author: ’Voorhies, J.

text:
    Grayson, for the use of Lawson, v. Andrew Paris.—B. B. Starns, Sheriff, Defendant in Rule.
    Ono who retains money deposited in his hands as Sheriff, after he has ceased to act as such, will continue subject to the summary process provided by law for the benefit of suitors where süch officers are concerned. N
    Appeal from the District Court of the Parish of Livingston, Wilson, J.

      Alfred Hennen, for appellant.
   ’Voorhies, J.

The defendant, in the case of Grayson, use of, dtc., v. A. Paris, took a rule upon the late Sheriff of the Parish of Livingston, to show cause why he should not account for certain property which he had sequestered whilst acting in his official capacity.

The record does not show what are the rights of the appellant in this matter; nor are we informed as to the nature of the proceedings, in which it is alleged that property has been sequestered. Without deciding whether or not this party is entitled, under the ruling in the case of Graham v. Swayne, 1 R. 186, to proceed summarily against the ex-Sheriff of the Parish of Livingston, we have no option left but to maintain the ruling of the District Judge.

Judgment affirmed.


source: Caselaw Access Project

author: Duffel, J.

license: Public Domain

text:
    Succession of R. L. Schmidt.—Wm. Creevy, Administrator.—J. Marks et al., Opponents.

      Per curiam : Wo concede in proper cases, the right and propriety of an administrator to employ such agents as a collector and book-keeper, and to pay them out of the assets of the succession.
    from the District Court of the Parish of Iberville, Avery, J.

      Lacy & Upton and A. Talbot, for plaintiff and appellant. Zenon Labauve, S. Matthews and E. W. Blake, for defendants and opponents.
   Duffel, J.

This is an appeal, by the administrator of the succession of R. L. Schmidt, from a judgment homologating a provisional account rendered by said administrator.

The counsel of the administrator complains, in his brief, of the rejection by the District Court, 1st. Of the claim of John B. Patterson, as bookkeeper employed by the administrator, to draw up the accounts due to the deceased. 2d. Of the claim of E. A. Arceneaux, for collections made at the instance of the administrator.

We concede, in proper cases, the right and propriety of an administrator, to employ such agents, and to pay to them a reasonable remuneration out of the assets of the succession, but the evidence adduced is wholly insufficient to show, in this particular case, the necessity of employing a book-keeper and a collector, and we have no evidence of the value of their services, and we may add, none that the services were rendered.

Judgment affirmed.


author: Vooehies, J.

text:
    In the matter of Jules Manouvrier and Wife praying for a writ of Habeas Corpus.—On Rule Nisi.
    The right of this Court to issue writs of habeas corpus extends only to cases where the parties are in actual custody under process, in all cases in which it may have appellate jurisdiction. It does not extend to the authority of taking a child from the custody of its parents.
    ON ■ a petition for a writ of habeas corpus.

      Carlee & Bayne and V. B. & J. B. Cotton, for the petitioner.
   Vooehies, J.

The relators claim the custody of a child, whom they have adopted. The defendants, the father and mother, resist the application on several grounds, stated in their answer.

Our jurisdiction is appellate in all civil matters; and our authority to issue writs of Habeas Corpus extends only to cases where the parties are in actual custody under process in all cases, in which we may have appellate jurisdiction. Const. Art. 69.

As it is not pretended that the child, whose custody is the object of the present controversy, is in actual custody under process of law, we must decline taking-cognizance of this application.

Rule discharged.


author: Buchanan, J. Buchanan, J.

text:
    Succession of Stephen Yarborough.
    “A judgment homologating an administrator’s account and discharging the administrator, rendered upon publication made pursuant to Art. 1172 of the C. C., is not res judicata as to tho heirs. That form of notice is meant merely for creditors. The heirs should have boon Cited.” 'fruxillo v. frux-illo, 6 An. 412, re-alllrmod.
    The prescription for a merchant’s account is three years. Acts of 1852, p. 90.
    No suit may be commenced against a succession until the claim lias been communicated to the administrator, and until he has cither approved or refused to approve the same. His approval must be in writing, on the claim or upon a paper which he shall annex to it. But tins formality is not sacramental. All that tho law requires is the administrator's refusal of a written acknowledgement of the justice of the claim before suit can be instituted. Nothing in the Code requires tho creditor to trust tho evidence of his claim out of his own possession. Articles C. P. 984, 985,986 and 987 are to be construed together.
    An account presented to an administrator or his attorney, and approved, is equivalent to a judicial demand, by Art. 987 of the Code of Practice, and bears judicial interest of five per cent,, end no more, from the date of such liquidation.
    Appeal from the District Court of the Parish of East Feliciana, McVea, J.

      11. J. Bowman, for administrator and appellant. Fuqua. <& Kilbourne, for opponents and appellants. J. B. Smith and W. I. Kernon, for defendants.
   Buchanan, J.

The exception of res judicata was properly sustained by the Court as to the appellees, Sizemore and wile, and Elijah Yarborough, representing the heirs of Josiah Yarborough and Claiborne Yarborough, two of the children and co-heirs of Stephen Yarborough.

The representatives of Josiah and Claiborne Yarborough were parties to an account of administration filed on the 13th June, 1856, by the opposition which they had filed to said account. The decree of homologation of the 29th January, 1857, was an unqualified one, — “ That the account stand homolog’ated, and is made the judgment of the Court, the costs to be paid by the succession.”

But the other heirs of Stephen Yarborough, appellees herein, were no parties, to the account of the 13th June, 1856, nor to the judgment thereupon. The notice to creditors was not sufficient to bind heirs. They were entitled to citation. Truxillo v. Truxillo, 11 An. 412. The administrator (appellant) objects to the rejection by the Court below, of an account of Bowman & Delee, of $1,817 33 for professional services; and argues that the opposition to this charge had been withdrawn. This only appears to be the fact as regards opponents, Sizemore and Elijah Yarborough. But the opposition of Green, tutor, &c., embraces the same item, and has not been withdrawn.

The administrator’s counsel further objects to the judgment of the Court below, that he has been charged with interest on sums collected to the date of filing account, without giving him credit for the interest on sums disbursed and paid by him. His printed argument gives a detailed statement of payments by the administrator, with interest calculated, amounting, in all, to $2,446 94, which we assume to be correct, as it is not contradicted. We allow this, as an offset, pro tanto, to the interest allowed by the Court below upon the sums in the hands of the administrator.

The appellees, Sizemore and wife and E. W. Yarborough, have answered the appeal, and pray that the items of payments made by the administrator for notes of Stephen- Yarborough in favor of his son William be rejected for the reasons alleged in the opposition, to wit, that those notes were without consideration, and intended to give the payee an unjust and illegal preference over the other children of deceased. But we find no proof in the record in support of these charges of fraud and simulation.

Byrne, Vance & Co. are also appellants from that portion of the judgment of the District Court which rejects their claim against this estate for a balance of account current of $4,819 62.

These appellants, merchants in New Orleans, were the factors of the deceased for many years, selling his crops, and supplying his plantation with necessaries.

The administrator put them down upon his account of administration filed the 16th July, 1858, for said amount, as an admitted claim against the estate.

Byrne, Vance & Co. opposed this accouut, because they were not put down for 8 per cent, interest on the balance claimed by them, from the 19th day of November, 1857, date of accouut rendered. They allege that they are entitled to said interest by agreement with the deceased, and also by the course of dealing between themselves and the deceased for many years.

The heirs, or a portion of them, also opposed the claim of Byrne, Vance <& Co. in toto, upon the ground that it was barred by tlie.prescription of three and live years ; and they pleaded, that the account current filed by B., V. & Co. embraced usurious interest, and illegal charges for labor, weighing, storage, insurance, &c.

The judgment of the District Court sustained the plea of prescription; the Judge being of opinion, from the evidence, that more than three years elapsed from the date of the last item of the debit side of this account before Byrne, Vance & Co. took any steps to enforce payment, or to obtain any legal acknowledgment of the justice of their demand.

Stephen Yarborough died in September, 1852. The account current rendered by Byrne, Vance <b Co. on the 19th November, 1857, and annexed to tlioir opposition, is composed, in part, of dealings with Stephen Yarborough during his lifetime, and in part of dealings with his administrators after his death. The first part of the account, is that contained in the items one, two, three, four and five, of the debit side of the accouut. Those items amount, in the aggregate, to $8,823 86, being composed as follows, as appears from a bill of particulars annexed to the answers of Thomas Byrne, one of the firm, to interrogatories propounded to him by the opposing heirs :

1. Balance due by Stephen Yarborough, as cash, on the 27th August, 1852, date of the rendition of the last account to himself.$ 417 70

2. An acceptance S. Y.’s draft iavor Citizens’ Bank, due 23d November, 1852. 89807

3. S. Y.’s note, favor B., V. & Co., dated March 9,1852, and due 6 January, 1853. 3,100 00 „

4. S. Y.’s note, favor B., V. & Co., dated August 27,1852, and due 31 January, 1853....:. 2,450 00

5. An acceptance S. Y.’s draft, favor Knapp & Wade, due 7th February, 1853.'.. 1,958 09

The remaining items of debit, being those incurred after S'. Yarborough’s death, consist of six sight drafts of the administrators, J. J. and L. S. Yarborough, paid by B., V. <& Có. from November 26th, 1852, to January 26th, 1853, inclusive, amounting, in the aggregate, to...$ [ XXX XX XXXX ].

