author: Eustis, C, J.

text:
    Kling v. Sejour et ux.
    Where one who had purchased real estate in a State in which the common law prevails, with fall warranty, is evicted in an action of ejectment instituted by a third person, and, without contesting the claifn of the latter in the court of the last resort, purchases his claim before delivery of the premises by the sheriff to such third person, his recourse against his warrantors will not be thereby affected. The submission tó the judgment by an attornment was no waiver of the right to prosecute the writ of error -, the rule that the voluntary execution of a judgment or decree is a waiver of, or bar to, an appeal or writ of error, has no place in the common law. Nor was the purchase from the plaintiff in ejectment a release at law of the errors in the judgment, nor could it be pleaded in bar of a writ of error prosecuted for the exclusive benefit of the purchaser.
    By the common law one judgment in ejectment is nobar to another, and not being adecisioa on the mere right does not prejudice the proprietor in his assertion of it in a higher degree of action.
    What constitutes title and what seizin, or, in the language of our law, the possession as owner of immovable property, must be determined by the law of the place where it is situated, and that is the only law which can determine whether a covenant of title and seizin has been broken or not.
    A covenant of wavranty, in an act of sale executed here, of land in another State, is a contract to be performed in that State, and what amounts to a fulfillment or breach of it must b e determined by its laws.
    To recover against a vendor of real estate on his covenant of warranty, under the laws of Mississippi, the purchaser who has been evicted by a judgment, in the absence of notice to the vendor of the former suit, must show that the recovery was by a title paramount to that conveyed to him.
    Where a purchaser of land is evicted by a third person under a judgment in an action of ejectment, if his vendor defended the action himself or by an agent authorized to represent him in the matter, or if he had sufficient notice of the institution of the action so that he mighthave defended it, his covenant of warranty, by the law of Mississippi, is broken; otherwise the judgment will not be binding on him.
    in an action against a vendor of real estate situated in another State on a covenant of warranty in the act of sale executed here, founded on an eviction hy a third person tinder a judgment rendered in that State, the notice of the institution Of the action hy such third person required to he given to the vendor in order to render the judgment conclusive as to the breach of warranty, must be such as the laws of that State require, and not such as would be necessary under our law had the land and action-been in this State. The provisions of arts. 2493, 2494, C. C., which hind the vendor by a judgment of eviction against the purchaser even in the absence of a notification of the suit, unless the vendor show that he possessed proofs which would have sustained his title, and which, for want of such no-» tice to him, have not been made available, does not apply to such a case.
    .from a judgment of the Fifth .District Court of New Orleans,

      Buchanan, L, in favor of the defendants.

      Henderson and Roselius, for the appellant.
    No counsel appeared for the defendants.
   The judgment ofthe court was pronounced by

Eustis, C, J.

In 1843, the defendants, in the city of New Orleans, sold to the plaintiff a tract of land situated at the bay of St. Louis,. in the State of Mississippi, including the establishment called the St. Louis Hotel, in consideration of the sum of $4,180, and delivered to him possession The sale was by authentic act, but in the form denominated, by the common law, a deed of. bargain and sale, and contains a full warranty of title on the part of the vendor. The plaintiff alleges that, since he has taken possession of said land, a suit has been instituted against him in the Circuit Court of Hancock county, Mississippi, for the recovery of the possession, and that judgment was rendered against him for its possessio'n. The suit it appeal's was an action of ejectment in the name of John Doe, on the demise of John Henderson, against Richard Roe, i. e. Michael Kling, and the plaintiff alleges that he was ejected and evicted from said land by said judgment. It is also stated that the defendant Sejour was cited in warranty, and actually defended the suit by his counsel. The action is based upon this judgment and eviction as a breach of the warranty, for the recovery of the purchase money, etc. The judgment of the District Court was against the plaintiff, and he has taken an appeal.

The judgment in ejectment against Kling was rendered, in April, 1845, and it appears that, on the 26th of September, the day before the delivery of possession by the sheriff to the plaintiff in ejectment, Kling bought out the title of Henderson under a general warranty. The district judge considered thiscon-tract between Kling and Henderson as inconsistent with Kling's recourse against his warrantors, Séjour and wife,which is sought to be established in this suit, and accordingly gave judgment for the defendants. We do not concur with the view taken of the rights of Kling as affected by purchasing Henderson's title. The land was in the State of Mississippi, the action of which complaint is made was brought there, and the .rights of Kling must be determined by the laws of that State in- which we assume the common law to prevail.

It was not necessary for Kling to contest the validity of Henderson’s claim in the court of the last resort, in order to entitle him to his action on the covenants of the vendor. The judgment of the court of competent jurisdiction is presumed correct, -whenever introduced collaterally in a court of the same State or another State. This is not affirming that it is proof against other parties, on a question of the right adjudged. That depends on facts which may or may not be in the record, the determination of which can only bind parties and privies, or quasi parties, who had. opportunities to contest or avoid the facts alleged. It was equally unnecessary for him to suffer an actual eviction from the premises by the execution of- the writ of habere facias possessio- - n'triC. tie might have well attorned' to the plaintiff after the judgment. Th'e submission to the judgment by an attornment was no waiver of the right to prosecute a writ of error. The rule that the voluntary performance of a judgment or decree is a waiver or bar to- an appeal- or writ of error, has no place ih the common law. i

The purchase by Kling of the land from HendersoA, the plaintiff, falls equally short of a release at law of the errors in the judgment. It could notbe pleaded in bar of a writ of error, even a writ prosecuted for the exclusive benefit of Kling; and whatever effect this transaction might have against Kling in any contest between Henderson1 himself, it is very clear it could not effect the-rights of Sijour. If the judment is not now reversable, another ejectment,- or a writ of right may be maintained, if the right be good. One judgment inejectment is no bar to another, and not being a decision on the mere light does not prejudice the proprietor in his- assertion of it in the higher grade of action.

This case then-depends-on the question, whether the defendants have kept or broken their covenants in the actof sale to the plaintiff,-which- are of seizin,good title and warranty. The covenants of good title and seizin of the premises are affirmation covenants of present existing facts, and in this case' were broken the instant the act of sale was delivered, or they have been ever since kept and will ever remain unbroken.

It is plain that what constitutes the title and what the seizin, or, in the Ian-guage of our law, the possession as owner of immovable property, is deter-mined by the law of- the place where it is situated ; and, in as much as the' breach of the undertaking or falsehood of the affirmation that the seller had-just tide, is the absence in-him of what constitutes it, the law in force over the property is the only law which can be appealed to for the purpose of ascertaining whether the covenant has been broken or not. It is then by the law-of Mississippi, that wo must determine whether these covenants of good title and seizin have been kept or broken by the defendant. The covenant to defend the title or of a warranty, is an undertaking on the part- of the grantor tliab he will defend the properly agaiust all--lawful actions. This could only be done in the courts of Mississippi, and therefore this covenant:is a contract to be pen* formed in that State, and, by the express provisions of our Code as well as by the jus gentium, what amounts to its fulfillment-or its breach must also be de- ■ termined by the law of that State.

It has long been settled in this court that we will take judicial notice of thecommou law of Mississippi, and as we have found nothing in the statutes the parties have by their consent admitted might be read here, nor in- the depositions or admissions of the parties in the District Court, which varies the rule of that law applicable te this case, we proceed upon our own knowledge of the law, which governs the whole case, without adverting to any evidence or admission of it in the record.

