author: Lcdeling, C. J.

text:
    No. 81.
    Daniel Brown et al. v. A. V. Roberts, Administrator.
    An administrator cannot be permitted to resist an application for an order to sell the property of the succession founded on a judgment against the estate, by setting up unliquidated claim)* in reconventiou against the judgment creditor.
    A contract of lease without a lawful cause cannot be made the basis of a domand for rent.
    from the Tenth Judicial District Court, parish of DeSoto. Weems, J.

      T. T. if- T. T. Land, and Pier'son efi Levy, for plaintiffs and appellees, Elam d; Wcmple for defendant and appellant.
   Lcdeling, C. J.

A. V. Roberts, Administrator, instituted a petitory action against the plaintiffs in this suit and obtained a decree declaring tlie lands claimed to belong to tlie succession of Samuel and Susan Quarls. This judgment was affirmed on appeal, hut the case was remanded with- instructions to the District Court to settle and determine tlie claims of the parties for improvements and revenues. Oh. the twenty-third day of December, 1859, this branch of the case was tried and decided in-Üie District Court, there was judgment in. favor of the .defendants, Brown ,ci fal* for eighteen thousand dollars, with legal interest from tlie date of tlie decree. On appeal- this judgment was affirmed by -tlie -Supreme .Court. By tlie terms of the decree no writ of possession was to bo issued for the land, until tlie judgment for tlie value of the impróveni&nts liad been settled. On the fourth of November, 1861, Brown ct al. applied to tlie court for an order of sale to sell tlie land aforesaid to pay their debt. A. Y. Roberts, administrator, opposed this-order/ on tlie ground that-this judgment bad been settled in the manner following that in January, I860, the administrator leased all the plantation for that year to Daniel Brown, except two hundred acres, which was leased to John F. Hailey, with the consent of Daniel Brown; that Brown was to pay two thousand and sixteen dollars, and Hailey one .thousand dollars, and that Brown collected the thousand dollars ifom Hailey that Brown continued to occupy the plantation until the -twenty-third.of November, 1866, without giving any notice, of his intention to terminate the lease, and he claims rents from said Brown at the rate of three thousand and sixteen dollars per annum for -the timó he occupied the plantation, being in the aggregate twenty-one thousand one hundred and twelve dollars.

He further alleged that Brown ct.al. had cut and sold cord wood off the place since the rendition , of tjjo judgment in the case of A. V. Roberts, administrator v. Brown et. al. to the amount of five thousand dollars. That they had removed tlie fences on the place worth four thousand dollars, that they had removed the gin house, gin stand and press, or by their negligence permitted them to he removed, or let them fall into decay and ruin, and that said property was worth one thousand dollars, and finally that they have committed general waste or permitted damages to he done by their negligence to the extent of two thousand dollars; and he prayed for judgment in reconvention for any excess over the judgment of Daniel Brown ct cd.

The plaintiffs excepted to this mode of proceeding on the ground that the plaintiffs’ demand is based op a final judgment, and the sums pleaded in compensation and reconvcntion are unliquidated, and because the claims are alleged to have accrued after the filing of plaintiffs’ petition, and after defendant had been put in mora up dor tlie judgment in favor of themselves. The judge a quo sustained the exception and ordered• that tlie claims set up by Roberts, administrator, ho disregarded, except the claim for rents.. On the trial there was judgment in favor of Brown ct al. ordering the sale.of the lands before mentioned to pay the judgment in favor of Brown ct al., and rejecting the demand for rents. A. V. Roberts, administrator, has appealed.

The ruling of the judge « quo sustaining the exception to the pleas in reconvention was correct. It has been repeatedly decided that an unliquidated claim against tlie plaintiff in execution will not authorize an injunction to restrain the execution of a writ of fieri facias. 5 An. Smith v. Foster, 551; 6 An. Cox v. McIntyre, 471; 14 An. Henford v. Babin, Sheriff, 331.

The same reason exists for not permitting an administrator of a succession to resist an application for an order to sell property of the succession, when the application is based on a judgment which gives the plaintiff a right to be paid by preference out of the property to be sold. We will notice the question whether Brown was responsible for rents for the years 1860, 1861 and following, as the District Court passed on this question. It appears from the record that on the second of January, I860, Brown and Roberts, administrator, entered into an agreement by which the latter leased to the former the plantation which had been and was the subject of controversy between them. At that time an appeal was pending in the Supreme Court, from a judgment in favor of Brown et al. for cijateen thousand dollars, and which judgment maintained Brown et al. in the possession of the plantation until the said sum should be paid to them or be deposited in court.

Both parties have testified in this case, and from their testimony it appears that both parties expected that a final decision by the Supremo Court would be made in that case in August, I860; and that the agreement relative to the lease was made in consequence of such exp«ct-ation. In fact, however, the final decision was not made until April, 3861. Thus, then, it appears, that, under the decision in the case of Roberts, administrator®. Daniel Brown et al., and the law, Brown et al. had a right to the possession and occupation of the plantation until the final decision of that suit, and the. payment of the amount due them by the succession. C. C. art. 3416.

Therefore, no rent could be due by them until the decree of the court had been complied with by the administrator or the heirs.

It is evident from the evidence in the record that the contract of lease was without a cause.

It was expected that the administrator would bo entitled to get possession in August, 1860, but the decision was not made until 1861; and up to the present time the representative of the succession has failed to pay the judgment in favor of Brown et al., which alone would give him a right to the possession of the plantation. 3 M. 168, Syn-dics of Bermudez v. Ibanez.

“The contract is also considered as. being without a cause, when the consideration for making it was something which, in contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist,” etc. C. C. 1891 ; 17 La. 445; Theriot v. Chaudoir et al., § § 462 and 464, Story on Contracts.

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


source: Caselaw Access Project

author: TaliafeRRO, J.

license: Public Domain

text:
    No. 82.
    Succession of John A. Ross. Opposition to Homologation of Account.
    ■Where the clerk of the District Court fails to reduce tho testimony to writing and annex it to the record in a suit founded on an opposition to an executor’s account, the Supreme Court will remand the cause, with instructions to Lave tho eúdence reduced to writing.
    from tlio Tenth Judicial District Court, parish of Do Soto. Weems, J.

      li. J. Bowman, for executor, appellee. JSlam efi Wemyñe, for opponents, appellants.
   TaliafeRRO, J.

The executors of the decedent filed a provisional account of their administration on the twenty-second September, 1866, which it appears was duly advertised for tho required period of time, and that no opposition was made to it. The account was homologated on the twelfth of October following, From th'* judgment homologa-ting the account tho Union Bank, represented by its attorney, appealed.

At the August term of this court, 1867,' a motion to dismiss this appeal was overruled, and the case continued in order that all the parties in interest might be duly cited. The appellant alleges that tho bank is a creditor of the succession for a large amount, and its interests affected injuriously by the judgment appealed from. It is averred that upon the account íbero arc large sums set down as duo the children of the deceased in right of their mother, without any evidence being introduced to prove the correctness of the items, or, if introduced, it was not committed to writing. That a part of these claims so allowed are recognized as having privilege on certain movables, and the remainder as secured by legal mortgage on all tho lands belonging to the succession. That these claims, without any proof of their correctness or legality, would absorb tho estate, and leave nothing for the ordinary creditors.

The appellees rely upon tho regularity, as they allege, of the proceedings and tho judgment of homologation, without opposition to tho account, and refer, to articles 1172 and 1173 of the Civil Code. These articles apply in tho settlement of successions, hut article 1042 of the Code of Practice requires “ that the testimony of witnesses in causes before the courts of probate shall be taken in writing and annexed to the record, and a list shall ho made of such documents as aré produced by the parties, and are not annexed to tlio record, that they may ho road on tho appeal.” In the case of Tompkins et uxor v. Benjamin, tutor, 16 L. R. 197, this court remanded tho caso for a new trial, because the Judge of Probate failed or neglected to take down the testimony of witnesses on tlie trial, and tho .record came up without it. The same course was pursued in the case of Graham’s heirs v. Graham’s administrator, 16 L. page 201. And the views taken by the court in these cases were further confirmed and adopted in 17 La. II5, 3 An. 554, and 4 An. 517. Following the rules thus laid down by these decisions, and believing, moreover, that tho ends of justice require it, we deem it proper to remand this case for further proceedings.

