author: VoonniES, J.

text:
    Consolidated Association v. J. L. Wilson.
    By the omission to reinscribe a mortgage within ten years from the date of the first inscription, the effect of the inscription, and not of the mortgage itself, ceases.
    Properly banks were, by an Act of the Legislature, passed in 1842, relieved from the necessity of re-t inscribing mortgages in their favor. By an Act passed in 1848, any person having an interest, was authorized to cause to be cancelled on the books of the Recorder, all mortgages, the inscription of which, had continued more than ten years. This Act did not apply to mortgages made in favor of property banks, and the proviso applied not only to all stock mortgages executed in favor of property banks, or made directly to them, but also to all such mortgages as said banks had acquired by subrogation.
    When the rate of interest is not specified in a note given to a bank, it will bear the rate of interest fixed in the charter.
    C. 0. 8333.
    PEAL from the District Court of Ouachita, Sharp, J.

      McGuire & Ray, for plaintiff and appellant:
    I. — Plaintiffs contend that their mortgage was so recorded and reinscribed as to give it effect against third persons as required by law.
    1st. The original mortgage to the bank was recorded on the 24th June, 1829, p. 13.
    2d. After the death of Ferdinand, Morgan, in an act of partition between his heirs and the widow, on the 6th December, 1831, the land mortgaged to plaintiff was sold to or taken by Mrs. Hannah S. Morgan, the widow, who assumed to pay the whole of the debt to plaintiff, p. 21, which deed and mortgage were recorded in the mortgage office, on the 6th December, 1881, p. 22.
    3d. After the death of Hannah S. Morgan, upon due legal proceedings, contained on pages from 23 to 33, Jonathan Morgan purchased the land mortgaged to plaintiff on the 17th November, 1832, pp. 31 to 33, and retained, out of the price, an amount sufficient to pay plaintiff’s debt, and assumed the payment of plaintiff’s debt, which deed and assumption were regularly recorded in the mortgage office, on the 1st December, 1832, p. 38.
    4th. By an Act of the Legislature, approved March 11th, 1842, p. 232, it is provided—
    “That the rule requiring the reinscription of mortgages at the expiration of ten years from the date of their registry, shall not apply to the mortgages which have been or may be given by the stockholders of the various property banks of this State.”

      Xhe original mortgage of F. Morgan, and his wife, Hannah 8., to plaintiff, was duly recorded on the 24th June, 1829, according to the requirements of Art. 8331, of the O. C. This mortgage, in extenso, was never reinscribed. But on the 6th December, 1831, p. 22, a deed executed by the heirs of A! Morgan to Hannah S., his widow, of a tract of 800 arpents, including the land mortgaged to plaintiff, p. 20, and in which deed the widow assumed to pay plaintiff’s debt, the amount of which was specified, p. 21, was recorded in the mortgage office.

      Hannah 8., widow Morgan, having died, at a Probate sale of her property on the 17th November, 1832, p. 31, Jonathan Morgan became the purchaser of said 800 arpents, including the land mortgaged to plaintiff, and reserved in his hands, out of the amount of his bid for said land, the amount of plaintiff’s claim, and assumed the payment thereof, pp. 31, 32, which deed was duly recorded in the mortgage office on the 1st December, 1832, p. 33.
    Both the above acts contain a perfect description of the land mortgaged, of the debt for which it was mortgaged, of the individuals owing the debt, and of the corporation to which the debt was due.
    The mortgage Records from the 1st December, 1832, exhibited clearly and without occasion to refer to anterior records of any kind, the existence of plaintiff’s mortgage on said tract of land, and had the Recorder of Mortgages been required to make out a certificate of mortgages at any time within ten years subsequent to the 1st December, 1832, he would have been bound to include plaintiff’s mortgage.
    This is a compliance with the Article 3333, of the 0. O., according to the rule settled in the case of Bonnafe v. Lane, 5 An. 227; Ellis v. Sims, 2 An. 254; Shepherd v. N. O. Cotton Press, 2 An. 113; Hyde v. Bennett, 2 An. 800 ; Succession of Falconer, 4 R. 5.
    The public had all the notice that the public records could be made to afford, and no one by consulting them for ten years subsequent to December 1st, 1832, could have failed to have been made thoroughly acquainted with plaintiff’s mortgage.
    If the above amounted, in law, to a reinscription of plaintiff’s mortgage, then no further reinscription was necessary, as the Act of 11th March, 1842, p. 232, dispensed with it.

      II. — Hannah S. Morgan, who was one of the original mortgagors and debtors, in solido, to plaintiff, in the transfer of the land to her by the heirs of F. Morgan, assumed to pay the debt to plaintiff, pp. 20. 21. Jonathan Morgan, in his purchase of the 17th November, 1832, of the land mortgaged to plaintiff, also assumed to pay the debt to plaintiff, pp. 31 to 33 — both these acts were recorded in the mortgage office, respectively, on the 6th December, 1831, and 1st December, 1832, as before stated.
    Both those acts create in favor of plaintiffs a new mortgage on the same land originally mortgaged to secure their claim, as well as the individual indebtedness of said Jonathan Morgan ; it also operates against Jonathan Morgan, as a vendor’s privilege, as the payment of plaintiff’s debt was part of the consideration of his purchase : Dvpuy v. Eashiell, 17 L. 60; 7 R. 44; 6 N. S. 716. It was not necessary that plaintiff should have formally accepted these mortgages: Scott v. Featherston, 5 An. 306. Plaintiff has a right of action : O. P. 35.
    Ten years had not expired from the recording of the deed to Jonathan Morgan, December 1st, 1832, until the passage of the Act of the 11th March, 1842, p. 232, which dispensed with reinscriptions of mortgages to property banks, given by stockholders. This mortgage comes within the true spirit and intention of that act.

      Jonathan Morgan died in 1846, and under an order of the Court of Probates this land was sold at public sale on the 3d June, 1848, and purchased by John L. Wilson, defendant, who paid for it, as stated in the deed to him, by a receipt of his wife, Haraissa Jane Morgan, defendant, to the executor, for the amount of his bid, as so much coming to her as heir of said J. Morgan, pp. 34, 35. In this deed, p. 35, the Sheriff transfers this property to said Wilson “ without any reservation of mortgage,” staling in the deed that the same was mortgaged to the plaintiff — which deed is signed by Wilson, defendant, and the certificate of mortgages is waived.
    This brings home to Wilson, defendant, a knowledge, of the existence of the mortgages in favor of plaintiff at the time of his purchase, which is equivalent to a recording or reinscription of plaintiff’s mortgage so far as to hold Wilson, liable for the amount. Parker v. Walden, 6 N. S. 716 ; Noble v. Gooper, 7 R. 44. The effect of the actual knowledge of an existing mortgage or title is fully stated in the case of Robinett v. Gompton, 2 An. 854, to be equivalent to registry. Rachel v. Normand, 6 R. 88; 8 N. S. 140 ; id. 240. Wilson, defendant, having knowledge of the existence of plaintiff’s mortgage, was presumed to know the law, that such mortgages were not required to be rein-scribed to have effect against third persons, according to the Acts of 11th March,1842, p. 232, and 27th March, 1S43, p. 52.

      Simon, on the same side :
    Our jurisprudence is full of cases in which 'the pact de non alienando was brought under the consideration of our supreme tribunal who has uniformly given to such a pact, the force and effect which, from the terms of their contract, the parties intended it should have.. The purport of all the decisions on the subject has always been in substance, as lately held by this Court in positive terms, Stanbrough v. McCall, '2 An. 325 : “ that a party holding under a mortgage, and well acquainted with his title, is estopped by the pact de non alie-nando from claiming a better condition than his author, and from pleading an exception which the latter could not plead.” In the case of Nathan v. Lee, 2 N. S. 33, which is the first case in which the question was ever presented, Judge Martin said : “A mortgage creditor who acts on a mortgage, which contains in his favor an agreement of the debtor, not to alienate, is not bound to pursue a third possessor by the action of mortgage, but may have the hypo-thecated property seized in via exeeutiva, as if no change had taken place in its possessors; because any alienation or transfer made in violation of the pact non alienando, is ipso j%ire void, as it relates to the crediter.” And further : “ The remedy is different when the mortgagor has expressly covenanted that he will not alienate, unless we should consider such a pact as entirely nugatory and unavailing; which would be contrary to a fundamental reason in the construction of contracts and statutes, i. e , that full effect should be given to all those provisions, whenever it can be done without falling into absurdity.”
    So it was universally held in all the subsequent cases on the same subject: Ponaldson v. Maurin, 1 L. R. 39; 13 L. R. 314; 15 L. R. 267; Ibid. 473; 19 L. 491; 2 R. R. 378 ; 10 R. R. 54: until, in the case of Stanbrough v. McGall, 2 An. 325, the doctrine, aftera careful review of most of the previous decisions, underwent a very able and thorough re-examination, and the Court adopted the same views to a still broader extent thaa it had done before; the principles recognized in the former jurisprudence were strictly adhered to, and especially those maintained in the ease of Donaldson v. Maurin, 1 L. R. 39, in which the Court considered the effect of such a pact, as springing not from legislation but from the agreement of the parties. “.It is an universal principle,” says, Judge Matthews, “ founded in reason and law h that effect must be given to all; the parts of a written contract or agreement, and meaning to all its stipulations, and phrases, unless such a construction leads to absurdity. It is also a gene--ral rule, that owners of property must be presumed to, know the titles, and, t.hft incumbrances under which they hold it.”

