author: Cole, J.

text:
    J. Williams et als. v. J. Close et als.
    A party may institute a petitory action for one tract of land, and in the same petition may sue the same defendant for slander of title of another and distinct tract, but could not in the same suit sue for a tract of land and for damages for slander of title to such tract.
    The confirmation of a land claim enures to the benefit of the original grantor or those holding under him, as held in 3d L. It., 107, Sacbett v. Hooper.

    APPEAL from the District Court of the parish of St. Landry, Martel, J.

      Swanjae & Moore, for plaintiff.

      B. F Linton, for defendant and appellant. T. IT. Lewis, for intervenors.
   Cole, J.

This action is instituted in the petitory form for one tract of land, and in the form of an action of jactitation or slander of title for three other and distinct tracts of land.

The plaintiffs allege that they are the nearest collateral heirs of Isaac Baldwin, jr., deceased, and transferrees of Laura and William Taylor, universal legatees of said Baldwin, of all their rights under the last will and testament of said Baldwin; and as such, they claim to be the owners, each, of an undivided portion of the following tracts of land situated in the parish of St. Landry, to wit:

1. Of one piece of land situated at the junction of the bayous Courtableau and Téche, having the former for its north, and the latter for its eastern boundary, being all that part of the claim confirmed in the name of Charles Barré, as No. 5 of the report of the Commissioners of the United States, for adjusting- land titles in the Western District of Louisiana, lying to the west of the Bayou Téehe and on the right bank of the Bayou Courtableau, as represented on an extract annexed to the petition from the United States Township Map of T. 6 and 6 S. of Range 5 east, being a part of section 4 in township 6 and of section 42 in T. 5.
2. Another piece of the same confirmed claim, having a front on the eastern side of the Bayou Téche, and bounded on the south by the southern line of said confirmed claim, and on the north by the linos of a tract of land forming part of said confirmed claim No. 5, and known lately as belonging to John Close and Euphrosine Barré, his wife.
3. Another tract or piece of said confirmed claim No. 5, lying on the right hank of Bayou Courtableau, bounded on the east by the eastern side lino of said claim, on the south by the southern line thereof, and of such width as to give said tract a superficies of between 1100 and 1200 acres.
4. A.nd another piece of land lying on the left bank of the Courtableau, measuring six arpents front on the left bank of said bayou, by forty arpents in depth, forming the upper six arpents of that part of said claim No. 5, which lies on the left bank of said Bayou Courtableau.

They further aver, that these tracts of land came down to them from Jacques Courtableau, who held a much larger tract by virtue of a grant from the French government, by a regular chain of titles, as follows :

At Courtableau's sale, Lamorandiére purchased the whole tract for Madame Mareantell, and at the sale of the latter, Evan Mills became the purchaser of the same; after the death of the latter, his widow married one Reed, who sold at private sale, by an informal act, the said land to Barré, between whom and the heirs of Evan Mills arose a suit as to the title thereto, which was decided in 1814; the judgment of the court giving the heirs of Mills not quite one half of the said whole tract, of which two of said heirs conveyed to Judge Isaac Baldwin their interest by regular deeds of sale. That said Judge Baldwin died in 1833, leaving his wife, his widow in community, and one child, Isaac Baldwin, his sole heir; and the said Mrs. Baldwin died in 1836, leaving the said Isaac Baldwin, her son and sole heir; that in 184-5, the said Isaac Baldwin died, leaving Laim'a Taylor and William Taylor as instituted heirs and Universal legatees, who afterwards conveyed all their rights in the estate of said Isaac Baldwin, jr., to Louis Jrnin and all the petitioners, except Jonhson, who were heirs at law of said Baldwin; and afterwards the said Jcvnin sold to said Sidney L. Johnson all his interest in said estate.

They further allege that their title and possession and that of those under whom they claim, had always been acknowledged by said Charles Barré and by his heirs, until lately, when certain persons styling themselves the heirs, or agents or assignees of heirs of Barré, John Close, Zepherine Close and her husband Honoré Béjean, have taken possession of the tract of land lying on the east or left bank of the Bayou Courtableau, forming the upper six arpents of section 42, T. 5, S. R. 5 east, fronting on said bayou and measuring back forty arpents, being the portion colored green on the plat filed in the former suit by the Commissioners ; that they have also slandered the title of petitioners to the other tracts of land above described, saying that they have no title thereto.

Plaintiffs pray that they be decreed owners of eight undivided ninths of the tract of land on the east or left bank of Bayou Courtableau, consisting of the upper six al'ponts front on said bayou, with forty arpents in depth between parallel lines, being the upper six arpents of Section 42, and recover possession of the same, and that defendants be condemned to pay petitioners one thousand dollars for slandering their title to the other three tracts of land before described, as belonging to them, or else to set up and prove their title to the same, if any they have.

Plaintiffs filed an amendment to their original petition, sotting' up, that the question of title to said land had been finally decided in the suit of O' Connor and heirs of Mills v. Barré, 3 M., p. 446, and formed res judicata between tho parties to the present suit, which they specially pleaded.

Afterwards, Euan O'Connor, Sarah O. O'Connor, wife of J. MaCluslcy, David Coe, natural tutor oí David Green, and Mary Coe, issue of his marriage with Charlotte O'Connor, deceased, and Pierre SybesPre intervened and averred that they were tho sole surviving heirs and legal representatives of Helen Mills, deceased, and as such, are the owners and proprietors by good and valid titles, of tho third part of the fourth of the half of eight thousand eight hundred acres of the land in controversy, or the third of tho fourth of four thousand four hundred acros, and pray to be adjudged owners of the same.

The interests of tho plaintiffs in this case are in common with that of the intervenors, being owners in common of the land in controversy.

Tho defendants answered and set up in defence: 1, a general denial; 2, special denial of tho heirship of plaintiffs; 8, they denied that plaintiffs had any title of any description ; 4, that the Territorial Court had no jurisdiction and could settle no title to lands claimed by virtue of a complete grant emanating either from tho Spanish or French governments; 5, that the United States Land Commissioners had reported favorably to the claim of Ba/rré to the land; 6, that the judgment of the Supreme Court of Louisiana in the suit of The Heirs of O'Connor et als. v. Barré, had never been executed or carried out and is now barred by prescription, in consequence of its never having been notified to Barré or his heirs; 7, that the act of confirmation by Congress to John Close is a complete title to him; 8, prescription of five, ten, twenty and thirty years, by virtue of a good title and possession.

On these issues, the parties wont to trial; judgment was rendered by tho Judge a quo in favor of plaintiffs and intervenors, sustaining and quieting them in the possession of and title to the lands described in their petitions, but rejected the prayer for damages.

The defendants have appealed.

There is a bill of exceptions to the refusal of the court to rule the plaintiff to elect to proceed in one form of action or the other, either for a slander of title or in a petitory form; defendants alleging therein, that both forms of action could not be tried at the same time.

"We are of opinion that a party may institute a petitory action for one tract of land, and in the same petition may sue the same defendant for slander of title of another and distinct tract; for he would be only enforcing- his several rights against the same parties ; but he could not in the same suit sue for a tract of land in the petitory form, and also sue for slander of title of the same tract. In the suit at bar, plaintiffs distinctly allege that defendants are in possession of one of their alleged tracts of land, that plaintiffs have the best title therto, and ask to be decreed owners thereof and to recover possession of the same; they also allege that defendants have slandered their title to three other tracts of land, and ask for damages for the same, or else that they set up and prove their title to the same, if any they have: this action then for the one tract is of the petitory character, and for the other three tracts it is an. action for the slander of title, and the plaintiff had the right so to frame his petition.

In the same bill of exceptions defendants excepted to tho ruling of the lower court on a motion of plaintiffs, which alleged that the former in their answer having set up a denial of the slander, and also a better title to the land than plaintiffs, must either waive their title and permit the court to investigate the question of damages for slander of title, or make out their title by the introduction of proof. The court seemed to consider the whole case as an action of slander, and ruled accordingly. This was incorrect. So for as the part of the action which is in a petitory form is concerned, the court ought to have ruled that plaintiffs should exhibit and make out their title for the one tract sued for, and not that defendants should first produce their title for the same; but as we have all the evidences of title before us of both parties, it is not neces. sary to remand the case ; but the ruling was proper, so far as it relates to the part of the action which was an action of slandor as to the three other tracts of land.

