep in view the two-fold character of this suit. With regard to the creditors who are sued, it is the nature of a revocatory action; whilst, in relation to the insolvent debtor, its object is to have him deprived of the benefit of the insolvent laws, and subjected to the penalties attached to a fraudulent surrender. The cession having preceded the institution of this suit, and none of the defendants having been cited previous to the appointment and. qualifying of the syndic, the revocatory action could not have been brought by the plaintiffs in their individual capacity. After a surrender, the syndic alone has that right, under the Act of 1855, p. 436, sections 22 and 24; for its provisions are merely the reenactment of the Act of 1840, p. 134, sections 11 and 14, and are not derogatory to Article 1965 of the Civil Code in that respect. 4 An., 365. Neither can the plaintiff’s action be maintained by the aid of the intervention filed by the syndic, upon which no legal steps whatever appear to have been taken. C. P. 393. Besides, the intervention does not give character to the suit: “ the Judge cannot refuse to admit it, but must pronounce on its merits, at the same time that he decides the principal action. C. P. 394. It is the duty of the intervenor to be always ready to plead, or to exhibit his proof, in order not to retard the principal suit, for the reason that he has a seperate remedy to enforce his rights. C. P. 391. ' Had the petition of intervention been served'on the defendants, this might perhaps have saved the action thus improperly brought by the plaintiffs in their individual capacity; but, as the matter now stands, there is nothing before the court. The exceptions pleaded in this case are peremptory and fatal to to the action. I think, however, that the Judge a quo erred in dismissing the action as regards the insolvent debtor, Mazier, who had not- been made a party to the proceedings in the court below.

I am, therefore, of opinion, that the judgment of the court below ought to be affirmed, with costs, reserving to the appellants the right to proceed against the insolvant.

Merrick, O. J., concurred in this opinion.


author: Merrick, C. J.

text:
    John Fletcher v. Catherine Henley.
    Where, in an action for divorce, añ exparte order had been made allowing the wife $75 per month for her support and on a rule to show cause why execution should not issue, the execution was ordered for a less sum than $300, held: that an appeal did not lie from such order.

      Ex parte orders for the allowance of alimony cannot bind the opposite party except they may furnish one of the items of proof to justify a third person in demanding from the husband payment for the necessary supplies furnished the wife during the pendency of the suit.
    APPEAL from the District Court of the Parish of Concordia, Cooley, J.

      E. Sparrow and H. B. Shaw, for plaintiff.

      J. H. Veazie and A. N. Ogden fy Slansbury, for defendant.
   Merrick, C. J.

The present appeal is taken by plaintiff from a decree awarding execution upon ati order allowing defendant $75 per month alimony. The plaintiff instituted the present suit for a divorce a vinculo matrimonii, and the defendant reconvened, claiming a seperation from bed and board. At the time of filing her answer the defendant obtained an order from the Judge at chambers allowing the alimony claimed.

The plaintiff, in answer to a rule taken upon him, alleges that the ex parte order of the Judge is a nullity, and cannot in any manner bind him.

It is true, that the order of the Judge made at chambers in this manner cannot, by itself, prejudice the party against whom it is made, for the reason, that no one can be condemned unheard. In the case of Bernard v. Vignaud, 1 N. S. 9, this court said, “ To condemn without first hearing a defendant, or giving him an opportunity to be heard, is contrary to all principles of equity and law. Therefore, a judgment rendered against a person without citing him in the ordinary manner, without his appearing, or anything deemed equivalent to citation or appearance is utterly void, and imports such absolute nullity, that any one the least interested in opposing its effects may have such nullity pronounced.” See also 6 L. R., 577, and 9 An, 496.