We have acted on the supposition that the plaintiff has in his proceedings sufficiently assigned breaches in all the covenants. This certainly would not be the case were this an action of covenant broken in a common law court, butth® forms of proceedings in courts are governed by the law of the forum, and this petition must be tested by our Code of Practice. This petition is certainly not very clear, and it is not very certain of what the plaintiff intended to complain, but according to the best construction of its language it amounts only to an allegation that the property when purchased by him was encumbered by what sve would denominate a mortgage; and, an action of ejectment having been brought upon such claim and a judgment recovered,.he had been thereby evicted. Jt is not alleged that the defendant was not seized of the land, nor in possession of it as owner, nor that he had no title to it, nor that his title was defective, otherwise than that his estate in it was burihened by the payment of .some debt; and .when the documents which he exhibits and his evidence are .examined, it .is found that he only proposed to esiablisb that the property had been encumbered by a debt owing by the former owner of it from whom the .defendant purchased it, and that by certain judicial proceedings which had .been had subsequent to his purchase of the property it had been subjected to .the payment of this .debt, and for this purpose had been sold, and that the pur.chaser had recovered it of him, the plaintiff. These are not such allegations as amount to an assignment of a breach of the covenant of seizin and good title, .whereby the covenantor would have been required in his defence to prove his .seizin by su.ro and indefensibie title ; and the case must be considered ns the .plaintiff has presented it. In this view of the case-it appears that the plaintiff proposed to establish that one St. Martin, being in the possession of .the land, •was, at the time of his sale of it, indebted to the Commercial Bank .of Natchez, and that this debt, or the judgment afterwards recovered on it, was a lien upon the property, and on this judgment an execution having issued the property -was sold, and' John Henderson having become the purchaser .brought his .action,of ejoctment, and having recovered, he, the plaintiff was compelled to purchase off the encumbrance from him. In this state of the case it is obvi.ous that the plaintiff did not propose to question the validity .of the title of St. Martin, he only propo-sod to show that his estate in the hind was burthened with tho debt, and in such a manner .that tho creditor had .the right to subject it to sale for the purpose of having the money made, notwithstanding his sale to the defendant. The plaintiff endeavored to establish that it was sold as the property of St. Martin, the sheriff having conveyed the .title of St. Martin to Henderson, and, on this title so acquired, the plaintiff insisted that Henderson had recovered in.tlie action of ejectment. In this state of the case it is very plain that the defendant was not called upon to prove title in St. Martin-, itwa3 sufficient for h.im to deduce title from St. Martin. This he did by giving in evidence the deed of conveyance of St. Martin to himself. The burthen of the proof that Henderson had acquired a superior title from St. Martin, was thereby cast upon the plaintiff, and, unless he has established it, the issue on this supposed breach of these covenants of seizin and good title must be found for the defendant.

In order to deduce title from St. Marlin to Henderson, and thereby prove the defendant had not title from him, the judgment of the bank against St. Martin, the execution and sheriff’s return, and the deed of conveyance to Henderson, ought to have been all produced in evidence on this.trial. On these documents, had they been given in evidence, the statute of Mississippi may have established a lien or priority which might have proved Henderson's the better title; but no such proofs were offered, nor any other which deserve to be even stated. But it is not necessary to pursue further this matter. The case does not appear in fact to have been prepared with a .view to the recoveiy for a breach of either of these covenants.

The plaintiff mainly relied on the alleged breach of the covenant of warranty, and insisted that this has been broken by the judgment recovered against him in the action of ejectment by Henderson. If he prevail on this groan 1, he must show ope or the other of these two facts : 1st. That the recovery was by title paramount to that which was conveyed him by the defendant; or, 2dly, That the defendant had notice of that action giyen to him, or his agent having the faculty of representing the defendant in the matter.

The first ground has already been disposed of, ip the decision that it is not shown in. this cause that Henderson had any title. It is not necessary to stop to proye that tljis is indispensable to a recovery, in the absence pf notice of the former suit, The common law is unquestionable in this respect, and the deposition read by the plaintiff to proye what was the Ipw in Mississippi, shows that the rule has not been altered in that State. The deponent says, a party evicted by a superior title of any sort from the possession of real estate which has been previously purchased with covenants of warranty, has a right to recover against his vendor, etc.

In respect to fh.e second ground, we infer it to be the settled litw in Mississippi that, if the defendant did defend the aption by himself, or agent with sufficient authority to represent him in the matter, or if he had sufficient notice of the institution of the action, so that he might have defended the land by resisting its recovery, h¡s coyenant to warrant, or in other words to defend the land, was broken.

T.he question then is, did the defendant appear in the action of ejectment, or had he notice of its commencement in time to enable him to defend the land according to his covenant ? It will not be necessary to separate these questions, for it wifi be found that if it appear that he had notice of the action it may be fairly inferred that he did appear by his authorized attorney and defend it, and if he did defend there is no occasion to make any enquiry in respect to t}ie notice he had received pf the institution of the action.

It Js necessary, in the investigation of this matter, to recur to the evidence, and attend particularly to dates, and observe what existed and what does not appear to have occurred, at each stage of the history of the affair.

The defendant Séjour was a resident qf'New Orleans in 1841, and up to 1843, and it does not appear he ever resided elsewhere in the United States. On the 8th pf April, 1841, he purchased this property on the bay of St. Louis of Cliq/rles St. Martin, at the price of $6080—:a debt owing him by St. Martin, and received hjs absolute dped of conveyance therefor, with covenants of seizin, good title and warranty, against all claim whatsoever, and having accordingly received possession he continued to hold it until his sale tq the plaintiff. This possession was by his tenants, fpr it is admitted that he never resided at the bay of Sf. Louis, It does not appear that Séjour was in anywise disturbed in his possession, or had any reaspn to doubt the sufficiency of his title, or to apprehend that the property was subject to any encumbrance whatever.

On the 4th of February, 1843, Séjour sold and conveyed the property to the plaintiff, Kling. It was th,en a hotel, and, haying been leased by Séjour to a tenant in possession, tl;e sale was made subject to the term, yihiph continued until the first day of the succeeding June. Kling was by the conveyance substituted to all tho rights of Séjour as lessor, apd obtained the seizin. On the 1st of May, 1843, justthrpe months after his sale to the plaintiff, Séjour left the United States (for Franpe, it is understood, for it appears he returned from France,) and did not return until 1847, which was after the judgment in ejectment had been recovered against Kling, and indeed after this suit had been commenced. There is no reason to suppose tljat Séjour, at that time, did apprehend that this property was subject to any encumbrance, or that thero was any defect in the title, and therefore it cannot lie presumed that he appointed any agent to receive notice from Kling of the institution of any suit against him in respect to the property. It is admitted that 1?- S. Séjour, a son of the defendant, attended to the collection of his rents, and it may be inferred that he had been appointed by thp defendant for this office; but it cannot be inferred from this fact that the son had been appointed agent to receive notice of the institution .of a suit against Kling for the re.covery of property in respect to which it vyas not expected any controversy would arise, and there is no evidence that the spn had any general commission to represent or personate his father in all things, and certainly such a.n universal commission cannot be inferred from the mere relation ¡of father and son-

It does not appear that there was any ground to apprehend that any adverse .claim existed or would be brought up against the property, until October, 1843. The.sheriff, about this time, it is said, levied an execution upon it, and R. S. Séjour, the son, visited, from New Orleans it is understood, the bay of St. Louis, and employed counsel in conjunction with the counsel of Kling to assist in the defence of the suit, which it .wqs .expected would be instituted by whoever might become the purchaser of the property; and the counsel so employed did assist in the defence of the suit in consequence of this employment. Now, was this employment by the authority of the defendant? or, shall it be .taken prima facie that it was by his authority, so that the defendant must prove the negative ? It has already appeared that it .capnotbe presumed that the defendant had left with his son a commission to represent him in any such unexpected affair, and there is no evidence whatever of any notice or information given him of any such seizure or sale, or action of ejectment by the purchaser. The plaintiff called upon the defendant to produce and file the letters it was alleged he had written to the defendant, giving such notice- Defendant qnswered on oath in open court that he had neyer received any such letters, and had no knowledge of his son’s having received any, and the plaintiff offered no-proof of any such. Qur own views on this subject haye been recently given in the case .of Fuselier v. Robin, ante p. 61.

It only remains to ascertain whether the appearing in court .of the lawyer who was employed by the son made the father a party to the proceedings, or in any otherwise has the effect of rendering the judgment which was recovered either conclusive, or priirpa facie, evidence against the defendant, that the recovery was had on superior tille. „

The employment of Mr. Lanppkin, by the son of Séjour, as the assistant of the counsel of Kling, flip defendant to the a.ction, did not make Séjour a party on the record. Kling .only was admitted defendant to the suit in the place of the casual ejector. If Séjour had been also admitted defendant then he would have been a party, and the question would have occurred whether the judgment would have been effectual against L. Séjgur—whether the attorney had authority tp represent him in epurt or not. There are cases in which it has been determined that the judgment in such cases does constitute res judicata, and that the party so represented cannot show that the attorney had no authority, but those are cases in whi.ch the persops resisting the effect of such proceedings yyere made a party on the record- This is not such a case. Séjour, the father, was not made a party, there was no judgment against him, and ihe effect of the counsel employed by the son appearing in the cause and arguing it, depends entirely upon the authority by whi.ch he appeared. It is impossible to hold the defendant b.oqnd by either the notice of the action of ejectment to his son, or bis employment of the counsel to represent defendant, without assuming and establishing the broad proposition that any son may act for his father in any matter whatsoever in his absence, which may unexpectedly arise; and, unless the authority of the son is so established, the authority of the attorney cannot be maintained, without establishing the proposition that any attorney may appear in any cause without our authority and without making us even a party on the record, and bind us by all the proceedings lpvd in the cause.