The object of the action of jactitation is to afford a shield to the possessor, and to place him in the same advantageous position when his possession is troubled by slander, as by trespass; to coerce the defamer to institute suit, and to impose on him the burden of proving his assertions.

In this species of action, if defendant denies the slander, he then admits ho has no title; he cannot deny the slander and also set up title, for these would be inconsistent pleas. 9 M., 714, Livingston v. Heerman. The court having ruled them to elect, defendants proceeded to attempt to make out their title, which, in our opinion, they have entirely failed to establish.

The points of defendants will be considered in their order :

1. “ Special denial of the heirship of plaintiffs.”

The heirship is sufficiently established in the Record.

2. “They denied that plaintiffs had any title of any description,”

The title of plaintiffs is proved by the evidence.

3. “ That the Territorial or Supreme Court had no jurisdiction and could settle no title to lands claimed by virtue of a complete grant emanating either from the Spanish or French governments, and therefore had no jurisdiction of the matters at issue in the suit of The Heirs of O'Connor et als. v. Barré, 3 M., 446.”

This objection is without force; for the contest in the said suit in 3 M., was not between persons claiming lands under distinct titles from either the French, Spanish or American governments; the question to be settled was not, whether one of two or more distinct titles, under either of those governments, should prevail, but, on the contrary, it was a suit between parties claiming under the same original title, in which the plaintiffs, heirs of Evan Mills, who was the last purchaser before Bao’ré of the land, sought to set aside the sale thereof to Bmré by the second husband of their mother, on the ground that it was void in toto, for want of certain forms under the laws of Louisiana.

The questions raised in that case related to the laws of Louisiana, and not to those of the French, Spanish or American governments, and the courts of Louisiana were the only tribunals proper to investigate and decide them.

4. But it is urged, “ that said judgment was never carried out or executed; that Ba/rré was never notified, either of the judgment or of the report or action of the commissioners or referrees appointed to execute the same.”

The testimony of their own witness, O. Hollier, settles this objection; he testifies that “ Barré told him that there was a judgment against him, that he was notified with it, and that if Baldwin and O' Gonnor would not be satisfied with the portion of the land on this side of the bayou, he would give them a portion of his land on the little bayou.”

Besides, the commissioners, whilst executing the judgment of the court, were at Barré’s house; they proceeded from there to run the lines of division that were to mark out to him his land and distinguish it from that of the heirs of Mills, in accordance with said judgment.

Besides, Ba/rré was fully represented in court when the final judgment was rendered and throughout the proceedings.

5. “That the United States Land Commissioners had reported favorably to the claim of Barré to the land.”

On the trial, they introduced an extract from the American State papers, vol. 3, p. 89, in support of their claim. This is a report of the United States Land Commissioners on the claim of Charles Barré to the whole tract granted to Courtableau ; it is favorable to the claim and recommended its confirmation by Congress.

This recommendation must have been based upon the supposition that the title of Courtableau had been transferred to Barré; and even if the claim of Barré had been actually confirmed, the confirmation would inure to the benefit of the original grantee, or those holding' under him. 3 L., p. 107, Sackett v. Hooper.

Now, Barré, the ancestor of the defendants, never had a title under Courtableau, the original grantee of the French government, and those who held under him, to more than one-half of the whole tract granted. It is true, that he acquired by prescription the portion of an heir in the other half of said tract which was decreed to belong to the heirs of Malls; therefore, the act of confirmation aforesaid could inure to his benefit only as to the half which he acquired by deed from Mrs. JReecl, widow of Eran Mills; for the other half of the tract never passed to him by said deed of sale; it belonged to the heirs of Evan Mills, who was the last purchaser of the land before Barré, and never passed out of their ownership or possession. This was the decision of the Supreme Court of this State in 3 M., p. 446.

6. “ That the act of confirmation by Congress to John Close is a completo title to him.”

The patent issued to John Close on the 23d of March, 184G, cannot affect the claim of plaintiffs, for it was decided to be good and valid long before this patent was issued by the supreme tribunal of the State; besides, this patent is a mere quit claim from the United States and conveys to Close only such title as the government itself had at the time. The patent itself declares that it is “ in no manner to affect the rights of third persons nor preclude a judicial decision between private claimants to the same land.”

It is clear then that this patent or confirmation to Close cannot by its own purport affect injuriously the claim and title of plaintiffs.

7. The plea of prescription cannot prevail, because no such possession has been established as would serve as a basis for prescription.

8. One of the defendants, John Close, in support of his claim to the land, produced an act of sale from Barrré to his daughter, the wife of Close. This act is dated May 21, 1813, and was passed after the litigation between the vendor and /the heirs of Mills, respecting the land in controversy, had commenced ; for the suit of O’Connor et als. v. Barré was filed in 1811, and it was passed one year and a few months before the final judgment of the Supreme Court was rendered in the case, decreeing the heirs of Mills to be the owners of the land which plaintiffs now claim. This transfer could in no manner affect the title of plaintiffs ; for when property actually in litigation is sold, the purehaser is bound by the judgment in the suit. 3 An., p. 252, Gillespie v. Cammack

Besides, it does not appear that the land transferred by said act is part of • the lands which were allotted to the heirs of Mills by the commissioners appointed, under the decree of the court, in the suit of O'Connor et als. v. Barré, to divide the lands in controversy in that suit according to the decree therein.

The plaintiffs have established their title to the tract of land sued for in the petitory form, and defendants have not made out their plea of prescription: plaintiffs have shown, that the title of the said tract of land was decreed to be in those under whom they and their assignors hold by the judgment of the Supreme Court in the case of O'Connor et als. v. Barré in 3 M., p. 446; and as all the parties to this hold under the parties to that action, and derive their rights now claimed from those accorded to the parties thereto, and as the land in controversy in this suit was also in litigation in that of O'Connor et als. v. Barré, the judgment in the said suit in 3 Martin, is then resjudioaia between the parties to this action, and they are bound by the decree therein. 3 An., p. 236, Delabigarre v. Second Municipality. Now, by the decree in said suit in 3 M., the said tract of land sued for in the petitory form was adjudged to those under whom the present plaintiffs hold, and the latter are entitled to a judgment in their favor.

As to the throe other tracts of land, to which the action of slander refers, defendants have entirely failed to make out a title, or to establish their plea of proscription, plaintiffs and those under whom thoy hold appearing- always to have maintained their possession of the same.

We cannot, however, accord the damages prayed for in this court, for no malice has been shown in defendants. 2 Rob., p. 336, Walden v. Peters and others. The intervenors have also established their title to the land claimed by them.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    B. F. Linton v. S. W. Wikoff.

    Article 2256 of the Civil Code which declares u Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them, or since, applies, as a rule governing real estate, to adjudications made at sheriff sales.
    The prescription applicable to a demand by the holder upon a note is not applicable to the demand of the surety for re-imbursement against his principal. The latter is a personal action which is barred only by ten years.
    APPEAL from the District Court of St. Landry, A. Voorhies, J.

      B. F. Linton, for plaintiff and appellant. Lewis & Porter, for defendant.

       This case was decided in 1856, rehearing granted and finally decided in 1857.

   Merrick, O. J.

The defendant having- advanced certain sums of money to pay some debts for which he had become security for the plaintiff, in order to secure himself, bought in at Sheriff sale (as plaintiff alleges, below its value,) the plantation and certain negroes of the plaintiff. The plaintiff was suffered to remain upon the property sold for some time, but finally the defendant assumed possession of the property so purchased. Plaintiff alleges that in the month of December, 1840, he “delivered the same up with the express stipulation that he, defendant, was to take it at a fair valuation to pay any amount with all the interest and cost which might then be due to him, and to pay the balance over to petitioner.”

He avers that, on the 23d day of February, 1850, the valuation of the property was $ 13,600; that his, Linton’s, 'indebtedness to Wihoff was $4,437 76 ; that he had fully complied with his contract, but that the defendant on the 23d of February, 1850, made a pretended sale of the property for cash “to sacrifice the property and buy it himself for nothing.”

The petition concluded with a prayer that the defendant be condemned to pay him $9,163 34 and five per cent, interest from the 23d of February, 1850, and any other sum the court may deem legal, equitable and just.