It is therefore ordered, adjudged and decreed that tho judgment of the District Court bo annulled, avoided and reversed.

It is further ordered that this case be. remanded to the court of the first instance, in order that the testimony adduced in support of the-various items of the account may be committed to writing, as required by law, and to the end that this court may properly examine and determine the case on appeal.

It is further ordcrod that tho succession pay the costs of this appeal.

Rehearing refused.


author: Wyly, J.

text:
    No. 109.
    William Crosby v. Jerry H. Tucker.
    A party having given his promissory noto for tho price of land purchased, is debarred from setting up that tho valuation of tho land was estimated in a depreciated or unlawful cur. rency. Nor can he sot up that a previous holder was willing to tako an unlawful currency in payment of the note.
    from the Tenth District Court, parish of DcSoto. Weems, J.

      G. M. Pegues, for plaintiff and appellee. 12. J. Bowman, for defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment against him on a promissory note given in part payment for a tract of land in tho parish of DeSoto.

First — The defense is that tho amount of tho salo was fixed in Confederate prices, which was to gold as three to one.

Second — The payee of said note received the first installment for tho land in Confederate'notes, and agreed to receive the same currency for the note sued on.

The defendant alleged and proved that the plaintiff acquired tho note after its maturity. The original consideration thereof can therefore bo inquired into.

Tho noto is described in tho act of sale as evidencing part of tho price of tho land; there is no mention cither in the note or deed of any agreement to tako Confederate money. Tho consideration is admitted to be tbo price of tlio land. Wo cannot perceive the force of the defense urged. That the original payee and vendor received tho first installment from him in Confederate money, or that he, in conversation, expressed a willingness to receive Confederate money in payment of tho note, does not taint it with immorality. It is no defense to a note having a lawful consideration .that a previous holder was willing to take an unlawful currency iu payment thereof.

Nor can the purchaser claim an abatement of his contract because ho estimated the property bought in a depreciated and unlawful currency. For a lawful and valuable considcratiou he bound himself unconditionally to pay in dollars the amount expressed in the note sued on, and ho can not evade the obligation he has contracted.

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


author: Howell, J.

text:
    No. 83.
    Union Bank of Louisiana v. Succession of John A. Ross. A. J. Rugely & Co., Warrantors.
    A third holder of commercial paper before maturity is not-comxielled to prove that he gave a valid consideration to enable him to recover of the maker, unless it is shown that there ia want or failure in the original consideration.
    from the District Court, parish of DeSoto. Weems, J.

      JElam & Wemple, for plaintiff and appellee. It. J. Bowman, for defendant and appellant.
   Howell, J.

This is an action on 'a promissory note made by the decedent to the order of A. J. Hugely & Co. and by them specially indorsed to the plaintiff. Tho executors of' tho maker, besides the general denial, allege that the plaintiff received the note after maturity, and without a legal consideration, having paid Confederate treasury notes for it in discount. They further allege that their testator i>aid the note to the payees and original holders, who agreed to warrant him against a subsequent payment thereof, and call them in warranty.

J. D. Blair, of the firm of A. J. Hugely & Co., answerc d the call in warranty, denying plaintiff’s title to tho note sued on, because acquired with Confederate treasury notes, and alleging that if any payment was made, as set up in the answer, it was made in Confederate notes to Hugely, who was without authority to receive the same, the partnership having been previously dissolved to the knowledge of the maker of the note, and if any right in warranty existed it is against said A. J. Hugely or his representative. No citation was served upon Hugely or his representative. Judgment was rendered in favor of plaintiff for the amount of the note, to be paid in the due course of administration and in favor of the succession over against J. D. Blair in warranty, from which the executors and Blair appealed. The evidence shows that the plaintiff acquired the note from the payees beforo maturity, and as the original consideration is good, as expressed on the face of the note, the succession of the maker cannot'be benefited by showing an invalid consideration, as between the payees and holders. The rights of the holder are ordinarily fixed at the date of the maturity, and no subsequent acts between the original parties to the note can affect them. The alleged payment, therefore, after maturity to the payees, who were not the holders and owners, was not an extinguishment of the note. Unless there is want or failure in the original consideration shown, the third holder of commercial paper before maturity is not compelled to prove that he gave a valid consideration in order to recover of the maker, who is bound on the consideration of his own Contract. The judgment was properly rendered against the succession in this case.

As to the call in warranty, the payees in receiving the amount of the note from the maker bound themselves in express terms to deliver the note, which has not been done; and the evidence is not clear that the payment was made in Confederate treasury notes, as alleged by the warrantor, who must, to be relieved, adduce evidence so complete as to leave nothing to surmise or conjecture. 20 A. 1, 47.

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


author: IIowe, J.

text:
    No. 162.
    Daniel Lee v. W. B. Taylor, Administrator, etc., et al.
    A vendor cannot maintain an action to rescind a salo and retake the property conveyed without returning or tendering to the vendee the portion of the price which he has received.
    from the District Court, parish of DeSoto. Jones, J.

      B.J. Bowman, for plaintiff and appelleo. O. JD. Bulloelc, for defendant and appellant.
   IIowe, J.

This suit was instituted against the administrator of A. J. Taylor, deceased, and against Elizabeth Lane to dissolve for nonpayment of the price a sale of a plantation made by plaintiff to A. J. Taylor on the eleventh November, 1858. The price was $3200, of which $1000 was. paid in cash, and the balance represented by two notes for $1100 each. One of these notes was paid, and the sum of $170 50 was paid on account of the other. The latter fell due January 4, 1861, and citation was served in this case January 18, 1867.

The petition alleges that in the year 1864 A. J. Taylor sold the land to Samuel Ivey for Confederate money, and that the latter made a donation thereof to the defendant Elizabeth Lane, who, with her husband was in possession. The defendant Lane, pleaded a general denial except as modified by the admissions of the answer, admitted the sale from Taylor to Ivey, and the donation to herself, denied that the sale from Taylor to Ivey was a nullity, and also pleaded the proscription of five years.

The cause was tried before a jury, who gave a verdict that the sale be rescinded, and judgment was rendered accordingly. The defendant Mrs. Lane, appealed.

The pleadings and the evidence in this case show an attempt upon the part of the plaintiff to dissolve a sale on account of a nonpayment of part of the price without returning or offering to return the much larger portion already paid to him.

This is not permitted by law. The dissolving condition is that which when accomplished operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.” C. C. 2040. When therefore the vendor seeks to enfore this condition he must place the vendee in the same state in which he was before the sale. The rule that the vendee shall not keep the property without paying the price is no more imperative than the rule that the vendor shall not retake the land without returning such partial payments as he has received.

It is not established with certainty that the consideration of the sale from Taylor to Ivey was Confederate money. See Weaver v. Anfoux, 20 Ann. p. 1. But if such fact were established it is clear that there was delivery to, and possession by, Ivey, and that the contract of sale was fully executed. Constitution, article 149. We do not feel called upon therefore to say that the rights of Mrs. Lane are any less than' they would be if her donor had paid lawful money. It is also shown that valuable improvements have been made on the place since the sale by plaintiff.

The view we have taken renders it unnecessary for us to consider the other points in the case.

For the reasons given we must conclude that the verdict and judgment are without foundation.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the verdict of the jury set aside, and that this suit be dismissed at plaintiff’s costs as in case of nonsuit.


text:
    No. 164.
    Edward Noble v. J. L. Logan and others.
    ■When an appeal is taken from a judgment on a joint contract all who were required to be made parties in the court below must be made parties to the appeal, otherwise the appeal will be dismissed.
    from Tenth District Court, parish of DeSoto. Bevisse, J.