But in the case before us a rule was taken upon the plaintiff to show cause why execution should not issue upon the order of the Judge allowing the alimony. On a hearing of the rule, with testimony before him, the Judge ordered execution to issue for the amount of the alimony then due under the order. Here, then, the Judge did not make an ex pai'te decree. But in looking to the former order we find the judge has only awarded execution for three months, viz : $225. This is not within our jurisdiction. Until there is some attempt to execute the ex parte order for a further sum it cannot work that irreparable injury which will entitle the party to appeal.

We take occasion to say, that we are aware that the courts in many parishes are in the habit of'giving ex parte orders for the allowance of alimony, but we do not consider that such orders can bind the opposite party, except they may furnish one of the items of proof to justify the third person, whose house is assigned as a residence for the wife and others, in demanding from the husband payment for the necessary supplies furnished her during the pendency of the suit; and for this purpose, and to assign a place of residence for the wife, such orders may be proper.

It is ordered, that the appeal in this case be dismissed without prejudice to the appeal of either party on the final decree, the appellant paying the costs of this appeal.


author: Buchanan, J. Spoppord, J.,

text:
    Bernard De Santos v. Charles H. Taney.
    The right of a broker to a commission upon a sale, depends entirely upon the completion of the sale, and brokerage is not due until the sale is executed.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.

      G. & O. E. Schmidt, for plaintiff.

      Sunt & Denegre, for defendant and appellant.
   Buchanan, J.

The plaintiff, a real estate broker, was employed by defendant to sell three houses; and in October, 1855, P. Avegno made an offer, through plaintiff, to defendant, to buy the houses for fifteen thousand five hundred dollars cash. The defendant in writing accepted this offer. On the 31st of October, 1855, plaintiff notified defendant that the act of sale of the said houses was ready for signature at the office of Mr. Dueatel, Notary. But a discussion arose at the Notary’s office between the defendant and Mr. Areyno, about the payment of the taxes for the current year: Aregno stating that he had agreed with the broker to be responsible for no more than two-twelfths of the same; while Taney stated his intention to be, to have the sum named for his property, without any deduction whatever for taxes. Upon this, the bargain was broken off. In the words of Avegno, examined as a witness for plaintiff, he “ did not buy the property, because Taney wanted witness to pay the taxes for the whole year of 1855.” And in his cross-examination, Mr. Avegno says: “ when witness mentioned to Mr. Taney the agreement he had made with Santos about the taxes, Taney remarked that if he, witness, did not pay the taxes for 1855, he could ( not) buy the property. Witness answered that it was indifferent to him.”

The right of a broker to a commission upon a sale, depends entirely upon the completion of the sale. This was settled by this court in the cases of Blanc v. The Improvement Bank and Didion v. Duralde, both reported in 2d Robinson. In the former of these cases, Judge Martin says: “In the contract of brokerage, nothing is paid unless a bargain is effected.” The learned counsel for plaintiff argues that in the case at bar there was in fact a bargain, although there was no sale executed. The evidence scarcely bears out this assertion. Nothing was said in the written proposition and acceptance of the parties, about the taxes of 1855, although it appears that those taxes had been a subject of agreement between Avegno and the broker. But even supposing the understanding and agreement of the parties upon the terms of sale to have been complete, yet, before the sale was completed by the signature of a notarial conveyance and the payment of the price, the parties, by common consent, released each other from their reciprocal engagements. We understand the word “ ban'gain” to have been used by Judge Martin in a more extended signification, as meaning not an agreement executory merely, but an agreement executed. In all the cases cited by plaintiff’s counsel — Gottschalk v. Jennings, 1st Annual; Jenkins v. Trott, 3d Annual; Levistones v. Landreaux, and Lestrade v. Pereira, 6th An. — the contract was consummated, although, through bad faith on the part of the principal towards the broker, the contract had been suspended and in appearance abandoned. But the circumstances of the present case present no analogy to those cited. The defendant has practiced no fraud upon the plaintiff. Whether he has even sold the property to any one, does not appear. But it is certain, he has never sold it to Avegno, the party whom plaintiff had introduced to defendant. Negotiations for sales through brokers, interrupted and broken off at every stage of progress towards completion, are of daily and hourly occurrence. But all the authorities confirm the doctrine of Judge Martin, as we understand it, that no brokerage is due until the sale is complete and executed, that is to say, until the consideration of the sale has passed to the vendor.