There is nothing then i.n the fact that Mr. Lampkin did appear in the defence of the action.of ejectment; the defendant was not Séjour the defendant In the present action, but Kling the plaintiff here, and according to the record he appeared for Kling only. It is established that he appeared on the employment of R. It- Séjour and was paid by him, but there is n,o evidence that R. (j. Séjour employed him in the name of his father, L. Séjour, and much less that he had any authority so to employ him ; and, in the absence pf all pro.of that Jj. Séjour had notice of such a suit, pr eyeti an apprehension that such a one, or any oth.er i.n respect to the land, would ever be instituted, it cannot be presumed he had authority.

Thus fiir we have spoken of the supposed notice to L- Séjour, without inquiring what notice would have been sufficient, and have treated the matter as if any information that such a suit existed would have be,ep sufficient. But we understand the law of Mississippi to require much more to bind a party by a judgment.

It is true there is enough in the circumstances of the case to raise a plausible conjecture that the defendant had this notice, and that the employment of the counsel was by his authority, but conjecture is far from being sufficient in such a matter. The notice, it must be observed, if given, is in the nature of a judicial process, and has the effect, if established, to constitute the judgment res judicata, and would preclude the defendant in this action from controverting that the plaintiff in that had good title, and surely no such efiect'could be given to a judgment against one who is no party to the record by any such conjecture. It is not necessary to shew that in common jaw proceedings the seryice on the person in such cases is required, or that it must be by some rpeans shown that the notice came to the party. Those courts peveracton such conjectures as would be necessary to be resorted to in this case for the purpose of binding .a party by a judgment: .and the notice to have effect in this suit must be such as the laws of Mississippi for such purposes required, and not such as we might require had the land and suit been in this State.

Ther.e is no competent evidence that the defendant in this suit had any notice whatever pf the action of ejectment—no proof that it was defended by bis authority ; .and there being no evidence that the judgment was recovered by a superior title, or that the plaintiff in that action had any title to the property, the plaintiff cannot recover in this action.

It is to be observed lliat, we have considered the rights of the parties in this suit ns existing under a jurisprudence foreign to our own.

The provision of the Code, arts. 2493, 2494, which binds -the vendor by a judgment of eviction against the purchaser even in the absence of a notification of the suit, unless the vendor shows that he possessed proofs which would have maintained his title, and which, for want of notification of the suit to him, have not been made available, has no application to this case. The judgment referred t.o is a judgment in a petitory action, which is conclusive as to the rights of the parties. An action of ejectment is for the recovery of land, but a judgment in it is not conclusive as to the right. The action may be renewed by either partj'-, or the right may be again tested in an action of another form'. At all events, any inquiry as to the application of our laws to this case would be entirely superfluous.

It only remains for us to state that the cause of the' delay in the preparation of this opinion and also of its unusual length, is to be found-in- the fact that the case has been submitted to us ex parte, without any argument or note on behalf of the defendants, notwithstanding the elaborate briefs-presented by the counsel for the plaintiff, in addition to the full argument at bar. We have been compelled to examine all the points which the case presents, instead of confining ourselves to those to which an argument on the part of the defendant might have limited us.

The judgment of the District Court is, therefore, annulled, and judgment rendered against the plaintiff as in case of non-suit, with costs in the District Court; the defendant paying-the costs of this appeal.


source: Caselaw Access Project

author: P_ost, J.

license: Public Domain

text:
    Fox v. Fox et al.
    A jadgment against tlie original debtor is primi facie evidence of the debt,' against the' holder of'property seed in a revocatory action to set aside a sale of the property on the ground of simnlatation. The holder may controvert it by all legal means, bat the burthen of proof is on him. C. C. 1967, 1971,
    from the Fifth District Court of New Orleans, Buchanan, J.

      Pres-' ton, for the. plaintiff.

      Roselius, for the appellants.
   The of the court was pronounced by

P_ost, J.

This is a revocatory action, in which the plaintiff seeks to set aside a sale of property on the ground of simulation. The case was tried before a jury who returned a verdict in favor of the plaintiff, and the defendants-have appealed from the judgment rendered thereon.

The only serious question presented for our consideration by the appellants is, whether the claim of the plaintiff against the original debtor has been sufficiently proved. Their counsel contends- that the judgment against Fox, o» which the plaintiff relies, is not evidence against the real defendant in the action, because he was not a party to it.

The law-giver would have been guilty of a strange inconsistency, if, after1 providing that a creditor might prosecute a revocatory action, without making his debtor a party to the proceeding, provided the claim was liquidated by a judgment, he had further ordained that this judgment should have no effect whatever in the prosecution of the action. We cannot adopt that interpretation. The judgment is prima facie evidence of the debt against the holders of the property claimed. They may controvert it by all legal means, but the burthen of the proof is on them. C. C. 1967, 3971.

No evidence has been adduced by the defendants in this case to disprove the plaintiffs claim ; and, as we are satisfied that the jury has done justice between the parties, the judgment must be affirmed. Judgment afjirmed.


author: ííifre, J.

text:
    Anderson v. Dacosta.
    The Clause of art. 3508 C. C. which provides that "if the vice has made its appé'ararice with'in three days immediately'following the sale, it is presumed to have existed before the' sale,”'does not apply to vices of character.
    from the Fourth District Court of ÑeW Orleans, Strawbridge, J.
    Pilot, for the plaintiff,

      Trairi, for the appellant,
   the judgment of the court was pronounced by

ííifre, J.

The plaintiff has instituied this action to rescind ihe sale of a female slave, on the ground that she was in the habit of running away previously to the sale. The defendant pleaded a general denial, and called his vendor, Faivre,- in warranty. A judgment was rendered in favor of the plaintiff against ihp defendant; and in favor of the latter against his vendor Faivre. Faivre has appealed.

The district judge assigned the'following reasons for his judgment: “ It is proved that the slave Matilda, whilst in the possession of the warrantor Faivre, absented herself from Smith, with whom she was hired; from the’2d to the 5 th of July, and was brought back by her master, who1 declared she had runaway before. It is further in proof that she Was taken Up and lodged in prison on the' 28fh of September, being within three days after her sale to- the plaintiff. This, under arts. 2505 and 2508’C. C., establishes the law.”

The facts stated by the judge are fully established by the testimony of three witnesses, whom he believed, and no- fact proved by the appellant stands in necessary conflict with the truth of their statements. But it is contended that art. 2508 of the Code has no application to vices of character, and that the judge erred in considering the fact that the slave absented herself within three days after the sale as affording a presumption of the previous existence of the habit of running away. This position is supported by the authorities to-which we have been referred. 6 La. 40. 5 Mart. 372.

The conduct of the slave, subsequently to the sale, may be considered in connection with' other testimony in determining the previous habit; but, when the alleged vice is one of character, does not create the legal presumption spoken of in the article referred to. In the present instance, however, the-testimony showing the existence of the habit anterior to the sale is sufficient to support the decision of the district judge, without the aid of that presumption. Judgment affirmed.


author: King, J.

text:
    Solomon v. Cavelier.
    Where one' Who claim's to be the owner of a slave found in the possession of a third person, causes him to be placed in jail, and commences a petitory action to recover him, an action for damages (or the illegal imprisonment will be prescribed by one year from the termi-. nation of the imprisonment. The prescription is not suspended by the pending of the petitory action. The rule Contra non valentón &c, is inapplicable to such a case, as the damages might have been claimed in reconvention, being connected with and incidental to the action for the recovery of the slave. C. 1’. 375.

      PPÍÍAL from the Third District Court of New Orleans, Kennedy, J.

      W. II. Hunt, for the plaintiff.

      Blache, for the appeiiant.
   The judgment of the court was pronounced by

King, J.

The plaintiff’, as the assignee of Moss, instituted this action to recover the value of the services of a slave, who, it is alleged, was wrongfully confined by the order of the defendant in one of the public prisons of this city. The defendant denied his liability and pleaded the prescription of one year. A judgment was rendered in favor of the plaintiff, and the defendant has appealed.

It appears that Cavelier and Ravenporl claimed to be the owners of the slave in question, and finding him in the possession of Moss’ agent, directed him to be lodged In prison, Where he was accordingly placed, in January, 1845, and remained for nearly a year. They also instituted a petitory action 'against Moss for the recovery of the slave, in which they prevailed in the lower court, but, upon an appeal, the judgment of the inferior tribunal was reversed, in May, 1847, and Moss decreed to be the owner. See-2 An. 584., The present suit for damages, was not instituted until the 25th November, 1847, nearly two years after the commission of the wrongful act complained of. The action was consequently prescribed, unless prescription was interrupted or suspended. C. C. arts. 3501, 3502.