      JSla/m, & Wemple, for plaintiff and appellee. B. J. Bowman, for defendants and appellants.
   Wyly, J.

Plaintiff moves to dismiss this appeal because all the joint obligors against whom the judgment was rendered have not been made parties to the appeal.

The appeal was taken on-motion by one of the defendants, S. E. Guy, and the bond was given by him only in favor of the plaintiff. The defendants were sued jointly on a contract of lease, and judgment was rendered against them jointly.

This case is not distinguishable from that of Drew v. Atkinson, 3 R. 140, and Duggan v. De Lizardi, 5 R. 224, where it was held that when an appeal is taken from a judgment on a joint contract all who were required to be made parties below must be made parties to the appeal, otherwise it will be dismissed. Without the appearance of all tlie joint obligors this court cannot pronounce that judgment which ought to have been rendered in the court below, if we should be of opinión that the court erred. C. C. 2080, 2081.

It is therefore ordered that this appeal be dismissed at appellants* costs. ■


author: Howe, J.

text:
    No. 165.
    Georgaline Hastings v. Rebecca Brantley et als.
    A peremptory exception that the petition discloses no cause of action admits, for the purposes of ihe exception, that all the allegations in the petition are true; and when from the allegations in the petition, if true, the court would be enabled to pronounce judgment thereon, the exception will be overruled.
    i PPEAL from the District Court, parish of DeSoto. - Weems, J. JX-

      B. J. Bowman, for plaintiff and appellant. J. B. Mam, for defen-
    dants and appellees.
   Howe, J.

The plaintiff, alleging herself to be universal legatee of Harris Brantly, deceased, instituted this suit against the executrix, the heirs at law, and Charles E. Doll, agent of Jules Tardos, of New Orleans, and sequestered certain cotton, which she claimed the executrix had caused to be sold through the sheriff of DeSoto on the fourteenth March, 1864. She alleged various causes of nullity of the sale, among others that the pretended price had been paid in Confederate money; and she averred that the cotton had never been delivered, but was still on the plantation of the deceased, and that Doll as agent of Tardos, the pretended vendee at sheriff’s sale, was preparing to take it away.

The cotton sequestered was by consent released from seizure, the proceeds to be deposited to await the determination of the suit. The heirs, made defendants, answered, adopting the allegations of the plaintiff, and urging with her the nullity of the sale. The executrix made no answer, and judgment by default was taken against her. The defendant Doll, without answering, made a motion to set aside the writ of sequestration and to dismiss the 'suit on the following ground: “Because the causes of nullity alleged against the sheriff’s sale of the cotton mentioned in plaintiff's petition are insufficient in la.w to maintain the plaintiff’s action against him.” Upon this the court gave judgment that the writ of sequestration be set aside and the suit dismissed as to the defendant Doll; and from that judgment the plaintiff and a portion of the heirs have appealed.

■' The motion is in the nature of a peremptory exception to the petition on the ground that it discloses no cause of action. It raises no question as to the form of plaintiff’s action or the propriety of a writ of sequestration in a suit by a legatee against an executrix. It admits for the .purposes of the motion the truth of the allegations of the plaintiff’s petition.

With this view of the pleadings we are constrained to think that-the judgment of the court a qua was erroneous. The allegations of the petition being taken as true, we fiud the sheriff of DeSoto in 1864 selling, or attempting to sell, the cotton to J ules Tardos, of New Orleans ; that the consideration of this sale was Confederate money, that the cotton was never delivered to the pretended vendee, but was still on the plantation of the deceased ; and that Doll as agent.of Tardos, was at the moment of the institution of the suit attempting to obtain possession of and remove the property. Under such circumstances we must think that the sale was a complete nullity, conferring no rights on Tardos, and that therefore there was a'right of action against Doll.

For these reasons it is ordered that the judgment appealed from be avoided and reversed, that the motion made by the defendant Doll to set aside the writ of sequestration and to dismiss the suit be overruled, and that tho cause be remanded to be further proceeded with according to law..


author: no well, J.

text:
    No. 163.
    A. M. Haden v. L. Phillips and R. D. Foster.
    In a salo of land, slaves and movable prpperty, alter tlie date of the emancipation proclamation, where the evidence shows that a portion of the price has been paid, equal to the value of the land and movables, the law will impute tft’e payment to the land and movables, and the balance of tho price, being without consideration,’ cannot be enforced. -Wainwright v. Bridges, 19 A. 23-i; Posey v. Driggs 20 An. 199.
    from the District Court, parish of DeSoto. Weems, J.

      Mam tC WempU, for plaintiff and appellant. It. J. Bowman, for defendants and appellees.
   no well, J.

On the thirteenth day of July, 1863, the plaintiff, A. M. Haden, sold to the defendant, B". D. Foster, a tract.of land sitúa-, ted in the parish of DeSoto, and containing- four hundred acres more or less, with all the improvements, the stock of cattle, hogs and farm-, ing ntensils thereon, and fifteen slaves, for the sum of $20,000, of which, $2,000 were paid in cash, and for the balance the purchaser executed his throe promissory notes for $5,833 33-J each, due respectively on the thirteenth of July, 1864, 1865 and 1866, and secured by mortgage on the property sold. This suit was brought on the last of. these notos, vi i exceuiioa, against the land in the possession of Phillips, hut was subsequently changed into the action via ordaria against Foster.

The defense is that the purchaser lias been evicted of the negroes for a cause existing at tiic date of tho sale, to -wit: the proclamation of emancipation of January 1,1863, and that the amount paid exceeds the value of tiie land and movables, and therefore he owes nothing.

The District Judge dismissed the suit for the" reason that the evidence disclosed a contract based on Confederate money, and the plaintiff has appealed. *

As the proof of the character of the money in which the payments were made could not relieve either -party, because the contract could neither be rescinded nor enforced on that" account, it is immaterial to pass on tbe bill of exceptions taken to. the admission of evidence for that purpose.

The real issue presented is, can the defendant he made to pay a balance due on a contract for the sale of land, movables and slaves in block, when the evidence shows that the amount paid exceeds the value of the land and movables, as in this case, and that the sale was made after the date of the proclamation of emancipation.

In the case of Posey v. Driggs, 20 A. 199, it was held that a sale of a person as a slave after that event, conveyed no title to nor property in such person, and the payment of the alleged price could not be enforced. Applying the same doctrine to this case, the defendant acquired no title to the persons named in the act of sale as slaves, and the law will not presume that the payments made by him were for their price, but must be held to have been made on that which was and is property. And, besides, to make him pay the balance claimed, would virtually be enforcing a contract for the sale of persons by making him pay more than the full value of the land and movables bought by him. This is prohibited by the constitution and in conflict with the Wainwright and other similar cases.

Eor the reasons herein given it is ordered that the judgment of the court a qua be affirmed with costs.


text:
    No. 128.
    B. W. Marston & Co. v. James M. Dewberry. E. S. Turner, Garnishee and Appellant.
    Partnership property cannot he specially seized or attached for the individual debt of one of the partners. In such a case the interest of a partner may be seized.
    from the District Court, parish of Natchitoches. Orslorn, J.

      S. If. JEfyams, for plaintiffs and appellees. JPierson & Levy, for garnishee, appellant.
   Howe, J.

The plaintiffs and appellees have moved to dismiss this appeal, on the ground that the appeal bond is made in favor of the plaintiffs, and the defendant, Dewberry, appellees, and not in favor of the clerk of the court. It appears by the record, however, that the appeal was taken January 2, 18G9, and the bond filed January 16, 1869. It comes, then, within the saving clause of the act of January 30,1869, which provides “that all appeals taken subsequently to the twenty-ninth of September, 1868, and prior to the passage of this act, in conformity to the provisions of any law in force prior to that date, shall be as valid as if taken conformably to the act (of September 29, 1868), of which this is an amendment.”

The motion to dismiss is therefore overruled.