      Ga/i-rett, for defendant:
    ,8fcJ ' o § o ^ tiiiUH'Bi P. G § 0 _3 " 03 © o S • 2 S'c§ ^ 3* g#3. cS .* " ^ Ü 5 O .t, d 2 g © © ” -W O. O [£ £ 3 £ -tí o o cl3 át 2 ^ -£.§ 3Si ¡rr 55 I fe o ^ ^ 2-p ^ 2 « 3 2^ g 8 £*3 lj°i §- -s s. ¿ ® o 3 cr ^ a w - ^ c o o *■ - ‘ — ffs-Q & , p ■5. g J-g S <j o o ^-“Cfq gj -- <5 Cu § «■05 P" " cr ^ O.CT9 o =* a a gt If* *-*a _ . O g S-3.® A 3 A ■9° §.3 Xi © >-H .3 .2:2 ■8 I o §>. ^ 5 r217=1 «3 a^g'^-SS 03 P Q. O * *■* r/3 J_s “ H Mis ^ fe pq <n- cb -• o a s i>pr Cfq U a ?-oo§J3 S.O g m o g -2 g « CO |*»f ® S1 " g1 ®"ra 2: o . o 3 cr y, ® cb g: -t zr. tí* o crq^oq ?vaq “ 5 G nr!: ,o g 0 2; CO co.< P &3, ■ Cb f: ^ co S? & S S 3 «3. ~ s -ft. s's % ^I.S Ct-:aq § 2 h •ns -.3 2 CU £5-p- a, ® ^ t crq p.. a a P tí* g Cb S & a a ns ** 2 S © S H O'ZS ¡> ^ o 5-8 5-0 s CO O Cb ^ S' BÍ ® S S- g' S; 2* J -5 2 3-f £ P ,S s • — « <33 O © 60' 5s S .oq crq M P CT5 <r+-o thwn3 fixed periods, and the non-reinscription may be opposed by all third persons having an adverse interest, although they may bo charged with notice.” 2 An. 110; Ibid. 523.
    In the leading case of Shepherd v. The Orleans Ootton Press Company, 2 An. 110, in which actual notice was brought homo to the parties, (the anterior mortgages being set forth in the subsequent act of mortgage in favor of those charged with notice,) this question was fully considered. Since then the decisions of this Court have been in accordance with the principles laid down in that case. See Lataste v. Beraud, 2 An. 768 ; 2 An. 523 ; Hyde v. Bennett, 2 An. 799. And in Bronin v. Durand, relied on by plaintiff: “The failure to reinscribe would, in ordinary cases, be fatal as to third persons, but leaves the mortgage unimpared as between the mortgagor and mortgagee.” 2 An. 778. “ The inscription is exclusively in the power of the party having an interest to make it. If he does not reinscribe, he cannot complain of losses sustained through his own neglect. The construction contended for by the appellants would make, in all cases, of the effect of inscription a matter enpais, and therefore uncertain, and would give rise to endless ligitation.” 2 An. 113.
    “If the public record is considered as the sole standard by which those rights are to be determined, the community can always know with certainty what conventional or judicial mortgages exist on a man’s property and can deal with him securely.” Adíe v. Anty, 5 An. 633.
    Even the notice brought home by a suit to enforce the mortgage does not prevent the pre-emption of the mortgage. 5 An. 634; 2 An. Ill; Ibid, 523 ; Ibid, 800 ; 4 An. 396.
   VoonniES, J.

The plaintiffs seek to enforce their mortgage'on a tract of land in possession of the defendants.

John L. Wilson avers that he acquired this land, by purchase, at a sale of the succession of the late Jonathan Morgan, in the year 1848, free from all in-cumbrances; that if the plaintiffs ever held any mortgage on it, it ceased to be operative on the 24th June, 1839, ten years after its inscription, in the office of the Recorder of mortgages, without having been reinscribed.

Ferdinand Morgan having become a stockholder in the Consolidated Assocition of the Planters of Louisiana, for the sum of $8000, equal to sixteen shares, executed a mortgage to secure the same on a tract of land, described as having a front of six arpents, on each side of the bayon de Siard, with the ordinary depth of forty arpents, on each side of said bayou, and also ten slaves. In the act of mortgage, inscribed in the office of the Recorder of mortgages, on the 24th June, 1829, it is stipulated as follows, viz :

“And the said appcarers, wishing to make use of the credit granted them by the sixth Section of said first recited legislative Act, they have applied to the said President, Directors and Co., in order to obtain, as in fact they have obtained, a loan of $4,000, &c.; therefore, the said appearers (the mortgagor and his wife, Hannah S. Tennelle,) promise and bind themselves, in solido, to reimburse the said sum of $4,000, on the 24th day of June, 1830, fixed, for "which purpose they have produced an obligation or bond of $4,000, subscribed this day by them, jointly and in solido, payable on the said 24th day of June, 1830, fixed, to the said President, Directors and Co., which obligation or bond was signed He Vcorietur, by the undersigned, Parish Judge, agreeably to law, &c. &c.”

. Ferdinand Morgan having died intestate, without leaving either descendants or ascendants, his succession passed to his collateral relations. In the partition between his widow and heirs, made on the 25th of June, 1831, each of the parties stipulated to pay one-half of the passive debts of the community, among which was that of the plaintiffs, “for the sum of $3,700, or thereabout.” The stock was equally divided between the two parties. The act recites : “And now for the faithful and punctual payment of the aforesaid debts, each party for his half, the parties to the agreement, do by these presents mortgage the one party to the other party, each their undivided half of a certain tract or parcel of land, on the bayou de Siard, containing ¡880 acres, whereon the decedent last resided, the same forming a part of said succession, and owned in common by the parties to this agreement, and undivided. It being here understood that said land is to be divided hereafter, and that the one-seventh part of 480 acres of said tract of land, is the exclusive property of the said Mrs. Hannah Morgan, party of the first part.”

On the 6th of December, 1831, the heirs conveyed all their interest in his property to the widow Morgan, who stipulated to pay as part of the price the plaintiff’s claim. The deed of conveyance recites: “Which said sum, the said Mrs. Hannah Morgan is bound to pay by this instrument, and the parties of the first part absolutely refuse to warrant the land herein sold against said mortgage, the same having been explained to the said Mrs. Hannah Morgan, she hereby acknowledging herself to be acquainted with the same, accepts this deed as such, under these circumstances.” This act was inscribed at the time of its date, in the office of the Recorder of mortgages. The mortgage stipulated by the widow in this Act, in favor of the heirs of Ferdinand Morgan, deceased, was cancelled by the latter on the 27th March, 1833, after the death of the former, whose succession was opened in 1832. She, also, died intestate, without issue. At the sale of her succession, on the 17th of November, 1832, Jonathan Morgan, purchased the land in question, for the price of $9,600. In the conveyance to him, it is stipulated as follows: “The one-fourth to be paid in cash, the balance to be paid in one, two and three years, in equal annual instalments, after deducting an amount due the Consolidated Association of the Planters of Louisiana, and an amount duo the heirs and legal representatives of General Ferdinand Morgan, deceased, as also the amount set apart by a partition, as made by experts, appointed by the Hon. the Court of Probates, to partition the estate of Mrs. Hannah 8. Morgan, deceased, among the heirs and legal representatives of said decedent, to the children of Jonathan Morgan, issue by his marriage with Rachel Julia 8t. Glair Tennell, sister of said decedent, after the deductions as aforesaid, leaving the said purchaser indebted to the heirs and legal representatives of Hannah B. Morgan, including his children as co-heirs, in the sum of $4,656.” This conveyance was inscribed in the office of mortgages on the 1st of December, 1832. The following clause is inserted in the partition referred to : “ Jonathan Morgan having purchased the land for $9,600, payable one-fourth cash, and the balance in three equal annual instalments, after deducting the amount of $3,392, for which said land is mortgaged to the Consolidated Association Bank, leaves the sum payable annually by said Jonathan Morgan, of $1,552, of which sum he is entitled as the representative of his children to the one-sixth part of each payment.” At the judicial sale of the estate of the late Jonathan Morgan, on the 3d Jan. 1848, John L. Wilson, one of the defendants, purchased the property for the price of $10,000. The deed of conveyance, after stating that the purchaser had complied with the terms of the sale, to the satisfaction of the executor, recites : “ It is further understood by the purchaser that the above property is mortgaged to the Consolidated Association of the Planters of Louisiana, for the sum of $4,000 for stock, and the production of the certificate of mortgages, is hereby waived, the estate being liable for any liability thereon.”

It ;s urged by the defendants that the mortgage executed by Ferdinand Morgan, does not cover the loan made to him, pursuant to the credit to which he was entitled as a stockholder. We consider this question as settled in the case of Bouin, et al. v. Durand, 2 An. 778.

It is also urged that the plaintiffs’ mortgage is lost by pre-emption. In the case of Shepherd v. The Orleans Cotton Press Company, 2 An. 118, the Court said: “We do not understand Art. 3833 as providing for the prescription of mortgages, but, on the contrary, as recognizing the right of rein-scription. after the expiration of ten years. The French side of the Article clearly expresses the intention of the Legislature. It is the effect of the inscription that ceases, not the effect of the mortgage. If the prescription of the mortgage had been intended, it would have been so expressed.