The answer denies generally the plaintiff’s petition, and the defendant therein sets up in reconvention two promissory notes of plaintiff, which he, the defendant, alleges he had as the surety of plaintiff paid and taken up.

Judgment was rendered in favor of the defendant for $3,340 66 and interest, subject to a credit of $461 12 for professional services.

The plaintiff appealed.

He urges, that the Judge of the District Court erred in refusing to hear parol proof, viz, the testimony of John II Taylor, the agent of the defendant, who was asked “if he had any written authority from the defendant, his principal, to make a sale of the property, consisting of lands and slaves, on the 23d of February, 1850, it being the second sale of the same property.” He was further asked “if it was not to his knowledge that there was an agreement in relation to the second sale of said property between the plaintiff and defendant after the adjudication of it in 1845 to defendant, and what were the terms of it.” The plaintiff further stated that ho intended to prove by Dr. Taylor and other -witnesses, that at the first sale, in 1845, the defendant had purchased the land and slaves greatly below their value, but that in the present action it was not intended to attack the validity of the Sheriff’s adjudication to defendant. The District Court was of the opinion that the testimony was inadmissible under Art. 2256 C. C., and the plaintiff excepted.

The plaintiff contends that the Article of the Code cited applies to notarial acts, and not to adjudications made at Sheriff sales, and that parol proof is admissible to explain these last mentioned sales.

But in his bill of exceptions as well as petition, the plaintiff concedes, in this suit, that the sale of 1845, was legal. It must follow that the legal title rested in the defendant, and that the property in his hands became subject to all the rules governing real estate. Hence the title could not be affected by parol; and the plaintiff not having protected himself with a counter title, nor interrogated his adversary on facts and articles, the Sheriff’s adjudication became invincible. If the plaintiff relies upon defendant’s letter of March 1st, 1847, it amounts to but little more than a pollicitation, for there is nothing in the Becord to show an acceptance or a payment made under it The defendant says in this letter : “ I am not desirous of the possession of this property with the train of trouble and vexation necessarily attending its management. If you can by your industry, economy and skillful husbandry make out to pay punctuall}1- the interest of the aggregate debt and a portion of the principal, I am most cordially disposed to allow you a reasonable time to do it.”

It is clear that this letter does not support the allegation in the plaintiff’s petition, that at the time he delivered possession to the defendant in 1849 there was an express stipulation between the parties, that Wilcoff was to take the property at a different valuation from the price at which he purchased.

But under the allegations of plaintiff’s petition, and in view to the single objection made to the testimony, he should have been permitted to prove, by parol, that the property was bought by Wilcoff in 1845 greatly below its value.

This would not have been proving title to real estate by parol. If the plaintiff had produced written proof of his other allegations this testimony might have been important. But as it is not pretended that the plaintiff has other than parol proof of his contract, it would be idle to remand this case for the purpose of receiving proof on that point alone.

We have been requested, in the event this case is not remanded, to reserve to the plaintiff the amounts paid by him since the sale. We do not discover any payments made by him which ho was not obliged to make.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, and that the plaintiff pay the costs of the appeal.


author: Spofford, J.

text:
    SAME CASE ON A RE-HEARING.
   Spofford, J.

A re-hearing is asked upon the question of prescription, as to the reconven tional demand.

That demand is not founded upon the promissory notes directly. It is a demand for reimbursement for moneys paid by the plaintiff as surety for the defendant. The suretyship is on negotiable paper, it is true; but it has, been held, that the prescription applicable to a demand by the holder upon the notes themselves is not applicable to the demand of the surety for reimbursement against his principal. This is a personal action which is barred only by ten years. C. C., 3508; Toledano v. Gardiner, 2 An. 779; Succession of Guillaume, ib., 636.

Re-hearing1 refused.


author: Buciianan, J.

text:
    Oreline v. Heirs of Haggerty
    A will is null anil void which is contained in one and the same act with the will of another person. O. 0., 1565.
    APPEAL from the District Court of Lafayette, Dupré, J.

      DeBlanc & Fusilier, for plaintiff and appellant. G. S. Mouton, for defendant.
   Buciianan, J.

A motion is made to dismiss this appeal, because the appeal bond is not signed by the appellant.

It is settled that the signature of the appellant to the appeal bond is unnecessary. It suffices that it be signed by a proper surety. 5 Rob., Jones v. Sidle, and caseses quoted in Hennen’s Digest, verbo appeal.

The present action was commenced by petition filed 9th January, 1857. The petition sets forth, that one John Haggerty, since deceased, made his last will by nuncupative act. on the 10th March, 1851, a copy of which is annexed, and thereby bequeathed to his slaves, the petitioner and her children, their freedom and liberty, to take effect from the day of the testator’s death. It concludes by a prayer that a day be fixed for proving the will — that the heirs of Haggerty, who are named, be cited — and that after due proceedings, the will of Haggerty be proved, homologated, and carried into effect, according to its form and tenor.

The heirs of Haggerty pleaded 'the exception of res judicata: and in case said exception was overruled, they opposed the probate and execution of the will of Haggerty, on the grounds:

1. That the will was contrary in form to the 1565th Article of the Civil Code, inasmuch as it is contained in one and the same act with the will of another person, namely: Haggerty's wife.

2. That by the Act of March, 1857, the emancipation of slaves in this State is prohibited.

8. That the will is contrary to law and’good morals, the petitioner and her children named in the will, being the concubine and the adulterous bastards of the testator.

The District Court decided the cause exclusively upon the 1st of the above enumerated pleas; to which also we will confine our attention.

The will commences as follows :

“ Aujourd’hui, ce dix de mars de l’année mil huit cent cinquante etune — á la requéte de Monsieur Jean Haggerty (dít Glande) et & celle aussi de sa femme légitime, Marie JSsclard, dite Frederick, tous deux résidant dans la paroisse susdite — moi, le soussigné, George W. Scranton, Recorder, drnnent commissions et assermenté en et pour la paroisse de Lafayette, dans 1’ Etat de la Louisiane, et y demeurant, je me suis transporté choz oux pour recevoir par acte authentique et public leurs derniers testaments, en présence de Messieurs Napoléon St. Julien, Pierre Giroir, fils, Aurelien St. Julien, Joseph O&hne Milangon et Pierre Bélisaire Milangon, ciñq habitants,*appelés par le testateur et la testatrice pour ce exprés, tous témoins,” &c.

After this preface, the act continues:

“ Et la et lors personellement comparut et fut present le dit Jean Haggerty, se déclarant habile á tester, étant sain de corps et d’esprit, &e., lequel a dioté son testament devant les susdits témoins, au Recorder, quil’écrittel qu’il a été dicté, et ainsi qu’il suit,” &e.

Next follows (after the testamentary dispositions of Jean Haggerty) a formal conclusion and the signatures of the testator Haggerty, the witnesses named, and the Recorder immediately below, and in continuation we find written as follows:

“Etatde la Louisiane, paroisse de Lafayette, le dix mars, mil huit cent cinquante et un, au máme jour et date comme ci-dessus, devant les mémes Recorder ot témoins, la dame nommée dans le susdit acto, Marie Eselard, épouse légitime de le testateur susdit, Jean Haggerty, a comparu et fut perfionnellement présente et laqnelle dame, la et lors, se déclarant habile á tester, étattfc saíne de corps et d’esprit, &c., a dicté son testament devant les susdits témoins aussi soussignés, au dit Recorder, quí l’écrit tel qn’il a été dicté, et ainsi qu’il suit.” &c.

Then follows a formal conclusion and the signatures of Mrs. Haggerty, the-testatrix, and those of the witnesses and notary.

Mre have been particular in transcribing so much of this double act of last will, because the argument of counsel has turned in great part, upon the fact of whether it be in reality one connected act, or two distinct and independent acts. We have no doubt that the former is the correct interpretation. The preamble of each will has blended both together in such a manner, that it seems entirely impossible to mistake the intentions of the two testators, and particularly of the testator Jean Haggerty. It is worthy of particular observation, that Mr. Haggerty makes no disposition in this testament of any portion of his property, (if he had any other property,) than his slave woman Oreline, the plaintiff, and her children. It is obvious, that he must have deemed it important to secure the cooperation of his wife in the enfranchisement of those persons ; and her will, as dictated, is but a repetition of his own, embracing the same object, and in words almost identical.