It is, therefore, adjudged and decreed, that the judgment appealed from be reversed, and ours is for defendant, with costs in both courts.

Spoppord, J.,

on application for a re-hearing. I concur in refusing a re-hearing, because there does not appear to have been a perfect bargain, and this on account of the broker’s neglect to stipulate clearly concerning the taxes. I do not think it necessary that the consideration should have passed, but I consider brokerage earned so soon as the broker has effected a complete bargain between the parties.


author: ■Spoffokd, J.

text:
    Holmes & Clauss v. C. T. Dunn, Administrator, et al.
    In a proceeding to render the Sheriff liable for failing to return a writ of fieri facias before the return day, to which the sureties were made parties, the court properly allowed a trial by jury. The insolvency of the defendant in execution, of itself, will not exonerate the Sheriff from liability under the statute.
    APPEAL from the District Court of East Feliciana, Ratliff.\ J.

      W. F. Keenan, for plaintiffs and appellants.

      Fuqua & Kilburne and Bowman & Delee, for defendants.
   ■Spoffokd, J.

The object of this proceeding is to render the former Sheriff of the parish of East Feliciana, liable for failing to return a writ of fieri facias on or before the return day. The Sheriff having died, his administrator and sureties were made defendants, and the cause was tried after the ordinary delays.

If the proceeding had been by rule or on motion merely, the Sheriff alone would have been notified, and the trial would have been summary and without a jury.

But as a claim in damages for neglect of duty was coupled with the alleged liability under a special statute, and the sureties were made parties, who were entitled to the usual delays and forms of trial, we think there was no error in allowing a trial by jury.

The case has been twice tried before a jury ; and on both occasions, a verdict was given for the defendants.

The District Judge, by granting a new trial, indicated that he thought the law of the case was with the plaintiffs. Upon the authority of Gordon v. Carpenter, 10 An. 128, to which this case is very similar, we think the judgment must be reversed.

The Sheriff kept the writ several months, and died without making any return. It was found in his office. A deputy, indeed, says that he once made a demand of the defendants in execution, who pointed out only some old furniture, and that he notified the plaintiffs of his inability to make the money; but the same witness says, that his principal, the Sheriff, then took the writ and promised to execute it. There is evidence that the Sheriff complained that the party against whom the writ issued treated him badly. At all events, there is no showing that he ever attempted to execute the writ as he undertook to do, or that any demand was ever made by himself or deputy upon the plaintiffs or their attorney, to point out property, and no return whatever was made. The alleged insolvency of a defendant in execution, of itself, has never been held to exonerate a Sheriff under such circumstances. McGee v. Robbins, 2 An. 411; Bland & Adams v. Wilkinson, 11 An. 273.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed. And it is now ordered, adjudged and decreed, that the plaintiffs recover of the defendants, O. T. Dunn, Administrator, &c., as principal, and of Joseph M. Young, Robert H. Draughan and Thomas F. D. Armond, in solido, as sureties, the sum of three hundred and twenty-eight dollars and thirty cents, with eight per cent, interest thereon, from the 17th of September, 1854, until paid, and three dollars and fifty-five cents costs of court, amount of the writ of fl. fa. in the suit of Holmes & Clauss v. Anthony Toadamè and Martha G. Toadamè , his wife. It is further ordered, that the plaintiffs recover of the defendants, in solido, the costs of this suit in both courts.


author: Buchanan, J.

text:
    Yeatman, Woods & Co. v. City of New Orleans.

      Held: That the batture outside of Front street is susceptible of private occupation without injury to the rights of the public upon the banks of the Mississippi river, within the corporate limits of New Orleans.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Elmore & King, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Buchanan, J.