The plaintiffs sued the defendant, Dewberry, upon a bill of goods and provisions amounting to $1122 38, of which the sum of $408 85 was alleged to be due for supplies furnished to the defendant for the making of a crop in partnership with E. S. Turner, the garnishee. Upon the allegations that they had a privilege on the crop, and that Dewberry was a non-resident, they obtained writs of provisional seizure and attachment, which wore levied upon certain cotton, corn and fodder, tho property being specifically seized as the property of Dewberry in the hands of Turner.

The property was bonded by Turner, who moved to set aside the writs of provisional seizure and attachment, on tho ground that the former remedy was improper, a sequestration being the writ provided by law, and that the bond given for the attachment was insufficient. The judge a quo denied the motion, on tho ground that “ the garnishee corrld not be affected by these proceedings, his answers to interrogatories being taken as conclusive evidence in his favor unless contradicted” and to this ruling tho garnishee, Turner, reserved a bill of exceptions.

Tho defendant, Dewberry, came in and confessed judgment in favor of plaintiffs for the amount claimed.

In answer to the interrogatories propounded to him the garnishee, Turner, gave what we consider sufficiently distinct replies, from which, together with tho other evidence in the case, it appears that Turner and Dewberry undertook to make, a crop in 1867, Turner furnishing the land, tools, stock and supplies, and Dewberry tho management and labor.

A number of acres were planted in cotton and corn, when, m June, 1867, Dewberry, in entire violation of his agreement, abandoned tho place, leaving the crop “in grass,” and went off to Texas, taking his laborers with him. For tho protection of his own interests Turner was obliged to hire other laborers and complete the crop, at an expense exceeding the proceeds of the entire crop. At the moment of attachment, in October, 1867, Dewberry had no interest of any value in tho crop. He had abandoned it in June, taking with him out of the venture all he liad put in, his personal services and the laborers he had employed, and declaring he did not care what became of the crop. Turner proceeded on his own account to save the. crop, and expended in so doing an amount greater than its proceeds.

There is no evidence that tho plaintiffs ever furnished any supplies to the making of this crop, and their only claim, we apprehend, is 'as attaching creditors. As such their rights in the property can be no greater than those of Dewberry, and his, if they exist at all, have no appreciable value. The claim against Dewberry, so far as established by the record, is an individual debt, and partnership property can not, as a general rule, be specifically seized for the individual debt of one of the partners. The interest of a partner may be seized, but such seizure was not made in this case.

The judge a quo gave judgment against Dewberry for the amount claimed, and there was in this no error. He also gave judgment against the garnishee, Turner, for five hundred dollars, with interest from judicial demand, and “ with a recognition of the privilege on tho crops ill the hands of the garnishee, and. that their lien and privilege on the property provisionally seized and attached he recognized and enforced to satisfy the judgment, and for costs to he taxed.” For this portion of the judgment we find no sufficient foundation in the facts of the case. The view we have taken renders it unnecessary to pass upon the hill of exceptions.

For the reasons given, it is ordered and decreed that the judgment, so far as it is a personal judgment against the defendant, Dewberry, and so far as it fixes a fee for the attorney ad hoc, he affirmed; that in all other respects the said judgment he annulled, avoided and reversed ; that the claim against the garnishee, E. S. Turner, he dismissed with costs, and that the plaintiffs pay tho costs of the appeal.


author: LudeliNG, C. J.

text:
    No. 133.
    Succession of Cyrus W. Stauffer. Opposition of Kate M. Joxes et al. to Account, etc.
    The claim of tlio widow and heirs of one thousand dollars, allowed by tho statute of 1852, out of tbe succession of the husband and father, can not be taken from tho funds of a partnership of which the deceased husband was a member, while the partnership debts are unpaid, and before a division of the assets are made between the partners.
    from the Parish Court of Natchitoches. Hiestand, Parish Judge.

      Jade & Pierson, for appellant. Pierson t& Levy, for opponents, appellees.
   LudeliNG, C. J.

Cyrus W. Stauffer was a member of the commercial firm of Stauffer & Co. at the time of his death. Ilis widow administered his estate, and took possession of tho property and assets of the commercial partnership. The account and schedule of debts filed by the ad-ministratrix shows that the succession of Staufferis insolvent, and that the property and assets belonging to tho partnership of Stauffer & Co. will be insufficient to pay the debts of the firm. In the account filed the claim of the widow and heir of Cyrus W. Stauffer, under the act tf seventeenth March, 1852, for one thousand dollars, is allowed as a privilege claim to be paid out of the funds belonging to the partnership of Stauffer & Co., after exhausting the funds belonging to the succession of Cyrus W. Stauffer.

This item is opposed by the creditors of the partnership, and the opposition was sustained.

The act of seventeenth March, 1852, says: The widow or legal representative of the children shall be 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 either of them in their own right, will make up the sum of one thousand dollars, and which amount shall be paid in preference to all other debts except those for the vend- or’s privilege, and expenses incurred in selling the property.” It is “from the succession of their deceased father or husband” that the thousand dollars must he taken. The inquiry-then is, what constitutes the property of the succession of Stauffer ? Does tko property of a partnership, of which the deceased was a member, constitute a part of his succession, when the debts of the partner-ship exceed the value of the property and assets of the partnership ? It is clear that it does not. No one partner has any right or share in the partnership property, except what remains thereof after the full discharge and payment of all debts and liabilities of the partnership.” Story on Partnership, section ninety-seven.

When one of the partners dies, the debts of the partnership must be paid before there can bo a division among the heirs. 11 M. 427; 13 La. 281. In the case of the United States v. Baulos’ executor, the rule which should govern in like cases is well stated. The attorney of the United States claimed a privilege and preference in their favor over other creditors of Baulos, as created by an act of Congress relative to debts due to the United States in cases of insolvency. The court held that they are entitled to such preference and privilege in ordinary cases cannot be doubted; but the present is not one of that nature.” It appears that “ Baulos became the debtor of the United States for the debt now claimed some years since; that he failed or was insolvent, and that he afterward entered into a partnership with one Cavaroe, by which they acquired some property; bat tho portion falling to the share of the’ deceased does not amount to more than will be sufficient to pay his part of the partnership debts. The Court of Probate accorded a preference to the creditors of the partnership over the claim of the United States.” “The judgment of the court below is clearly correct. Tho property acquired by the partnership of Baulos & Cava-roc does not belong to either of the partners separately, but remains a common stock and pledge for the payment of the debts of the firm, in preference to any claim against the parties individually.” 5 N. S. 568 ; 18 La. 505, Claiborne & Mather v. their creditors.

It is therefore ordered and adjudged that the judgment of the Parish Court be affirmed, and that the appellant pay the costs of this appeal

Mr. Justice Wyly dissenting.


text:
    No. 114.
    E. J. Cockfield, Tutor, v. H. W. Farley et al. and S. L. Levy.
    A. payment on a promissory note, before prescription has accrued, by a third party, who has assumed the note in a notarial act, will interrupt prescription, which only begins to run again from the date of such payment.
    from Ninth District Court, parish of Natchitoches. Lewis, J.

      J. If. B. Tnclcer, for plaintiff and appellant. Pierson & Levy, for slefcndants and appellees.
   Wyly, J.

This is a contest between'mortgage creditors for the proceeds of the sale of the mortgaged property in the hands of the sheriff.

At the succession ^alo of William. Cockfield, Mrs. Martha T. Myers purchased a tract of land in the parish of Natchitoches, and in evidence of part of the purchase price she executed the note held by plaintiff, payable first May, 1861, for $6333 331, with eight per .cent, per annum interest from maturity, securing the same by special mortgage on the plantation bought.

On twelfth May, 1859, she sold the plantation to John L. Lewis, who assumed the payment of said outstanding note, gave hi's draft for a sum, and executed the notes held by the defendants, securing the same by special mortgage on the plantation purchased. On twenty-first November, 1865, John L. Lewis sold the land to David Pipes, who in turn assumed the payment of the note made by the original purchaser, Mrs. Martha T. Myers, and also the payment of the notes made by his vendor, Lewis, now held by the defendants, and gave another note for an additional sum, also executing a mortgage to secure the purchase price.