The judgment of the District Court is affirmed, with costs.


author: Oole, J. Spofford, J.,

text:
    Henrietta Trowbridge v. C. T. Carlin.
    In cross actions brought by husband and wife for a separation from bed and board it was held!

    That where the faults of the parties are nearly balanced, and are of a similar nature, neither party can be heard to complain in a court of justice
    Tinder the laW of Louisiana, as hitherto interpreted, disappointments in the marriage relation, and mere incompatibility of temper, are not causes for a judicial separation between husband and wife — excesses, outrages and cruel treatment of a nature to render the conjugal life intolerable, are; but with the qualification, that the party complaining must be comparatively innocent. Mutual insults and outrages, the fruit of mutual pro vocations, unless there be a great and palpable disproportion of guilt, as between the parties, furnish no sufficient ground of action to either.
    APPEAL from the District Court of the Parish of St. Mary, A. VoorMes, J.

      J. G. OUaier and IT. Gibbon, for plaintiff. Tuelcer & Wilson, for defendant, appellant.
   Oole, J.

The parties to these suits have applied in separate actions for a separation from bed and board.

The suits were consolidated by consent of counsel and tried together.

The wife has appealed from the decree of the District Court, which grants the judgment of separation in favor of the husband and entrusts him with the keeping of the children.

The principal causes adduced by the husband for his right to a separation are, that his wife desired to interfere with his prerogative of ruling on the plantation, and of administering its affairs ; was dissatisfied when he left home to attend to his plantation, and also, that she used very improper language towards him in presence of the overseer.

It appears from the evidence, that jealousy must have been the cause of the whole of the improper conduct of the wife ; the husband seems to have supported her ebullitions of temper for a long time, until becoming wearied, he endeavored to correct her temper by corporeal punishment.

This was antagonistical to that protection which is due to the wife, but Mr. Carlin appears to have been goaded on to it by the continued provocation of his spouse.

The evidence establishes, that the character of the husband is generally mild and amiable; the witnesses of the wife also declare that she is an amiable and refined lady.

As both parties have acted unkindly to one another, a separation ought not to be granted to either. 9 M., O. S., 421, Fleytas v. Pigneguy.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the petitions in these consolidated cases be dismissed, and that appellee pay the costs of both courts.

Spofford, J.,

concurring. If all the evidence which soils this record is to be credited, it proves great misconduct on the part of both spouses, in the mutual relation which both are- trying to dissolve. Crimination and recrimination, blows, and words harder than blows, have succeeded their marriage vows of reciprocal forbearance, fidelity and love.

A little more than ten years ago the appellee, then an elderly man with a fortune, married the appellant, a young girl without one.

The first that we hear of them is, that they arrived upon the husband’s plantation in the parish of St. Mary, “looking cross” at each other. Bickerings soon arose about the management of the household; favorite servants of the master were found disrespectful to their mistress, and had to be chastised or sold. The lady had misunderstandings with the overseers, and they left. Abusive language, revolting to the ear of decency, is said by one of the overseers to have been uttered, in his presence, to the husband by the wife, apparently under the stings of jealously. Two ladies testify that, in their presence, the husband upbraided his wife with being “ of no account,” saying “ that she did not suit him, and that he was sorry he had ever married her.” One of them deposes, that he also traduced her family; and both say that, to these reproaches, she answered meekly, and with tears. Notwithstanding occasional outbreaks and altercations of this sort, relieved, it would seem, by some placid intervals, time went on and three children were born of the marriage. Although each parent is proven to have been tenderly devoted to the children, these new ties do not appear to have drawn them closer to each other. Indeed, the displays of temper on both sides seem rather to have increased in intensity, and it is admitted that, on one occasion at least, the father resorted to violence to correct the mother of his children.

About a year before the present suits were brought, and nearly nine years after the marriage, the husband instituted an action for separation of bed and board against his wife; but one of his overseers testifies, that he was persuaded to abandon it by her tears and promises of amendment. It was abandoned shortly after its institution.

At length, the present cross-actions were brought on the same day, in which each spouse, after a glowing recital of grievances suffered, and a careful suppression of grievances inflicted, claimed a judgment of separation against the other with a right to the custody of the three children, which each party seems very solicitous to retain.

The District Judge, expressing no doubt as to the truth of any of the testimony, concluded that the husband was the aggrieved party, and gave him a

judgment of separation with the custody of the children.

The wife has appealed.

Although the conduct of both parties appears to have been highly censurable, it is impossible to say from the record before us, which was first or most in fault. Their errors were of a kindred character, ebullitions of temper springing from disappointment, a spirit of retaliation, and a lack of self-control.

In a case like this, whore the faults of the parties are so nearly balanced, and are of so similar a nature, the serious question arises, can either be heard in a court of justice to complain of the other ? Should not the conduct of each toward the other close the mouths of both ?

An affirmative answer to this question was given by one of the sages of the Roman law, treating, however, of the pecuniary interests of the spouses only:

“ Papinianus lib. XI. Quastionum viro atque uxore mores invicem accusantibus, causam ropudii dedisse utrumque pronuntiatum est. Id ita accipi debet, ut eá lege, quam ambo contompserunt, neuter vindicetur : paria enim delicta mutua pensatione dissolvuntur.” Dig. Lib. XXIV, Tit. Ill, 1. 39.

The common law adopted this principle of compensation in refusing divorce where the parties were guilty of similar faults towards each other. Const. 32, Q. VI. can. I. Ooquille and Domat seems to have recognized something like this rule as a part of the ancient French law.

Under the Code Napoleon, two schools sprung up and divided upon this question. Duranton (T. II, No. 574), Valette and Massol hold that a demand for separation is barred on either side by mutual faults of the same description ; in the words of M. Duranton, “ la réciprocité des torts doit aussi, en general, produire une fin de non-reeevoir, surtout lorqu’ils sont de máme nature.” On the other side, among those holding that where both parties are guilty of mutual outrages, both should have a decree of separation, must be classed the great names of Toullier (II, 764), Marcadé (I, 769), M. Demolombe (IV, 415), and probably the weight both of doctrinal and judicial authority in the modern jurisprudence of France.

The District Judge cited only the opinion of Toullier. But, it must be remembered, that this is a question of Louisiana law. Our Code, our jurisprudence, and our manners differ in many respects from those of France, although to a considerable extent, derived from that source.

The doctrine of the common law and of Duranton, on the point under consideration, appears to have been adopted at a very early period, and frequently enforced by our predecessors. In Durand v. Her Husband, 4 Martin, O. S., 174, it was held: that “the law which provides for a separation from bed and board in certain cases is made for the relief of the oppressed party, not for interfering in quarrels where both parties commit reciprocal excesses and outrages.”

In Pigneguy's case, 9 Lou., 420, the wife’s claim for a separation was rejected, although it was proved that her husband had used personal violence towards her on one occasion, the court remarking that the evidence gave color to the assertion, that she provoked the ill treatment by her violent temper.

In Rowley's case, 19 Lou., 571, the court said, the argument, that after what had occurred between the parties it would be impossible for them to live together, was not a justification for a decree of separation.

In Lallande v. Jore, 5 An., 33, judgment of separation obtained by a wife for defamation by her husband was reversed, because the conduct of the wife had been marked by exasperation and violence towards her husband. Durand's case was cited with approbation, and also Waring's case, 2 Phil., 132, where it was said by an English court, that if the conduct of th6 party complaining has been outrageous, the remedy must be first sought in a reformation of conduct by the complainant.

And in Naulet v. Her Husband, 6 An., 403, where, as in this case, both parties demanded a separation, and the District Court granted it in favor of the husband, the judgment was revorsed and both parties were turned out of court, because they were both in the wrong, having been guilty of reciprocal outrages.

To ascertain what is a just limitation upon the right of divorce, is one of the most difficult of social problems.

To fix this limitation is an attribute of sovereignty.

Under the law of Louisiana, as hitherto .interpreted, disappointment in the marriage relation, and mere incompatibility of temper, are not causes for a judicial separation between husband and wife — excesses, outrages and cruel treatment of a nature to render the conjugal life intolerable, aro; but, with this qualification, that the party complaining must be comparatively innocent of conduct similar to that complained of, in order to obtain a decree ; mutual insults and outrages, the fruit of mutual provocations, unless there be a great and palpable disproportion of guilt as between the parties, furnish no sufficient ground of action to either.