By the Legislative Act of 1842, the property hanks were exempted from the necessity of reinscribing mortgages in their favor. Session Acts -of 1842, p. 232. Under the Act of 1843, any person having an interest was authorized to cause to be cancelled, on the books of the Recorder, all mortgages, the inscription of which had continued more than ten years, provided, however, it did not apply to mortgages against husbands, &c., “ nor to such mortgages in favor of the property banks.” Acts of 1843, p. 61. It was held in the case of the Improvement and Banking Company, 4 An. 473, that this proviso nut only applied to stock mortgages executed in favor of property banks, or made directly to them, but also to all such mortgages as said banks had acquired by subrogation. “ It is doing no violence to language,” the Court remarked, “ to consider all mortgages owned by them as mortgages in their favor, under the statute, without reference to the manner in which they have been acquired.” Under the provisions of these statutes, as construed by our predecessors, it is evident that the mortgage executed in favor of the plaintiffs by F. Morgan, as stockholder, never ceased to have its eflect or to be operative. It can hardly be contended that his stock loan, constituting one of the principal obligations covered by the mortgage, is extinguished by prescription. The partial payments endorsed oh the bond from time to time, (one of which for $1,955 on the 11th of November, 1843) would operate as an interruption. 3 An. 552. Moreover, Jonathan Morgan not only purchased the property previous to the time required for pre-emption, but in the conveyance to Mm expressly recognized the mortgage, and retained in his hand the plaintiffs’ claim as a part of the price or consideration. It is clear, therefore, that he cannot be considered as a third possessor without notice; moreover, the original act of mortgage contains the pact de non alienando. It is equally clear that the mortgage continued to have its effect, or to be operative, whilst the property was still in his possession, under the Act of 1842; and his vendee, John L. Wilson, must be viewed as standing in the same position towards the bank, having in the conveyance to him, fully recognized the existence of the stock mortgage. The only difference between Wilson’s conveyance and that of Jonathan Morgan is, that the former recognized, but did not retain the amount of the plaintiffs’ claim, as part of the price.

The position assumed by the appellee, that interest is only due from judicial demand, is untenable. The proviso, to the sixth Section of the Act of incorporation referred to in the mortgage, prescribes, that when they (the stock holders) shall intend to make use of said credit, they shall pay the interest for it at the rate that shall be fixed for the loans,” &c. The eleventh fundamental rule, in the twelfth section, provides, that, “ the corporation shall not take more than eight per cent, per annum, on notes discounted or money lent out,” &c. It was decided in the case of The Consolidated Association v. Foucher, 9 L. 478, that in notes given to hanks, if no rate of interest he specified, it will be inferred that the contract was made in reference to the Charter, and governed by the rate of interest fixed therein. See 17th Section of the Charter, and 12th rule, established in accordance therewith, on the 9th of July, 1827. The statement annexed to the plaintiffs’ petition, shows the amount due on the stock note on the 11th November, 1843, to be $2,188, and a payment made on account thereof of $633 01, on the 11th November, 1847.

There is no evidence in the record in support of the claim set up by the plaintiffs’ for an annual contribution of six dollars per share on the stock. As to this claim, we thinkjustice requires that the plaintiffs’ rights should be reserved.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, that the plaintiffs have judgment recognizing their right of mortgage on the property described in their petition for the sum of two thousand one hundred and eighty-eight dollars, with eight per cent, per annum interest thereon, from the 11th of November, 1843, until paid, subject to a credit of six hundred and thirty-three 01-100 dollars, paid on the.llth of November, 1847, and if said balance and interest be not paid within ten days after notice of this decree to the defendants, then said property shall be seized and sold according to law, to satisfy the same; it is further ordered, that in relation to the claim set up by the plaintiffs for contribution on stock, there be judgment against them as in case of nonsuit, the appellees to pay the costs of both courts.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    J. Marks v. M. Dickson.
    The Act of Congress of the I9th of June, 1884, reviving the Act of the 29th of May, 1880, must be consideres as embracing provisions engrafted on the latter Act by the Statute of the 23d of January, 1882, under which it was not illegal to assign or transfer a certificate of purchase from the Register of the Rand Office, previous to the issuing of the patent.
    from the District Court of Caddo, Land, J.

      Crain & Nutt and B. L. Hodge, for plaintiff and appellant.

      Landrum, for defendant.
   Voorhies, J.

(Spoppord, J., having been of counsel, recused himself.)

The plaintiff claims the ownership of the undivided half of the north-east fractional quarter section No. 20, in township No. 20 of range No. 14, by purchase from John Butler. He alleges that John Butler and Elkin T. Jones purchased this fractional quarter section from the government of the United States, and that Michael Biekson acquired the interest of the latter by purchase. He further alleges that he is unwilling to hold said landin'common with said Dickson; and thereupon prays for a partition of the same by licitation.

The defendant’s answer contains a general denial, and'averment that the succession of the late William Dickson, represented by Eliadbeth H. Dickson, as administratrix, owns one half of said fractional quarter section, and that the other half is owned by the defendant himself.

The administratrix filed an intervention in which she asserted title to the whole tract, under a conveyance from Charles A. Bullard, as the agent and attorney in fact of John Butler and Elkin T. Jones, to William Dickson, executed on the 25th of November, 1840. She also denied the validity of the plaintiff’s title to any portion of the land claimed in his petition and averred that the same was fraudulent.

Butler and Jones, it appears, acquired their title to the land in controversy under the Acts of Congress, granting the right of pre-emption to actual settlers. Having occupied and proved a joint settlement to another quarter section, under the second section of the Act of the 29th of May, 1830, they were entitled to what was usually termed a floating right to another quarter section, of which they availed themselves by the location and entry of the land in dispute, on the 22d of September, 1840, as evidenced by the certificate of purchase from the Register of the Land Office at Natchitoches, of that date.

On the 25th of November, 1840, they conveyed this land to William Dickson by notarial act executed before the parish Judge of the parish of Natchi-toches. This act was also subsequently recorded in the parish of Caddo, on the 20th of September, 1842. On the 1st of April, 1843, a patent issued for this land to Butler and Jones, and on the 6th of August, 1851, the former conveyed to the plaintiff his undivided half to the same.

It is contended by the plaintiff that the sale from Butler to Dickson was a mere nullity, as it had been made previous to the issuance of the patent to the pre-emptors, in violation of the provisions of the Act of Congress of the 29th May, 1830, revived by that of the 19th June, 1834; and had also been made long previous to the conveyance of the 25th of November, 1840, to other persons through whom Dickson in fact held: first to Murrel, in 1837, and from the latter to Martin Wood, under whom the plaintiff holds, in 1839. Conceding the fact of the existence of these transfers, it is difficult to perceive in what manner they could effect the validity of the sale made by Butler and Jones to William Dickson subsequent to the entry, if the last conveyance did not fall within the prohibition of the Statute.

In the cases quoted in 16 L., 234, and 2 An., 934, the question does not appear to have been passed upon, whether an assignment or transfer of the certificate of purchase from the Register of the Land Office, previous to the issuing of the patent, was considered as falling within the prohibitory clause of the Statute, and consequently null and void. Under the construction put upon the Congressional Acts on this subject by the Attorney General of the United States, that the revival of the Act of 1830 is to be considered as embracing the provisions engrafted thereon by the supplementary Act of the 23d of January, 1832, and upon which the officers of the government appear to have uniformly acted, it would seem that the prohibition to sales under the former Act, was so far modified by the latter, as to permit the sale or assignment of the Register’s certificate or Receiver’s receipt. This construction, it appears to us, expresses the manifest intention or will of the law-maker. If such assignments or transfers of certificates of Registers and Receivers, as evidence of title could be made previous to the issuing of the patents, and the patents issue in the name of the assignees, it follows, as a natural consequence, that the sale from Butler and Jones to William Dickson must be considered as valid.

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


author: Spofeord, J.

text:
    A. Richardson v. J. M. Fenner, Tutor.
    The drawer cannot dispute the plaintiff’s ownership of the bill sued on,, where he is permitted to plead all the equities that he has against any of the successive holders, and where it is neither alleged nor shown that the plaintiff came unfairly by the bill, or that any other party contests his right to it.
    An amendment to a petition may be allowed when the relief prayed for, is additional only, and where it does not change the cause of action.
    All the circumstances in evidence must be considered, in testing the liability of the drawer of a bill, who pleads his discharge, by reason of Iho laches of the payee or subsequent holder in presenting it to the drawee.
    PPEAL from the District Court of Ouachita, R. W. Richardson, J.
    XI. Garrett & Ludeling, for plaintiff.

      J. D. & J. McEnery, for defendant and appellant.
   Spofeord, J.

The plaintiff, as holder, sued the defendant as drawer of the following bill of exchange, which was protested on the 20th of May, 1848, at New Orleans:

“ $350. Monroe, La., February 14, 1848.

Messrs. Gardner & Worcomb,

At sight, please pay to E. A. Brown, or order, the sum of three hundred and fifty dollars, for value received, and charge the same to the account of estate of Erautom.

(Signed) John M. Fenner, Tutor.

Endorsed, E. A. Brown.”

The defendant appears in the original petition, to have been sued as tutor of the heirs of Erautom, although judgment was not asked against him distinctly in that capacity.

He answered, admitting his capacity and the drawing of the draft, but averred that the drawees, at its date, had cotton funds enough in their hands, belonging to respondent, as tutor, to meet the draft; and that they failed on or about the 10th of May, 1848, owing him, as tutor, $2,700 ; that if the draft had been promptly presented, it would have been paid; and that it had been lost through the negligence of the holder. He denied that the draft had been put in circulation, or that plaintiff was owner of it, alleging the same to belong to the estate of the payee, Brown. To prove the latter allegations, he propounded interrogatories to the plaintiff.

' More than a year after the filing of the original petition, the plaintiff offered an amended petition, in which he alleged that, since the suit was instituted, defendant had filed his final account as tutor, and made a settlement with several of the heirs of Erautom, and was no longer entitled to represent them in the suit; that he had actually obtained a credit for the amount of the draft sued on, in his accounts with the heirs, as also for the whole balance due by Gardner & Nor-cornb, and had thereby made the debt his own, if it was not so originally ; the plaintiff, therefore, prayed judgment against the defendant personally, as well as in his capacity of tutor.