March 2 — Premium of insurance on sugar-house and policy. 102 75

Sundry payments made by B., V. <& Co. on May 26th and Sept. 15th, 1853.•. 17 00

And a fee paid Crain & Nutt, May, 1855, for collecting a claim of S. Y. against Aclmill by note. 200 00

Total of charges to debit of administration, exclusive of interest.$1028 71

The prescription for a merchant’s account is three years. Acts of 1852, p. 90. From the evidence, it would seem that Byrne, Vance <& Co. rendered their account current to Stephen Yarborough on the 27th August, 1852, a few days before his death. Receipt of this account was acknowledged, and it was impliedly approved by letters of the administrators, dated 9th and 16lh September, 1852. On the 12th March, 1853, B., V. <& Co. rendered an account current to the administrators, and crediting them with proceeds of cotton crop received by them from the administrators, in deduction of balance due by the deceased Stephen Yarborongh, ($8,823 86) as per previous accounts. In answer to the letter enclosing' this last account current, Bowman. & Delee, attorneys for the administrators, wrote a letter of March 18,1853, of which the following is an extract:

“In our-letter of the 10th September, 1852, we informed you that we would ship the crop to you only on condition of-your holding the proceeds subject to our order, after paying for the supplies furnished that year, to which you agreed in your letter of 22d September, 1852. If the Court would sanction such a course, we would have no objection to paying any account that the succession owed at any time ; but it will not, and we have to-account to other creditors, having privileges on the crop, for its proceeds. We wish you, therefore, to send us an account current, showing the balance of the proceeds of the crop, after paying your account for supplies, and the drafts drawn by the administrators, and of course expect you to hold that balance subject to our order. There will be abundant means to pay your claim, but it can be paid only in accordance with its rank and privilege.”

No such separate account current, as requested, appears to have been sent; but on the 11th April, 1854, in answer to a dunning letter, Bowman <ft Delee, in their own names, make excuses for the delay in settling the amount due Byrne, Vance (j- Co., and conclude as follows : “ "We hope to be able to pay you within a short time, a thousand dollars, but it will be useless to pretend that we can pay much more, as there are many claims of equal rank, demanding that they shall have their proportion. We think the estate abundantly solvent, but delay has become an unavoidable attendant in all successions opened in our Oourt. As fast, however, as we can collect,- (and we will use no leniency in collecting,) we will remit you your proportion.”

The evidence shows that the administrators did pay, as promised in this letter, on the 7th July, 1854, one thousand dollars,in an acceptance of Oakey <& HawJdns of M. C. Cooland é Co.’s draft.

The first question to be determined arises out of these facts : Did these various letters amount to an acknowledgment of the claim of Byrne, Vance & Co., against the succession, sufficient in law to interrupt prescription ? It is urged by counsel of the heirs, on the authority of McAlpin’s case, 14 An. 617, that an aeknowledgment of a debt cannot be made by an administrator in any other form than that prescribed by articles 985 and 986 of the Code of Practice. But we do not understand the point to have been decided in that case. The facts did not require its decision, and it was in terms reserved, as an open question. The articles 984, 985, 886 and 987 of the Code of Practice are to be read together, as the system for enforcing claims of creditors of successions under administration. No suit may be commenced against such a succession, until the claim has been communicated to the administrator, and until he has either approved, or refused to approve the same. In the former case, his approbation must be in writing, according to the article 985. The administrator is directed to write his approbation upon the evidence of the claim, or upon a paper, which he shall annex to it. But this formality we do not hold to be sacramental; especially when, as in the present case, the succession is opened in a different parish from the creditor’s residence. It may be, that the creditor is not willing to trust the evidence of his claim out of his own possession; and nothing in the article contained, requires him to do so. Or, if he send the evidence of his claim to the administrator for approbation, and the administrator, instead of sending it back to him, with his approval written upon it, choose to retain it, and to write a letter to the creditor, signifying his approval, the law is fulfilled, and prescription is interrupted. All that the law requires, is, the administrator’s refusal of a written acknowledgment of the justice of the claim, before suit can be instituted, by the creditor, against the succession represented by an administrator. The reason of the law is plain ; to avoid vexatious and unnecessary costs in the settlement of such successions.

The next question raised in argument is, whether the written approval by Bowman & Delee, attorneys of the administrators, satisfied the requirements of the law? It is in proof that, immediately after their appointment, the administrators published in the newspapers the following notice:

“ All persons having claims against Stephen Yarborough, deceased, will please present them immediately to our attorneys, E. T. Merrick, or Bowman & Delee, for liquidation.
L. S. Yarborough,
“J. J. Yarborough,
Joint Administrators.”

The object of this notice evidently was, to submit to the scrutiny of the professional advisers of the administrators, the claims against the estate, in order to their liquidation, that is to say, that they might be put in a train of settlement, according to the provisions of the Code of Practice, above noticed. This was a delegation of power to approve or to withhold approbation from the claims that should be set up against the estate; a delegation which it was competent for the administrators to make, to those whom the law authorized them to employ; and to pay out of the funds of the estate, for legal advice in relation to the discharge of their official functions.

The objections to Byrne, Vance Co.’s account, on the score of illegal charges of insurance, labor, and commissions, have not been urged in argument before this Court; neither were they passed upon by the Court below. We do not deem it necessary, therefore, to notice them further. The opposition ofByrne, Vance & Co. claiming eight per cent, upon the balance due them, from the day of the last ren- . dition of their account to the administrators, cannot be sustained. This Court has, on several occasions, sanctioned the charge of eight per cent., the highest rate of conventional interest, by the factor against the planter, on the footing of an implied contract, where, as in the present case, a series of accounts current, rendered without objection, have contained a charge of interest at that rate. But this implied agreement terminated with the death of the party who made it. The account of the factor of the 27th August, 1852, liquidated by the approbation of the attorney of administrators, within a few days after their appointment, as above mentioned, was equivalent to a judicial demand, by article 987 of the Code of Practice, and fixed the amount due at that date; which thenceforth bore judicial interest of five per cent.

It is, therefore, adjudged and decreed, that, as regards the appellant, L. S. Yar-borough, administrator, 1he judgment of the District Court be amended, by allowing the said appellant a credit of two thousand four hundred and forty-six dollars and ninety-four cents, for interest on sums that have been paid out by him, as an offset, pro tanto, of the interest which he is condemned to pay, by the judgment appealed from, upon sums that have come into his hands; that in other respects, the judgment, as regards said appellant, be affirmed ; that, as regards the appellants, Byrne, Vance <& Co., the judgment of the District Court be reversed; and it is decreed, that the said Byrne, Vance & Co., appellants, recover of the administrator of Stephen Yarborough’s succession, appellee, to be paid in course of administration, three thousand and thirteen dollars and ninety-three cents, with legal interest, as follows: On the sum of $417 70, from the 27th August, 1852, to the 23d November, 1852; on the sum of $1,315 77, from the 23d November, 1852, to January 6th, 1853 ; on $4,415 77, from January 6th, 1853, to January 31st, 1853 ; on $6,865 77, from January 31st, 1853, to February 7th, 1853 ; on $8,823 86, from February 7th, 1853, to -March 4th, 1853 ; on $6,955 80, from March 4th, 1853, to September 15th, 1853 ; on $6,972 80, from September 15th, 1853, to July 7th, 1854; on $5,972 80, from July 7th, 1854, to April 30th, 1855 ; and on $3,013 93, from April 30th, 1855, until paid ; that the account of the administrator, as thus amended, be homologated; and that the costs of appeal be paid by the succession.

Merrick, O. J., being a creditor upon the tableau, recused himself.

Land, J., absent, concurring.

Same Case — On a Re-hearing.

Buchanan, J.

In our former judgment, we overlooked the circumstance, that the plea of res judicata, (which we sustained as to Sizemore and wife, co-tutors of the minor heirs of Josiah J. Yarborough, and as to Elijah W. Yarborough.) barred their plea of prescription against the allowance of credit-to the administrator for payment of the notes of the deceased Stephen Yarborough, in favor of his son, William N. Xarborough.

In this respect, our decree must be amended.

It is, therefore, adjudged and decreed, that our former decree in this case be set aside and avoided. And it is now ordered, adjudged and decreed, that the judgment of the District Court upon the account of administration herein, be amended, by allowing the administrator, L. S. Yarborough, a credit in account for the sum of two thousand four hundred and forty-six dollars and ninety-four cents, for interest on sums that have been paid out by him, as an offset, pro tanto, of the interest which he is condemned to pay, by the judgment appealed from, upon sums that have como into his hands; that the opposition of Sizemore and wife, co-tutors of the heirs of Josiah Yarborough; and that of E. W. Yarborough in his own right, and as representing the heirs of Claiborne Yarborough to the payments made by the administrator on account of four notes of the deceased Stephen Yarborough held by- Green, tutor of the minor heirs of William N.-Yarborough, be overruled and dismissed ; and the said payments are hereby allowed as a credit, in account, to the administrator; that in other respects the judgment of the District Court, as regards the appellant, L. S. Yarborough, administrator, be affirmed. And it is further decreed, that, as regards the appellants, Byrne, Vanoe <& Co., the judgment appealed from be reversed ; and that the said Byrne, Vance <& Co. recover of tire administrator of Stephen Yarborough, to be paid in course of administration, three thousand and thirteen dollars and ninety-three cents, with legal interest, as follows :

On $417 70, from August 27th, 1852, to 23d November, 1852 ;

On @1,315 77, from 23d November, 1852, to 6th January, 1853;

On $4,415 77, from January 6th, 1853, to January 31st, 1853;

On $6,865 77, from January 31st, 1853, to February 7th, 1853 ;

On $8,823 86, from February 7th, 1853, to March 4th, 1853;

On $6,955 80, from March 4th, 1853, to September loth, 1853;

On $6,972 80, from 15th September, 1853, to July 7th, 1854;

On $5,972 80, from July 7th, 1854, to April 30th, 1855 ;

And on $3,013 93, from 30th April, 1855, until paid ;

That the account of administration, as amended by the present decree, be homol-ogated, and made the judgment of the Court; and that the costs of appeal be paid by the succession.

Merrick, O. J., being a creditor upon the tableau, recused himself.