This being the doctrine of the cases heretofore adjudged in this State, we would not feel at liberty to disturb it, although it might conflict with our views of policy; but, notwithstanding the vigorous and able assaults that have recently been made upon this rule in Trance, and notwithstanding the inconveniences it may occasionally work, its manifest tendondoncy is to induce greater circumspection in entering upon the most important of civil contracts, greater forbearance in undergoing the petty annoyances of domestic life, and a more general suppression of such scandalous scenes as it has been our painful duty to review in this cause.

I therefore concur in the above decree, dismissing both actions at the appellee’s costs.


author: Spoppord, J.

text:
    Succession of Antoine Numa Tassin.

    Under tlie second section of the Act of March ITth, 1852, “ to provide a homestead for the widow and children of deceased persons,” it was held: That the surviving widow was bound to give security as usufructuary, the usufruct being of money belonging to her deceased husband’s children by a former marriage.
    APPEAL from the .District Court of the Parish of St. John the
    Duffel, J. Berault & Legendre, for administrator, appellant. St. Paul & Bony, for appellee.

      This case was decided in 1855, and not heretofore reported.

   Spoppord, J.

The only question in this case grows out of the construction of the Act of March 17th, 1852, entitled “an Act to provide a homestead for the widow and children of deceased persons.” Sess. Acts, p. 171.

Section one enacts, “ that whenever the widow or minor children of a deceased person, shall bo left in necessitous circumstances, and not possess in their own right property to the amount of one thousand dollars, the widow or the legal representatives of the children shall bo entitled to demand and receive from the succession of their deceased father or husband, a sum which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall be paid in preference to all other debts except those of the vendor’s privilege and expenses incurred in selling the property.”

It is further enacted by section two, “that the surviving widow shall have and enjoy the usufruct of the money so received from her deceased husband’s succession during her widowhood, afterwards to vest in and belong to the children or other descendants of sáid deceased.”

The administrator of Tassin's succession, who is the appellant in this case, concedes that the District Judge properly allowed the surviving widow the usufruct of one thousand dollars by preference out of the succession; but ho complains that the money was improperly ordered to be paid over to her without requiring security for the return of the principal to the descendants of her deceased husband upon the termination of her widowhood by marriage or death.

His argument is, that the second section of the Act of 1852, constitutes her a usufructuary of money, and that she is, therefore, by legal implication, subjected to the obligations imposed upon such usufructuaries by sec. 3d, tit, 3d of the Civil Code; that is, that she must give security, or in default thereof, the money must be put out at interest on good security, under the authority of the Judge.

In this case, the usufruct is established by operation of law. C. O. 532, The general rule is that usufructuaries must give security. C. C. 551. The burden is on the opponent to show that she falls within some exception to the rule.

It is true, that neither the father nor mother having the legal usufruct of the estate of their children, is required to give the security. O. C. 553. But the opponent does not belong to this category of persons. Her usufruct is not of the estate of her children; but of a sum of money belonging to Tassin's children by a former marriage, who are now minors.

It is true that the security may bo dispensed with in favor of the usufructuary by the act by which the usufruct is established. C. O. 552. But there is no such dispensation of security in the Statute of March 17th, 1852, under which this usufruct is established.

The usufruct created by that act must conform to the laws in parri matw'id. C. C. 17; Succession of Bringier, 4 An. 394; Succession of Fitzwilliams, 3 An. 489.

Construing the Act in connection with the general law upon the subject of usufruct, we conclude that in a case like the present, it was the intention of the lawgiver that security should be given by the widow.

The Article 556 of the Civil Code provides, that if the usufructuary does not give security or a special mortgage, &c., sums of money, the usufruct of which has been given, shall be put out at interest on good security, with the consent of the owner, and if ho refuses, by the authority of the Judge.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be so amended, as to authorize the sum of one thousand dollars to be paid over to the opponent, Emma Rymel, widow of Antoine Ruma Tassin, by preference out of his succession, only upon her giving security according to law; and in default of her giving such security, that the said sum of money bo put out at interest on good security, according to Article 556 of the Civil Code; the interest thereof to be paid to the said opponent during her widowhood, and at the expiration thereof the capital to be paid over to the children or other descendants of the deceased Antoine Ruma Tassin. It is further ordered and decreed, that in other respects, the judgment appealed from be affirmed, the costs of this appeal to be borne by the opponent and appellee.


author: Voorhies, J.

text:
    John S. Edwards, Under-Tutor, v. John Morrow, Tutor.
    In a suit to remove the father from the tutorship of his minor, on the ground of notoriously bad cao« duct, the party should allege particular facts of which the defendant was guilty, in order to enable the court to determine whether such facts constituted “ notoriously bad conduct.”
    No cause of exclusion or removal from the tutorship is applicable to the father, except that of unfaithfulness of his administration and of notoriously bad conduct. C. C., 326.
    APPEAL from the District Court of the parish of St. Landry. Martel, J.

      Lewis & Porter, for plaintiff and appellant. J. E. King <& B. F. Linton, for delendant.
   Voorhies, J.

In this case the defendant is sought to be removed from the natural tutorship of his minor children, on the grounds: 1, That ho has neglected to educate them; 2, That he has driven two of them from his domicil, and refused to clothe or feed them, in consequence of which they have become homeless vagrants, without the means of subsistence; 8, That he has repeatedly declared that the two last-mentioned children should never receive the property inherited from their deceased mother; 4, That lie has repeatedly declared his intention to deprive his other children of a portion of their inheritance, by dividing it equally between them and his children by a second marriage ; and 5, that the defendant is an habitual drunkard, and is unfaithful in the administration of the property of the minors, and in the care of their persons.

An exception to the plaintiffs right of action was pleaded by the defendant. Considering that the plaintiff had substantially complied with the requirements of the law, in obtaining- the authorization of the judge to prosecute the suit, as wo infer from the record, the exception was properly overruled.

The defendant then pleaded that the suit had been instituted from improper motives; that the allegations of the petition wore untrue; that he had faithfully managed the property of his minor children. And claimed one thousand dollars damages in reconvention of the plaintiff.

The plaintiff is appellant from a judgment of the court below rejecting his demand.

Before considering the merits of the case, it is necessary for us to notice several bills of exception to which our attention has been directed by the counsel for the appellant.

1. On the second day of the trial, after several witnesses had been examined, the judge refused to allow an amendment offered by the plaintiff, that “John Morrow is, and has been for several years, a man of notoriously bad conduct, and ought, therefore, to be removed from the natural tutorship of his children.” Apart from the reasons which may have induced the judge to refuse the amendment, it appears to us that such an allegation would be immaterial. The party should allege particular facts of which the defendant was guilty, in order to enable the court to determine whether such particular facts constituted, within the terms of the law, “notoriously bad conduct.”

2. ¥o do not think the judge erred in refusing the declarations of the minors Preston and Burton Morrow to some of the witnesses, “ that their father had driven them from home and refused to support them,” to be given in evidence. If the minors were themselves incompetent as witnesses, of which there can be no doubt, it is clear that their declarations, which amounted to mere hearsay, were inadmissible.

3. We think the judge very properly refused to permit the plaintiff to prove by witnesses that from their knowledge of the defendant, and from his general character, they considered and believed him to be a dishonest man ; and that if the property in his possession belonging to his minor children should be converted into cash, the money would not be safe in his hands, that he would swindle them out of their inheritance. The particular facts within the knowledge of the witnesses giving rise to such inferences,' could alone be given in evidence, and of which, besides, the court, and not the witnesses, was the proper judge.

4. The testimony in relation to a difficulty between the defendant and his daughter, and the character of his wife, neither of whom being a party to this suit, was, in our opinion, very properly excluded. Whether the defendant’s treatment to his daughter, who had ceased to be under his tutorship by her marriage, was unjustly harsh or not, or whether the defendant’s present wife was profane, high-tempered and drank spirituous liquors or not, was, it seems to us, quite immaterial, and could afford no legal ground to remove the defendant from the tutorship.