The defendant excepted to the ruling of the Judge, allowing this amended petition to be filed, on the ground that it came too late, and changed the nature of the action.

At the trial, there was judgment against Fenner personally, for the amount of the draft, and judgment in favor of the heirs of Frautom.

Fenner has appealed, and in this court urges, that the plaintiff cannot recover : 1st. Because he is not proved to be the owner of the draft; 2d. Because the court below erred in admitting the amended petition; and 3d. Because the drawer of the draft is released by reason of the laches of the holder, who failed to present it seasonably for payment.

I. As to the first ground of defence, it may be said that the defendant has alleged no such state of facts as entitles him to dispute the plaintiff’s ownership of the draft sued on. All the equities that he has against any of the successive holders, he has been permitted to plead ; and it is not alleged or shown, that the plaintiff came unfairly by it, or that any other party contests his right to the draft. It is thus immaterial to the defendant, whether the plaintiff is the real owner or not; a judgment between these parties will be final. Boswell v. Zeuder, 13 La. 367. Mitaine v. Ferguson, 18 La. 94. Newton v. Turner, 5 La. 48. Banks v. Eastin, 3 N. S. 291.

II. The amended petition was objected to, because it carnes too late and changed the issue. The former objection seems to be abandoned here, but the latter is strenuously urged.

We are of opinion, that the Judge did not err in allowing the amendment. Amendments should be permitted, when they can cause no injury to the opposite party, and will tend to prevent a multiplicity of suits. Jelks v. Smith, 5 An. 674. One of the tests of the propriety of a proposed amendment, is to inquire whether it might have been cumulated with the original pleading. Baudue v. Domingue, 8 N. S. 438.

Here it would seem that Fenner might have been sued both as tutor and personally, upon the allegations made. The amendment prays only for an additional relief, and does not change the cause of action which is still the alleged liability of the drawee of a bill of exchange. Castille v. Dumartrait, 5 N. S. 70. See also Russell v. Cash, 2 La. 187.

III. Is the defendant discharged by reason of the laches of the payee or any subsequent holder, in presenting it to the drawees ?

The rule is, that the bill should be presented within a reasonable time; what constitutes a reasonable time, is a mixed question of law and fact to be determined upon by the circumstances of each particular case. Story’s Bills, § 231. Pothier de Change, No. 143. Bolton v. Harrod, 9 M. 346. Hill v. Martin, 12 M. 177.

The holder of a sight draft should not put it in his pocket and delay presentment unnecessarily, confiding in the solvency of the drawee; if he do so, and there is a loss in consequence thereof, he must bear it, and the drawer will be discharged.

But the bill may be put in circulation, and, in that case, much time may elapse whilst it is passing from hand to hand, before presentment, without releasing the drawer.

In this instance, a little upwards of three months elapsed, and the drawees meanwhile failed.

But the circumstances in evidence must be considered, in testing the liability of the drawer.

In the first place, he drew the bill at Monroe, an inland town in Louisiana, remote from New Orleans, the place of payment.

In the next place, he drew it in favor of K A. Brown, or order, Brown being, at the time, at his residence in Lawrence county, in the western part of the State of Missouri. It is also probable from all the circumstances, that the drawer was at the time aware of the fact, that the bill would have to be remitted to Brown, at his distant residence, for his endorsement, before payment could be demanded of the drawees. The draft was so remitted.

The drawer was a planter; the drawees were his commission merchants, and the payee was a dealer in horses, which formed the consideration of the draft.

Again: after Brown had endorsed the bill in western Missouri, it was sent to the city of St. Louis, to the house of Davis, Tilden & Richards. They endorsed it over to the firm of Price & Forst, of the same residence. Price & Frost sent it to New Orleans, where it was protested for non-payment. The bill would therefore appear to have been in circulation, and no positive evidence is adduced to rebut the presumption thus raised, or to show that it was held by either one of these parties, an unnecessary length of time.

Upon this state of facts, we are not prepared to say, that there was such a lack of diligence as to discharge the drawer.

We add, that there seems to be little equity in the defence which Fenner set up against his personal liability. For it seems that he has finally settled his accounts with his wards, and been credited in the settlement, not only with the amount of their funds lost by the failure of Gardner & Norcomb, the drawees, but also with the amount'of this draft, as so much, paid to. F.. A,. Brown,, for horses for the Frautom estate.

The judgment is therefore affirmed, with costs..


author: Spojfokd.. J.

text:
    Union Bank v. Succession of Wilson.
    The Union Bank of Louisiana was allowed by its charter to charge ten per cent per annum, not only on its stock loans, but on ordinary mortgage loans, after maturity.
    from the District Court of Ouachita, R. W. Richardson, J.

      McGuire & Ray, for plaintiff and appellant.

      Garrett, for defendant.
   Spojfokd.. J.

The only question in the case is a question of usury.

In 1837, Fphrain R. Wilson and wife, obtained a loan of $25,000, from the Union Bank of Louisiana, which they secured by a mortgage in favor of the bank. The next year the form of the instruments which evidenced the debt, was changed, a single bond being substituted for the three notes, which were-originally given, but the original mortgage was reserved and the debt was not. novated.

It seems to be conceded that this was not a stock loan, but an ordinary mortgage loan, and the question is, what interest had the bank a right to charge, under its charter, both before and after the maturity of the loan.

The defendant contends, that by the 9th Section of the Bank Charter, (Acts. 1832, p. 52,) which provided that no more than seven per cent, per annum, should be taken on any loan or discount, the plaintiffs are barred from claim--ing any higher rate of interest in this case ; and so the District Judge decided.

But the the plaintiffs, appealing from that decision, assert that, by their-charier they were entitled to seven per cent, until the maturity of the loan, and in case of default, on the part of the borrower to make punctual payment at maturity, the debt, by mere operation of law, bore interest, thenceforward, at the rate of ten per cent; they aver that repeated adjustments of this debt have been made upon that basis, and that the plea of usury was interposed for the first time in 1852, by the heirs of the obligors, who contracted the debt in 1837.

The whole matter turns upon the construction which is to be given to the 24th Section of the Bank Charter, (Acts 1832, p. 62.) It declares, “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.”

It is singular that a clause of such importance should have been so obscurely worded as to give riso to interpretations diametrically opposed to each other. In the Union Bank v. Guier, 2 Ann. 249, it was contended, but without success, that the phrase “loans granted by virtue of this act” applied exclusively to ordinary mortgage loans, and not to stock loans.

Hero it is contended that the same phrase was intended to apply exclusively to stock loans, and not to ordinary mortgage loans.

Our perusal of the Charter and of the adjudications under it, has satisfied us that this interpretation is inadmissible.

Ordinary mortgage loans, like this one, out of which this controversy grows, were amongst the loans granted by virtue of the act incorporating the Union Bank. We find no portion of the Charter, which seems to restrict this clause to a narrower meaning; we find the latest decisions have thus interpreted it; we find this interpretation to have been acted upon by the Bank, through a long course of years, with the assent of E. K. Wilson, the ancestor of the present defendants; and finally, we find that the reason and policy of the law which created the Bank, sanction the interpretation.

In the case of Bermudez v. Union Bank, 7 Ann. 65, two out of the three Judges who sat in the case, declared that “ the interpretation by which this section is extended to all 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.” And again: “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 the Section has express reference.”

We conclude then, that upon the maturity of the bond for $25,000, and the failure of Wilson to pay the first instalment, the mortgage began to bear ten per cent, interest; this was the law of the contract, although not specified in the act of mortgage, for the parties contracted under, and, (as to one of them at least,) only by virtue of the Charter.

And so the parties subsequently interpreted this contract.

In 1842, Wilson and wife sold a large part of the mortgaged property to John T. and David Faulk, reciting the mortgage to the Union Bank.

Shortly afterwards, on the 1st May, 1843, the Faulks liquidated the Wilson debt with the Bank, at the sum of $32,200, due 15th February, 1844, which they assumed, continuing the original mortgage to seewre the same, and binding themselves to pay one-fifth, February 15th, 1844, with eight per cent, interest for one year on the balance, and one fifth each successive year, with a like interest on the successive balances, until due; in the act assuming the debt, the Faulks state that the loan and mortgage to Wilson and wife amounts to $32,200, including arrearages of interest at the rate of ten per cent, per annum, up to the date of the settlement, and at eight per cent, from that date up to the 15th February thereafter.

Afterwards the property was reconveyed to S. K. Wilson, to-wit: on the 16th March, 1845; in the deed there was the following recital: “whereas the said David and John T. Faulk, assumed for said Wilson the payment of a debt to the Union Bank of Louisiana, a debt to the New Orleans Oanal and Banking Company, and a debt to A. Ledoux & Go., now the said Wilson, by these presents, hereby releases the said David and John T. Faulk, from their obligation to pay said debt or so much thereof as yet remains unpaid, and assumes the payment thereof himself.”

This seems to import a ratification of the settlement of his own indebtedness, made between the Faulks and the Bank, of which he was fully cognizant; but if not, his reply to the letter of Fry, the cashier, in September, 1845, is a full acknowledgment of his obligations. On the 1st of September of that year, Fry sent him a letter, in which the whole matter was recapitulated, the assumpsit of the Faulks, the re-assumpsit by himself; and a statement of the account and arrearages due in strict conformity with the settlement, was made, and with a new charge of ten per cent, interest, from the maturity of the new installment. Wilson answered on the 13th, acknowledging his great obligations to the board for their indulgence, and promising the speedy payment of a large installment.

The new installments for 1844 and 1845;-were then long past due.