Land, J., absent, concurring.


author: Merrick, C. J.

text:
    Alfred Hennen v. S. H. Wood et al.
    The issuing of a patent for land by the United States does not affect nny rights subsisting between third persons and the patentee, growing out of contracts in relation to the land covered by the patent. The patent, to whomsoever issued, inures to the benefit of the party to whom the patentee is bound to convey it, or for whose use he ought in law to hold it. 9 An. 137 ; 15 An. 514.
    A surety has no interest in inquiring into a suit further than to be assured of his subrogation when he makes payment. Re, therefore, cannot complain of irregularity in the proceedings when they do not affect him. •,
    A judgment dissolving the injunction and directing the Sheriff to sell, on the twelve months bond, and ordering the plaintiff to pay the like amount in solido with two other persons, is a double judgment against the same party for the same debt, ultra pelitionem, and w'll bo reversed.
    Appeal from the District Court of the Parish of St. Tammany, Wilson, J.
    Plaintiff pro se, appellant. Jesse R. Jones and Durant & Hornor, for defendants.
   Merrick, C. J.

The plaintiff signed a twelve months’ bond as surety for one John Reliar. Execution having issued thereon against the surety, he injoins the sale of his property -which has been seized, on various grounds, and makes the Sheriff, Sarah Woods, Buclcley é Ilolt, John Kellar, William Jay, J. M. Durand, individually and as syndic, and Zebidee Doten, an absentee, parties to the suit. The case was tried by a jury, and resulted in ft judgment and verdict in favor of the plaintiff, so far as to allow him a credit of $501 25 on the twelve months’ bond, and the injunction for the residue of said bond was dissolved, the land on the sale of which the twelve months’ bond was made being decreed in the hands of William Jay, subject to the mortgage reserved thereon, and to stand as an indemnity to the plaintiff; and judgment was given absolutely in favor of Mrs. Wood and Buckley <& Holt, against Hennen, Jay and Durand, syndic, in solido, for $1,170 75, the residue of the bond and interest, and the proceeds were ordered to be brought into Court for distribution.

Alfred Hennen appeals.

William Jay answered in the lower court, apparently without the aid of counsel ; and although we find his bond for appeal in the record, we do not perceive any motion on his behalf or order, allowing the appeal; neither has he been represented in this Court by counsel. In the consideration of the case, we shall not undertake to recapitulate the proceedings, nor consider seriatim the numerous points contained in the elaborate briefs and oral argument made by counsel in this ease. We shall content ourselves by recapitulating such facts (corroborated as they have been by the finding of the’jury) as have, in our opinion, a controlling influence in the decision of the cause.

It appears that in 1850, J. M. Durand, of this city, had in his possession as owner about four hundred acres of land, a part of a tract originally claimed by the heirs of Broutin and De la Ronde, under an imperfect Spanish grant. The northern line of this grant ran diagonally across the S. W. quarter of the N. W. quarter of section nine, in township nine, south, range 15, east, as well as lot No. 1, corresponding with the N.-E. quarter of said quarter section.

The line appears to intersect the two quarter sections at their interior corners ; that is, it touches the centre of the N. W. quarter of said section nine. Hence, no part of the N. W. quarter of N. W. quarter of section nine, in township nine, and only a part of lot No. 1, or the N. E. quarter of said quarter, is found in the De la Ronde grant.

Durand had a steam saw-mill upon the portion of the De la Ronde grant claimed by him. On the 10th day of May, 1850, he sold the land to Zebidee Do-ten for the sum of eight thousand dollars, seven thousand dollars of which were secured by notes and a mortgage upon the land, on credits running from six months to four and a half years.

On the 8th of June, 1852, Durand by notarial act transferred to Buckley & Holt one of the notes for $1,000, payable in two years from date (May 13, 1850,) and bearing interest at the rate of five per cent, from date until paid.

On the 19th day of July of the same year, 1852, Buckley <& Holt obtaineá an order of seizure and sale upon the note held by them.

Mrs. S. H. Wood, holding another of said notes for $740, bearing the same rate of interest, but not matured, intervened and claimed her proportion of the proceeds of the sale.

Various other proceedings were had in this and another suit which it is not now necessary to mention. It is sufficient to say, that the Sheriff was ordered to sell the land not only by the order of seizure and sale, but by a decree rendered on the 12th of November, 1853, by which he was directed to proceed and sell, and bring the proceeds into Court for distribution.

On the 7th of January, 1854, the Sheriff sold the property for $1,685, to John Kellar, on twelve months’ credit, under advertisements calling for a bond to be given bearing- eight per cent, interest.

The bond was given in terms corresponding with' the advertisement, and A. Hennen became the surety of John Kellar. •• '

' A.t this time William Jay was, as he had been previously, in possession of the saw-mill under seizure, and the purchase by Kellar was, it is shown, either .made for his sole benefit or that of himself and Kellar in partnership.

Five dáys afterwards, William Jay instituted a suit in the Circuit Court of the United States in this city, against John Kellar, alleging himself to be the owner, by purchase from the United States, of 142 10-100 acres of land", being lots Nos. one, four and five, and the N. E. quarter of S. W. quarter of section 9 ; and also owner of the N. W. quarter of the N. W: quarter of said section 9, adjoining the above, which he claimed in virtue of the location thereon of a land warrant bought of John Kellar. ' '

Kellar answered the suit, and gave notice to the payees of the twelve months’ bond of the pendency of the same.

Judgment was rendered in favor of 1Yilliam Jay May 17th, 18.54, decreeing him the land.

On the 5 th of April, Z. Doten brought suit in the Sixth District Court to have the Sheriff’s sale annulled for various causes. S. H. Wood, Buckley & Holt, and John Kellar, were defendants. ' In this suit judgment was rendered May 18,1855, in favor of defendants, and of course it has the effect of the thing adjudged on the question of the validity of the sale as between Doten and the syndic of Kellar and defendants.

In the mean time John Kellar, viz., on the first day of June, 1854, also instituted a suit in the Sixth District Court to annul the twelve months’ bond and recover damages for the eviction. He went into insolvency, and the last mentioned suit does not appear to have been tried.

The suit between Jay and Kellar in the United States Court must have been tried on the certificates of purchase and entry; for patents did not issue in Jay’s favor until January, 1855, and February, 1857.

The De la Ronde grant was confirmed by a special Act of Congress, 23d August, 1856, with a proviso that it should not interfere with adverse valid rights of other persons, if such existed, on any part of the land embraced in the original survey of Trudeau. Special Acts Congress, 1856, p. 34, ch. 7.

On the 23d of May, 1859, execution issued on the twelve months’ bond against A. Hennen, the surety, for $1,685, and eight per cent, interest from its date, and his plantation was seized under the same.

The present injunction was filed 27th day of July, 1859, to restrain the sale of property seized under the exécution.

The only points which we deem it necessary to consider, are, whether Jay’s title and suit can be considered an eviction ; and what effect must be given to the fact, that the notices of sale and twelve months’ bond specify the rate of interest at 8 per cent., when the notes bore only 5 per cent., and-the order of the Judge corresponded with the same; and also whether the double judgment in this case is error.

I. It is shown that the land was not worth much, if any thing more than the price for Government laud; and that the steam mill, which was on the portion of the tract entered by Jay, was worth about $2,000.

The proof also mates it extremely probable that Kellar and Jay both knew at the time of the purchase the condition of the land at the Land Office. The jury evidently believed that Jay, who was in possession before and after the sale, was interested in the purchase in the name of John Kellar as a partner, and that the suit in the United States Court was collusive, and brought to relieve Kellar of the bond, and to enable him and Jay to hold the steam saw-mill without paying for the same.

If such were the facts, (and we must say the testimony does not lead us to a contrary conclusion,) then William Jay stands, so far as the De la Ronde title extended, in the shoes of Kellar his agent.

Then what principle of law is applicable to the same; that settled in the case of Hall, Syndic, v. Nevill, 3 An. 326, as contended for by plaintiff, or that in the case of Pepper v. Dunlap, 9 An. 137, cited by defendants’ counsel? We are of opinion that the latter case governs. Kellar and Jay cannot be permitted to benefit themselves by means of their collusion, to the detriment of Doten and his creditors. The title which they acquired, with the intention of committing a fraud upon such parties, must be held in their hands as in aid of the De la Rond title, and the price only of the same deducted from the twelve months’ bond. See Succession of Cox, 15 An. 514.

The proof does not show with much accuracy how much of the lot No. 1 is embraced in the De la Ronde grant. As this lot has three sides made by the township and quarter quarter section lines, and as its eastern boundary is not far from north aud south, and it contains only 31 62-100 acres, and as the northern line of the De la Ronde tract runs from its S. W. corner north 52° east, there will be no error to the prejudice of the plaintiff, if we assume that such portion is less than one-half, and fix the quantity at fifteen acres.

The whole quautity, then, will be one hundred and twenty-six acres, and its cost $157 50.

II. The next question is, as to the effect of the error in taking the twelve months’ bond to bear eight per cent, interest instead of five per cent.

The rate of interest undoubtedly was taken into consideration, and entered into the bid as a part of the price. And as a consequence, the principal sum bid was less than it would have been, if the rate of interest had been lower.

The parties to the suit, and perhaps the purchaser, (it seems to us,) were the only persons who could complain that the sale was irregular in this respect. But the purchaser would be interested only in order to secure a good title, and when in such controversy to which he was a party, the title should be declared valid, he could have no legal ground of refusal to pay the price. Then, as by the judgment of a competent tribunal the sale has been declared valid, we do not see how the surety can be relieved from paying, according to the terms of the agreement. The surety has no interest in inquiring into the affair, further than to be assured of his subrogation when he makes payment.

The case of Wright v. Higginbotham, 10 Rob. 30, differs from the case at bar in this, that the judgment debtor, and not the surety of the purchaser, complained of the sale in that case, and there had been no judgment having the force of the thing adjudged, barring the right of the debtor and purchaser to rescind the sale.