These acts of sale -were duly recorded, the mortgages were inscribed in the mortgage offico, and the mortgage given by Mrs. Myers to secure the note held by the plaintiff was duly reinscribed before the expiration of the ten years. On twelfth March, 1866, David Pipes paid on the note of Mrs. Myers, which he had assumed a large sum.

Subsequently the defendants foreclosed their mortgage on the property owned by Pipes, being- the same given by John L. Lewis to Mrs. Myers. The plaintiff opposed the application of the fund to the mortgage of the defendants, claiming that he has a prior mortgage for the balance due on the note by Mrs. Myers, given in evidence of part oi the price of the purchase of the land from the succession of William Cockfield, and an order was granted by the judge requiring the sheriff to hold the proceeds of the sale in his hands subject to the further order of the court. On the trial the judge ordered the claim of the plaintiff to be paid out of the proceeds in the sheriff’s hands, concurrently with .the defendants. Plaintiff lias appealed.

The defendants contend that the claim of plaintiff is at the same time three debts, to wit: The debt of Mrs. Myers, who made the note, the debt of Lewis, who assumed it, and the debt of Pipes,-who also assumed it; and that it is secured by three acts of mortgage, to wit: that given by Mrs. Myers to the succession of William Cockfield, that of Lewis, who assumed the debt and mortgaged the property to secure it as part of the price, together with the notes held by the defendants, -and the mortgage given by Pipes to secure the purchase price, to wit: ■the notes held by both the plaintiff and the defendants, which he assumed.

Tlie defendants insist that the plea of prescription of five years, which they pleaded, should prevail, so far as to extinguish the debt of Mrs. Myers, and with the extinction of the debt the mortgage given by Mrs. Myers also became extinguished. They contend that the payment by Pipes did not interrupt prescription as to Mrs. Myers, although it did so as far as the assumpsit of the debt by Lewis and Pipes. That, so far as Mrs. Myers is concerned the debt to the plaintiffs is prescribed, and the mortgage supporting it is consequently dead. They admit, however, that the debt as to Lewis and Pipes, resulting from* their assumpsit, has vitality, and the mortgages granted by them alone secures it. And being secured in the same mortgage with the notes of the defendants the claim of the plaintiff can only bo paid concurrently.

We do not concur in the view taken by the defendants. A large payment was made on the note before prescription accrued by Pipes, who in a notarial act assumed to pay the note for the maker Mrs. Myers. We regard the payment made by the purchaser, who retained in his hands the amount due to the original vendor and who had assumed to pay it, as an interruption of prescription as. to both himself and the original debtor, being made in discharge of the obligation of the latter with her implied' assent. 12 It. 399, and the authorities there cited. We think the note of Mrs. Myers, held by the plaintiff, is not prescribed, and tiie mortgage securing it having been duly inscribed and reinscribed, gives the plaintiff a preference on the funds to be distributed for the balance due on his claim.

It is therefore ordered that the judgment appealed from be so fax amended as to allow the claim of plaintiff E. J. Cockfield, tutor, to be paid by preference out .of the funds to bo distributed, and in other respects that the judgment be affirmed, the defendants paying costs of both courts.


text:
    No. 149.
    Succession of William Leonard. Opposition of Dennis Sullivan.
    The denial, under oath, of a signature to a promissory note, can only be overcome by one of the three kinds of proof required by article 325 of the Code of Practice.

      \ .£\. PPEAL from the Ninth District Court, parish of Eapides. JOewis, J.

      T. 0. Manning, for administrator and appellee, ligan & White,

    for opponent and appellant.
   Wyly, J.

Dennis Sullivan appeals from a judgment rejecting his demand, dismissing his opposition, and homologating the account of the administrator of William Leonard’s succession.

He claims that he is a creditor for $3035 25, evidenced by five promissory notes of the deceased, and by an open account against him; that the administrator refused to allow his claims and place them on Ms tableaux, and lie prays tliat tlie account be amended by placing thereon said claims to be paid according to law.

The main defense is a denial that the notes were signed by the intestate William Leonard.

This is a question of law and fact. Has the opponent produced the kind of evidence required by law to overcome a denial of the signature ?

When the demand is founded on an obligation or act under private signature the “ defendant shall be bound in his answer to acknowledge expressly or to deny his signature.” C. P. 324.

In the three hundred and twenty-fifth article of the same code it is declared that: “If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must ¡prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts, or by a comparison of the writing as established by the Civil Code.”

There are, then, three kinds of proof by which a denial of signature may be overcome.

First — The proof of witnesses who have seen the act signed.

Second — The proof of witnesses who know the signature, having frequently seen the defendant write and sign his name.

Third — The proof by experts or comparison of the writing. 9 L. 409, 562; 1 A. 325 ; 4 A. 52; 21 A. 148.

The opponent has not attempted to introduce the proof of witnesses who knew the signature, nor the proof of experts, etc.

He has however introduced the proof of a -witness who saw the deceased sign the note for §250, which is a compliance with the law.

He also has introduced the proof of another witness, Hays, who says, “ he is a subscribing witness to the note marked ‘ C ’ (for $575), thinks Leonard signed the note, but can’t say so positively.”

This does not establish with legal certainty that the deceased signed this note; it is not sufficient to counterbalance the express denial of signature. 21 A. 148.

There is no other attempt made to establish the signature of the deceased to the notes by'the kind of evidence required by law.

There is an attempt, however, to prove the signature of the subscribing witnesses to the notes.

This is not the kind of evidence provided by law to counterbalance the express denial of signature. 9 L. 562.

There was no attempt to prove the open account.

The opponent has only proved the signature to the note for $250, which should have been allowed and placed on the tableaux.

It is therefore ordered that the judgment appealed from he amended as follows j that the opponent have judgment against said succession for two hundred and fifty dollars, with eight per cent, interest thereon from twentieth of March, 1863, to he paid in due course of administration, that his name he placed on the tableaux as a creditor for said amount, and as so amended that the judgment homologating the account ho affirmed.

It is further ordered that the succession of William Leonard pay costs of both courts.


author: Taliaferro, J. H&weix, J.

text:
    No. 136.
    St. Louis University v. Theophile Prudhomme and Wife.
    Alter a separation of property the wife is not bound for the debts of the husband which were oout acted before the separation, unless it is shown that the debt enured to her separato benefit or that of her separate property.
    A debt ior the support and education of the common offspring, contracted by the husband while he has the control and administration oí the dotal property of the wife, cannot be enforced against the wife after she has resumed the administration of her separate estate by authority of a judgment of separation of property.
    from the Ninth Judicial District Court, parish of Natchi-toches. Orsborn, J.

      Jack <£• Pierson, for plaintiff and appellee, 8. M. Ilyams, for defendants and appellants.
   Taliaferro, J.

The plaintiff by its proper representative instituted this suit against the defendants to recover the sum of $961 98, the amount of an account which it is alleged the defendants owe the plaintiff for hoard, tuition, and incidental expenses of the defendants’ son while a student of the institution during the year 1867, and part of the year 1863.

The husband in this case is a nominal party, the action being carried on mainly against the wife who is separate in property from her husband, the community that existed between them having been dissolved by the judgment of a competent court, which also decreed the husband to pay the wife the sum of $1902 63 for her dotal and paraphernal claims, with privilege and mortgage upon his property, and authorized her to administer her separate property. • This'judgment was rendered on the seventeenth of April, 1863. This suit was instituted on the twenty-third of July of the same year. The wife filed an exception, which was adopted as part of her answer, in which she sets up a general denial and especially avers that the debt sued ou was contracted during the existimo í of the community between herself and husband, anil that now, alter the dissolution of the community, and in the enjoyment and administration of her separate property, slie is not responsible for the payment of the community debts. Judgment was rendered in favor of the plaintiff for the amount claimed, and the defendant appealed.