Thus we find a ratification by Wilson, of a settlement by which ten per cent, interest was charged for past defaults, and further indulgence granted on the basis of a charge of eight per cent, interest to maturity, and ten per cent, again thereafter.

If there was any necessity for a formal putting in default, as each installment fell due (and under the Charter, we have intimated that there was not) the letter of Wilson, in answer to the statement furnished by the cashier, is a tacit admission, or waiver of such a formality.

But it is urged that the stipulation for eight per cent, interest with the Faulles, when the extension was granted to them, was usurious. As we have found that ten per cent, -was then running in favor of the Bank by law, it can hardly be deemed usurious for the creditor to agree to reduce it to eight, provided the balance due should be punctually paid by installments, at certain fixed periods. Besides, the banks were authorized to charge eight per cent, discount upon extensions of loans by the Act of February 5th, 1842, §3, (Acts, p. 44.)

It is also urged that interest was compounded, because on the 1st May, 1843, the sum of $32,200 was fixed upon as the sum which would be due on the succeeding 15th February, in which sum an interest at eight per cent, from the former date was included. But the contract stipulated that one fifth of that sum was tobe paid on the 15th February, 1844, which would more than extinguish the eight per cent, interest then due, and interest could properly be charged upon the balance; and so we find in fact that on the 17th February, 1844, the sum of $2500 was paid, it being more than the eight per cent., which accrued between that and the first mentioned date.

Upon due inspection of the Charter of the Bank, the various acts signed by Wilson and wife, and the Faulks, the correspondence of the parties relative to their mutual transactions, and the accounts of the Bank as sworn to by their officers, we are satisfied that the defendants are legally liable as charged in the plaintiff’s petition.

The bill of exceptions taken by the defendant’s counsel does not appear to be well founded.

It is, therefore, ordered that the judgment of the District Court be reversed; and it is ordered, adjudged and decreed, that the Union Bank of Louisiana recover of the defendants herein, the sum of sixteen thousand four hundred and eleven 85-100 dollars, with interest thereon, at the rate of ten per cent, per annum, from the 29th May, 1850, and costs in both Courts; it is further ordered and decreed that the plaintiff’s special mortgage upon the land in Monroe and on the Bayou Bartholomew, together with the slaves and their increase, described in the petition, be recognized and enforced, and that the said mortgaged property be seized and sold in due course of law to satisfy this judgment.


author: Vookhies, J.

text:
    T. Andrews v. A. A. H. Knox.
    Where the petition sufficiently indicates the action to be one of boundary, the prayer that the plaintiff be adjudged the owner of any portion of the land within the boundary, does not change the character of the action.
    It is no objection to the plaintiffs*s action to have land surveyed in order to establish the boundary, that the thing to be surveyed is indefinite.
    Where the owner of land refuses to have the boundary line fixed in accordance with the respective titles of himself and his contiguous proprietor, thereby compelling such proprietor to resort to the courts to establish his boundary, the costs should not be apportioned, but borne by the proprietor who forces his neighbor to the institution of a suit.
    from the District Court of Morehouse, B. W. Bichardson, J.

      McGuire & Bay, for plaintiff.

      Roherlson & Todd, for defendant and appellant.
   Vookhies, J.

The plaintiff alleges in substance, that he is the owner of a tract of land of 400 acres, situated in prairie Mer Rouge, parish of Morehouse, which is contiguous to a tract of land claimed by the defendant; that the defendant, although requested to have the boundary dividing said tract fixed in accordance with their respective titles, has refused to do so, and has, moreover, actually encroached upon the plaintiff’s land by the enclosure of forty acres thereof. He therefore prays that a sworn surveyor, under the appointment of the court, may be ordered to run out and survey, according to the respective titles of the parties, and after the observance @f all the forms required by law, the boundary between said tracts of land, and also prays for judgment in his favor against the defendant for the portion of his tract alleged to be enclosed.

The defendant excepted to the plaintiff’s petition on the following grounds:

1st. Because it is too vague and indefinite to enable the defendant to discover what the plaintiff seeks to obtain by his suit; whether it is intended as an action of homage, or whether it is regarded as a petitory action.

2d. Because the petition prays that a survey may he made of something indefinite, and that said survey may he made after final judgment, which could not afford any assistance of the cause.

3d. That until the plaintiff shall elect which demand he means to pursue, the defendant cannot prepare any defence, even if any cause of action were set forth.

The allegations and prayer of the plaintiff’s petition, it appears to us, sufficiently indicate the character of the action as one merely of boundary, and we do not think the prayer to be adjudged the owner of any portion of the land within the boundary which may be asssigned to the plaintiff, changes in any manner the legal aspect of the action.

As regards the second objection, we think it is equally untenable. If the position, assumed by the defendant’s counsel, were conceded, it would have the effect, in our opinion, of defeating the very object which the Legislature had in > view, to make that certain which was uncertain.

When two tracts of land, contiguous to each other, have never been separated or had their boundaries determined, or if the boundaries formerly fixed are no longer to be seen, each of the proprietors has the right, under our Code, to compel the others to fix the limits of their respective estates. C. C., 819. It is made the duty of the Judge, having cognizance of suits on the subject of limits, to appoint surveyors to inspect the premises in question, and on their report, to decide according to the titles of the parties and the plans presented to him. C. C., 828. Whether judicially or extra-judicially, such limits must be fixed by a sworn surveyor of this State, and a proces-verbal of his work made in presence of two witnesses, called for that purpose, etc. 829. Such seems to have been the course pursued in this case. It follows, therefore, that the order prayed for was necessary, and was properly granted by the court. From the view which we have taken of the two first objections, it is clear that the third must also be held untenable.

The defendant’s exception having been overruled by the Judge a quo, he pleaded in defence the general issue, and that the boundary line between the respective tracts of land mentioned in the plaintiff’s petition had long since been fixed and established; that the object of this action was to change the same in order to recover the enclosed land in question, of which the defendant had been in actual possession for a series of years. He therefore pleaded the prescriptions of five, ten, twenty and thirty years.

We deem it unnecessary to notice the last branch of the defendant’s answer, considering that he is clearly estopped from calling into question the validity of the title of Abraham, Morehouse, their common author. This conclusion dispenses us also from the necessity of expressing any opinion on the questions presented by the defendant’s counsel, touching the jurisdiction of our State court in matters of boundary and location of the public lands.

There was judgment in the court below in favor of the plaintiff, decreeing “ that the division line, as run and reported by Henry Curtis, surveyor, running east and west between the lands of plaintiff and defendant, be established as the boundary line between them, and further, that the surveyor fix the corner posts and mark the said line in conformity to his plot on file in the case, the costs to be equally paid by plaintiff and defendant.” From this judgment the defendant appealed.

The plaintiff, in his answer to the appeal, prays that the judgment may be amended in his favor, by awarding him the costs of both courts against the defendant.

On the merits, we are satisfied, from a careful examination of the evidence, that the Judge a quo did not err in his conclusion. It is not shown, neither is it pretended, that the boundary established by the survey, under the order of the court below, has, by its effect, reduced the quantity of land mentioned in the defendant’s title. The evidence on which the defendant relies to establish actual possession of the land claimed by him beyond the boundary thus fixed, appears to us to be entirely too indefinite to form the basis of the prescription necessary for him to acquire a legal title. 6 An., 382; 4 ib., 33.

We think the Judge erred in condemning the plaintiff to pay one-half of the costs of suit. The defendant having forced upon the plaintiff the institution of this suit, equity requires that he should bear the burden of the costs.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended as prayed for by the appellee, and so amended, that the same be affirmed; the appellant to pay the costs of both courts.


author: Buchanan, J.

text:
    W. A. Andrew v. A. H. Bradley et al.
    Where there is no separation of property between husband and wife, a purchase by the wife must be considered as a purchase by the community, and the property liable for the community debts. Where a contract of suretyship is extended to embrace “ any future balance of accounts,” third persons will not be bound by it. O 0., 2871.
    from the District Court of Franklin, Barry, J.

      Mayo, for plaintiff and appellant.

      McGuire &Ray, for defendant.
   Buchanan, J.

Plaintiff claims damages for the sale, in execution of a judgment against a third person, of certain four slaves, which he alleges to be his property.

He produces, in support of his claim, the separate deeds of conveyance to himself of the slaves by him claimed; but the evidence shows that the purchase was made in his name as security for the reimbursement of acceptances given by a third party for the price of three of the slaves; that the purchase was really made by the request and for the account of the wife of the party defendant in the execution — a request conveyed through that party himself, as the agent of his wife; that the slaves immediately passed into the possession of the wife of the defendant in execution, where they remained until their seizure. As there is no proof of any separation of property between the defendant in execution and his wife, the purchase by her must be viewed as a purchase by the community, (C. C., 2371,) and the property liable for the community debts.

As between plaintiff and the defendant in execution, the contract was one of suretyship, (5 An.,p. 99,) and the only question is, whether the drafts given by the defendant in execution, the true purchaser, professedly acting as agent of his wife, and accepted by H. Frellsen & Go., have been satisfied and paid to the latter. The acqount current in evidence shows that to have been done. The acceptances are charged on the day of their date, the 12th June, 1847. They matured on 15th January, 1848. On the 14th June, 1848, a balance in general account is struck in favor of Frellsen & Go. of $2436 60, against which there is a credit, on the 20th June, 1848, by proceeds of 100 bales cotton sold that day, of $2426 98, thereby reducing the indebtedness of the defendant in execution, at that date, to less than ten dollars. It is to be observed, that the total amount of the three acceptances in question is but $1872 50.