The district judge was of opinion that the prescription was suspended by the pendency of the petitory action between the same parties, on the principle, Contra non valentem agere non curritprezscriptio. He considered that Moss was not bound in the first suit to plead in reconvention the damages claimed in the present action, and that he could not have instituted a separate suit to recover them. The district judge, in our opinion, erred. That Moss could have instituted his demand in reconvention for the- damages now claimed, we think admits of no doubt. The demand was connected with and incidental to the main action. C. P. art. 375. That the extent of his damages was not then known, formed no valid objection to instituting^his reconventional demand. His claim could have been setforthfor the monthly value of the slave’s services, precisely as it has been averred in the present action. Whether he could have instituted a separate suit for damages, while the first was pending, it is immaterial to inquire. He had an adequate remedy, of which he failed to avail himself, and cannot now assert that he was unable to act, and claim the benefit of the rule Contra non valentem agere.

The judgment of the District Court is, therefore, reversed, and a judgment rendered in favor of the defendant, with the costs of both courts.


text:
    Armant v. Her Husband.
    Blows inflicted on a wife by her husband, will entitle her to a separation from bed and board.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J. Judgment of separation was rendered by the lower court in this case, on of blows inflicted on the wife, the husband.

      Soulé, for the plaintiff.

      Roselius and Chymes, for the appellant.
   The judgment of the court was pronounced by

King, J.

This is an action for a separation from bed and board, in which the plaintiff prevailed in the lower court. We have given to the case the most serious consideration, and are of opinion that the- judgment appealed' from should be affirmed for the reasons assigned by the district judge, which, to our minds, are conclusive, and which we adopt. See also 2 Tonllier, no. 7b4. Path» ier, Cont. de Manage, nos. 50S> 109. Judgment affirmed,


author: Eostis, O. .1.

text:
    Commissioners of the Exchange and Banking Company of New Orleans v. Yorke et al.
    A decision of a court of the first instance on an incidental question, not presented by the pleadings, will not be examined on appeal,unless tile evidence on which the court acted is stated in a bill of exceptions, or referred'to as making a part of it
    3?he effect of the answers of a garnishee is- to throw the burthen- of disproving them on the other party.
    When an agent makes a purchase for himself which he was bound to make for his principal, the latter may, if he choose, take the purchase, and the agent will be bound to account to him for it; but this principle cannot prevent an agent from purchasing a judgment against his principal, though to the detriment of the creditors of the latter.
    from the Fifth District Court of New Orleans, Buchanan, T„

      Carter and Bradford., for the appellant.

      L. Peirce and Micou, contrfi.
   The judgment of the court was pronounced by

Eostis, O. .1.

Those cases have already been before us on appeals taken by Henry Florance ; they were remanded for further proceedings, in- December, 1847, and January, 1848, and wiilbe found reported in 2d and 3d Annual,, pp. 995, 155. In the District Court the cases were consolidated and tried together. .1 urigment was rendered against Florance. by which his traverse to the answer of Hanna, garnishee, as wall as his third opposition, in which he claimed priority of payment out. of n certain fund ii> the hands of the sheriff of the parish of Orleans, were both dismissed at his costs. Florance has again appealed. Several bills of exception have been taken to the decisions of the district judge on points raised o-n the trial of the cause.

The first is to the order of the District Court, consolidating these causes. When they were before us on the first appeal they were in such a condition that the ordinary rules of proceeding could not be applied to them, and their consolidation was one step towards restoring them to that order which is necessary to their proper termination. The bill of exceptions to this proceeding is without any ground whatever.

A second bill of exceptions was taken to the decision of the district judge refusing the appellant, a continuance. Tt appears that, ou the 13th November, 1848, the day before the cause was fixed for trial, on the motion of tlie counsel of Florance, it was ordered that Hanna produce in court,on the trial, the letters received by him from the defendant Yorke, and his correspondence with Yorke referred to in his answers to the interrogatories propounded to -him as garnishee. The return of the sheriff showed that ffanna was absent from the city, and there was consequently no service of the rute; and Florance thereupon applied for a continuance.

The district judge refused the continuance because the only correspondence which had taken place between Yorke and Hanna, according to the answers of the latter to -interrogatories, was a letter from the latter to the former inform- , , = , ....... . ing h-im of me purchase of certain judgments, which it did not appear was in Hanna’s possession. The judge did not think that the party in his call for pape-rs, had complied with article 473 of the Code of .Practice, which provides that the order of court to produce papers -or documents on the trial of a cause must-describe such papers or documents. In this opinion of the district judge we concur.

It has been contended in argument that the district judge ought to have granted the appellant a continuance on account of the absence of a witness, on tile affidavit -of the party as to his materiality, &c. It is conceded that the continuance was applied and refused, but no bill of exceptions was taken to the decision of the court. We -concur wit-h the counsel for the appellee, ns to the rule of practice which prevails in this court. We can only review the opinion of the judge when we have his decision before us with the grounds on which it is based, except where the question decided is presented by the pleadings. We have never examined the decision of a court of the first instance on any incidental question raised, without having tlie evidence on which the court acted stated in a bill of exceptions or referred to as making part of it. Such we take to be the only safe-rule in reviewing such decisions in an appellate court.

A bill of exceptions was also taken to the admission in evidence of the answers of the garnishee I-lanna, which had been traversed, and on which issue was thereby made. As the whole case is before us, we shall only consider the effect of those answers in the garnishment, that is as to the matters set tip in the answers of the garnishee. The effect of these answers was to throw the burthen of disproving them on the appellant, which he lias, in our opinion, failed in doing. It, therefore, remains to be considered, what the appellant’s right is, on the evidence as presented on his third opposition to the distribution of the funds in the hands of the sheriff of the parish of Orleans.

Hanna, it appears, had purchased a judgment against Yorke. Florance also bought one, which was recorded subsequently to that purchased by Hanna. On execution on Hanna’s judgment a certain sum was made, -which is now in the hands of the sheriff. Florance filed his third opposition claiming precedence on this sum by virtue of his judgment and execution which had been issued’ on the ground that Hanna had bought the judgment for the benefit of Yorke’ the debtor, and that it is consequently satisfied in law. and that the proceeds of the property sold fell to him ns holding the next judgment and execution. Han_ na filed a general denial to this opposition, and on this issue evidence on both sides was adduced.

We think it proved by the testimony of one of Florance's own witnesses that the judgments purchased by Hanna at the sale of the effects of the Exchange and Banking Company, were bought by him with means obtained on his own credit exclusively, and that by the purchase the judgments became his and not Yorke’s, and were consequently not extinguished thereby.

Yorke was an absconding debtor, and had left with Hanna, who was his brother-in-law, a general power of attorney. He had attempted to compromise with Yorke's creditors, and had remitted money received on his account to him for his support. It is contended by the counsel for the appellant that, holding this power of attorney, he. the agent, could not buy a judgment against his principal to the detriment of Yorke’s creditors. We do not understand the doctrine on which this argument is produced to be extended beyond the well recognized.principle that, when an agent makes a purchase for himself, which he was bound to make for his principal, itrests with the principal, if he ehooses, t0 taiie t|]0 plu.c]las6j an(j {j]0 agent is bound to account to him for it. It was optional with Yorke to take this purchase made by Hanna, if the agency continued at the time of making it; but he was undoubtedly bound to re-emburse Hanna the price which he paid for it. But the object of Florance is to make the money made under execution directly available to his execution as the property of Yorke, the defendant, subject to seizure. Whatever suspicions there are about these transactions, and there is certainly much ground for them, the evidence does not authorize us in subjecting this fund to the execution of the appellant. There is nothing shown to have transpired on the part of Yorke indicating his intention or wish tohaye the benefit of the judgments, nor on the part of Hanna to hold them for his benefit. On the issue made between these parties, we see no reason for reversing the judgment of the District Court.

Judgment affirmed.


author: Rost, J.

text:
    Riddell v. Gormley.
    Though adefendant have omitted to plead in compensation in an action against him a debt due to him by plaintiff, he may, on the ground that compensation takes place by mere operation of law, oppose the compensation to any attempt to execute the judgment; and this though, at the time of instituting the suit against him. or of executing it, the claim offered in compensation would otherwise be prescribed, provided that the prescription had not been completed at the time when the debt due by him was payable.
    from the Second District Court of New Orleans, McHenry, J. presiding.

      Barilette, for the appellant.

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

Rost, J.