Under the state of facts presented we have to inquire whether the wife is liable individually and out of her own means for the payment of the debt sued upon. The claim is for board and instruction of her son in the St. Louis University, including also physician’s bills and the usual incidental expenses. The correctness of this claim is not disputed. It is a community debt, and under the general principle should be acquitted out of the community funds. Civil Code article 2372.

The article 243 of the Code provides that “fathers and mothers, by the very act of marriage, contract together the obligation of supporting, maintaining and educating their children.” And it is provided by article 2409 that “ the wife who has obtained the separation of property must contribute in proportion to her fortune and that of her husband both to the household expenses and to those of the education of their children. She is bound to support those expenses alone if there remains nothing to her husband.”

There could, we think, be no doubt that the wif&Would be liable for a debt, of the character of the one sued upon, contracted after the dissolution of the community, and a decree authorizing the wife to administer her own property, if the husband were insolvent. Does the fact of the debt having been contracted during the existence of the community exonerate her ¶ The father and the mother, as we have seen by reference to the article 243 of the Code, by the very act of marrying contract together the obligation of supporting, maintaining and educating their children. The very act of marriage also superinduces between the parties the community of acquets and gains, unless it should be otherwise stipulated by a matrimonial contract. This obligation upon both the spouses to defray the expenses of maintaining, supporting and educating their common offspring necessarily subsists during the continuance of the community, although the husband, being the head and master of that community, is prominently liable for all its debts. This mutuality of obligation continues after a separation of property, for article 2409 of the Code provides that “the wife who lias obtained a separation of property must contribute in proportion to her fortune and that of her husband both to the household expenses and those of the education of their children.” But it is contended in this case that the husband, having had during the continuance of the community the administration of the wife’s dowry and of her paraphernal estate, and received the revenues of both, which should have been applied to the discharge of the expenses of the marriage, and having failed so to apply those funds to the purposes contemplated by law, the creditor holding claims of this character must look to the husband alone for payment.

In regard to the continuance during the community of the mutual obligation of the spouses tp provide for their common offspring, as expressed by articles 243 and 2409 of the Code, it is fair to conclude l'rom the import of other articles that during the community the wife’s part of the obligation is provided for in the case of a dowry by article 2329, which declares that “the income or proceeds of the dowry belong-to the husband, and are intended to help him to support the charges of the matrimony, such as the maintenance of the husband and wife, that of their children and other expenses which the husband deems proper.” In the case of the present defendant she had dotal property which was under the administration of her husband up to the time of the judgment of separation of property, and its revenues, it may be said, were contributed on her part during the community to defray the charges specified in the article just quoted. After a judgment of separation of property and a dissolution of the community she would seem to be absolved from the payment of the debt for which she is sued, as it was one contracted alone by the husband, exigible in part out of the revenues of her dotal estate, of which she had no control, and which we find no positive law requiring her to pay after a renunciation by her of the community and a decree separating her in property from her husband. This case differs from some other community debts which during the community and even subsequently the wife may be made liable for, where it is clearly shown that they inured to the separate benefit of herself or of her separate property. The cases of Dickerman v. Reagan, 2 An. 243, and 5 An. 125; 8 An. 512, cited by the plaintiff’s counsel do not in our view cover the case before us.

We therefore order, adjudge and decree that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that judgment be rendered in favor of the defendant, the plaintiff and appellee paying costs in both courts.

H&weix, J.

I concur in the decree in this case on the ground only, that the defendant, Mrs. Prudhomme, is not liable, because the debt was created before she obtained a separation of property.


text:
    No. 129.
    A. Armstrong v. T. Lecomte.
    Article 128 of tlie State constitution of 1868, in declaring that “ contracts for the sale of persons are null and void and shall not be enforced by the courts of this State,” does not impair the obligations of a contract. It merely prohibits the execution of contracts that have been declared void by the sovereign power.
    A third holder of negotiable paper, before maturity is not excepted from the prohibition.
    The prohibition against the enactment of laws impairing'the obligations of contracts has no application to the sovereign power.
    from the District Court, parish of-Natchitoches. Orsborn, J.

      Pierson & Levy, for plaintiff and appellant. 8. M. Hymns, Sr., for defendant and appellee.
   Howell, J.

This is a suit by a third holder, for value, before maturity, against the maker of a note, given as a part of the price of slaves and paraphed by the notary before whom the act of sale was passed.

Tho plaintiff has appealed from a judgment sustaining a peremptory exception founded on the one hundred and twenty-eighth article of the constitution of 18G3, prohibiting the courts of this State from enforcing such contracts. His counsel present two questions for our consideration : •

jFirst — Does this case come within the provisions of said article, aud — .

Second — Is not the said article in conflict .with section 10, article 1, of tho United States Constitution?

I. Article 128 of the State Constitution says: Contracts for tho sale of persons are null and void, and shall not be enforced by the courts of this State.” ,

Its language is full, plain and comprehensive, including all contracts for the sale of persons. There is no limitation, no modification, no reservation in favor of those who were not originally i>arties to the contracts. It must bo presumed that the convention was well aware of the principle of commercial law, invoked in behalf of commercial paper, and that, if it rvas intended or contemplated that third holders of such paper, for value, and without notice, given as the price of slaves, could enforce their payment against the purchaser, the reservation would have been expressly made. The very declaration that “ all contracts for the sale of persons are null and void,” reveals the scope of the said article and leaves no room for construction, and tho prohibition allows no option to the courts, when it is shown that tho contract sought to be enforced, whether by the vendor, his indorsee or other party, is one for the sale of persons. The obligation, contracted by the maker, was to pay the price of the slaves to the vendor or any other holder of the note which'represents that price, and it is not within the power of the courts to enforce it.

II. The provision of the Constitution of the United States, with which it is contended the said article of our constitution conflicts, is that no State shall pass “any law impaling the obligation of contracts.”

This would apply as well in the case of the contracting parties as to third holders of notes given in accordance with the terms of the contract, and the question arises, whether or not the organic law of the State impairs the obligation of contracts.

In our opinion, as held in the Wainwright case, whatever obligation ever existed in contracts for the sale of persons was destroyed by the nation, composed of the States subject to the inhibition in review, and that the State, in its fundamental law, has only recognized and not produced the effect, and has required its courts to do the- same.

• The action of the nation in the prosecution of the late war, and the thirteenth and fourteenth amendments to the constitution, in demolishing and prohibiting slavery, have, as held in the Wainwright casé, stricken all slave contracts with absolute nullity, and upon the principle which sustains the decision in that case, absolved the purchaser from all obligation to pay.- “The prohibition against the enactment of laws impaling the obligations of contracts has no application to the sovereign power.” Any and every claim for the loss or emancipation of slaves is expressly held to bo illegal and void as to the United States and any State (section four, fourteenth amendment), and if so, no State can properly be called on, by virtue of the Constitution of the United States, for its authority through its courts to compel its citizens to pay the price of property.lost to them by emancipation, a claim for which loss is expressly declared to be illegal and void. The fact that the note, which is the written evidence of the obligation, is in the hands of a third party, does not change the origin of the obligation.

We cannot avoid the conclusion that article one hundred and twenty-eight of the State Constitution applies to this action, and does not conflict with the Constitution of the United States, and that all commercial paper given for slaves and transferred before maturity for value, and without notice of its original consideration, falls within the prohibition to the courts.

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

Howe, J. dissenting.


author: Taliaferro, J.

text:
    No. 127.
    John Louis Perot v. Marie Louise Levasseur.
    A transfer or assignment of a promissory note secured by mortgage carries with it all the rights of mortgage, and privileges given to secure it.
    Where a series of notes have been executed, secured by mortgage on the same piece of property, and tho payee transfers them to different third parties, the privilege of the holders is concurrent on the proceeds of the sale of the mortgaged property. 1 Rob. 221; 16 La. 225.
    from the Ninth Judicial District Court, parish of Natchi-toches. By an, J.