As to the agreement of the 14th June, 1848, mentioned by plaintiff in his answers to interrogatories, to extend the contract of suretyship to any future balance of account, we do not regard it as binding on third persons. The contrary doctrine would be of dangerous precedent, and opposed to sound principles. The title in one party, accompanied by possession in another, is of itself a badge of simulation, and liens should be confined strictly within legal limits. Such we understand to be the doctrine of Villars v. Morgan, 3 N. S., quoted by plaintiff’s counsel, and that of Collins v. Pellerin, in 5 An.

Judgment affirmed, with costs.

       The plaintiff stated, in answer to the interrogatories propounded to him: “ The said notes were accepted by K Frdlson & Co., endorsed by me, but subsequently to that time, viz., on the 14th June, 1848, as per written agreement between us, it was agreed that I should still retain the title to said negroes as security for any amount due or might become due by said Fosson to the firm of IT Frellson<& CoJ — [Rep.]


text:
    A. C. Armstrong, Syndic, v. Reuben White.
    The defendant held the land in controversy under a deed from Jolvn MeGaughlin, executed on the 13th of September, 1843, which was duly recorded. The plaintiff’s assignees claim the same land under a sews seing privé, from John MeGaughlin, dated March 27,1334. The main question in the case was, whether the latter title was duly recorded. It was proved that While had, before purchasing the land, made diligent inquiry to ascertain whether there was any other conveyance from MeGaughlirn on record, and no such conveyance could be found. Subsequent to this purchase, the recorder found in his office, when searching the records of his office for other purposes, a book, which was endorsed, “ Extracts from the Notaries in the Country, from 1827 to 1839.’* Among the extracts was the following: “February 4, 1834, John MeGcmgJdm to Charles Myers, (from whom plaintiff claims,) sale of land containing 640 acres, situated,” «fee. The land described was that in controversy.
    The book also contained the following certificate: “ I, the undersigned Notary Public, do hereby certify the above and foregoing to be extracts explanatory of all acts passed and acknowledged before me up to the first day of March instant. Given under my hand and private seal of office this 1st of March, 1884. Signed, J1. Williams, Notary Public.”
    It also appeared from this book that the sous semg privé had been proved by a subscribing witness, and recorded by F. Williams, Notary Public, on the 4th February, 1834.
    Under this state of facts, it was held that the conveyance from MeGamghUn to Charles Myers was not sufficiently apparent on the public records to affect third persons. The fact of the Notary’s books being found in the recorder’s office could no.thave that effect.
    from the District Court of the parish of Caddo, Drew, J.

      Grain & Nutt, for plaintiff and appellant:
    Cited Stockton v. Briscoe, 1 An., 749; Colton v. Stacker, 5 Ann., 677.

      Hodge and J. M. Landrum, for defendant.
   Voorhies, J.

(Sfofford, J., recused himself.)

This is a petitory action for the recovery of a tract of land. The plaintiffs allege that the defendant, Reuben W kite, is a possessor in bad faith; that he has, for the last two years, cultivated a field on said land, and has also committed other trespasses, by cutting timber off of the same for his own use, whereby they have sustained damages to the amount of one thousand dollars, for which they pray judgment, and also to be declared the legal owners of said land.

The plaintiffs also instituted suits against Scarborough, McMullen and Nesbit, for the same cause of action. Reuben White having since acquired the title or rights of the other defendants, those suits were cumulated with the present; so that only one decree becomes necessary to settle the controversy between the litigants.

Both parties claim to derive their titles from a common author, John Me* Gaughlin, whose title is evidenced by a patent from the Government of the United States.

The plaintiffs, Samuel W. Briggs and Gowen L. Briggs, both deceased, whose estates are represented by Andrew C. Armstrong, as syndic, holding by inheritance from Elias Fountain Briggs, deceased; and J. R. E. Robinson, a minor, represented by his tutor, Joseph J. Robinson, also holding by inheritance from Harriet Cable, deduce their titles as follows:

■ On the 27th of January, 1834, John McGaughlin sold to Charles Myers, by act sous seing prive, the land in controversy. Josiah Hale, one of the subscribing witnesses to the act, appeared before F. Williams, a Notary Public of the parish of Natchitoches, and proved, under oath administered to him by the notary, its execution; at the foot of which the following certificate is appended:

“ I certify that the within act of sale is duly recorded in my office, in Book A. of Notarial Acts, fol. 14. Given under my hand this, fourth day of February, 1834. F. Williams, Not. Pub.”

From the certificate of the Recorder of the parish of Caddo, it appears that there was no other conveyance of the land in controversy from McGaughlin than the conveyance from the latter to the defendant, White, executed on the 13th of September, 1848.

The statement of the Hon. J. G. Campbell shows that the defendant, While, previous to his purchase of the land in controversy, applied to him to ascertain, by examination of the records of the late parish Judge’s office, and such other records as might then be in the custody of the Recorder of the parish of Natchi-toches,in whom the McGaughlin title was; that “he made a thorough search of the office, and could find no title out of McGaughlin, and so advised White; that While afterwards visited Natchitoches in person, when a renewed search was made by the Recorder and himself, in presence of White, but with no better success; that White, upon his return, purchased from McGaughlin; that, owing to some defect in the description of the land in the first deed, another was executed by McGaughlin to While, a copy of which being forwarded to the Land Office, the patent was thereupon forwarded to White; and that it is to his knowledge, White exercised great diligence, and was at considerable trouble and costs in investigating the title before making the purchase, his chief object being to ascertain whether the title remained in McGaughlin.

The certificate of the Recorder of the parish of Natchitoches, dated 1st of September, 1848, shows that, after diligent search, he could find no sale from John McGaughlin to any person, of the land in controversy. The deposition of the Recorder is also in evidence, affirming the correctness of his certificate, and adding that he was assisted in the examination of the records of his office by Judge Campbell and one of his clerks. “ On a subsequent examination,” says he, “of the records of my office, for other purposes, I found a book marked A., and written on the back, ‘ Extracts from the Notaries in the Country, from 1827 to 1839,’ This book contains extracts, and among which I find recorded the following: ‘4th February, 1834, John McGaughlin to Charles Myers, sale of land containing 640 acres, situated on the south-west bank of Red River, bounded north and above by Pascagoula Bayou, south and below by vacant land. The above land was sold for and in consideration of the sum of one hundred dollars cash.’ This extract is contained, with others, in No. 74, as recorded in said extract book, and at the bottom of which is written the following certificate: ‘ I, the undersigned, Notary, do hereby certify the above and foregoing to be extracts explanatory of all acts passed and acknowledged before me up to the first day of March instant. Given under my hand and private seal of office, this first day of March, 1834. Signed, F. Williams, Notary Public.’ The foregoing is all that I now recollect in relation to the matter on which I am interrogated.”

None of the purchasers from John McGaughlin, under whom the plaintiffs claim, appear to have ever been in actual possession of the land in controversy.

Under this state of facts, the question presented is, was the conveyance from John McGaughlin to Charles Myers sufficiently apparent on the public records to affect third persons ?

We think not. But it is argued by the plaintiffs’ counsel, that the recording of the abstract of the sale from McGaughlin to Myers was good against third persons, as “ the authority given to record the acts of the Notary of Cloutier-viile, by abstracts of the title and substance inscribed in the proper book, virtually made the recording of any other act by abstract of title, etc., good, because third persons would be compelled to search this book, and if they there found that A. had sold to B. a specified tract of land, they would have notice, and would, after seeing the memorandum, buy in bad faith.”

This argument finds its refutation in the fact that the Recorder, familiar as he was, we must presume, with the records of his own office, was unable himself, aided, too, by learned counsel, to discover the existence of any such transfer from McGaughlin.

Under an act approved the loth March, 1822, providing for the appointment of notaries for the parishes of St. Landry and Natchitoches, it was made the duty of the notary to be appointed for Natchitoches to keep his office at Clou-tierville, to be governed “by the same restrictions and priviliges ” as those imposed upon the notary to be appointed for Grand' Prairie. The second section of that act made it the duty of those notaries to deposit on the first Monday of every month, in the offices of the parish judges of their parishes, respectively, an extract sufficiently explanatory of the several acts passed before them, and it also made it the duty of the parish judge “ to receive and record the same.'’ Admitting that the provisions of that act could be construed to apply generally to all acts passed before notaries in the parish of Natchitoches, which, however, can hardly be conceded, we are unable to perceive in what respect it could possibly avail the plaintiffs; for it does not appear that the extract of the act from McGaughlin was ever “ received and recorded” by the parish judge in his office. The fact that the notary’s book of extracts was found in the Recorder’s office, under the circumstances which we have seen, was clearly insufficient, in our opinion, to affect the defendant.

The next link which appears in the plaintiffs’ chain of mesne conveyances, is a sale from Charles Myers to Harriet W. M. Cable, ünder whom the minor Robinson claims to hold, by notarial act passed before the parish Judge of the parish of Natchitoches, for one undivided third of the land in controversy. On the 29th of October, 1834, Myers sold the whole tract to John Ragan, by notarial act passed before F. Williams, Notary Public. An extract of this act appears to have been recorded in the same manner as that in the ease of the sale from McGaughlin to Myers, in the “book of extracts.” It is, therefore, subject to the same fatal objection.

The last link, the sale from Bagan to E. F. Briggs, passed before the same notary, on the 20th February, 1834, is open to the same objection, in relation to its registry, as the preceding.