The plaintiffs institute this suit under the provisions of the Act of April 30th,' 1853, page 298. They exhibit titles to the batture in front of that part of the port of New Orleans comprised between Suzette and Benjamin streets ; and allege that at least three hundred feet in width of said batture could be given up to them for private use and occupation, leaving still enough land adjoining the river for all the uses the public have by law upon riparian property.

The answer of the city is a general denial

The evidence adduced upon the trial establishes the truth of the allegations of the petition. It is also proved, that one branch of the City Council adopted a resolution according to the plaintiffs what they now ask, and that the resolution they adopted was transmitted to the other branch of the council for its concurrence, where it lay for a year before institution of this suit, without being acted upon.

The argument in this court on behalf of the city, appellant, has turned altogether upon certain features of the plan made by order of the council, which we do not consider at all essential in determing the question submitted to us, which is, whether the batture outside of Front street is susceptible of private occupation without injury to the rights of the public upon the banks of the Mississippi, within the limits of the corporation of New Orleans. Mrs. Kennedy v. Municipality No. 2, 10th An. 54; Syndics of Barrett v. City of New Orleans, ante 105.

It is, therefore, adjudged and decreed, that the judgment of the District Court be afBrmed, with costs.


text:
    M. E. Haile v. Brewster & Co.
    The joint possession of the husband and wife, is the possession of the one holding the title»
    APPEAL from the District Court of East Eeliciana, Bailiff, J.

      J. B. Smith, for plaintiff.

      Muse & Hcurdee, for defendants and appellants.
   Merrick, C. J.

The defendants obtained judgment against P. J. Hao'bowr, the husband of the plaintiftj on the 12th of August, 1853, and caused the same to be recorded in the Recorder’s office on the 23d of the same month. On the 14th day of December afterwards, P. J. Harbour acquired from John Hist, Jr., the tract of land under seizure, for $2,500, $500 cash and the ballance on time to the 1st day day of March, 1854. On the 17th day of March, 1854, the note of two thousand dollars being due and unpaid, it was agreed that the plaintiff’s father and her brother-in-law would advance the amount due Hist, and perhaps some other small claims, on condition that the titlo should be made to them in order to secure it to the wife. Harbour's wife then conveys the land to E. B. Harbour, the brother-in-law of the plaintiff. He paid $1,000 of the amount due Hist and plaintiff’s father paid the other $1,000. The price specified in the act of sale to E. B. Harbour was $2,500, and it is probable some other small debts of P. J. Hm'bom were paid. The ■same day E. B. HaJbour made a donation of the property to the plaintiff, it being stated that it was done in consideration of the esteem he entertained for ■the plaintiff and her child. These acts were duly recorded. P. J. Harbour went into the possession of the property when he bought it from Bist, and there was no visible change of possession after the wife acquired the same by donation.

The defendants caused the property to be seized as the property of P. J. Harbour, on execution, in 1855, and the plaintiff has enjoined the sale. She Ihad judgment in the lower court.

The defendants contend that the judgment is erroneous, and that “a party holding a judgment may issue his execution and have the property of defendant seized and sold, disregarding any transfer he may make of the same, where the defendant still remains in possession notwithstanding the transfer.”

This proposition of defendants’ counsel is true, where the sale is purely simulated and fictitious, and where the party remains in possession the burden of proof is upon the party claiming- title to show that the sale is bona fide or real. O. O. 1915, 2456. But whenever the sale is shown to be real and intended to convey the property absolutely and for a price which is really paid, the creditor is driven to his revocatory action; he fails in his seizure. 1 An. 299; 10 An. 691.

In this case we see nothing, so far as the evidence goes, fraudulent in the conduct of the parties. The father and brother-in-law of the plaintiff had the right Jo seeure a home for her.