      J. M. B. Tuolcer, for plaintiff and appellee. Chaplin & Son and JPierson & Bevy, for defendant and appellant.
   Taliaferro, J.

Madame Levasseur being owner and holder of four promissory notes executed in her favor for the payment of the price of a tract of land sold by her to McTier, transferred tbe one first due to Perot, tbe plaintiff. These notes constituted a series, bearing tbe same date, made payable at different periods, and their payment secured by mortgage and vendor’s privilege. In September, 1865, Perot obtained judgment against McTier on the-note he held, with recognition of the mortgage and privilege upon the land. Subsequently Mrs. Levasseur obtained judgment on tbe other notes, and transferred the judgment to Henry, subrogating him to all her rights under the judgment which recognized the mortgage and vendor’s privilege, and ordered a seizure and sale of the land. Mrs. Levasseur, or her transferee, caused the land to be sold under a writ fieri facias. Perot, the plaintiff by third opposition, enjoined the sheriff from paying over the proceeds of the property to the party seizing, alleging that he is entitled to priority in the distribution of the funds. Each note is for the sum of $1080, with interest, and the land was sold for $525. Eacli litigant denies the right of his adversary to participate in the appropriation of the money. Judgment was rendered in favor of the plaintiff, directing the proceeds to be paid to him by preference over all other claimants. From this judgment the defendant has appealed.

There is much difference between the counsel in their construction of the evidence introduced in the case. On the part of the defendant, it is denied that there is any evidence that Madame Levasseur ever indorsed the note held by Perot, and he is charged with fraud and bad faith. The only evidence in relation to the indorsement is that of Perot himself and two others. Perot testifies that he showed the note to Mrs. Levasseur, and that she said <¿she must have indorsed it.” Two other witnesses state that they heard Mrs. Levasseur say that she did not think she had indorsed it, or that she did not recollect having indorsed it. We do not find any proof of fraud on the part of Perot. It is clear that he paid the amount of the note. This is not denied by .defendant, who insists that the money was advanced by Perot for Mc-Tier, the maker of the note, and he contends that Perot has no sub-rogation of tlic payee’s right of mortgage. There is on this point of the destination of the money paid by Perot a discrepancy in the evidence, but wo think there is a preponderance in favor of the statement that Mrs. Levasseur owed a debt to Madame Scopini, and in order to obtain the money to pay it, transferred the note to Perot. This transfer carried with it all the privileges and mortgages attached to it. Civil Code, article 2015. The articles of the Code relative to payment with subrogation do not apply to the case of an absolute transfer of a debt which includes its accessories. See the case of Oakey & Hawkins v. the sheriff et al., 13 An. page 273. Here Mrs. Levasseur, needing money to pay her debt to Madame Scopini, sold the note to Perot, and consequently the accessory right of mortgage and privilege accompanied the sale.

It is argued on behalf of the plaintiff, that the first note of the series being transferred to him, Mrs. Levasseur could not come in ratably with him in the distribution of the proceeds of the mortgaged property in virtue of the other notes for which the property was equally mortgaged, and that not having that right she could not transfer it to another. The case of Salzman v. his creditors, 2 Rob. page 243, and 21 An. 261, are relied upon to support this position. The doctrine announced in Salzman v. his creditors is settled that where the holder of a claim secured by mortgage assigns a part of it, he can not be permitted to come in competition with Ms assignee if the pledge is insufficient to pay both.” But tMs rule does not hold where a party having assigned a portion of the mortgage debt subsequently transfers other portions of it; for in tMs case the second transferee is not postponed. See 3 An. p. 144, Adams et al. v. Leah. All the assignees stand upon an equality, and partake concurrently. In the case just cited the court said: “TMs doctrine of equality has been frequently recognized,” referring to 1 Bob. 224, and 16 La. 225.

We think that in tMs case the distribution should be made pro rata.

A bill of exceptions was taken to the ruling of the court refusing to receive a motion made by plaintiff, after both plaintiff and defendant had announced to the court that they had no further evidence to offer, to have experts appointed for the purpose of comparing the signature of Mrs. Levasseur on the back of the note in controversy, with her signature to the original act of sale of the land to McTier. The conclusion we have reached in this case renders it unnecessary that we should examine it.

It is therefore ordered, adjudged and decreed that the judgment ot the District Court be annulled, avoided and reversed.

It is further ordered that the proceeds of the sale of the mortgaged property be divided pro rata between the plaintiff and the defendant.

It is further ordered that the costs in the lower court be paid out of the fund to be distributed; the plaintiff and appellee to pay the costa of appeal.

Behearing refused.


text:
    No. 130.
    Succession of F. G. Bartlett, Opposition of H. K. Carter to Provisional Account.
    The Parish Court is without jurisdiction ratione materia in a suit for a moneyed demand for or against a succession where the amount in dispute is ahoye five hundred dollars. Swan D. Gale, (antepago478).
    XL PPEAL from the Parish Court of the parish of Natchitoches, llieú^ tand, Parish Judge.

      Jack & Pierson, for administratrix, appellant. Pierson & Levy, for plaintiff and appellee.
   Howe, J.

The administrator having filed a provisional account iii this succession, H. K. Carter filed an opposition on the grounds that lie was a creditor of the succession in the sum of $8008 20 upon certain mortgage notes, and that the account does not recognize him as a creditor at all. He also claimed that the sum allowed as a fee to the attorney of absent heirs ought to be reduced. He prayed that the debt claimed by him might be recognized as due by the succession, and his mortgage recognized. •

There was judgment rejecting, dismissing and disallowing his de^ ínáiid, and by consent reducing 'the fee of "blio attorney oí absént heirs, and' the Opponent appealed.

Wé felt constrained to decide lately át tlié Monroe term. fio. the cáse of Swan v. Gayle that the parish courts have no jurisdiction of suits by or against a succession where the amount in dispute .exceeds five hundred dollars (Constitution, article 87), and we must think that an opposition, like the one in this case, where the claim of the opponent is denied in tolo is to all intents and purposes a suit. If the debt had been admitted to be due, and the question had been as to its rank or privilege, the parish coiift would have had jurisdiction under its power to settle successions. But the debt being deified, we think the opponent Slioiild have instituted an action in. the District 'Court.

It is therefore 'ordered that the jh'd'ghrent appealed from be annulled ánd avoided, and that the opposition óf H. K. Carter be dismissed, without prejudice, áüd that he pay the costs óf both courts.

Os Application FOR Rehearing.

There is nothing in our judgment to prevent the opponent Carter from filing an opposition as such in the parish court by way of notice, jin'd bringing his action in the District Court to establish Ms claim.

Rehearing refused.


author: Howéll, J.

text:
    No. 137.
    V. W. Porter v. J. Brown and T. Chaler.
    A receipt given for money received is not conclusive between the parties and may be contradicted or explained by parol testimony.
    Payment of a legacy to a minor in Confederate notes is not binding on the legatee for tho reason of incapacity 'to give consent.
    AL from the District'Court, parish of Natchitoches. Orsborn, J.

      Jade (0 Pierson, for plaintiff and appellee. J. M. B. Tucker, and Pierson <£• Levy, for executors, appellants. ■■
   Howéll, J.

This is an action to recover tho amount óf a Special legacy with interest.

In July,1846 William Porter died, leaving a will containing the clause on which this suit is founded and which is in the following words: “ It is my will that my executors ” (BroWñ and dialer, the, defendants). “ shall purchase from Benjamin Metoyer a certain'child, the Son of, a girl they call .Heine, provided the same can he purchased at a reasonable sum, and in case 'the purchase is effected, I give and bequeath unto it its freedom, with the.sum of one thousand dollars, which is to be put on interest in the hands of some responsible person, the proceeds of which are to go to 'the support and schooling of the child, and when the boy arrives at the ago óf eighteen years of age, it is my 'will tlíát tho above amount, of one thousand dollars he paid over to him, and in case of the death of the child, the money to go to my brothers and sisters.”