The plaintiff is the legal representative of Schrager’s estate, against which the defendant obtained a judgment on the 27th of October, 1836, ou some property notes, endorsed by the said Schrager, and bearing date 20th February, 1832. Schrager died in Decorobor, 1832, and at the sale of bis succession, William Gormley, whom the defendant now represents, became the purchaser of horses and other moveable effects, lo .the amount of $273 25, which he refused to pay at the time, saying that he held the above mentioned notes, on which Schrager was responsible. The defendant having obtained an execution on her judgment, in October, 1847, the plaintiff paid the amount of it, except the aforesaid sum of $273 25, to the amount of which he enjoined the proceedings. The district judge was of opinion that the claim of the plaintiff in injunction was barred by the prescription of ten years, and plaintiff appealed.

There having been mutua! indebtedness between Schrager’s estate and Gormley, and their respective claims being equally liquidated, the debts, up to the amount due by Gormley, were extinguished by compensation before either was prescribed, and that compensation may now be pleaded by the plaintiff. 7 Toullier, no. 388, 389.

The defendant has also pleaded payment, but has failed to establish it in a satisfactory manner. It was not'enough for her to render the fact of payment probable; but we are of opinion slie has failed even in this. The plaintiff is entitled to a judgment.

It is, therefore, ordered that the judgment in this case be reversed, and that the injunction be perpetuated, with costs in both courts.


text:
    Breaux et al. v. Johns et al.
    ■On the discovery of the American continent the principle was asserted or acknowledged hy all European nations that discovery, followed by actual possession, gave title to the soil to the government by whose subjects, or By whose authority, it was made, not only against ■other European governments, but against the natives themselves. While the different ■nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to the soil to be in themselves.
    'Indian tribes in Louisiana, to whom lands were allotted by the Jaws of Spain, were never invested, by those laws, with the absolute ownership. The Indians were not permitted to dispose of those lands without being expressly authorized by the government. If all died' or removed permanently, the lands reverted to the crown, not by forfeiture, but by the implied right of reversion; or, if the population of the Indian villages was greatly reduced in number, the remnants of several villages were united into one, and, in such case, they continued to hold so much of the land originally set apart for them as they stood in need of.
    The ultimate right to the soil occupied by Indian tribes in Louisiana is in the United States, who can grant the soil while yet in the possession of the natives. Such grants convey title to the grantees, subject to the Indian right of occupancy.
    from the District Court of Iberville, Penn, J.

      Labauve, for tho appellants.

      W. E. Edwards, for the defendants and warrantors.
   The judgment of the court was pronounced by

Rost, J.

This is a suit for slander of title, in which the defendants have justified the slanders alleged, and plead title in themselves. The plaintiffs claim under a patent issued on a certificate of purchase from the United States, as authorized by the preemption law of 1834. The defendants allege that they possess under the primitive owners of the soil, the Chetimacha tribe of Indians, by virtue of a lease and transfer,-made in 1807 to their ancestor, Nathaniel Cropper, by the said Indians, for and during the term of ninety-nine years. They have called in warranty the Chetimachas, who have been made to appear in their national capacity, and-to answer as follows: That the title to the land in controversy is in themselves, having been the owners and possessors thereof as far back as tradition, authentic history, or the memory of man runneth, and holding it by descent through many generations of their ancestors ; that their nation were owners and possessors of said land, when the french nation first discovered it, and proclaimed its sovereignty over the territory of Louisiana; that the french and Spanish governments recognized their title to the land, and by the treaties of Paris and San Ildefonso bound the United States government to do the same; that the United States government, in a compact with the territory of Louisiana, at the time of her admission into the Union, acknowledged the title of the warrantors to the land in controversy, and therefore the general government could not-survey or alienate said land, without their consent. This defence was sustained in the court below, and plaintiffs appealed.

“ In 1699, Iberville landed at Biloxi, crossed over to and passed up the Mississippi, which he explored, discovering the forks of the Chefimachas (now bayou, Lafourche) and bayou Plaquemine. The country was then in possession of the Chetimncha tribe of Indians, from the bayou Plaqutnine to the bayou Lafourche, as far as it can be ascertained.” Martin’s History of La. vol. 1, pp. 142-144. This historical fact is corroborated by the testimony of many old inhabitants of the country. It is proved that this tribe had two places of residence, one on bayou Jacob, near the Mississippi river, and the other on the bayou Plaquemine, adjoining the land in controversy, and that they occasionally removed from one place to the other. It is also shown that they had another village on bayou Teche; that their claims to the lands on bayou Jacob and bayou Teche have been confirmed by the United States, and that the application made to the board of commissioners, in 1807, for the confirmation of one thousand two hundred and three superficial arpeuts opposite the mouth of bayou Grosse Tete, and including the land in controversy, was rejected.

The plaintiff's rely upon the case of Martin v. Johnson et al., 5 Martin’s Rep. 655; and also upon the case of Reboul v. Nero, 5 Ibid., 490, which turned upon the title of this same tribe of Indians to the village on bayou Jacob. It was held by our predecessors, in those cases, that, the lands assigned to Indian tribes by the Spanish government were granted in full ownership, and that the government surveyors were bound to notice their location, and could not survey them as vacant. We are not propared to give an unqualified assent to those propositions.

Upon the discovery of the American continent, the principle was asserted or acknowledged by all European nations, that discovery followed by actual possession gave title to the government by whose subjects or by whose authority it was made, not only against other European governments, but against the natives themselves. While the different nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be in themselves. Johnson v. McIntosh, 8 Wheaton, 543. Worcester v. State of Georgia, 6 Peters, 515. Fletcher v. Peck, 6 Cranch, 87.

Spain, besides claiming as other nations by right of discovery, rested her title to the soil upon the higher sanction of apostolic dispensation. In the exercise of a power then held to be divine, the .Pope, Alexander VI, granted to Ferdinand and Isabella, all the lands discovered, or to be discovered, by their subjects on this continent, and the islands adjoining it. This grant is found in extenso in Solorzano, Política Indiana, b. 1, ch. 10, nos. 23, 24. There can be no doubt from the words used, nor has it ever been doubted by the courts or government of Spain, that it was absolute, and vested in the sovereign, all the lands discovered or to bo discovered, whether or not they were appropriated or occupied by the natives at the time of discovery. “ The king,” say Solorzano, “ wa3 único y absoluto dueño, de tierras, montes y pastos.”

We must, therefore, ascertain whether the laws of Spain, after the discovery of America, restored the natives to the absolute ownership of tbe lands allotted to them, there being no doubt that those laws were enforced in Louisiana. ¶

Isabella states in her will that, when she and her husband Ferdinand applied to the Pope for the grant already mentioned, their main object was to civilize the natives, and to convert them to Christianity. In furtherance of those objects, it was ordained by the law 1st. tit. 3d, book 6th of the Recopilación de leyes de Judias, that the Indians should bo compelled to dwell in villages, where they may more conveniently be instructed in the catholic faith, and the arts of civilized life. This law was carried into effect, and the nature of the title of the Indians to the lands allotted to them may be deduced from the other laws in the same book and title, and their commentary in the Política Indiana. They could not dispose of those lands without an express authorization from government. If they all died, or removed permanently from the village, it reverted to the crown, not by forfeiture, but by the implied right ot reversion. The villages and reducciones could be altered, and their location changed, with the authorization of the king, of the vice-king, or of the audiencia. Politico Indiana, book 2, ch. 24. nos. 42, 45. When the population o the villages had greatly diminished in numbers, the remnants of several villages wore concentrated into one, and in that case they continued to hold only so much of the land originally set apart for them as they stood in need of.

In the case of Martin v. Johnson et al., it was in evidence that the Pascagoula and Biloxi tribes of Indians had thus been removed to bayou Bceuf, and located on the reducción of the Choctaws, with the consent of that tribe.

These regulations were substantially the same as were enforced by England in North A merica, and have been enforced by the United States since the revolution. In Louisiana, ns in the other States, the nature of the Indian title was Hot such ns to be repugnant to the right of ultimate dominion in the sovereign of the country. In the case of Martin v. Johnson et al., the court was of opinion that under the 27th law, titlo 1, book 6, of the laws of the Indies, Indians could hold land ns well ns other people. That law only says that Indians can sell their lands when properly authorized to do so, and it provides that the sale must in all cases, under pain of nullity, be made at public auction, after thirty days advertisement. It appears to us that, by this sale, the Indians transferred their right of occupancy, and that the authorization of the government to sell was in the nature of a grant, and vested the title in the purchaser.

In the case of Mitchell et al. v. The United States, 11 Peters, 711, the In. dian titles, under which the plaintiffs claimed, rested upon solemn treaties, entered into between Spain and the powerful tribes of Indians which then occupied the province of Florida. These treaties were in derogation of the laws of the Indies, and probably did vest the absolute title in the Indian tribes. But no such treaties were ever made with the tribes which inhabited Louisiana, and that case is not applicable to the one under consideration.