5. The Judge a quo, we think, correctly sustained the defendant’s objection to the following questions propounded by the plaintiff’s counsel to the witnesses: “1st. Is not the defendant a man of notoriously bad conduct ? 2d. Is not the defendant a dishonest man ? 3d. If the property of the minors now in the possession of the defendant were sold and converted into money, do you believe the money would be safe in the defendant’s hands ?” As a general rule, the opinions of .witnesses are inadmissible. The present case does not form an exception to that rule.

O. Conceding that the Judge a quo erred in sustaining the defendant’s objection to the competency of the plaintiff as a witness, on which wo express no opinion, we do not think it affords a sufficient reason to authorize us to remand the cause, convinced as we are that it would not vary the result of this unfortúnate controversy, which should end here. Prom the voluminous testimony in the record, which has been carefully examined by us, we must presume that “ the neighbors have all testified, as the defendant’s counsel remarks, and as against this testimony, that of the under-tutor could be of no avail.”

Upon the merits we concur in the conclusion of the Judge a quo that the plaintiff has failed to make out his case. “ No cause of exclusion or removal is applicable to the father, except that of unfaithfulness of his administration, and of notoriously bad conduct.” O. O. 326. There is no evidence in the record showing that the defendant was unfaithful in his administration. It is true he was addicted to drinking, but this does not appear to have interferred with the management of his business or caused any injury to the property or to his pecuniary interest. His conduct may be censurable in this respect, presenting an evil example to his children, but it is surely not such as to constitute in itself, within the terms of the law, “ notoriously bad conduct.” The case of the tutorship of Virginia Kershaw, 5 R. 488, bears a strong analogy to the present. There it appeared the tutor was addicted to using ardent spirits to excess ; when drunk he was inoffensive, and when sober a quiet good citizen. In the case at bai^ the defendant does not appear to be addicted to any other vice, and is also inoffensive under the influence of intoxicating liquors. The doctrine as to what constitutes notorious bad conduct we consider to be fully settled by our predecessors. See the case of Bosworth v. Butler, 2 A. 298.

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


text:
    Lucius Suthon v. Marie T. Castille.
    The purchaser of property while in the peaceable and undisturbed possession of the property, can* not maintain the revocatory action against his vendor to set aside the sale of the property to hia own vendor, on the ground of fraud and simulation.
    APPEAL from the District Court of St. Landry, Martel, J.

      J. K. King, Swayze & Moore, T. K. Lewis and Porter, for plaintiff and
    appellant.

      J. II. Overton, J. F. Morrogh and Dupr'e & Garland, for defendant.
   Cole, J.

On the 28th of March, 1845, Pierre Ldbiehe being largely indebted to his wife, widow of Jean Fstorge, and to her minor children, issue of her former marriage with said Estorge, by public act passed before Adolphe Garrigues, Judge of the parish of St. Landry, sold and transferred to his said wife, Marie Therese Gastille, a large amount of property, in part satisfaction of her separate property and of the property of said minors, that had been received by him. By said act, it appears that he owed to the minors $23,653 06, and to said Mrs. Gastille, for her separate right, $16,410 32, making a total due to the wife and her minor children, of $40,063 38, which the said Pierre Ldbiehe acknowledged to have received and disposed of as head of the community.

Defendant in said act having resumed the administration of her separate property and renounced the community established by the marriage contract, the said Pierre Ldbiehe then declares, that “wishing to replace the amount of claims which his said wife may have against the community, either on ho own account, or as tutrix of her minor children, amounting, as aforesaid, to the sum of $40,063 38,” he sells to her the property which is detailed in the act of sale, consisting of lands, slaves and movables, for the price and sum of $21,230, For which sum, the wife acquits and discharges her husband pro tanto, The act continues: “ This sale is besides made under the following conditions, to wit, that the said Marie Therese Gastille, putting herself in the place and stead of the said Pierre Labiehe, her husband, will pay, so as to discharge him, to Jonathan Harris, the sum of one hundred and twenty-nine dollars and thirty-eight cents, more or less,” which added to the aforesaid $40,063 38, makes a total of $40,193 33, which deducted from $21,230, the price of the sale aforesaid, leaves a balance of $18,963 33, due the wife in her individual capacity and as tutrix, which Pierre Labiehe in said act acknowledges to owe, and obliges himself to pay out of notes and accounts due him by different persons, the proceeds of which will be appropriated to the extinguishment of the debt.

Afterwards, to wit, in February, 18S0, Pierre Labiehe died, and on the 15th of March following, the defendant qualified and was appointed administratrix of his estate. An inventory was taken shortly afterwards, and on the 23d of October following, his succession being regarded as insolvent, a meeting of his creditors was called to decide upon the best disposition to be made of it.

The said inventory taken on the 8th of April, 1850, showed assets to the amount of $1,509 75, and only five creditors appeared or were represented at the said meeting.

The present defendant, with her privilege claim of $18,963 33, and ordinary creditors to the amount of $144 22, voted a sale for cash.

The property was accordingly sold upon those terms on the 4th of January following, realizing the sum of one thousand and fifteen dollars and sixty cents, which went to the credit of the defendant’s privilege.

Afterwards, to wit, on the 19th of June, 1854, defendant, by notarial act, sold to plaintiff a sugar plantation and several slaves, which, with the exception of a small fraction of land, constituted a part of the property sold by her husband to to her as aforesaid; the price of said property was $45,000 ; five thousand dollars in cash, a like sum payable the 20th of April, 1855, and also on 1st of June, 1856; the remaining sum of $30,000, payable in six equal annual installments from that date thereafter; the first three installments bearing eight per cent, yearly interest from the maturity of each, and the remaining ones to bear the same rate of interest from the 1st day of June, 1857.

The obligations of the plaintiff, payable accordingly, for those several installments of the purchase money, were duly executed and paraphed by the not ary, to identify them with the act of sale, which embraced a special mortgage for the security of the said payments.

With the execution of this act, faithful delivery was made, by the defendant to plaintiff, of all the property described in the deed of conveyance of which he has since, and up to this time, been in the peaceable and undisturbed possession and enjoyment of the entire revenues.

The first installment of $5,000 with interest accrued, had already matured on the 20th of April, 1855, and was yet unpaid. The second, for an equal amount, had but six months to run, when, on the 8th of December, 185(1, plaintiff acquired by- conventional purchase and transfer, with subrogation from JSmíñate Debaillon, agent of his wife, Alexandrine Ann Louallier, four several judgments recovered by the Mechanics’ and Traders’ Bank of New Orleans against Pierre Labiehe, the deceased husband of the defendant, for the consideration of seventy-five per cent, of the principal of the said judgments, exclusive of interest and costs, payable one-half on the 1st of March, 1856, and the remainder on the 1st of March, 1857, and on the 12th of March following, the date of the preceding assignment, he again acquired, by written transfer from the agent of John Boyd, for the sum of five hundred dollars in cash, a judgment recovered by him against the said Pierre Labiehe.

These several judgments, including interest and costs, amounted at the trial of the present case to the sum of nine thousand nine hundred and thirty-four dollars and ninety-three cents, for which the plaintiff only paid, according to his own showing, two thousand five hundred and-fifty-nine dollars and fifty cents, five hundred dollars in cash, and the balance on credits.

We would here observe, that two of the said judgments of the Mechanics’ and Traders’ Bank were rendered on the 13th June, 1843 ; another one was rendered on the 19th August, 1848, and the other on the 17th of May, 1848. The judgment of Boyd was rendered on the 14th of August, 1848.

Plaintiff in this suit represents, that by virtue of the transfer to him of said judgment that he is a mortgage creditor of the estate of Pierre Labiehe, the late husband of the defendant, and institutes these proceedings against her both in her individüal capacity and as administratrix of his succession, charging her (mutatis mutandis) with having never made a true and faithful inventory of the succession; of having badly administered it, and of having-rendered no account of that administeration. That the said sale of 28th May, 1845, by said Pierre Labiehe to defendant was simulated and fraudulent and collusive between the parties, and in fraud of creditors; that neither the marital claims of the defendant, nor those of her minor children were just, or constituted as against Pierre Labiehe any legal grounds for restitution on his part. That the property transferred was worth double the estimated price for which it was transferred ; that the said transfer had not a legitimate cause and does not, therefore, fall within the exceptions of the legal interdiction of such contracts; that by one of the stipulations of the act, the defendant obliged herself for the payment of a debt contracted and due by her husband ; that the defendant could not purchase for her minor children immovables without the advice and authorization of a family meeting, or invest their funds in movables, and that Labiehe was largely indebted at the date of the act, and that the property so transferred, being- the common pledge of his creditors, ought to have been appropriated to the payment of his debts.