III. The remaining question is, whether the judgment appealed 'from is erroneous in that part which condemns the plaintiff) as a debtor in solido, to pay-the sum of $1,173 75 and interest, in addition to the dissolution of the injunction.

The prayer of the defendants.in injunction was, that the same be dissolved, and for damages.

The-effect of the decree dissolving the injunction and directing the Sheriff to sell on the twelve months’ bond, and sentencing the plaintiff to pay the like amount in solido with two other persons, is a double judgment against the same party for the same debt. It is also ultra petitionem.

The judgment is therefore erroneous in this respect.

It is, therefore, ordered, adjudged and decreed b.y the -Court, that the judgment of the lower Court be reversed as to the said plaintiff, A. Hennen ; and we do now order, adjudge and decree, that said twelve months’ bond, and the execution issued thereon, be credited as of the date of said twelve months’ bond, with the sum of $157 50, and that the injunction be sustained for said amount. And it is further ordered, that said injunction be in all other respects dissolved, and that the Sheriff proceed to sell and make the money under the said execution, subject to the credit aforesaid. And it is further ordered, adjudged and decreed by the Court, that said tract of land, sold by the Sheriff to the said John Kellar, stand mortgaged for the payment of said bond. And it is further ordered, that the ap-pellees, including said William Jay, pay the costs of the appeal, and the said Herir nen the costs of the lower Court.

Vooehies, J., absent.


author: Vooehies, J. Merrick, C. J.,

text:
    Succession of Anna Mathilda Morales, Wife of Bernard Marigny.
    Where it is stated in a nuncupative will that it was dictated to the Notary, yet in point of fact there was no dictation — Held: That it was valid as a private act.

    When a testator causes a will to be written, whether in the presence or in the absence of witnesses, and presents the instrument to them, declaring that it contains his last intentions, it is a full compliance with article 1574 of the Civil Code. The decision in the case of Prendergast v. Prendergast, ante p. 219, re-affirmed.
    Merrick, C. J., dissenting. In the nuncupative testament the testator must himself orally decrare his wishes, otherwise there 3s no dictation. The mode of drawing up nuncupative wills is directed ex professo by articles 1563 and 1575 of the Civil Code. “ Nuncupative ” ipeans to pronounce orally, or in words without writing, and the very nature of the will nuncupative implies a dictation.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Lea & Marr, for plaintiff and appellant. Durant SHornor, Paxton, Bon-ford and others, for defendants.
   Vooehies, J.

The last will and testament of Mrs. Bernard Marigny, a nun-cupative will by public act, is assailed on the ground that, although there is a statement in the instrument that it was dictated, yet there was not in point of fact a dictation.

As we are satisfied that, under articles 1574 and 1583 of the Civil Code, it is valid as a private act, we need not decide whether or not there had been a dictation in the sense of the law.

The facts are undisputed.

There were present in the room, the testatrix, the notary, and four persons officiating as witnesses.

The testatrix drew from hey pocket a paper, which she handed to one of the witnesses, stating that it contained her last intentions, drawn up by her order. At the request of the notary the paper was handed to him ; whereupon the testatrix requested him to read the paper. This was complied with in the presence of the witnesses. She then requested the notary to copy the contents of the paper as her will. He did so ; and, at the close of each paragraph, read the same to the testatrix paragraph by paragraph, enquiring of her whether that was her meaning. She answered each time that it was, causing the notary to read over one of the paragraphs, which she had not well understood. Then the whole, as copied from the paper, was read to her in the presence of the witnesses ; and she again declared that this was her will.

The instrument was thereupon signed by the testatrix, the notary and the witnesses.

So far as regards the number of witnesses, the presentation of the will by the testatrix, her declaration that it was her last will, it is obvious that there is a lit-teral and strict compliance with the second paragraph of article 1 S'!4 of the Civil Code.

The only questions are, whether this article by the terms “ caused it to be written ” means a dictation ; and, secondly, whether it is imperative as to the absence of the witnesses:

In the case of Prendergast v. Prendergast, we held, that, when the testator had caused the will to be written, whether in the presence or in the absence of the witnesses, and had presented the instrument to them, declaring that it contained his last intentions, this was a full compliance with article 1574 of the Civil Code. For the reasons given in that case :

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that the last will and testament of Anna M. Morales, deceased, be declared- valid asa nuncupative testament by private act, the plaintiff and appellee paying the costs of appeal.

Merrick, C. J.,

dissenting. However accurate the copy of the paper produced by the deceased to the notary may have been, it must be conceded on all sides that it was not dictated by her.

The authorities arc quite clear, that in the nuncupative testament, the testator must himself orally declare his wishes, otherwise there is no dictation.

If it were dictated, it was good .as a nuncupative will by public act, and there the case would end.

Had the paper which the testatrix had in her possession been executed in the presence of the witnesses, and declared to be her last will and testament, and signed by her, it would prima facie have been sufficient, as a nuncupative will by private act. But instead of this, she handed the paper to one witness, who handed it to the notary, who copied it as he sáys, and read the disposition to the testatrix and witnesses. "What witness, except the notary, knows but by accident or design, something was omitted from or some important word changed in the copy? The high character of the notary in this instance is thej only guaranty against such accident, and the law does not submit essential matters of form to the capacity or standing of the officer executing the instument.

There are three articles of the Gode which relate to the instrument in controversy considered as a nuncupative will under private signature.

The first is the general article 1568, O. O.” It declares that “ Testaments whether nuncupative or mystic must be drawn up in writing either by the testator himself or by some other person under his dictation.” Art. 1874. “ A nuncu-pative testament under private signature must be written by the testator himself, or by any other person from his dictation ; or even by one of the witnesses in the presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out .of that place.

“ Or it will suffice if in tlie presence of the same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written out of their presence, declaring to them that that paper contains his last will.”

Art. 1575. In cither case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator ; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses or at least by two of them in case the others do not know how to sign ; and those of the witnesses who do not know how to sign must affix their mark. This testament is subject to no other formality than .those prescribed by this and the preceding article.”

These articles of the Civil Code treat ex professo of nuncupative wills. What is the meaning of the word nuncupative ? In its origin, it meant to pronounce or declare publicly in solemn words. .In the civil law it means to pronounce orally or in words without writing. See 2 Black. Com. 500. Burrill Law Die. verbo nuncupare. Ainsworth idem. Webster nuncupative.

The very nature of the wilHn question implies a dictation. The taking down of the words of the testator by another. When, therefore, article 1568 declares that the nuncupative will must be written as dictated, and article 1574 repeats the provision by saying that the nuncupative will, under private signature, must be written from dictation of the testator by some person, I think it is a provision of law which 'cannnot be disregarded. We said in the case of Babineau v. LeBlanc et al., that the article 1574, O. C. admitted of two forms of execution of the nuncupative will under private signature, viz : the one where the will is dictated in the presence of the witnesses; the other where it is written by the testator, or by him or -her caused to be written out of the presence of the witnesses.

The will in controversy purports to be executed in the first of these forms, and should, therefore, have been shown to have been written 'as dictated. ■

Had the testatrix caused the will to be written out of the presence of the witnesses, and had she presented the same to the witnesses and declared to them that it contained her last will, the law would have presumed that she had dictated it and had caused it to be written as dictated.

To my mind the words “ out of the presence of the witnesses,” have some meaning in the article cited. As I said in substance in the case of Prendergast, I can understand the difference between the deliberate consideration of the dispositions of a will made at leisure at one’s chamber with a single friend or alone, and with abundant time to read its provisions after it is written, and to consult with those capable of advising as to its effect, and a will hastily drawn in the presence of five or seven gentlemen of the neighborhood" called to witness the making of the will. In the one case, the mind would be calm and collected ; in the oiher more or less agitated. In the former case the law might well presume that the will had been written as dictated, and in the other require that it should so appear by the proof in order that parties should not'avail themselves of these circumstances to obtain by captation or surprise what would not otherwise have been given.

In the case of Bordelon v. Baron, 11 An. 676, it was shown that the testatrix presented the paper and declared the same to be her last will and testament in the presence of the witnesses. And it was also stated at the foot of the will that it “was written from her dictation by Relph Cushman, one of the witnesses, and that she signed the same in their presence, &c., &c., p. 677.

That case was, therefore, precisely in point. The testatrix caused or directed the will to be written, and she presented it and declared it to be her will. The four judges then present held that it was invalid because it was not dictated by the testatrix, and written as dictated ; a point directly made by the pleadings as understood by the Court. See 11 An. 678. In that case the question was fully considered after a thorough examination of the authorities. The case of Eu-banks was decided upon the principle that article 1574 applies to two classes of cases. Por it was held that one part of the instrument was valid because it was written as dictated, and that the other part was sufficient, because it was caused to be written out of the ‘presence of the witnesses. 9 An. 148.

It is urged as an objection to the view that there is a distinction between the first and second clauses of article 1574 in regard to the execution of the will, that it would render invalid a will written by the testator himself. I see no such consequence because the article expressly declares in the first clause that the will must be written by the testator himself or any other person from his dictation. The fact that both clauses of the article refer to wills written by the testator and those written under his dictation, shows that the word dictation also has reference to both paragraphs as held in the case of Bordelon v. Baron.

I cannot perceive in what way the presence of the witnesses would be fatal to a will, if it were written as dictated. Their presence would be fatal if not so dictated, because the want of dictation would be readily proven. Not, so where the testator produces a will which he has caused to be written out of their presence, and which he has had in his possession, and examined at leisure. If he presents such will to the witnesses, and declares to them that it is his last will, it' is presumed to have been dictated by him as required in the first clause of the article. Whether the presumption can be rebutted is not necessary to decide.