We believe the ultimate right to the soil occupied by the Indians to be in the United States, and that, as a consequence of this ultimate dominion, they have the power to grant that soil, while yet in possession of the natives. These grants convey a title to the grantees, subject only to the Indian right of occupancy. Fletcher v. Peck.

Applying these principles and laws .to the present case, we find that the Chetimacha tribe of Indians had three villages, two of which have been recognized by the United States as properly located, and the claim to the other rejected.

The evidence in the record going to show that the rejected claim was a reducción regularly made under the laws of the Indies is not satisfactory, nor does it seem to be in accordance with those laws that two such grants should have been made to the same tribe, within seven or eight miles of each other. But supposing the claim to be valid, the United States could grant the land it covers, subject to the right of occupancy of the Indians, and as they have ceased to occupy the portion in controversy, since 1807, the plaintiffs are* entitled to take possession of it, under their patont.

The defendants themselves appear to have considered the Indian title in that light, as they have claimed the right of preemption by virtue of settlement and cultivation, and have purchased through error a Jot within which they supposed the land in controversy to be situated.

The attempt of the defendants to recover from the Indians as warrantors, is preposterous. They, as well as those under whom they claim, well knew that the title under which they possess was a« absolute nullity, from which no legal-effects could result.

It is, therefore, ordered that the judgment in this case be Reversed, and that there be judgment in favorof the plaintiffs; that the said plaintiffs be'forever quieted in their possession and title to the lot described in their petition,- against all claims or pretentions of the defendants. It is further' ordered, that the claim of the defendants in warranty be dismissed, and that said defendants pay the costs in both courts.


text:
    Cox v. Myers.
    Slaves are not subject to provisional seizure to secure the rent of tbe premises on which they are found, though the tenant have no other property. The right of the lessor to a provisional seizure can be exercised only on moveable effects found on- the premises. C. C. 2675.
    Where a slave found on leased premises- is illegally taken by the landlord under a writ of provisional seizure, and he dies of a disease contracted during his imprisonment under the seizure, the plaintiff will be responsible for his value. C. P. 295. €. C. 2291, 2294.
    from the District Court of Madison, J,

      Thomas and Snyder, for the appellant.

      Amonelt, for the defendant.
   The judgment of court was by

Rost, J.

This sui(: was instituted to recover of the defendant a sum of money, due in part for rent of land. The plaintiff claimed the lessor’s privilege, and obtained a provisional seizure, under which a slave, belonging to the defendant and found on the leased premises, was seized, and confined in the common jail, where he contracted a disease of which he died. The defendant answered by a general denial and a plea in reconvention, claiming $204 as due upon an account, and $1,000 the alleged value of the slave, the latter claim being made on the ground that the seizure was illegal. There was judgment in favor of -the defendant in reconvention for $445, with five per cent interest and the plaintiff appealed.

The court below appears to have considered the plaintiff’s claim as proved, but held him liable for the value of the slave. We concur in this view of the law. For that portion only of the plaintiff’s claim, which was for rent, he waa entitled to a provisional seizure. But it is clear that slaves are not subject to provisional seizure to secure the rent of the premises on which they are found, even when the tenant has no other property. Thi3 right of the lessor can only be exercised on the moveable effects found on the leased premises. C. C. 2675.

If slaves could be provissionally seized for the arrears of rent of the land on which they are found, it would follow that they might be sold under the lessor’s privilege, and thus pass into the hands of the purchaser free from any mortgages which might previously have existed upon them. A construction that would .lead to such a result cannot be the proper one. The seizure of the slave in .this case was an illegal act. C. P.295. C. C. 2291, 2294. Boyce v. Poydras de Lalande, 6 La. 277.

The plaintiff’s counsel further contends that a plaintiff is not responsible for any damage which may result .from the exercise of a legal right, unless he is prompted by malice., and then only when his pursuit is wanting in probable cause.

This is true, but the plaintiff in this case was not exercising a legal right, when he caused the slave to be seized. After that seizure he was in fault, and as it is proved that the slave died of a disease contracted during his confinement in a damp and unhealthy jail, the defendant must be compensated for his value. The amount allowed is fully sustained by the evidence.

Judgment affirmed.


text:
    Wood et al. v. Lyle.
    An application for a jury is too late, after the case has been fixed for trial.
    Improvements made upon tho public lands of the United States, where the party making them is .not in a situation to avail himself of the preemption laws, cannot form the object of a contract. Arts. 18S5,1886, of the Civil Code limit the rule contained in art. 1960, that no one ought to he permitted to enrich himself at the expense of another, to cases in which the alleged benefit arises from a lawful act. Eroin unlawful acts, though they may have proved beneficial to others, no right not expressly authorized by law can arise.
    from the District Court of Madisou, Selby. J.

      Thomas and Snyder, for the appellants.
    No counsel appeared for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs sue to recover a tract .of land in the possession of, and cultivated by tho defendant. The.answer admits the title of the plaintiffs, but avers that the defendant has placed valuable improvements upon the land, for the value of which he is entitled to he reimbursed before the judgment of eviction .can be executed against him. There was judgment in favor of the plaintiffs for the land, and against them for the sum .of $234, the valuó of the improvements placed theieon by the defendant. The plaintiffs have appealed.

The defendant filed an amended answer, prayingfor an order of survey and a trial by jury, after the .cause had been set down for trial. These applications were rejected, and the defendant took a bill of exceptions to the opinion of the judge. The survey was unnecessary, as the plaintiffs were willing to take a survey previously made for the defendant, by a surveyor of his own choice. After the case had been set down for trial, and while it stood in that situation, the defendant could no longer claim a trial by jury.

It is in evidence that the land in controversy had been offered for sale, and was subject to entry. It is .also shown that this land was enclosed between other traéis belonging to the defendant. Under the rule established in the case of Jenkins v. Gibson, 3 An. 203, the defendant was a trespasser, and is not entitled to indemnity for his improvements. The land is proved to be of inferior quality subject to overflow, and but imperfectly cleared. Whatever labor has been expended upon it by the defendant inures to the benefit of the plaintiffs, and we do not consider that the the evidence would justify us in allowing the rents claimed.

It is, therefore, ordered that the judgment in this case be amended, so as to disallow the defendant’s claim for the value of the improvements put by him upon the land ; ánd that, as amended, it be ¡affirmed, with costs.


author: KtKG, J.

text:
    Glasscock, Tutor v. Green.
    The husband, as head of the community, is bound to pay its debts. If he uses the separate funds of his wife for that purpose, he becomes her debtor for the amount.
    from the District court of Concordia, Barry, J.
    .Stacy and Spar. row, for the appellant.

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

KtKG, J.

The plaintiff has instituted this action against the defendant, the mother and former tutrix of J. W. D. Glasscock, to render an account of her tutorship. In obedience to an order of court the defendant filed an account, exhibiting a balance in her favor, for which she prayed judgment. She subsequently, in an amended answer, claimed an additional credit for the proceeds of a crop of cotton, made previous to her marriage with Glasscock, the father of the minor, which were received by him during the marriage. The account was opposed by the tutor on various grounds. The district judge rendered a decree establishing a sum to be due to the defendant by the minor, and the plaintiff has appealed.

The appellant complains; 1st.. Thatn sufficient amount has not been allowed for the hire of certain slaves, the individual property of the minor. 2d. That an error of $63, has been made in the addition of the debit side of the account presented by the tutrix, to the prejudice of tl>e minor. 3d. That interest has not been allowed on the one half of the valuó of the moveables and improvements belonging lo the community, for which the tutrix has been hold liable. 4th. That the judge erred in allowing the defendant a credit for the oro.p of cotton .of 1839.

I, The defendant debited herself, in her account, with the hire of the minor’s slaves, from the death of her husband to the 13th March, 1839. It appears how.eyer, from the evidence, that the slaves were np,t delivered to the plaintiff until the Gth January, 1840. The hire for nine months and twenty-four days, at the rate fixed by the district judge, must be placed to the minor’s credit.

JJ. The error of $63 in the additions, must likewise be corrected.

III. We have repealedJy held that tutors are liable for interest on the funds of their wards which they fail to invest. But, in the present instance, the defendant appears to have been a creditor of the succession which devolved upon the minor, at the time that it was opened, for an amount nearly equal to the value of the moveables and improvements for which she has been held liable; and, shortly after Glasscock's death, became a creditor for an amount exceeding this liability, by the payment of community debts. She can consequently owe no interest.

IV. The evidence, in our opinion, satisfactorily shows that, the defendant made a crop of one hundred and twenty-six bales of cotton during the year 1830, prior to her marriage with Glasscock, Which did not occur until the 15th December of that year; and that the proceeds, i. e. 83-497 35, were received by her husband subsequently to the marriage. A part of the sum it is true, was applied to the payment of debts contracted by the defendant anterior to the marriage, but the amount thus appropriated was deducted by the judge from the sum for which the minor has been held answerable.