Such are the various causes of nullity pleaded by the plaintiff against the validity of the act of the 28th of May, 1845, which he avers to have injured his rights as a creditor of the estate of said Labiehe ; and he further avers, said act being an absolute nullity, did not divest Labiehe of his ownership and conferred no title on defendant, and that the property bought by plaintiff of defendant, belonging to another, the sale of said property to plaintiff was void, and vested no title whatever in the plaintiff, and he asks for judgment against the defendant, as ad/minispi'ahrix, for the entire amount of his several judgments, though acquired at not one-third of their face, and also still further de. mands of her individually, the absolute rescission of the sale to himself of the 19th June, 1854, the extinction of the entire existing indebtedness, amounting to forty thousand dollars exclusive of interest; the restitution of the cash payment of five thousand dollars; five thousand dollars damages for the loss of time and money, and the inconvenience to which he has been subjected, and ten thousand dollars, the value of the improvements made by him upon the premises.

Plaintiff prays that the defendant be cited in her individual capacity and as administratrix; that she be ruled to render a full account of her administration; that the acts of the 28th of May, 1845, andof the 19th of June, 1854, be severally annulled; that the several obligations executed by the plaintiff to the defendant, as the price of the latter purchase, be cancelled ; that all the property described in those sales be decreed to belong to the succession of the deceased Labiche, as also that conveyed hyJ.II. Labiche to tho defendant; that tho plaintiff be recognized as a judicial mortgage creditor of said ssccession for the several amounts claimod by him for the judgment bought by him as aforesaid; and that he have judgment against the plaintiff individually for the sum of twenty thousand dollars, as detailed in the following specifications : the restitution of the cash payment of five thousand dollars, ten thousand dollars for the value of his improvements upon the premises, and five thousand dollars damages for the loss of time and annoyance to which he has been subjected by this litigation.

It seems to us that this statement of the case is sufficient to show that plaintiff has no cause of action, and that his demand must be rejected.

• It is adverse to every principle of law and equity, that the plaintiff, while in the peaceable and undisturbed possession and enjoyment of the property purchased by him can, in defiance of his legal obligations as buyer, maintain against his vendor the action of nullity here instituted, when tho sale of defendant to him is not absolutely null; but even upon the hypothesis that his' action lies for the revocation of the sale to himself, and that he can legally attack the Validity of the transfer from Labiche to the defendant, we think that the sale is valid, and, so far as the wife was concerned, coming within tho exceptions to the general interdiction denounced by the Code, (C. C., Art. 2421 ; Troplong, vol. 1, No. 180,) and valid in fact as an act of honest restitution to his wife and step-children for their just dues in moneys received and appropriated by him to his own use ; the evidence establishes that he was indebted in the amount alleged to his wife personally and to her as tutrix of her minor children.

It is also clear that, if the said judgments bought by him as aforesaid, in tho hands of the original creditors, operated a judicial mortgage upon the property purchased by the plaintiff, his obvious and only remedy was to suspend payment of the price until security was given by the defendant against the existing dangers of disquietude in his possession. C. C., Art. 2535.

Besides, even if the said judgments could legally constitute such an outstanding hypothecary lien upon the property sold him, as to be regarded in the light of an adverse title necessary to the perfection of his own, his purchase would be interpreted as the act of a trustee of his vendor, the defendant, and he could only be entitled to reimbursement for the actual cost of the claim so acquired. Pepper v. Dunlap, 5 A. 260; Galloway v. Finley et al., 12 Peters, 284,

We would also remark, that at the meeting of the creditors of the estate of said Labiehe, before alluded to, not one of the judgment creditors here represented by plaintiff appeared to deliberate or vote, nor does any evidence in this record, parole or documentary, disclose that any notice was ever given to defendant, as administratrix, of the existence of such indebtedness, or of demand for payment, from the opening of the succession of Pierre Labiehe to the institution of this suit by the present plaintiff.

Although all the mortuary proceedings in the estate of Pierre Labiehe were, as the record shows, conducted according to the strictest formalities of law, . matters also of public notoriety and of record, and must have been known to the judgment creditors aforesaid, yet no effort was made by them to obtain payment, and probably never would have been made if their claims had not been purchased by plaintiff.

We would also observe, that the sale of Labiehe to his wife cannot now be attacked by plaintiff successfully, as defendant has pleaded the prescription of one year, which we consider as valid. C. C., 1982; 2 A., 663; Merchants' Bank v. Panic of United States, 3 A., 250; Gillespie v. Cammack, 3 L., 28; Petit v. His Creditors.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the demands of plaintiff be rejected and his petition dismissed, and that he pay the costs of both courts.


author: Spohfobd, J.

text:
    Succession of Boatwright.
    It cannot be inferred that the testafor intended to give a general seim/ti to the executor from the following expressions: UI leave the whole of this foregoing, as written, to the management of Fergus Fathom, to have my request carried out fully and faithfully.”
    APPEAL from the District Court of St. Landry, Martel, J.

      S. IF. Garland, for executor. J. E. King, for opponents and appellants.
   Spohfobd, J.

Fergus Sathorn, testamentary executor of the last will of M. E. Boatwright, having filed an account and tableau, the heirs opposed the same “ on the ground that the commissions of said executor are overcharged; that the said executor never had the seizin of said estate, and that the amount of said commissions ought to be reduced.”

The commissions opposed are estimated upon “ $55,944, amount of the half of the deceased in the partnership of Boatwright & Swa.yze, and his personal property,” to wit, $1398 66.

The only expression in the will from which it is possible to infer an intention to give a general seizin to the executor is the following: “ I leave the whole of this foregoing, as written, to the management of Fergus Sathorn, to have my request carried out fully and faithfully.” The fair construction of this clause would seem to be that the executor was only requested to see to the execution of the legacies. It cannot be held to confer a seizin of the entire succession under the Article 1658 of the Code. “The testator may express his intention to grant the seizin of his estate to the testamentary executor, either in express terms, by authorizing him to take possession of the whole or a part of the estate of his succession after his death, or by merely a.ppointing him testamentary executor and detainer of his estate, the word detainer sufficiently announcing that the executor is to be seized of the property of the succession.

But if the executor testamentary be merely appointed testamenta^ executor without any power, his functions are confined to see to the execution of the legacies contained in the will, and to cause the inventory and other conservatory acts of the property of the succession to be made.”

But bjr Article 1677, if the executor has not had a general seizin, his commission shall only be on the estimated value of the object which he has had in his possession, and on the sums he has had in his hands for the purpose of paying the legacies and other charges of the will.” It has been held that parol evidence is admissible to show what property of the succession has passed through the hands of the executor, even when seizin has not been given by the will. Anderson’s Executors v. Anderson’s Heirs, 10 La. 29.

The account in this case shows that the executor received the sum of $31,-468 49 wherewith to pay the debts and the legacies. We are of opinion that his commission should be reduced to two and a half per cent, upon this sum.

No opposition was made to the separate allowance of $850 to Robert Bw'guerel for special services rendered to the succession.

It is, therefore, ordered, that so much of the judgment of the District Court as dismisses the opposition of the heirs of Michael B. Boatwright to the account and tableau of Fergus Ilathorn, testamentary executor, bo avoided and reversed; it is further ordered, that the said opposition be sustained so far as to reduco the commission of the said executor from the sum of thirteen hundred and ninety-oight dollars and sixty-six cents ($1398 06,) as charged, to the sum of seven hundred and eighty-six dollars and seventy-one cents ($786 7l), which sum is hereby allowed to the said testamentary executor in full for his commissions, the account and tableau to be amended accordingly; and it is further ordered, that in all other respects the judgment appealed from be affirmed; the costs of this appeal to be paid by the said Fergus Hathorn, appellee.


author: Buchanax, J.

text:
    Francois Feray v. John M. Foote.
    In the jurisprudence of Louisiana a distinction is not made between words actionable and words not actionable as the basis of damages in a suit for slander where no special damages are proved.
    APPEAL from the District Court of St. Mary, A. Voorhies, J.