She acquired all the possession of the thing donated to her of which it was susceptible. The law does not contemplate any other possession of a wife not separate in bed and board from her husband of the common dwelling, than is here shown. The joint possession is the possession of the one holding title. Wederstrandt v. Marsh, 11 Rob. 538.

If the defendants have a mortgage upon the property superior to the title of the plaintiff, it must be asserted in another form of action, which cannot be prejudiced by this decree.

Judgment affirmed.


author: Spoffoed, J.

text:
    Felix B. Leake & Co. v. Wm. Burgess et al.
    Where one not a party to a note pays it for the honor of the maker the law implies an obligation on the part of the maker to reimburse him.
    APPEAL from the District Court of West Feliciana, Ratliff, J.

      Brewer & Collins, for plaintiffs.

      TI. B. & E. Phillips, and J. J. Powell, for defendants and appellants.
   Spoffoed, J.

The defendants by intermeddling in the succession of their deceased son, Wesley L. Bwgess, are admitted to have made themselves liable unconditionally as his heirs.

The plaintiffs paid to the holder, at maturity, a promissory note made by Wesley L. Bwrgess, for $1,000. This suit was brought for a reimbursement of that sum.

It is true, as contended by the defendants and appellants, that the payment by plaintiffs on behalf of the maker extinguished the note ; but this suit is not founded upon the note, but upon the implied obligation of the defendants to indemnify the plaintiffs.

When a stranger to a note pays it for the honor of the maker the law implies an obligation on the part of the maker to reimburse him There is no presumption of a gift in such a case, and the doctrine of Rohrbacker v. Schilling, 12 An. 17, is inapplicable.

The plaintiff prayed for a judgment against the defendants in solido. They are sued as heirs, and each is liable only for a virile portion of the debt. The judgment having been rendered as prayed for, must be amended in this respect.

It is, therefore, ordered, that the judgment of the District Court be amended so as to render William Bwrgess, in his personal capacity, and Mrs. Elizabeth Bwrgess, liable each for one-half thereof, and that in all other respects, the said judgment be affirmed ; the costs of this appeal to be borne by the plaintiffs and appellees.


text:
    Susan E. Conner v. Administrator and Heirs of H. L. Conner.
    The legal usufruct spoken of in Art. 55B of the Civil Code is that referred to in Articles 289, 240 and 241, and does not embrace the marital portion; as usufructuary the surviving spouse is bound to give security to the heirs for the marital portion.
    APPEAL from the District Court of the parish of Tensas, Farrar, J.

      O. JRoselius and T. P. Farrar, for plaintiff and appellant. H.

      B. Shaw, for defendants.
   Merrick, C. J.

This case was before the court in 1855, and was remanded for further proceedings. See 10 An. 452. A-final judgment having again been rendered, which N unsatisfactory to the plaintiff, she prosecutes this second appeal.

We will consider the questions presented by her counsel in their order.

I. It is contended, that the sum allowed her in usufruct ought to have been $20,508 33£, instead of $18,341 66 which was allowed her by the decree of the District Judge. The decree of this court remanding the cause, fixed the estate in Louisiana left by the deceased at $135,000, subject to a reasonable deduction for the value of the slaves added thereto and improvements made since the death of said Henry L. Gonner, existing at the adjudication to George M. Marshall. The District Judge estimated these improvements at $25,000. In this we think he has fallen into an error. It is in proof that the additional slaves enhanced the value of the place $12,000. The testimony does not enable us to estimate the additional value given to the place by the building of the new gin and quarter for the negroes. It is shown that the plaintiff herself contributed labor towards these improvements, and as they were doubtless paid for out of the revenues of the place we do not feel ourselves called upon to make a proximate estimate. If the improvements were placed on the property from the revenues it is evident that plaintiff’s proportion of the revenues, viz: one-sixth thereof, have contributed to form the capital, upon a part of which she is subsequently to have her usufruct. If the defendants wished for the allowance they ought to have introduced certain proof of the value of such improvements, and not to have left the same to conjecture. We are of the opinion, that the judgment of the lower court ought to be amended in this particular, as prayed for, and that she should be allowed $20,508 33& in usufruct.