It is shown that the proceeds of this crop were in part applied to the purchase of plantation supplies, and other articles for the use of the community between Glasscock and the defendant. The plaintiff contends that the succession of Glasscock should not be held to account for these expenditures. To this it is satisfactorily answered that Glasscock was the head of the community, and bound to pay its debts.' If he used the. separate funds of his wife for that purpose, he became her debtor for the amount thus applied.

The judgment of the District Court is, therefore, amended, by allowing the plaintiff a credit for 863, and for the hire of the minor’s slaves for nine months and twenty-four days. Thus amended, the judgment appealed from is affirmed ; the appellee paying the costs of this appeal.


author: SniDEim, J.

text:
    Cobb et al. v. Parham et al.
    decision in Jwrev. First Municipality, 2 An. R. 321, affirmed.
    from the District Court of Madison, Selby, I.

      Bemiss, Prentiss and Gaither, for the appellants.

      Thomas, for the defendants.
   The judgment of the court was pronounced by

SniDEim, J.

Under the circumstances of this case, which have been stated in the decision of the cause upon the merits, we are of opinion that the conditional order of dissolution of the injunction was properly rendered. See C. P. 307. A suspensive appeal should not have been allowed. See the case of Jure v. First Municipality, 2 An. 321.

Appeal dismissed.

      The order of dissolution was on the condition of defendant’s executing an obligation, with surety, in favor of the plaintiff, as required by art. 307 C. P. R.


author: Sbidem, J.

text:
    Cobb et al v. Parham et al.
    An award rendered by amicable compounders cannot be revised by the court for errors of judgment; it can only be attacked for fraud or Usurpation of power on the part of the! auditors.
    An award of arbitrators, not binding on account1 of the Want of- authority from a married woman toiler husband, who had agreed, in the name of the former, to an extension of tho-time for making the award, and in consequence of its not having been duly homologated, will be rendered' valid' by a subsequent execution of it by the parties. Its execution by the wife would cure the Wane of original authority in the husband', and the execution of tho award by the parties would entitle them'to its benefits, as fully as though it liad been-duly homologated.
    To confirm an act not binding on a-party a formal instrument is not indispensable. Its voluntary execution involves a renunciation of-tho exceptions which might have been opposed to it.
    A partial execution demonstrates, as well as- an entire execution, the wish to confirm a defective act. It is a tacit approval.
    from the District Court of Madison, Selby, J.

      Bemiss, Prentiss and Gaither, for the appellants.

      Thomas, for the- defendants.
   The judgment of the court was pronoonced by

Sbidem, J.

The transactions out of which the present suit has grown, began under relations of intimacy and good will, which were followed by mutual complaints and controversy. After an acrimonious litigation, the parties seem to have reflected for a time upon its injurious consequences to themselves and and their creditors, and to have made an agreement to submit tho matters in dispute to arbitrators, whom they clothed with the authority ofamicable compounders. The controversy involved a large estate called the “Buckhorn plantation,” of which Mrs. Cobb and Lowry, were the joint proprietors, and the settlement of mutual accounts and claims. Among other powers-vested in the arbitrators was that of deciding in what manner the plantation and slaves should in future be managed and controlled, and what disposition should be made of the crops, in whose name they should be shipped, and by whom applied until the claims against it should be liquidated. The then existing crop was placed under th® control of the arbitrators. The submission was signed by Mrs, Cobb, her husband, and Lowry., in July, 1846, and the arbitrators were required to render their award on or before the I Oth February, 1847. It being found that the award would not be prepared at the time stipulated, an agreement for extension, until the 15th Marcli, was signed on the 18th January, 1847, by Lowry, and by Cobb in his individual name, and as agent of his wife. The arbitrators rendered their final award on the 15th March, 1847. It was spread upon the minutes of the court at the ensuing October term, upon the ex parte motion of Lowry; and on the like ex parte motion it was made the judgment of the court.

On the 7th January, 1848, Mrs. Cobb and her husband instituted the present suit'. Her petition states the ownership of the plantation and slaves by herself and Lowry; that she had for many years the management of it, and of the crops, employing her husband as the overseer; that the defendant Parham, pretending to derive authority from the award of certain arbitrators, was about to deprive her of the control and supervision of the estate, and prevent her from exercising her right of ownership over it. To prevent the injury that would arise from Parham's alleged usurpation, she asked and obtained an injunction. The defendants denied the right of the plaintiff to the supervision and control, and justified the acts of Parham under the award of the arbitrators.

The true question in the cause is1, the binding force of the1 award upon the’ plaintiff. If it be binding,- the judgment of the court dissolving the injunction' cannot be disturbed.

It is conceded by the ‘defendants that the award has not been duly homologated. It is also conceded that, no express authorization by Mrs. Cobb to her husband to extend the time for making the award has been proved. But they contend that a formal homologation is not necessary where the parties have themselves executed the award; and that the absence of an express authorization from the wife to extend the time, and the consequent defectiveness of the award, are cured by her voluntary execution of it.

We concur injopinion with the defendants’ counsel, that an award rendered by amieableYompounders could not be revised by the court for errors of judgment, and could only be attacked by reason of fraud or usurpation of power on (he part of the auditors (see Canty v. Beal, 17 La. 285. Davis v. Leeds, 7 La. 477); and that, in the absence of objections of that nature, the 'execution of the award by the parties would entitle them to its benefit, as fully as though it had been duly homologated. We also concur with the counsel for the defendants, that a subsequent execution by the wife, would cure the want of an original authority in the husband to assent for her to the extension of time.

This brings us to consider the facts upon which the defendants rely, to show an execution of the award by Mrs. Cobb and her husband. To appreciate them a brief notice of the terms of the award will be necessary.

The arbitrators, by their award, divested both Lowry, and Cobb and wife, of all personal control of the estateYod its cultivation, leaving Mrs. Cobb however, the privilege of occupying a dwelling house on it. They appointed Parham to take its entire control and administration. He was required to manage the property as a prudent administrator; was empowered to employ and discharge overseers, who were to be governed by him alone, and not to be under the control of the joint owners, a special authorization being given to him to employ Cobb in that capacity if he should so desire. He was to ship the crops in his name as agent, and control the proceeds, subject to the instructions given by the award. These were to apply the product of the estate, first to the payment of its expenses; next to the payment of certain yearly allowances for the individual use of Mrs. Cobb and Mr. Lowry; and then to the payment of the mortgage debts due to Burke, Wait Co., Hynes, and the heirs of Mitchell. His administration was to continue until January, 1850. Provision wu3 made for the subsequent partition of the estate; also for the appointment by the district judge of a suitable person to act in his place, in the event of his death, removal, or inability. The whole character of the award points to the withdrawal of the estates, for the time being, from the hands of the proprietors, whose interference, as demonstrated by their former .quarrels, was deemed incompatible with the true interests of themselves and their creditors.

Under this award we find Parham entering upon his administration. Burke. Wail Sf Co., the former factors, recognized him as agent of the estate, and paid over to him, or-upon his drafts as agent, the funds in their hands proceeding from f,ho crops shipped by him &c. Under the' eye of Mrs. Cobb, who continued to occupy the dwelling house, her husband was employed as an overseer by Parliam, and received his pay as such, through.Parham’s draft as “agent of Buckhorn” upon the New Orleans factor. Mrs. Cobb received upon Par-ham’s draft, her allowance of ¡$1,000; she also received another sum which was ordered by the award to be paid to her, and which was accordingly, by written directions of the arbitrators, placed to her credit by Burke, Watt & Co. During a period of Several months there appears to have been no attempt on her part or that of her husband, to interfere With his administration, thus conducted in their presence.

All these facts, as well as others which it is not necessary to detail, can be regarded in no other light than- as an assent to, and execution of, the award by the plaintiffs. To confirm an act not binding upon a party, a formal instrument is not indispensable. A voluntary execution involves a renunciation of the exceptions which might have been opposed to it.

It is said, however, that, by consenting to receive the proceeds of her own crops, Mrs. Cobh should not be prejudiced, for in doing so she received what was her own. The answer is, they Were not her own. Lowry was her co-proprietor. Having received them from Parham, who expressly declared himself to be the. agent of both parties under the award, to repudiate his capacity afterwards would involve a legal fraud both upon him and upon Lowry.

It is equally inadmissible to say that, the plaintiffs could thus partially execute . the award and repudiate those portions of it which were not directly comprehended in the execution. “ L’ex&cution partielle demontre, comme l’exécution totale, la volonté de confirmer l’acte vicieux-; c’est une approbation tacite. Duranton, vol. 13, § 280. See also Kinnard v. Harris, 2 B. & C. 801. The award was entire, and the plaintiff having accepted its benefit, must take its burdens.