The question becomes the more important in-view of mystic wills which are also provided for by article 1568, which says that they, as well as nuncupative wills, must be drawn up either by the testator or some other person under his dictation, yet when they are presented to the witnesses he is required to declare to the notary, in the presence of the witnesses, (after presenting the will) that the paper contains his testament, written by himself or another, by his dictation, and signed by him, the testator. C. 0.1577.

Again after prescribing these forms for both class of wills, nuncupative and mystic, the code declares that the formalities to which wills are subject must be observed, otherwise they are null and void. 1588 C. C.

The reason of the law in both cases is the same, and I find it impossible to believe that article 1568, and the first clause of 1574 were written in vain. Neither do I feel at liberty, as already said, to strike the words, or caused to be written out of their presence,” from the second clause of the article, and I therefore dissent.


text:
    Hélène Barbet v. Alexander Roth.
    Where the husband administered the paraphernal property of the wife, during the existence of the marriage, he is responsible for the amount of that property alienated by her.
    An act, whether authentic or under private signature, is proof between the parties, even of what is there expressed only in enuuciative terms ; provided, the enunciation have a direct reference to the disposition. So that when the defendant having assisted and authorized his wife in various conveyances of landed property and slaves declared in the acts to be her paraphernal property, the plaintiff was not required, as against the defendant, to prove the verity of the declarations of ownership.
    Attorney’s fees paid by the community, incurred for the separate account of the wife, should be charged to her estate.
    Where interest was paid on a stock loan, the personal debt of the wife, the amount should be charged to the community. 14 An. 2S1.

      Appeal from tlie District Court of the Parish of Iberville, Avery, J.

      Samuel Mathews, for plaintiff. Zenon Labauve, for defendant and appellant.
   Duffel, J.

This is a partition suit, instituted by the plaintiff, as forced he.ir of her daughter, Lodmsha Langlois, deceased wife of the defendant, against the latter, who is recognized as owner, in his own rights, of one-half of the property belonging to the community which existed between him and his deceased wife, and as owner, under the will, of two thirds of the estate of his said deceased wife.

The defendant has appealed from the judgment of the District Court, fixing the mode of the partition and determining the contestations presented by the pleadings, and the plaintiff has asked various amendments.

Both parties assent to the judgment as far as it decrees the sale and fixes the terms and conditions thereof, and rest their objections to certain moneyed demands, some of which were admitted and others rejected by the District Judge.

The defendant admits in his answer, that he administered the paraphernal property of his wife during the entire existence of the marriage ; hence he is responsible for the amount of the paraphernal property alienated by her, and the community was, under the evidence, properly debited with such proceeds amounting to the sum of $19,450 87. C. C. 2362, 2367. Gillett v. Deranco & al. 6 An. 590. Pierre Breaux, Administrator v. Therence LeBlanc, Administrator, lately decided.

We will here remark, as the point was made in argument, that the defendant having assisted and authorized his wife in various conveyances of landed property and slaves, declared in the acts to be her paraphernal property, the plaintiff was not required, as against the defendant, to prove the verity of the declarations of ownership. C. C. 2235. Kirland v. N. O. Gas Co. 1 An. 299.

We will now examine certain claims set up by the defendant against the separate estate of Ms deceased wife.

1st. The District Judge rejected various claims, amounting in the aggregate to $410, which were paid by the community, for attorney’s fees and costs, all incurred during the marriage, for the separate account of the defendants’ wife.

This sum should have been allowed. Tucker v. Carlin & wife, 14 An. 734.

2d. The District Judge allowed to Ihe community, the amount of a stock loan, $1950, paid to the Union Bank^ of Louisiana; it being a personal debt of the defendant’s wife, but rejected the yearly interest paid on said bond, according to the charter of the bank. This item of interest amounting- to $955 50 was erroneously disallowed, Davis v. Robertson, 14 An. 281.

3d. The defendant claimed $18,000, for the improvements made by the community, on the plantation inventoried as the separate estate of his wife. This property was appraised with all the improvements at $25,000; and the same was also appraised, having in view the improvements that were on it at the date of the marriage, but exclusive of the other improvements, at $11,200, thus making a difference iu favor of the community of $13,800.

The District Judge based his calculation on the testimony of witnesses who valued the property, first in a state of nature, and next with all the present improvements ; the Judge adding to the first estimate the value of the improvements, at the date of the marriage, say : $2602, thereby producing $8598 for the improvements made during the marriage.

The appraisement contained in the inventory, and re-affirmed by the appraisers on the stand, conforms more with the rule re-asserted in the case of Babin v. Nolan, 6 Rob. 509, than the mode pursued by the District Judge; yet we are not prepared to say that, in this particular instance, substantial justice was not rendered.

Some of the reasons assigned by. the appraisers are not satisfactory to us ; for • example, one of them, on his cross-examination, values the land, in a state of nature, at $40 per arpent, the very sum adopted by the court, and yet his estimate, with the improvements extant oh the day of the marriage, and which consisted of I or 8 arpents of cleared land, some old negro cabins, an old corn house, and the present dwelling house, which .has since been improved, falls short, by $1600 of the amount produced, at the rate of $40 per arpent.

The defendant’s wife by act dated December 28th 1846, sold to Charles Boolcsh the undivided half of the plantation in question, together with other property, and acquired in return, from the purchaser, the undivided half of a number of slaves ; and the whole was thrown into an ordinary partnership. The wife thereafter took no concern whatever in the matter, and the husband acted as absolute master so fay as his wife was concerned, until the 12th of October 1849, when the partnership was dissolved, and a mutual reconveyance made of the property transferred by the act of Dec. 28th 1846.

The District Judge applying, as we think erroneously from the facts disclosed by the evidence, the principle enunciated in the case of Dodd v. Orillion, 14 An. 68, deducted $7862, the presumed value of the improvements made during the existence of the partnership with Boolcsh, and thus found in favor of the community only $736.

This result is not, as far as our researches have served us, sustained by the evidence. The testimony of the former partner, Boolcsh, who had full means of knowledge, fixes the value of all the improvements made during.their partnership, without making any allowance for wear and tear, at $4425.

The evidence shows that the defendant made.numerous buildings, including a brick sugar house, and put in a state of cultivation, at the lowest estimate, 68 arpents of land, none of which are included in the estimate of Boolcsh, and yet the conclusion of our brother of the court a quo makes an allowance of only $736 for all these improvements.

By holding the parties strictly to their pleadings, the plaintiff could not obtain any deduction on the appraised value of the improvements made during the. partnership with BooJcsh, for she was a party to the public inventory, and signed it without any protest, and in her petition her complaint is only directed to the amount of the valuation ; she asserts no separate right to the improvements, and evidently concedes the interest of the community in the same.

But as the parties adduced on the trial, evidence pro and con., we will, as has been repeatedly sanctioned by this court, give full effect to the evidence before us.

The defendant’s wife, by the Act of October 12th 1849, acquired the undivided half of Booksh in the improvements made during the partnership, for which, under the proof, her separate estate is entitled to a deduction of $2212 50 on the value of the improvements, $8598, thus leaving $G385 50 to the credit of the community.

All the other dispositions of the judgment meet our approbation.

It is, for the reasons assigned, ordered and decreed, that the judgment of the District Court be amended by crediting the community : 1st, with the amount of attorneys’ fees and costs, say four hundred and ten dollars; 2d, with the further sum of nine hundred and fifty-five 50-100 dollars, amount of interest paid to the Union Bank; and 3d, with the further sum of six thousand three hundred and eighty-five 50-100 dollars, amount of the improvements made on the separate landed property of Lodotika Langlois, described in the public inventory of her estate, in lieu of the sum of seven hundred and thirty-six dollars, allowed by the District Judge.

It is further ordered and decreed, that the judgment of the lower court, amended as above, be affirmed, the plaintiff and appellee paying the costs qf the appeal.

Vooehies, J., absent.


text:
    The State v. Antoine Benoit.

      A pardoned convict can testify in a criminal prosecution, but one who has served out his time of punishment caunot. The endurauco of the penalty does not remove the infamy.
    The decision in the case of the Stale v. Sarah Connor, f. w. c., 7 An. 379, overruled.
    In civil matters, under article C. C. 2260, those whom the law deems infamous arc not competent witnesses.
    Act of 1S55 permits convicts to testify for and against each other in lawsuits.
    Appeal from the First District Court of New Orleans, Hunt J.

      T. W. Collens, for appellant. T. J. Semmes, for the State.
   Vooehies, J.

The prisoner was sentenced to death for the crime of murder.

In order to obtain a reversal of this judgment, he sets up as an error of law the ruling of the District Judge, admitting as a witness on behalf of the State, one Sylvester Beaulieu, who had been sentenced to hard labor for the crime of horse-stealing, and who, alter having undergone his punishment, had been discharged in due course of law.

The objection to the competency of this witness was his infamy, — “ which objection,” says the bill of exception, was overruled by the court on the authority of the decision of the Supreme Court in the case of the State v. Sarah Connor,” 7 A. 379. The point decided on that occasion, was that the competency of a witness is restored when he has suffered the penalty of the crime, of which he has been convicted.

The defendant’s counsel contends that the ruling in Gordon’s case is erroneous, and urges upon this court to review the question.

There is no statute upon this subject matter in this State; the competency of witnesses, in a criminal prosecution, must, therefore, be tested by the common law as it existed in the year 1805, when our Territorial Legislature adopted the common law rules of evidence. Act 1805, p. 440, Sec. 33.

If we refer to the elementary writers, we find the rule to be : that a person who has been convicted of a felony and sentenced by a final judgment, becomes incompetent as a witness by reason of his infamy that the infamy results from the nature of the offence, and not from the punishment; — that the competency is restored by pardon, or by what is in the nature of a statute, pardon, the benefit of clergy ; and that, in no case, the execution of the sentence has that effect. MacNally’s evidence, p. 206, 218 ; — Burn’s Justice vol, 1, p. 543 ; — Greenleaf's Evidence vol. 1, sec. 372, 377, 378 ; — Wharton, Or. L. sec. 760 ; — Bouvier verbo Infamy ; — Archibald Or. P. p. 145 ; — Blackstone, vol. 3d, p. 370, vol. íy, p. 374, ; — Roscoe Ev. p. 122.