II. It is contended on the part of the appellant, that the usufruct of the one-sixth is a legal usufruct, and, therefore, under Art. 553 O. O., the plaintiff is not obliged to give security for the money to be delivered her. In the Erench text it is said in this Article, that the father and mother having the legal usufruct of the effects of their children, the vendor and donor, who have reserved the usufruct, are not obliged to give this security. The English text of the Article begins, '■'■Neither the father nor mother having the legal usufruct,” &c. We think the legal usufruct spoken of in this Article (553 C. C.) is that referred to in Articles 239, 240 and 241 of the Civil Code, and does not embrace the marital fourth. See 2 An., 43; 3 An., 490; Succession of Tassin, 12 An., 885, and Wood, Widow Neely, v. Administrator of Stokes, ante 143.

III.Plaintiff complains that the judgment did not allow her interest upon the amount due her in usufruct and that she ought to he entitled to five per cent, thereon per annum from the judicial demand. The property was sold on the fifth day of February, 1883, for $136,060. One-third was paid in cash. The residue was payable on a credit of one and two years with eight per cent, interest after maturity until paid. The second account filed by the administrator on the 19th day of March, 1853, showed a balance of $7786 93 in his hands, which was increased by his subsequent account. The heirs, therefore, have been in the receipt of the revenues of the estate, derived from the installment in cash, since the 5th day of Eeb., 1853, which appeal’s to have gone into their hands. They ought to a'ccount for this and the subsequent installments of the price as fast as received, or, which is the same thing, interest at five per cent, on one-sixth of the entire price, from the 5th day of Eeb., 1854 If the widow were not entitled to claim the revenues of the thing given in usufruct during the pendency of the suit, from the time it ought to be delivered her, it would be an inducement to the heirs to protract the litigation and prevent her as long as possible from receiving her dues. Were it shown how much interest the heirs had received on the installments of the price, we might charge them with one-sixth of the same as an incident of the usufruct. Not having this proof before us, the property must be held to have produced five per cent, revenue per annum in the hands of the heirs, from the maturity of the respective installments, or by equation, from the date of the second installment.

IV. The minor, Louisa JR. Conner, was represented in the suit by a curator ad hoe and her under-tutor, and it is proper that the judgment should also include her within its provisions.

V. The plaintiff complains of the allowance of commissions to her as tutrix. We are of the opinion, that the District Judge properly confined the tutrix to commissions upon $13,050, as this is the only amount which the minors appear to have received from the administrator and which was subject to the administration of plaintiff. It is clear that the revenues of the plantation while under the management of the administrator, and which were taken by him to pay debts, were not subject to the commissions of the tutrix. The decree allows her all that she is entitled to, but it is better that the decree should specify the exact amount due by each heir.

VI. The plaintiff recovered in the Probate Court of the State of Mississippi, on the settlement of her account of guardianship of Anna F. Conner, deceased, contradictorily with the defendants, $1621 13 as her commissions for administering said estate. As there were not revenues out of which the same could be allowed in Mississippi, this portion of the decree could not be paid, and the plaintiff sets it up against revenues arising in Louisiana. It is shown that $13,050 were invested in real estate in Louisiana from the revenues of the plantation. The deceased minor was the owner of one-fifth of this sum. Hence as these defendants and Louisa JR. Conner inherited the whole of the estate of the minor in Mississippi, to the exclusion of the mother, the judgment ought to be enforced in Louisiana against Mrs. Blalce, Mrs. Gastello and the minor Brielcell, for their virile shares of the same.