      E. Simon, jr., for plaintiff and appellant. Gibbon and Olivier, for defendant.
   Buchanax, J.

Plaintiff claims damages of defendant for slander. The words charged in the petition as slanderous are, “ Frangois Feray has sworn falsely in a certain business against me.”

Plaintiff appeals, for the purpose of having the damages which were assigned by the jury increased — and the appellee, in his answer to the appeal, prays that the judgment be amended by dismissing the suit, on the ground that the words charged in the petition are not actionable.

The distinction between words actionable and words not actionable as the basis of damages, where no Special damages are proved, has been overruled by the Supreme Court — Martin, Chief Justice, dissenting — in the very carefully argued and considered case of Miller v. Holstein, reported in 16th Louisiana.

"While we view the jurisprudence of Louisiana as settled upon this point, and therefore allow the most extensive scope to the Articles 2294 and 1928 of the Civil Code, we are the less disposed to interfere (at least for the purpose of increasing it), with the verdict of a jury, in a case whore no special damages have been shown to have been suffered.

Judgment affirmed, with costs.


author: Spoffqhd, J.

text:
    State v. Hash.

    The accused had made certain statements as to his guilt to B. Held : that the District Judge did not err in permitting the statements of the accused to B. to go to the jury When the facts embraced therein had been corroborated by evidence aliunde.

    Although an original confession may have been obtained by improper means, yet subsequent confessions of the same or of like facis may be admitted, if the court believes, from the length of time intervening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. In the absence of any such circumstances the influence of the motives, proved to have been offered, will be presumed to continue and to have produced the confession, unless the contrary be shown, and the confession will therefore be rejected.
    APPEAL from the District Court of Morehouse, Bialm-clson, J.

      F. P. Stubbs, District Attorney, for the State. JD. Fewton and W. A. Oaperton, for defendant and appellant.

       This case belongs to the Monroe decisions, having been omitted in its proper place.

   Spoffqhd, J.

The prisoner Hash has appealed from a sentence of death pronounced against him by the District Court of the parish of Morehouse, upon the unqualified verdict of a jury finding him guilty of the murder of John Morris

Iiis only ground of complaint against the ruling of the District Court is, that the testimony of A. J. Bobo, as to his alleged confessions in jail, was improperly permitted to go to the jury. The bill of exceptions sets forth, that the objections made to the admission of this testimony were but two: 1st, that at the time the confessions to the witness Bobo were made, the prisoner was ■still laboring under the influence of the threats and promises which had been held out to induce a previous confession, (which was offered and rejected on the trial;) and, 2d, that it was not shown that the confessions were made uninfluenced by any threats or promises. To the bill of exceptions the Judge appended the following remarks; “ there was a strong doubt on the mind of the court whether the entire confessions made by the prisoner to Murrell and Bobo, in the jail, were not admissible, but that doubt was given in favor of the prisoner, and only so much of the prisoner’s declarations were permitted to be given in evidence as wore corroborated by other testimony. In order to preserve an accurate history of the proceedings the questions and answers of the witnesses were reduced to writing and annexed hereto.”

It is stated in the printed argument, filed on behalf of the prisoner, that Bobo was the only witness who established or was permitted to testify as to the statements and confessions of the accused. The evidence, as taken down and attached to the bill of exceptions, discloses but two declarations of the accused, neither of which directly avows his own guilt: first, that the deceased was struck five times on the head with a stick; and, secondly, that he was struck with the stick exhibited on the preliminary examination before the magistrate. These we suppose to bo the facts alluded to by the Judge as corroborated by extraneous evidence.

The solo question for us is, was there any error which we are bound to correct in the ruling of the Judge admitting- in evidence these Wo statements of the prisoner to Bobo? Bobo it appears testified, that there were no threats, promises or inducements held out to the accused, but that the statements above detailed wore the prisoner's voluntary answers to him. The facts, that the prisoner was ironed and that Bobo was the Sheriff, do not imply the existence of an improper influence which elicited the statements. Ten days had ■elapsed from the time when the prisoner’s rejected confessions, induced by advice to throw himself upon the mercy of the court, had been made.

The rule laid down in Guild's case, 5 Halst., 163, is generally conceded to be sound. “In that case, upon much consideration, the rule was stated to be, that although an original confession may have been obtained by improper moans, yet subsequent confessions of the same or of like facts maybe admitted, if the court believes, from the length of time intervening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. In the absence of any such circumstances, the influence of the motives, proved to have been offered, Mill be presumed to continue, and to have produced the confession, unless the contrary be shown, and the confession will, therefore, bo rejected.” 2 Russ. Crimes, *p. 838; 1 Greenleaf Ev. 254.

The District Judges would seem, therefore, to have power, under the law, to infer that the original improper influence has ceased to operate either from the lapse of time or other sufficient cause. To give this court jurisdiction in a criminal case of a question of this class, the bill of exceptions must disclose, that the Judge erred in a -conclusion of law and not in a deduction of fact.

Without deciding whether the lapse of time was sufficient in this case to ■obliterate the influence of improper advice upon the prisoner’s mind, Mre are clear that the District Judge did not err in permitting the above statements of the accused to Bobo to go to the jury M'hen the facts embraced therein had ibeen corroborated by evidence aliunde. State v. Moore, 1 Hayne, 482.

It is, therefore, ordered that the judgment be affirmed, with costs.


text:
    C. C. Muller v. Angeline Hilton.
    The abandonment by one of the married persons of the other, which is made a ground of separation from bed and board, by Art. 141 of the Oivil Gode, to be a good cause of action, must have originated while the parties were domiciled in this State.
    Where the marriage took place in New York, and the wife always lived there, the husband, who afterwards established his residence in Louisiana; cannot maintain an action for separation against his wife by summoning her to his domicil in Louisiana.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      J. Magne, for plaintiff and appellant..

      E.' Bermudez, for defendant.
   Voorhies, J.

The plaintiff sues his wife for a separation from bed and board on the ground of abandonment. He alleges that he married her in the month of June, ISIS, in the city of New York, where she still resides ; that in 1852, he left New York on business and went to the Republic of Mexico ; that in 185J he came to and- established his residence in the city of New Orleans, where he has resided ever since, of which he has informed his wife, and, giving' her a formal notice that he was ready to receive her, desired to know whether she was willing or not-to come and join him here; to which she has given an evasive answer, equivalent tó a refusal; and that her long absence from the matrimonial domicil has no lawful cause. His petition concludes with a prayer that she he cited, through a curator ad hoc, and that after the usual proceedings a separation from bed and board be decreed in his favor against her.

The curator ad hoc, appointed by the Judge a quo, excepted to the plaintiffs’ petition, on the ground that it disclosed no cause of action.

The court below having maintained the exception, the plaintiff hag appealed.

“ Separation, grounded on abandonment by one of the married.persons, can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refhsed to return to live with the other, and when such refhsal is made to appear in the manner hereafter directed.” C. C. 141.

Under this Article of the Code, we do not think the present action is maintainable. Unless by a fiction of law, it is difficult to perceive how the defendant can be considered as having withdrawn from the common dwelling, when it is alleged by her husband that she still resides in New York, where the marriage was contracted. It is then certain that the abandonment or cause of action did not originate since the plaintiff aoquired his alleged domicil in this State.

In Edwards v. Green, 9 An. 317, this court decided that no jurisdiction oould be exercised in this State over causes of divorce, which arose while the parties were domiciled in another State, And this would seem to be the doctrine generally recognized by the States of this Union, whose jurisprudence we have consulted on the question. Indeed, in some cases, it has been held that a foreign judgment of divorce a mneulo maPrimonii, did not have the effect of dissolving the marriage where it was contracted, although rendered while the parties wore domiciled within the jurisdiction of the court rendering suoh judgment. 15 John. R., 121; 12 N. Hamp., 200; Ibid, 380; 10 Missouri, 296; 14 Mass., 229; 19 Ala. 499. The wife is certainly bound to to live with her husband and to follow him wherever he chooses to resido; hence it follows, we think, that her refusal to do so, while domiciled in this State, without a lawful cause, would entitle the husband to a separation from bed and board.

Judgment affirmed.

Re-hearing refused.