Before the abolition of the benefit of 'clergy, says Archibold, “ an endurance of the punishment upon the conviction of a clergyable felony had the same effect in restoring competency as an actual pardon. 6 G. 4, c. 25, s. 2. The effect of this statute after the abolition of .the benefit of clergy was doubtful, and therefore it was enacted by stat. 9 G. 4, c. 32, s. 3, that, upon a conviction for any felony not punishable with death, an endurance of the punishment adjudged for the same should have the effect of a pardon under the great seal as to the felony,” (p. 146. See also Roscoe Or. Ev. p. 124.)

The doubts entertained, (“ respecting the civil rights of persons convicted of felonies, not capital, who have undergone the punishment to which they have been adjudged,” had no reference to what was the law previously to the year 1805 ; but they had arisen from statutory enactments passed since that period. The 9th statute of George iv, c. 32, was a consolidation of the various statutes, which had heen enacted on that subject; — Roscoe p. 124 ; — and, in England, is an authoritative exposition of the common law, as modified by those statutes. If taken as an.original statute, it certainly can have no effect here; and oven if a declaratory statute, it is entitled to no authority in our courts but its moral ■weight. This, however, would leave the question precisely where it was before ; and we would yet have to ascertain, whether, previously to 1805, the common law had been so amended by Parliament that incompetency by reason of infamy was removed by having undergone the punishment. The statute which made this restoration of such incompetent witnesses was the 6th George iv. c. 25, This Act, which also treated of other matters connected with this subject, was followed.by the 7th and 8th of George IT, c. 28, and finally by the 9th of the same reign, c. 32, of which special mention is above made. To no antecedent Acts of Parliament are convicts indebted for a restoration of their competency as witnesses, by reason of. their having undergone the adjudged punishment.

The consequence is that, in this State, unpardoned convicts cannot testify in a criminal prosecution. But it shall be lawful to receive the testimony of convicts for or against each other in any suit which may occur in any of the courts of this state.” Acts 1855, p. 208, s. 3. And, in civil matters, under article O. O. 2260, those whom the laws deem infamous are not competent witnesses.

We conclude that, as it is not the punishment, but the nature of the crime, that renders the convict infamous, the endurance of the penalty does not remove the infamy ; and that such being the common law at the time of its adoption by our territorial Legislature, this rule of evidence was engrafted upon our jurispru-deuce, and is yet obligatory upon our courts.

We consequently overrule the case of the State v, Sarah Gordon, [Connor] upon which ruling the District Judge admitted Sylvester Beaulieu, f. m. c. as a witness on behalf of the prosecution against the accused Antoine Benoit, f. m. c.

It is, therefore, ordered and decreed, that the verdict of the jury and the judgment of the District Court be reversed ; aud that this cause be remanded for a new trial in due course oí' law.

Land, J., absent, concurring.


author: Meerick, C. J.

text:
    Charles M. Gillis & Co. v. Nelson & Donalson.
    The ^voces-verbal of a survey made under the order of the Court is admissible in ovidonce as a plan connected with the surveyor’s testimony and essential to its explanation. 6 N. S. 339.
    Prescription ceases to run, whenever the debtor or possessor makes acknowledgment of the right of the person whose title they prescribed. So that where defendants aggravated a servitude within ten years, prescription was interrupted, and the plaintiff’s right acknowledged.
    The verbal declarations of a defendant may be given in evidence even to charge land with a servitude, when they tend to interrupt prescription.
    He to whom a servitude is due has a right to make all the works necessary to use and preserve the same. Such works arc at his expense, and not at the expense of the owner of the estate which owes the servitude, unless the title by which it is established shows the contrary. C. C. 768,769.
    If the proprietor of two estates between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, ’the same shall continue to exist actively or passively in favor or upon the estate which 1ms been sold. C. C. 765, 771.

      Per curiam: It does not appear to us that a person not a party to an agreement, nor representing real property to which it has relation, can maintain an action upon it, unless there is an express stipulation in his favor, or one which results by a manifest implication.
    Appeal from tbe District Court of the Parish of Lafourche, Roman, J,

      Bush, Beattie & Attain, for plaintiffs. Clifford Belcher, for defendants and appellants.
   Meerick, C. J.

“ On the 29th day of November, 1843, the heirs of Thomas Bibh viere the owners of two plantations fronting on the Bayou Lafourche, and having a depth of eighty arpents. The upper one of these plantations was called the Cóulon Place, and the lower the Johnson Place. The two places were separated from one another by the plantation of the estate of John Mills, also fronting on the Bayou Lafourche, and having also a depth of eighty arpents.”

“Bernard Morvan was then the owner of a small tract of land in the rear of these three plantations.”

“ To facilitate the draining of the Ooulou plantation, and carry the surplus waters of the same into the swamp on tbe rear of the Jolinson Place, belonging to the same owners, the heirs of Thomas Bibb, one of the heirs purchased a narrow strip of land in the rear of the Mills plantation on which to make a ditch or canal from the Oonlon to the Johnson Place.”

“As the action in this ease is based principally upon this act, we shall copy it from the record.”

“ICnow all men by these presents, that Bernard Morvan and Marie Bondreaux, wife of said Morvan, both of the Parish of Lafourche Interior, for and in consideration of the sum of seventy-five dollars to them in hand paid, the receipt whereof is hereby acknowledged, have this day bargained, sold and delivered to Thomas Bibb, of the said Parish of Lafourche Interior, a parcel or lot of land situated in said parish, included, bounded and surrounded by the following lines, viz: Supposing a line drawn in a northerly direction on the lower or eastern line of the Coulon plantations, situated in said parish, belonging to the estate of Thomas Bibb; said line to run on the boundary between the plantation known as that belonging to the estate of John Mills and the said Coulon plantation, to continue to the end of the double concession, or until it strikes the plantation of Bernard Morvan. Prom this point, whence [where] such a line would strike the plantation of Bernard Morvan, commences the boundary and dimensions of the lot or parcel of ground sold by said Bernard Morvan to Thomas Bibb, to wit: Prom thence twenty-five feet in western direction, on the line between the Coulon plantation and the plantation of B. Morvan; thence northerly twenty-five feet, thence easterly twenty-five feet, from and parallel to the present line between the plantation belonging to the estate of John Mills and that of B. Morvan, to continue in the same direction twenty-five feet beyond or to the east of where said line would intersect a line drawn in a northern direction on the boundary between the Johnson plantation, belonging to the estate of .Thomas Bibb, and the plantation belonging to the estate of John Mills ; thence twenty:five feet south, until it strikes the boundary between the Johnson plantation and that of B. Morvan.”

In testimony whereof, the parties have signed their names, except the said Morvan and wife, not knowing how to sign, made their ordinary mark in presence of B. F. Cross and Henry E. Ledet, witnesses, this 29th November, eighteen hundred and forty-three.”

“ It is well understood, before the agreement is signed, that the said Bibb obligate and bound himself to throw the dirt on the north side of the dight, [ditch] and also to continue the said dight [ditch] so the water shall never interfere said Bernard."

Signed, Bernard Morvan, his M mark.

Marie Bondreaux, her M mark.

Thomas Bibb.

Witnesses signed : H. E. Ledet.

B. P. Cross. ”

“It should be observed here, that although this land was purchased in the name of a single one of the heirs of Thomas Bibb, it it is evident that it was acquired for all of the heirs, for the improvement of the property owned by them jointly, and they so treat it in a subsequent act.”

“This agreement, under private signature, was duly proved, and recorded in the conveyance office of the parish.”

“ On the 14th of February, 1846, Bibb’s heirs sold to the defendants, Nelson & Donnelson, the Coulon plantation, and in the sale is contained this clause:”

“ And it is hereby agreed and understood by and between the said parties, that the said purchasers shall have the right and privilege of draining the said plantation in the same manner that it has heretofore been drained, and that the leading canal or ditch on said plantation is to discharge into a swamp on the Johnson plantation, owned by the said vendors.”

' “ The leading canal or ditch here mentioned is that which had been cut on the land acquired of Morvan, and which, after reaching the Johnson Place, is continued for some distance on that place.”

Subsequently, the Mills plantation was acquired by Nelson <& Donnelson, and the Johnson Place was sold by the heirs of Bibb to'Egana.”

On the sixth of July, 1857, Morvan sold his land to H. E. Ledet & Bros.; and on the same day Ledet <& Bros, conveyed it by act of exchange to C. M. Gillis & Co.”

C. M. Gillis <& Co. are subrogated to the rights of Morvan.

In 1853 Egana <& Mitchell, then owning the Johnson plantation, made an agreement with the defendants, by which the former were to be permitted to close a small bayou running transversely across the Mills tract and the rear corner of the Johnson plantation, and terminating in a swamp where it is contended the rear ditch of defendants ought to terminate. In the instrument authenticating the contract, Egana & Mitchell agreed to open a ditch on the line between them and defendants from this bayou, “ running north to the main canal of the said Nelson & Donnelson, and on the line between the parties. Said canal or ditch to be made of sufficient width to carry off the water which has been heretofore carried off by said bayou, and which has drained that part of the plantation known as the Fields plantation. Said canal to be at least fifteen feet wide and as deep as the main canal of the said Nelson & Donnelson where it intersects or runs’into said canal. They also agree that the said Nelson & Donnelson may enlarge or widen their canal as wide as they may think necessary to carry off the water, say about fifteen feet on their side of said canal, and that they may extend said canal into the swamp as far as they think necessary, so as not to run south of their eighty arpent line.” The course of the Bayou Lafourche at this point is east. Hence, the rear of the plantations is on the north.