As to the remainder due by Louisa JR. Conner, plaintiff has the means of settling the same in her settlement of accounts with the said minor, Louisa R. Conner.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court he avoided and reversed, and we do now here order, adjudge and decree, that the plaintiff he allowed ten per cent, on the sum of $13,050, as commissions as tutrix, to he paid as follows : $30.9 93f by Mary 8. Blake, the like sum, viz: $309 93f by E. V. Briokell as tutor for A. E. O. Briokell, and the like sum, viz : $309 93f by Eveline B. Gastello, and that the same amount be charged to said minor, Louisa B. Oonner, in the hands of her tutrix, and the residue, viz: $65 25, to be borne by the plaintiff; and it is further ordered, that the marital portion of the plaintiff in the succession of Hem'y L. Oonner, deceased, be fixed by deducting from $135,050, 12,000 for the enhanced value given to the property by the additional negroes and improvements thereon since the decease of Henry L. Conner, which leaves $123,050, of which said plaintiff is entitled to receive one-sixth in usufruct, viz : the usufruct of $20,508 33$-; and it is further ordered, adjudged and decreed, that said Mary 8. Blake, E. W Briokell as tutor of said Anna E. O. Briokell, and Eveline B. Gastello, and said minor Ma/i'y Louisa Oonner, do each contribute, out of their respective portions of the estate, tó form said sum of $20,508 33$-, the sum of $4870 72$-, making the sum of $19,482 90J, and that plaintiff be charged with $1025 41-J- thereof in her own favor ; and it is further ordered, that said heirs, viz: Mary 8. Blake, E. W. Briokell as tutor of said Anna E. G. Briokell, Eveline B. Gastello smUMao'y Louisa Oonner, do each pay to said plaintiff five per cent, interest upon said sum of $4870 72$, due by each from the 5th day of Eeb., 1854; until this decree shall become executory and carried into effect; and it is further ordered, that said sums of money, upon which she is allowed her usufruct by this decree, be delivered to her upon her executing bond with security, conditioned according to law, and in the event she shall be unable to give said bond or refuse so to do, it is ordered, that said sums of money given to her in usufruct be loaned at eight per cent, interest upon good security, the interest to be paid her- annually during her life, the duration of said usufruct; and it is further ordered, adjudged and decreed by the court, that said Mary 8. Blake, E. W. Briokell as tutor to said Anna F. O. Briokell, and Eveline B. Gastello, do each pay said plaintiff the sum of $405 28, it being their virile shares of $1621 13, allowed by the judgment of the Probate Court of Adams County, Mississippi, in the settlement of the account of the plaintiff, as tutrix of AnnaF. Goivner, deceased, said plaintiff having the means of settling the other one-fourth thereof in her settlement with her ward, Mary Louisa Gonner; and it is further ordered, that said defendants and appellees pay the costs of the appeal.


author: Spofford, J.

text:
    Elizabeth Dixon, Administratrix, v. Mary E. Lyons, Tutrix.
    An account cannotbe considered an “ open account,” and as such prescribed by three years, under section 2 of the Act of March 5th, 1852, where it was signed and rendered by the debtor, with a statement in detail of its debtor and creditor items.
    APPEAL from the District Court of East Feliciana, Bailiff, J.

      Bowman & Delee, for plaintiff and appellant.

      J. B. Smith, for defendant.
   Spofford, J.

The plaintiff sued for the balance due her by Z. S. Lyons, according to an account rendered and signed by himself.

This account was stated and signed by Lyons on the 3d May, 1830. The answer in this case was filed on the 12th April, 1866.

The prescription of one and three years was pleaded by the defendant, and is the only defence relied upon, the first answer having been withdrawn. The jury rendered a verdict “for the defendant upon the plea of prescription.” From a judgment pursuant to this verdict the plaintiff has appealed. If there was error in sustaining the plea of prescription it is apparent upon the record.

By the Act of March 5th, 1852, (p. 90,) “relative to prescription,” it was declared (sec. 1) “that the accounts of retailers of provisions and liquors, and the accounts of all merchants, whether selling by wholesale or retail, within this State, shall be prescribed by the lapse of three years, from the time the articles charged shall have been furnished to the purchaser; Provided, the above shall not apply to retail vendors of ardent spirits in less quantities than one quart.