It has been objected that Lpwry had himself acted against ths spirit of the award, by attempting to buy out creditors, for the purpose of using their claims to oust the plaintiff. The testimony on this subject is conflicting, and at most established only negotiations to that end. The unconsummated intentions of the defendant cannot effect his right under the award-.

Judgment affirmed.


author: Slidell, J.

text:
    Cobb et ux. v. Hynes.
    A creditor who has obtained a judgment, with an acknowledgment of his rights as a raortga gee, may seize other property than that mortgaged to him. All the property of the debtor is liable for the payment of his debts.
    The fact that a partial payment has been made on a judgment, which has not been credited on the fi. fa., will not authorize an injunction for the entire amount of the execution.
    Where no'answer has been filed-by an appellee, an- application to amend the judgment im his favor by allowing him higher damages-on Che dissolution of an injunction, will notba considered.
    PPEAL from the District Court of Madison, Selby, 3.

      Bemiss, for tlie appellants.

      Thomas and Amonett, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Hynes obtained a judgment against the present plaintiffs for a sum of money, with a recognition of his rights as mortgagee of a tract of land. See 2d Ann. 365. An execution was issued and levied upon other land. Cobb and wife then obtained an injunction,.alleging in their petition two grounds for relief: first, that the mortgaged property was alone liable for the payment of the judgment, and that it could not be enforced against other property; secondly, that a payment had been made .upon the judgment, which had not been credited. The first ground was'properly disregarded by the district judge. All the properly of a debtor is liable for the payment of his debts.

Upon the second ground the court relieved the parties, the payment being proved. The facts of a partial payment was not a justification for enjoining the .entire judgment, and damages were, therefore, properly allowed as to the unsatisfied portion of the debt.

In the brief presented by the appellee he asserts his right to higher damages than were assessed by the district judge; but as no answer to the appeal was filed praying for such relief, the application cannot be considered.

Judgment affirmed.


text:
    Robertson, Trustee, &c. et al. v. Travis, Sheriff.
    Where a petition for an injunction is presented by a party who describes himself as a trustee, it is unnecessary that his capacity as trusteeshonld.be repeated in the affidavit.
    Where ap ap application to .obtain an injunction, made .by several persons representing distinct interests, the affidavit is made by only one of the parties, and it does not appear either from the petition or.the .affidavit that he acted as the agent of the others, the injunction must be dissolved as to the parties by whom no affidavit was made.
    from the District Court of. Carroll, Selby, J.

      R. N. and A. N. Ogden, for the appellants.

      Stacy and Sparrow, for the defendants.
   The judgment of .the court was pronounced by

King, J.

The plaintiffs, Hall and Robertson, the latter representing himself to be the trustee of the Commercial Bank of Natchez, and the remaining plaintiffs representing themselves to be the trustees of the Planters’ Bank of Mississippi, epjoined the execution of two writs of fieri facias, on the allegation that the sheriff was about to sell the property seized without an appraisement, which would expose them, os junior mortgagees, to loss. A motion was made to dissolve .the injunction on the face of the papers, on the ground that the plaintiffs had not made the oath, nor furnished the bond required by law. The motion was sustained, and the injunction dissolved with damages.

The plaintiffs have appealed.

The affidavit upon which the injunction was granted, was made by Robertson alone, and is as follows : “ Declares that the facts set forth in the foregoing petition for injunction so far as they are stated as of his own knowledge, are true, and so far as they are stated as derived from the information of others, he believes them to be .true.” It is objected to this affidavit, that it is vague and uncertain, and does not show that Robertson, who made it, is the trustee of the Commercial Bank, nor that he is the agent of Hall or of the remaining defendants, who are trustees of the Planters’ Bank.

As far as relates to the Commercial Bank of Natchez, the oath of Robertson, one at the ¡trustees, is sufficient. A reference to the petition shows that none °f th0 facts 'averred are stated as having been derived from the information of others, and the petitioner must be understood as having deposed to the truth of all his allegations. His quality of trustee, is stated in the petition, to which the oath is appended, and it was not necessary that it should be repeated in the affidavit.

The objection taken that, Robertson does not appear, either from the petition or affidavit, to have acted as the agent of the remaining parties plaintiff, who represented separate and distinct interests, is well taken. Those parties could only have claimed an injunction upon swearing to the truth of the allegations on which they relied as authorizing a resort to the remedy, and on giving the bond required by law. They have neither taken the required oath, nor joiued in the bopd, and as to them the injunction was properly dissolved.

But as the allegations of the petition are to be .taken ,ns true on a motion to dissolve, we must take the fact to be as alleged .that the sheriff was about to sell irregularly, and although the trustees of the Planters’ Bank had not fulfilled .the prerequisites for an injunction, and it was properly dissolved as to them, we are not prepared to sustain the decree of one percent damages, even as to them, but will leave the question of damages open as to all the parties.

Robertson, however, furnished the bond and security required by the judge. • It is true that he is not described in the instrument as the trustee .of the Commercial Bank of Natches, hut he is sufficiently identified with the plaintiff in the suit, by that part of the bond reciting the condition on which it is given, in which it is said: “ That whereas William Robertson and others have this day presented a petition te tho Tenth District Court,” etc. We think that Robertson and his sureties are bound upon the bond, and that the defendants may recover upon it,..if it should bo found that the injunction has wrongfully issued. As regards the Commercial Bank, we think the judge erred in dissolving the injunction upon tho face of the papers.

It is, therefore, decreed that so much of the judgment appealed from as dissolved the injunction as to the plaintiffs Hall, and the trustees of tho Planters’ Bank of Mississippi, be affirmed; and in other respects that the said decree be reversed, and the cause remanded to be proceeded with according to law, the defendants paying the costs of this .appeal; the question .of damages -being reserved.


author: Eesxis, C. J.

text:
    French v. The Mechanics and Traders Bank.
    Executory process cannot be issued on a mortgage containing mutual covenants, which was never accepted by the mortgagee, there being no authentic evidence that the hitter ever bound himself to the implied covenants contained in tho act. The institution of proceed* ings under the mortgage is not a sufficient acceptance to authorize the issuing of executory process. The evidence on which executory process issues must be authentic. The judge, in granting the order, can take no cognizance of other evidence.
    from the District Court of Concordia, Barry, J.

      Stacy and Sparrow, for the appellant.

      T. P. Farrar, for the defendants.
   The judgment of the court was pronounced by

Eesxis, C. J.

This is an appeal taken by the plaintiff from a decree of the Court of the Eleventh District, dissolving an injunction which had-ticen issued against proceedings by executory process, which had been taken by the Mechanics and Tracers Bank, on a mortgage given by French as a part payment of a judgment which the bank held against Thomas Alexander. In the petition for injunction, besides the distinct ground on which the plaintiff claims relief, there is an allegation that the order directing the executory process, and also the writ issued, are irregular and illegal, for the cause assigned and others on the face of the record. This allegation authorizes the examination of the regularity of the proceedings.

The objection made by the plaintiff on this ground, is, that there is no evidence that the mortgage on which the proceedings are instituted was ever accepted by the bank.

The mortgage was executed on the 30th of November, 1844, by the plaintiff, with the renunciation of his wife, who alone were parties to it. It was given in part payment of a judgment the bank held against Alexander. As it contained mutual covenants, it is obvious that it was without effect until accepted by tho bank, and the bank bound itself to release Alexander to the extent of the amount of the mortgage thus given in payment. -The act of mortgage was never accepted by the bank, and there is no evidence, by authentic act, that the bank ever bound itself to the implied covenants contained in the act.

It is requisite that the evidence on which executory proceedings are had should be by authentic act. The judge in granting the order for execution can take no cognizance of matters resting en pais. The bank instituted proceedings on this mortgage, in October, 1846, and it is urged that this fact is an acceptance of the act of mortgage. But we think- in an act of mortgage of this kind there is no reason for extending the rule which requires the highest evidence of tho contract between the parties, as well as that the evidence should be complete and entire before the party can avail himself of this summary proceeding. Had the mortgage been a mere security for a debt, perhaps there might have been ground for presuming that the creditor .accepted what was for his benefit. In a matter like that before ns, which had been left open so long and in which tho parly executing the mortgage required the partial extinction of a judgment and the substitution of new security, no judicial action ought to be taken as on an act imparting a confession of judgment.

The judgment of the District Court is, therefore, reversed, and it is decreed that the executory proceedings instituted against the plaintiff in injunction bo dismissed, with costs in both courts.