The action is set forth in the plaintiffs’ petition as follows :

“ That Nelson & Donnelson, exercising possession and ownership of the lot of land sold by Morvan to Bibb, open and now use on the said twenty-five feet of land, a large ditch to which they have not given a sufficient outlet, and to the north of which they have not thrown up a sufficient embankment, by means of which ditch the said Nelson & Donnelson accumulate all the surplus waters from the Coulon and Field plantation, both of which plantations are now in the possession of, and belong to, Nelson & Donnelson, and thereby overflow and inundate the greater portion of the Morvan land belonging to petitioners, contrary to, and in violation of, the express covenant of the said Bibb with the said Morvan, and contrary to law; which waters thence overflow, and inundate the crop plantation of petitioners, contrary to, and in violation of, the legal rights of petitioners.”

Plaintiffs’ damages are laid at five thousand dollars, and they also pray.for a specific performance of the covenants in the agreement between Bibb and Morvan, alleging that Nelson & Donnelson had assumed all of Bibb’s obligations by the purchase of the land.”

“ The defendants, after a general denial, aver that they bought by public act of the heirs of Thomas Bibb, deceased, the Coulon plantation, with.its rights, &c., and expressly with the right of draining the same in the same manner that it had hitherto been drained; and that the leading canal or ditch was to discharge into a swamp on the Johnson place, then owned by the said vendors : and further, that the obligation to continue the ditch declared the act under private signature is altogether personal to the parties thereto, and that defendants are not bound by it.”

“ They further allege that said Morvan actually continued said ditch as far as necessary, and to the entire satisfaction of said Morvan, and up to the time of the present suit no complaint was ever made in respect to the said ditch.”

“ They further allege, that they have always drained their said plantation in the same way and manner -that it was drained previous to their said purchase; and their said vendors are hound to warrant and defend them in their title so to drain their said plantation, and to indemnify them against the consequences of this suit. And moreover, they aver that by the said act of purchase a servitude was established in favor of the said Coulon plantation on the Johnson plantation, then owned by the said vendors and now by John T. de Egana, who has succeeded by reason of the law to all the obligations of the said vendors, but who enclosed the said swamp, or a part thereof, with a levee, and impeded the discharge' of waters into the said swamp, to which fact, and to no fault of defendants, the overflowing of defendants’ lands, if such ever occurred, which they deny, is imputed.”

“ The defendants cited the vendors, the heirs of Thomas Bibb, deceased, to warrant and defend them in this suit. They likewise brought Egana into the suit, but considering that the plaintiff was bound to bring his suit against the proper parties, dismissed their proceedings as to him.”

The heirs of Tlwmas Bibb excepted to the call in warranty, but the exception was overruled.”

“ The cause was tried by the Judge, who gave judgment in favor of the plaintiffs and against the defendants, condemning the latter to continue the ditch as more particularly set forth in the judgment. The Oourt likewise gave judgment against the defendants and in favor of their vendors called in warranty, on the ground, as stated in the opinion of the Oourt, that ‘ the defendants, at the time of sale having full knowledge of the existence of said servitude, which, besides, is a continuous and apparent one, are entitled to and allowed no judgment in warranty against their vendors.’

“ After an ineffectual motion for a now trial, the defendants have appealed, both as against the plaintiffs and as against their vendors called in warranty.”

Before proceeding to the merits of the case, we will consider the bills of exception presented by the defendants.

The first is to the introduction in evidence of the proces-verbal of the survey made under the order of the Oourt, for want of the requisite witnesses and for want of notice to the curator ad hoc. The Oourt did not err. The testimony of the surveyor was taken on the trial, and the survey was received as a plan connected with his testimony, and essential to its explanation, and therefore admissible. Milligan v. Hargrove, 6 N. S. 339.

There is a bill of exception taken by defendants to the testimony of II. E. Ledet proving certain verbal declarations of Nelson, one of the defendants, as to the ditch or canal draining the plantation of Nelson & Bonnekon, and as to a certain offer to extend the same, on the ground that parol proof is insufficient and inadmissible to charge lands with a servitude. The testimony was admitted to explain an assumed latent ambiguity in relation to the act under private signature ; and as a recognition of the existence and extent of the servitude therein stipulated ; the interruption of prescription, and the construction and understanding of the parties themselves.

The testimony was admissible to show an interruption of prescription ; and as the Judge confined its effect to that purpose in making up the judgment, it will be unnecessary to consider whether it was or was not admissible on the other grounds.

The third bill of exception was as to the introduction in evidence of the act between Morvan and wife and Bibb, on the ground that it was personal to the for-mor, and that no olher.Tperson could avail himself of its stipulations, and that it was not binding on the defendants, not having' been assumed by them expressly or publicly.

The act is pleaded in the plaintiffs’ petition, and the objection is to the effect of the instrument, which can be best considered with the merits. Its introduction in evidence did not prejudice the defendants, because it was still open to all objections, except as to its execution, and the defendants were at liberty to urge the same on the trial.

On the merits, the first questions seem to arise upon the construction to be given to the Morvan deed.

Its contemplation, reference being had to the situation of the lands, brings us to those conclusions, viz :

First: It was a sale from Morvan to Bibb, of a narrow piece of land for the purpose of allowing the latter to excavate a ditch therein, and throw the embankment on the north side of such ditch.

Secondly : It createdjin favor of the residue of the Morvan tract'a real servitude upon both the Ooulon and Johnson plantations, which they were bound to suffer and maintain in favor of said tract. The land sold and the possessors thereof being bound to keep the levee on the north side of the ditch sufficiently high to protect the residue of the tract, and the Johnson place being bound especially to continue the ditch so far as might be needed to convey off' the water, as the drain was upon the latter tract of land, the contract does not appear to us to be personal, for its object could only be for the advantage of the respective tracts of land. The contract, then, was a real contract, and bound the Bibb lands in favor of the Morvan tract, into whose hands soever they might pass. When Bibb’s heirs sold the Coulon tract to Nelson & Bonnelson, they expressly established another servitude upon the Johnson plantation (now owned by Egana) in favor of the Ooulon plantation, binding the one to submit in the form prescribed, lo"the drainage of the other; but here the works necessary to sucli drainage (if undertaken) were at the charge of the defendants’ plantation.

If the servitude had been permitted to remain as at first established, we think it is clear that the proprietors of the Morvan tract could have enforced it against the narrow tract of land sold and hold by defendants, and the Johnson plantation in the hands of Egana, or so much thereof at least as is affected by the servitude.

It now remains to be seen what effect the subsequent agreement in 1853 between Nelson c6 Bonnelson and Mitchell and Egana will have upon the controversy.

It has already been seen that the small bayou having its rise on the Mills tract and running transversely across the Johnson plantation, terminated at nearly the same point where the main ditch of the defendants terminates. But the proof shows, which is corroborated by the plan, that the side canal on the Mills tract-, excavated bj Mitchell and Egana, at nearly right angles with the rear canal of Nelson & Bonnelson, precipitates more water upon the Morvan tract than would have been the case if the sanie had been permitted to flow into the swamp by its natural course, the bayou. The servitude has thus been aggravated by the owners of the Egana plantation, with the consent of the defendants.

' Are there any covenants, then, in the agreements between the other parties, which may be viewed as stipulations between the plaintiffs or their land, and will thus maintain the action iu its present form without making Egana a party ? We cannot so construe the sale by Bibb’s heirs to defendants, nor their agreement with Miichell and Egana in 1853. It does not appear to ns that a person not a party to an agreement, nor representing real property to which it has relation, can maintain an action upon it unless there is an express stipulation in his favor, or one which results by a manifest implication.

The plaintiffs pray, among other things, that the defendants be decreed to open the ditch upon Egana’s land ; and it is so decreed by the Court. But it is neither the defendants nor Egana who owe the servitude; it is the land; and they may relieve themselves by surrendering the same to the plaintiffs. Hence, as between the plaintiffs and the defendants upon the rights reserved by the Mor-van deed, the latter cannot be condemned to enter upon Egana’s land and perform works there for the maintenance of the servitude and the benefit of the owners of the Morvan tract. See 769,675 and 771, O. 0.; Pardessus, No. 69 ; 2 Marcadé, Art. 699, pp. 625-628; 3 Toul. No. 680; Landry v. Mitchell, 3 An. 13.

The defendants also rely on the plea of prescription of ten years. If it should b e held that obstructions to natural drains may be legalized by the prescriptions of ten or thirty years under articles 761, 3470, 0. 0., it will not avail the defendants because, within ten years, they have aggravated the servitude by their agreement with Egana and Mitchell, which has resulted in the obstruction of the small bayou which carried off, at some distance, a portion of the water now precipitated on the borders of the Morvan tract, and because Nelson has, within the same period, acknowledged Morvan’s right, now held by plaintiffs. C. 0. 3486. The proof does not make out a case in favor of defendants against warrantors.

\ These views make it proper that the case should be remanded, in order that Lgana should be made a party, as it is evident that complete relief cannot be grante^plaiutiffs in his absence from the suit:

It, is,‘therefore, ordered, adjudged and decreed by the Court, that the judgment of -.tiré louver Court be avoided and reversed, and that this case be remanded to the lo\v& Court, with leave to the plaintiffs to amend and make further parties, •oh suplí condition as to the costs as may be equitable and just. And it is further or.de'ro'd, that the plaintiffs pay the costs of the appeal.