See. 2. That the prescription of all other open accounts, the prescription of which is ten years under existing lams, shall be prescribed by three year’s

The English text of this statute governs. State v. Bilis, 12 An., 392. The only question then is, can the account sued upon be considered as an “ open account ? ” Clearly it cannot. It was not only stated in detail in all its debtor and creditor items, but signed and rendered by the party whose representative is now sued, to the party suing.

The Code itself, under thehcads of the prescription of one and of threeyears, provided that prescriptions there enumerated ceased to run, from the time there has been an account acknowledged— (compte arrété.) C. 0., 3500, 3503.

There is an obvious clerical error in the addition of the items on the credit side.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed; and it is now ordered and decreed, that there be judgment in favor of the plaintiff against the defendant for the sum of three hundred and four dollars and fifty-four cents, with five per cent, interest thereon from judicial demand until paid, and the costs of suit in both courts.

Merrick, O. J., recused himself.


text:
    D. C. Hardee v. C. T. Dunn et als.
    A Sheriff and his sureties are liable for money collected by the Sheriff on a twelve months’ bond which he had taken for goods sold by him officially.
    Prescription commences to run only from the time when the right of action accrued.
    The burden of proof is upon the Sheriff and his sureties to show what the former has done with money that he has collected in his official capacity.
    APPEAL from the District Court of the parish of East Feliciana, Bailiff, J.

      Muse <& Hardee, for plaintiff.

      Bowman & Delee, for defendant and appellant.
   Spofford, J.

This is a suit against a Sheriff and his sureties for money collected in his official capacity, which he has failed to account for.

It is contended by the defendants, who have appealed, that because the money was collected on bonds and not under executions, it was not received by the Sheriff officially.

By an order of court, there was a sale of goods under seizure upon a credit of twelve months; there being several conflicting claimants who asserted a privilege upon the property, the twelve months’ bonds were taken, payable to A. J. Law, Sheriff, or order. As the officer of court, charged with the receipt of the fund in controversy, he, through his deputy, collected the bonds at, or shortly after, their maturity.

It is difficult to conceive how he could have incurred a liability more strictly official in its character, faithfully to keep and to pay over money to the party who should ultimately be decreed to receive it.

It is urged, that some of the smaller bonds are not shown to have been collected during the official term for which the present sureties were liable. We think it results with sufficient clearness from a computation of the interest upon those bonds which are receipted without date, that the moneys were collected during the term for which the sureties in this case guarantied the fidelity of the. Sheriff.

The prescription of two years is pleaded. The plea is untenable. This suit was commenced within four months after the plaintiff was appointed receiver, which appointment alone gave him competence to sue. Before that appointment, the pendency of oppositions that were undecided, rendered it impossible for any one to claim the money, or to sue the Sheriff for having appropriated it to his own use. Prescription commences to run only from the moment a right of action accrues.

It is said, that after the Sheriff collected these moneys, and before he was required to pay them over to any one, he was reelected and gave a new bond; and that it must be presumed that he then handed over the money to his successor, that is to himself, which released his sureties on the first bond, and that, thus, if any liability was incurred, the remedy of the plaintiff is against the sureties on the second bond.

There is no force in such a defence. The money has been traced into the hands of A. J. Law, as Sheriff, during the time in which these sureties bound themselves to respond for him ; when demanded, the money was not forthcoming. It was for the sureties, who seek to relieve themselves from their prima facia liability for this default, to show what Law did with the money It was not for the plaintiff to show that he misapplied the funds during his first term, but for him and his sureties to show that he did not so misapply it then, but faithfully kept it, subject to the order of the court, during that term. They have made no such showing.

Judgment affirmed.

Merrick, C. J., recused himself.