We do not think the present case, in relation to the question of registry, falls within the principles recognized in those of Stockton v. Briscoe, 1 An. 249, and Cotton v. Stacker, 5 An., 677, relied upon by the appellants’ counsel. In the first, it appeared that the defendant, Briscoe, and Gooche had been the joint owners of the property in controversy. Gooche afterwards sold his interest therein to Johnson. Johnson having died, at a judicial sale of his succession, Briscoe purchased his undivided half of the'land, of which he had always been in the actual possession. After Johnson’s sale, the plaintiff, Stockton, obtained a judgment against Gooche, under which he caused the land to be seized and sold, and purchased the same himself. Mr. Chief Justice Eustis, as the organ of the court, said: “ Briscoe’s title 'is recorded, and was recorded before the institution of the suit by the plaintiff under whieh he purchased, which was commenced in December, 1840. It may be conceded that, under the decisions cited, the sous seingpr'ivé had no effect between the parties adversely to creditors ; but they gave it effect. They permitted, Johnson publicly to hold the property, without interruption, until his death, under the act under private signature, and thus, by their own act, gave it effect. At the public sale of the effects of his succession, it was adjudicated to the defendant, who paid for it. The plaintiff might or not have taken advantage of the non-recording when the property belonged to the party, who may be considered in default in not recording' his title; but to permit him to disturb a bona fide purchaser, who holds under a recorded title, would be pushing the registry laws beyond their policy and intendment. And in the other case .the court said: “ The defendant being in possession under a recorded title, this case cannot be distinguished from that of SloclUon v. Briscoe.” We conclude, therefore, that the judge a quo did not err in rejecting the plaintiffs’ demand,

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


text:
    Consolidated Association v. Hughes.
    Defendant-cannot crave oyer of the unmatured mortgage notes which are not described in the petition, and on which no-judgment is asked, merely because the petition prayed that the property mortgaged might be sold on terms o'f credit corresponding to the maturity of the several notes,
    A contract which is not in itself usurious, cannot be made so by the prayer of the plaintiff for usurious interest, when he seeks to enforce it.
    The charter of the Consolidated Association makes no provision for interest on the stock contributions.
    The fifth section of the Act of 1845, entitled “ An Act amendatory of the several laws relative to the Citizens’ Bank,” etc., etc., which allows five per-cent, interest <up on arrearages-of‘interest, applies to the Citizens’ Bank.
    from the District Court of Monroe, Barry, J.

      McGuire & Bay, for plaintiffs.

      Garrett, for defendant and appellant.
   Buchanan, J.

The first question raised by the defendant and appellant relates to the correctness of the ruling of the District Court, refusing oyer of the notes of defendant for installments of her debt to plaintiff, not yet due. We think the District Court did not err. No judgment was asked for the amount of the notes not yet due, neither are those notes described in the petition as being held by plaintiffs. As regards those notes, the petition merely prayed that the property mortgaged might be sold on terms of credit corresponding to the maturity of the several notes, according to the contract. Under such a sale, the purchaser will, in effect, assume the obligations of defendant towards whoever may be the legal holder of each note at its maturity.

The defence pleaded to the action is usury. The suit grows out of a contract between the parties in 1848, by which the balance due at that time upon a stock loan, with accruing interest, was capitalized, and eighteen obligations of the defendant, maturing from year to year, from 1848 to 1865, inclusive, were accepted in payment, secured by mortgage. Each of these eighteen notes was made up of: first, an eighteenth part of the balance, as settled at the date of the contract and, second, interest for one year on the whole amount of the balance remaining due at the maturity of the note.

The contract mak§§ no stipulation for interest to be paid upon the several notes from maturity, but the petition asks for such interest, at the rate of seven per cent., and the judgment of the District Court is in accordance with this prayer. The counsel for appellant very correctly argues that, if the contract itself had stipulated for interest upon the prospective interest, such stipulation would have been void under the Article 1934' of the Civil Code, which, declares, that any stipulation in the original contract, (or before interest has accrued,)i allowing interest upon interest, is invalid. See also Compton v. Compton, 5 An., 619. But, although the contract is not defective in this respect, yet, it is urged,, the plaintiffs are bound by their own construction of the contract,, and as they claim interest upon interest, the contract upon which they found such a claim, must be held to be tainted with usury. It may well admit of question, how far, a man forfeits his legal right, by claiming more than his contract calls for. Thus the petition claims interest upon interest. But the contract does not warrant such a claim. The contract is silent upon the subject of'interest after maturity-of the installments respectively.

It was decided in the case of the same plaintiffs v. Foucher, 9 L. R., 478, and v. Wilson, decided at this term, that the parties are supposed to have contracted, with reference to the provisions of their charter. And as the 11th fundamental rule, in the 12th section of the charter, allows eight per cent, interest on loans,, we would see no impropriety in allowing eight per cent., the rate claimed, upon so much of the notes sued on, as represents the installments of the capital dumper contract of 22d March, 1848, say $136 82 on each note, but the rate of interest allowed by the judgment of the District Court is only seven per- cent., and’ the appellees have not brought themselves within the rule to have this portion of' judgment amended in their favor.

As to the contributions of $60 per annum upon stock, the charter makes no provision for interest. Legal interest from judicial demand can only be allowed on this portion of the claim.

The plaintiffs claim in this court to amend the .judgment, by correcting a clerical error, and by awarding them an additional sum for costs of protest.. Those, amendments seem proper.

Our attention has also been called to the 5th section of an Act of 1845, (page 30,) as allowing five per cent, interest upon arrearages of interest. We think, with defendant’s counsel, that the section in question only applies to the Citizens’ Bank.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that plaintiffs recover of defendant the sum of thirteen hundred and seventy-three dollars and forty-six cents, with interest at the rate of seven percent, per annum, on $136 82 from 1st June, 1851,on $136 82 from 1st June, 1852, on $136 82 from 1st June, 1853, and on $136 82 from 1st June, 1854; and with legal interest of five per cent on sixty dollars from judicial demand, say, 26th April, 1852, on $60 from 1st June, 1852, on $60 from 1st June, 1853, on $60 from 1st June, 1854, and on $60 from 1st June, 1855, and also the costs of the District Court, except those of appeal; that the mortgages recited in the acts of 4th June, 1829, and 22d March, 1848, be recognized, and the property described in said mortgages seized and sold, without appraisement, for cash, to an amount sufficient to satisfy this judgment, and to satisfy the further sum of $242 IT, amount of a note due 1st June, 1855, in the hands of whomsoever said note may be, together with the accruing interest on said note, according to the principles of this decree; and on terms of credit to meet the falling due of the following sums, viz:

$292 60, on the 1st of June, 1856,
283 00, “ “ “ 1857,
2T3 44, « “ 1858,
263 86, “ “ “ 1859,
254 00, “ “ 1860,
244 70, “ “ 1861,
235 13, “ “ 1862,
225 55, “ “ 1863,
215 97, “ “ 1864,
206 40, “ “ “ 1865,

with interest at seven per cent, on $136 82 of each payment, from due until paid, and at five per cent, on $60 of each, from due until paid; and that plaintiffs and appellees pay costs of appeal.


text:
    Creditors of Bryan v. Sureties of Austin, Administrator.
    The Judge is not incompetent to try a case on the ground that he had been at one time counsel in it, where the party whom he represented is no longer before the Court.
    Opinion of the Court on the validity of the bond, expressed in 4th Annual, 546, Qa/nal Banlc v. Brown, affirmed.
    A PPEAL from the District Court of the parish of Catahoula, JS. W. JRiehard--ÍJL son, J.

      McGuire & Bay, for plaintiffs.

      Headley, Taliaferro and Hayo, for defendants and appellants.
   Buchanan, J.

This case comes before us, on five bills of exceptions:

1. Defendants and appellants except to the allowing of an amendment to the petition. The amendment charges that the administrator’s bond had been changed after it was filed, by the insertion in the body of the bond, of the names of several persons who had not signed the bond.

Our predecessors, at the October term, 1860, remanded this cause for a new trial, with leave to both parties to amend their pleadings, so as to bring the whole merits of the case before the Court.” It is clear that this decree had in view, the very amendment now complained of.

2. Defendants recused the District Judge, who tried the case, on the ground that he had been of counsel for one W. B. Gi'ayson, who had been originally one of the defendants in the cause, but who had been discharged from the same by a judgment of the Supreme Court, rendered in his favor previously to this trial. See 4th Annual, page 611.

There was no ground for recusation. The party of whom the Judge had had been counsel, was no longer before the Court.

8. The defendants excepted to the reception in evidence of the bond of administration ; also of the letters of administration; also of the tableau of debts of the estate, and the judgment against the administrator, and the proceedings thereupon ; also of the testimony of a witness to prove the alteration of the bond as alleged in the amended petition. .

The objections to the bond were considered and overruled by our predecessors in the case reported in 4th Annual, 647. We agree with the opinion expressed by the majority of the Court, on that occasion, that there is no defect which reaches the validity of the bond.

The testimony of Mr. Garrett was properly admitted, under the amended pleadings; and removes the only doubt which formerly hung about the admissibility of the bond, and seems to have divided our predecessors in 1849, by showing that the names of persons in the body of the bond, who had not signed, were interpolated in the instrument after it had become matter of record.

It is unnecessary to examine the other two bills of exceptions, which were taken by plaintiffs, who had judgment in the Court below, which they have not asked us to amend.

We think that judgment has done justice between the parties.

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


text:
    H. Pargoud v. J. Pace.
    Under the Code of 1808, inheritances accruing to minors could only be accepted with the authority of the Judge, by the advice of a family meeting; and not purely and simply, but with the benefit of inventory. Similar provisions exist in the Code of 1825.
    Property acquired by the husband as a donation or as a confirmation of a settlement right, by the award of a Board of Commissioners in May, 1811, ratified by Act of Congress, does not enter into the community of acquets.
    A sale by one of the partners of all her interest in a partnership theretofore existing between them, including stock in trade, merchandize of every kind, credits in Ouachita parish, and in New Orleans and elsewhere, real estate, slaves, cash, &c., is, as to the real estate, void as to third persons, for want of a description of the thing sold. Nor can such a description be eked out by pa-rol evidence.
    from the District Court of Ouachita, R. W. Richardson, J.