/•'VooKniBs, J., absent.


author: Vookhies, J. Yookhies, J.

text:
    J. C. & Ada Barelli v. A. Delassus et als.
    The thing claimed os the property of the claimant cannot be alienated, pending the action, so as to prejudice his right. If judgment be rendered for him the sale is considered as a salo of another's property, and docs not prevent him from being put in possession by virtue of such judgment. C. C. 2428 ; 9 An. 257 ; 13 L. 260.
    The services and incorporeal rights that the third possessor holds on the property before its possession, are renewed after its relinquishment or after the sale in execution made upon him. His own creditors, after those who held their titles under the preceding proprietors, exercise their rights of mortgage in their order, on the property relinquished or sold at auction. 0. C. 3372. •
    A party who institutes the hypothecary action, cannot interfere with the right of the defendant, as owner, to alienate the property during the pendency of suit.
    To have effect against third persons, mortgages must he re-inscribed after tho lapse of ton years, notwithstanding the pendency of suit.
    Appeal from tlie Fourth District Court of New Orleans, Price, J.

      M. M. Cohen and Bradford <& Finney, for plaintiffs. H. H. Taylor, for defendants and appellants.
   Vookhies, J.

The plaintiffs are third possessors of property, upon which the defendant seeks to enforce a judgment against bis debtor, J. A. Petterin.

This property, which had been purchased in Pellerin’s name from P. Soulé and J. Dominguez, in the months of July and November, 1841, consisted of real estate situated in the city of New Orleans, and used as a cotton press factory. The purchase, although made only in Pellerin’s name, was intended, by verbal understanding to that effect, to inure to the joint benefit of Delassus also. A verbal contract of partnership was entered into between these parties ; and, subsequently by another verbal agreement, they stipulated that the whole property would remain to Pellerin, and that he should allow to Delassus his disbursements for the purchase, and render an account of the partnership.

In the meantime Pellerin executed a mortgage on this property in favor of Ba-relli, who afterwards foreclosed the same, and became the purchaser at Sheriff’s sale. Some time elapsed, and Delassus, who, previously to the giving of Barelli’s mortgage, had sued Pellerin for a settlement of partnership, and subsequently obtained a judgment against him with privilege on this property, proceeded to levy upon it in the hands of Barelli’s heirs.

Hence the present suit, in the nature of an injunction and third opposition. The heirs deny the existence of the mortgage or privilege claimed by Delassus, and contend that their ancestor, a third person, purchased the property free from incumbrances.

The first question is, whether the pendency of the suit in the Circuit Court of the United States operated as a constructive notice to Barelli, at the time he obtained his mortgage from Pellerin.

“ The thing claimed as the property of the claimant,” says the Civil Code, “ cannot be alienated, pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as the sale of another’s property; and does not prevent him from being put in possession by virtue of such-'judg*. ment.” Art. 2428. * /•' ’

A rigid interpretation of the above article would perhaps limit its application to a party instituting the petitory action ; but such is not the true intent an'd spirit. Its provisions extend also to cases of the institution of all real aótjons;'v whether possessory or hypothecary. So it has been ruled in the case of Cautéfe'au v. Lacaze, 9 A. R. 257, in which the Court said : “ The title, under which claims, was acquired pending defendant’s action against his vendor to subject the property to his claim. Under these circumstances an alienation cannot be made to the prejudice of the plaintiff’s right. C. C. 2428; Long v. French, 13 La. 260.”

Nor can the application of article 2428 be limited to the action of State Courts : a suit pending in the Federal Court, holding session in the State of Louisiana, comes within its operation. The law has made no distinction ; nor is there any reason why our Courts should discriminate.

The decisions relied upon by the defendant’s counsel are not in point; for they relate to suits pending in the Courts of sister States, or to Federal Courts held beyond the limits of our own State.

The suit brought by Delassus against Pellerin had for its object the settlement of their partnership concerns. The bill in equity set forth the facts of the verbal agreements as to the joint purchase of property in the name of Pellerin, as to the transfer of the former’s rights of ownership to an undivided half to the latter, and to the formation and dissolution of the partnership. The bill concluded, in the alternative, that the petitioner be decreed to be a joint owner of the property in question, or that there be judgment in favor of Delassus for the whole amount coming to him, including the disbursements made for the purchase money.

The answer of Pellerin to interrogatories on facts and articles, admitted the truth of the allegations in the bill as to the verbal agreements concerning the purchase and partnership ; and judgment was rendered in the Circuit Court as follows, to wit: “ That the plaintiffs have established their claim against the defendant for twenty-two thousand seven hundred and eighty-nine dollars and twenty-nine cents ($22,789 29), with interest thereon at the rate of five per cent, per annum from the ninth of July, 1842, until paid; and that the said debt stand as a privilege upon the land described in the bill, and proved as the land sold by P. Soulé to L. A. Pellerin, by authentic act bearing date 9th July, 1841, before Fe-to Grima, notary public; and that parcel of land purchased in the name of said Pellerin by an act passed before Octave de Armas, notary public of New Orleans, on the 9th day of November A. D. 1841, by Jose Dominguez, and that the said land be sold to satisfy the same, and, in case that the same be insufficient to pay the debt and costs, that said plaintiffs have execution for the remainder.”

This judgment recognizes the privilege of Delassus, as a creditor of Pellerin. The validity or existence of this privileged claim cannot be questioned by the plaintiff, for the reason that this matter is final under the terms of the article of the Code (O. C. 2428). The object of the law would be defeated if he, who purchased during pendency of suit, were at liberty to open again the whole litigation, by merely shifting the onus probandi. The law intends that the creditor shall not thereby suffer any delay; its effect is to prevent the creditor from being, in that respect, at the mercy of the debtor, who might be tempted to do away with, the property in view of defeating the former’s recourse.

The plaintiffs cannot prevent the seizure and sale of the property, which they now hold as third possessors; but they are entitled to recover out of the proceeds the amount which they had to pay of mortgages superior in rank and date to that of the defendant in injunction. 0. C. 3372. All incumbrances created subsequently to the institution of the suit of Delassus v. Barelli, in the United States Circuit Court, do not fall within this ruling, excepting, however, those created by law, such as taxes, &e.

The plaintiffs paid the sum of $3,600, besides interest, the amount of a conventional mortgage given by Pellerin to S. M. Westmore on the 4th day of September, 1846. This mortgage had not become extinguished by novation, as contended for by the defendant. - In the act, by which an extension of time was granted to Pellerin, upon his furnishing another note, it was expressly stipulated that the creditor would keep the former note, and that novation would not take place.

. In decreeing this amount to the plaintiffs in injunction, we must not be understood as precluding them from asserting any other rights which they may have against the property in controversy, by reason of having real charges thereon.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the injunction sued out in this cause be dissolved; that the Sheriff proceed to sell according to law the property described in the proceedings, for the purpose of satisfying the privilege of the defendant in injunction, after previously paying out of the proceeds of said sale to the plaintiff) Ba-relli, the sum of three thousand six hundred dollars, besides interest and costs, being the amount of Westmore’s mortgage ; and that the plaintiffs’ rights be reserved as above set forth.

It is further ordered, that the plaintiffs pay the costs of appeal.

Land, J., absent, concurring.

Same Case. — On a Re-heahing.

Yookhies, J.

Upon a careful review of article 2428 of the Civil Code, we have coiñe to the conclusion that the doctrine of our former opinion is too broadly laid down.

By the alienation, of which mention is there made, must be understood a sale, donation or exchange. This article is borrowed from the 13th law of title 7th of 3d Partida, which is explicit upon this subject. With regard to incumbrances, such as mortgages, which the defendant may create during the pendency of the litigation, it is evident that they must, apart from the' provisions of the article, fall with a decision adverse to the defendant’s title. And, indeed, the same may be predicated of the alienation of the property under the same circumstances. The reason is the same: in one case the party sells, and in the other mortgages the property of another person. 0. 0. 2427,3267.

Article 2428 is the corrolary of article 2427, which declares that the sale of a thing belonging to another person is null; and when, pending the litigation, the defendant alienates the property in revendicalion, the former article considering it “ as a sale of another’s property,” goes on to give to the plaintiff, whose title is recognized, the right to be put in possession, notwithstanding the alienation.

The law considers such a transfer as a fraud upon the owner on the part of the transferror, if not of the transferee.

The sum and substance of article 2428 is that the owner of property, who has sued in revendication, is entitled, upon rendition of judgment in his favor, to be put in possession by virtue of such judgment, even if the defendant has alienated the property during the pendency of the action.

But a party who institutes the hypothecary action, cannot interfere with the right of the defendant, as owner, to alienate the property during the pendency of suit, — for two reasons : first, because, in the words of the article, this is not the sale of another’s property ; and secondly, because the plaintiff, however successful, is not entitled to the possession of the property.

With regard to the rights of mortgagees, this matter is susceptible of further illustration. To have effect against third persons, mortgages must be reinscribed after the lapse of ten years, notwithstanding the pendency of suit.

In the case of McElrath v. Dupuy, 2 An. 523, a case where the point was made, that pending the litigation, the object of which was to enforce the mortgage, no prescription ran between the parties, this Oourt said, quoting the case of Shepherd v. The Cotton Press, 2 An. 100, “We there held with regard to inscribed mortgages, that the delay of ten years is in all cases fatal; and if it be permitted to expire without a reinscription, the mortgage loses rank, and that a litigation between the mortgage creditors does not dispense with reinscription.” The same doctrine was held in the case of Hyde v. Bennett, 2 An. 800. In the case of Young v. City Bank, 9 An. 194, the Court said : “ Under this article (3333), it has been held that the reinscription as prescribed, is indispensable to the enforcement of the mortgage against third persons, and that the institution of a suit on the mortgage, or a litigation in respect to it, does not dispense with it.”

If a reinscription of the mortgage within the ten years is necessary in order to maintain its force against an innocent purchaser, a fortiori, is it essential that it should be recorded in the first instance in order to produce effect agajnst a, third party without actual notice.

The ease'of Cantereau v. Lecaze, 9 An. 257, cited by defendant, is not in conflict with the previous decisions cited, for the demand which operated as constructive notice in that case, was the revocatory action. And so also it was held in Gillespie v. Cammack, 3 An. 252; Gales v. Christy, 4 An. 295.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment heretofore pronounced by us be set aside and avoided ; and it is now ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.