      McGuire & Ray, for plaintiff and appellant:
    A sale of property belonging to minors without the forms of law, although said to be null, is only relatively null, and may be ratified expressly or tacitly by prescription. Vaughan v. Christine, 3 An. 329 ; 6 R. 473 ; 9 R. 84. By suffering four years to elapse after majority their right of action is prescribed.
    The rules which govern in sales of property belonging exclusively to minors are different from those which govern sales by administrators, in which minors may have an eventual interest. Richard, administrator v. Deuel, 11 R. 509; 10 id. 458.
    Nullity in the sale of minors’ property, or property in which they have an interest, can only be taken advantage of by themselves, and that by a direct action ; and they must place things as they were, return the price, &c. Banlc of Louisiana v. Delery, 2 An. 648 ; 6 N. S. 361; 6 L. 605; 10 M. 281; 9 L. 305; 4 R. 206 ; 10 M. 735; 3 M. 457.
    All actions for immovables or an entire estate, is prescribed by thirty years — O. C. 3512, 3465 ; Code of 1808, p. 486, Arts. 65 and 66 — without title. 7 L. 259; 15 id. 576. Possession with title, prescription is ten years if the owner is present, and twenty years if absent. Code of 1808, p. 486, Arts. 67 and.68; C. 0. 3442, 3443 ; 2 R. 467; 3 An. 8 ; 15 L. 109 ; 4 N. S. 222. ■

      Balcer & Harris, for defendant.
   Buchanan, J.

■ This is a petitory action. The plaintiff in his petition appears to put his claim of the locus in quo entirely upon the prescription of thirty years. On this subject, it is sufficient to say that he has failed in showing possession having the character required by Article 3466 of the Civil Code.

He has, however, given in evidence two titles, one purporting to be a sale by authentic act from the widow and heirs of Joseph Piboto, passed before the parish Judge of Ouachita, on the 28th July, 1814; and the other, a patentfrom the United States, dated the 1st August, 1838.

The sale of the 28th July, 1814, is a nullity on its face, so far as it purports to convey the title of the minors Piboto. The person who professes to act for them, styles herself the widow of Joseph Piboto, (or James Piboto, for the name is differently written in different parts of tho deed,) and the mother of his minor children.

But she does not pretend to have qualified as tutrix, nor to act in that capacity; neither to sell in pursuance of any authority of the Court, or with any of the previous formalities required for tho alienation of the estate of minors. Again, the said minors are styled heirs pure and simple of James Piboto, deceased; and the record shows that Mrs. Piboto, on the same day she made this deed, appeared before the parish Judge, and in thename of the minor children, accepted purely and simply the inheritance of their father, Joseph Piboto. But the Code of 1808, in force at that time, contained the same provisions as the Code of 1825, on the subject of the acceptance of inheritances accruing to minors. They could only bo accepted with the authority of the Judge, by the advice of a family meeting; and not purely and simply, but with benefit of inventory. The illegality of the proceedings are so gross, that it excites astonishment how they could have escaped the attention of the parish Judge, before whom the declaration of acceptance and the deed were passed.

The widow of Joseph Piboto does not appear to have had any interest, personally, in the property conveyed by the deed of 28th July, 1814. It was acquired by her husband as a donation, or confirmation of a settlement right, by the award of a board of commissioners, in May, 1811, ratified by Act of Congress. Property thus acquired did not enter into the community of ac-quets. O. C. of 1808, p. 336, article 64. 1 N. S. 334. 4 N. S. 212. 5 N. S. 98. 4 An. 248. 5 An. 212.

Two heirs, of full age, of Joseph Piloto, William and Augustus Piloto, joined in this conveyance of the 28th July, 1814. Their quality of heirs rests in part upon a declaration purporting to have been made by the widow Piloto, on the 15th August, 1813, to the admission of which in evidence a bill of exceptions was taken, on the ground that it was not signed. The objection was well taken, and appears even to have been sustained by the District Judge, so far as to direct the jury not to regard this document in making up their verdict.

But there is other evidence in this record, not objected to, which establishes the quality of children and heirs assumed by these two vendors. We allude to the inventory of Joseph Piboto's estate, to which they are parties ; and the acceptance of his succession by them, by act before the parish Judge.

The conveyance in question, being thus sustained for two-fifths, it remains to be seen how far it benefits the present plaintiff.

The vendees in the deed are John F. Girod, and the widow Ohol. The plaintiff has been recognized by judgment of Court, as heir of John F. Girod, but he has failed to show a conveyance to his ancestor, of widow Choi's interest in this land. He has given in evidence a deed of sale, dated 28th August, 1816, from widow Ohol to John F. Girod, of all her interest in a partnership theretofore existing between them, including stock in trade, merchandise of every kind, credits in Ouachita parish, and in New Orleans, and elsewhere, real estate, slaves, cash, &c., Such a sale of real estate cannot be considered as binding against third parties, for the want of a description of the thing sold. To eke it out by parol evidence, would be a violation of the rule of evidence in relation to the sales of real estate contained in the Code. See also C. 0. of 1808, p. 388, article 5.

The sale of 28th July, 1814, was not made to Girod and the widow Ohol, as partners in trade. We think the plaintiff has not established a right in himself to the interest of the widow Ohol, in the land sold by William and Augustus Piloto, but only to that of John F. Girod; and as those two vendors were, by their own declaration, heirs of their father for two-fifths, it follows that the title conveyed by them to John F. Girod, individually, was one undivided fifth, for which the plaintiff is entitled to judgment.

As to the patent from the United States, exhibited by plaintiff, the number of the section in which the land is situated, does not correspond with that of the land in controversy in this suit, as contained in defendant’s answer. And if it did, it would seem that the title of the United States to the locus in quo had been divested many years before the date of the patent, by the confirmation to Joseph Piloto, under which the plaintiff claims.

It is therefore adjudged and decreed, that the judgment of the District Oourtbe reversed; and that plaintiffs recover of defendant one undivided fifth, (deducting one-fifth of the value .of improvements put upon the place by defendant,) of the land described in the answer filed in this case ; that the parties be referred back to the District Court, for the purpose of making a partition ; and that the defendant and appellee pay costs of appeal — those of the District Court to abide the ultimate decision of the c'ause.


author: Lea, J.

text:
    Succession of Richardson, on an opposition to a tableau.
    The vendor’s privilege on the thing Pleged, extends, and without a ny express stipulation to that effect, to secure the interest, as well as the principal debt.
    PPEAL from the District Court of Ouachita, Ba/rry, J. 1
    XX Morrison, for Norwood.

      Mo Quire & Rap, and Garrett, for Williams, Phillips & Oo.

      Balcer & Harris, and BsseeJc & Biehardson, for other parties.
   Lea, J.

This case is presented upon appeals taken by the administrator, Norwood, and by Margaret Ann Oopley, administratrix of the estate of her deceased husband, George Oopley.

The administrator, Norwood, complains that a credit has been disallowed of $90, for interest on two notes due to Raymond, of $700 each. These notes were given as the price of a tract of land sold by Raymond to Richardson, for the payment of which the vendor’s privilege and mortgage were reserved. It appears that no interest was stipulated in the drafts given in payment, or in the act of mortgage.

The only question for solution is, whether in the absence of an express stipulation for interest, the vendor’s privilege should be extended so as to embrace the interest as well as the price ?

We think this question has been satisfactorily solved, so far as sales of real estate are affected.

It will be conceded, that the price of immovables, susceptible of producing fruits, bears interest from the time it is due, without any demand. C. C. 1933.

Any purchaser or mortgagee would, of necessity, be affected with notice arising from the nature of the claim. As an accessory right, it comes within the application of the privilege which secures the principal demand. See. 9 La. 266. IS La. 431. 7 La. 480. 17 La. 329.

The opposition of Mrs. Oopley asks for no change in the judgment appealed from, except the rejection of the claims of the following named creditors, who are recognized as such, viz: Williams, Phillips & Oo., George Esseeh, Marburg •& Slaughter, the owners of the steamer Osceola, and J. 8. Knowles.

From the statement of facts agreed upon by the counsel representing these parties in interest, it appears that the claims of the four last named persons are not only correct in amount, but it is admitted that they were contracted for materials furnished and used at the mil!, upon the proceeds of which they claim a privilege, and that the value of the mill upon which they seek to exercise their right, far exceeds the privilege upon it. It appears to us that the judgment of the District Oourt, with reference to these claims, is correct. Neither the appellants, nor the appellees have asked that the judgment should be disturbed in other respects.

It is ordered, that so far as relates to the claim of $90 for interest paid to J. Raymond, the judgment appealed from be reversed, and that the tableau be amended by striking therefrom the amount so allowed to WilUams, Phillips <6 Oo., and that said amount be recognized as having been properly paid to J. Raymond, by the administrator, and that he be credited with the same as originally placed on his account.

It is further ordered, that the judgment of the District, Court upon the opposition of Mrs. Gopley, as administratrix of the succession of G. W. Gopley, and as tutrix of her minor child, be affirmed; and tjiat in all other respects, so far as herein amended, that said judgment be affirmed. It is further ordered that Williams, Phillips & Go. and Mrs; Gopley, in her capacities aforesaid, be condemned to pay each one-half of the costs of this appeal; and that Williams, Phillips & Go. be condemned to pay the costs of their opposition in the District Court.