Tlie first question presented is the peremptory exception of payment, evidenced by tlie plaintiff’s receipt in full, which, it is alleged, must have its full effect, unless annulled by a direct action, in which the plaintiff must malte ail offer of restitution, and that the validity of the receipt cannot be inquired into collaterally in this suit, which is an ordinary action on a cause of action alleged to have originated before the receipt was given.

On the trial this exception the only evidence introduced was the receipt and proof of the genuineness of the signatures and correctness of the date. The receipt is in the following words:

“ I, Yictorin, the child of Meme, a legatee under the will of William Porter, and eighteen years old, do hereby acknowledge to have received of Iml. Brown, executor of said will, the sum of one thousand dollars, in full of the legacy given me by said will.

(Signed) “ YICTORIN W. PORTER.”

Attest: A. H. PIERSON,

J. M. B. TUCKER.

“Natchitoches, La., March. 4,1803.

“ United States internal revenue, two cents, canceled.”

The exception was properly overruled. It has often been held that a receipt for money is not conclusive between the parties, but open to explanation and contradiction by parol testimony. 5 A. 235, 408; 14 A. 274 ; 12 A. 401; 10 A. 749 and 9 A. 129.

This case is not properly assimilated to that of Collins v. Collins, 10 L. 268, which was a suit against the succession of the plaintiff’s curator ad l>ona and the two sureties of the latter, and involved the settlement of two or three successions. Nor do the cases in. 1 A. 37; 11 A. 631; 13 A. 228 and 472, sustain defendant’s exception in this. They do not claim to have settled with the plaintiff as an heir to a succession, administered by them, or as his tutor, but simply to have paid him a specific sum of money left to him as a legacy and for the payment of which sum they hold his receipt. As before said, such a receipt is not conclusive between the parties and may, in an action for the money bequeathed, be explained.

At the trial on the merits, it was shown that the alleged payment on the fourth of March, 1863, which was also set up in the answer, was made in Confederate notes and while the plaintiff was a minor. He cannot be held to have given a legal consent to the payment and thereby bound as equally participating in the circulation of an illicit currency. Hence under the settled jurisprudence of the State on this question, there was no payment in law, and as the plea admits the existence cf the debt, the verdict of the jury and judgment thereon are correct. It is superfluous to inquire into other questions presented in the pleadings and briefs.

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


text:
    No. 31.
    Louis Dupleix v. Damascene Gallien, Widow and Tutrix.
    The stipulation in a written contract of sale of a lot of cotton, that “ delivery is accepted," will dispense the vendor from further delivery, and place the property at the rislc of the purchaser.
    from tire District Court, parish of Natchitoches. Lewis, J.

      J. M. JB. Tucker, for plaintiff and appellee, Pierson & Levy, for defendant and appellant.
   Howell, J.

This suit was brought in September, 1805, against the defendant on the following instrument:

“ Je susigné recomíais par ccs présentes vendre et m’engage h livrer a Mr. Louis Dupleix, qui l’accepte, cinq millo livres de coton (good middling), sous halles au prix de sept cents la livre. Le dit coton devra roster sous le moulin de Mr. Victor Radial ou toute autre per-sonnes, sujet a ses ordres sans autre dépensc a encourir de la part de Mr. L. Dupleix, j tisqu’ a 1’expedition.

sa

(Signé) “ MAECELLE M LAPLANTE,

marque.

“ LOUIS DUPLEIX.

“ Temoin : W. P. MOEEOW.

“ Natciiitoci-ies, Fevrier 11, 1862.”

Plaintiff demands the delivery, according to said contract, of Eve thousand pounds of ginned cotton, good middling, as Ms property, and in default thereof the sum of $2500 as its value.

The defendant pleads the general denial, admits the sale by her deceased husband, as represented in the instrument sued on, and alleges a full compliance on his part with all the obligations of his contract.

The District Judge held the defendant liable because the deceased vendor failed to notify plaintiff of the place selected for delivery, and she has appealed.

It is shown that soon after the date of the above contract, Laplante called on Victor Ilachal to gin, bale and store the cotton which he stated he had sold to plaintiff, and as the said Eaohal could not do it, Laplante called on Louis Casimere Baclial at Madam Palliére Eaehal’s plantation on the river about fifteen or twenty arpents below Victor’s, and had the cotton there ginned, haled, weighed, marked and stored, in March, 1862, as plaintiff’s, using Victor Eachal’s wagon in hauling the cotton from his own plantation opposite Victor’s, to that of Madam Pallicro’s, whore' it remained until - April or May, 1864, when it was burned by the Confederate and Federal armies.

Upon the hypothesis that it was incumbent on the seller to give ihe notice, as held by the judge, the circumstances raise a strong and weighty presumption that plaintiff was notified. His silence and inactivity for more than three years and a half leave hut little doubt as to his personal knowledge.

But be this as it may the peculiar phraseology of the written instrument and facts of the case warrant the construction, which relieves the seller from any such obligation. It is expressly stated therein that the buyer accepted delivery, and the seller was only required to deposit the cotton at the gin of Victor.Rachal or any other person, whore it was to remain subject to the order of the buyer, without further expense to him, until its shipment. From this it may reasonably be inferred that the buyer undertook to ascertain where the cotton would be deposited. The seller with remarkable promptness and fidelity, executed his part of the contract, and the cotton remained where delivered more than two years before its destruction, which must be held to be the loss of plaintiff. C. C. 2442. The case of Seris v. Bellocq, 17 A. 146, differs from this in the material facts. Equity is very decidedly with the defendant in this case.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, in the capacities in which she is sued, with costs in both courts.

Rehearing refused.


text:
    No. 97.
    E. Masson, Administrator, v. W. B. Murray, D. R. Carroll & Co., Intervenors.
    A party seeding to give to an inundation the character.of an,extraordinary accident must show that it was unusual, tinforeseén, and one to which the country was not ordinarily subjected.
    The privilege of the merchant for supplies furnished the planter is equal in rank with that of the lessor. 13 An. 4iO.
    from the District Court, parish of Natchitoches. Lewis, J.

      William M. Jack, for plaintiff and appellee. H. Safford, for inter-venor and appellant.
   Howell, J.

Plaintiff brought suit against the defendant, Murray, for six bales of cotton, of five hundred pounds each, and two hundred bushels of corn, or their value, as the rent of a plantation iu the parish of Natchitoches for the year 1866, and caused the crop to be sequestered. D. R. Carroll & Co. intervened claiming $1995 09, with interest, and privilege on the crop for supplies' furnished to the plantation during the said year and averred that the rent should he reduced because the crop was reduced by the overflow of the Red river — a providential act. The defendant confessed judgment iu favor of the intervenors and filed an answer to plaintiff’s demand claiming a reduction of three bales of cotton and all the corn, iu consequence of tho overflow — an event beyond human control. Judgment was rendered in favor of plaintiff for the cotton and corn claimed, and maintaining the writ of sequestration, and in favor of the intervenors for $995 09, with privilege on such part of the crop as may be left after satisfying the lessor’s claim, from which the intervenors have appealed.'

There is no dispute about the facts, but the intervenors ask that the judgment be amended, in three respects, as follows:

First — As to tlie amount of tlieir claim, which, it is admitted, should be for $1995 09, and legal interest from October 30, 1860. The error having occurred accidentally should be corrected.

Second — The reduction of the rent in proportion to the reduction of the crop.

This (luestion was correctly settled in the caso of Vinsen v. Graves, 16 A. 162, adversely to the pretensions of the intervenors and defendant. It was there said: “If a party seeks to give an inundation the < haraeter of an extraordinary accident, within the provisions of article 2714 of Civil Code, ho must show that it was unusual, unforeseen, and one to which the country was not ordinarily subjected. This has not been done.

Third — To recognize the privilege of the intervenors upon the crop as equal to that of the lessors. It has so been held in the cases of Cory v. Eddins, 13 A. 443 and Hollander v. His Creditors, 6 A. 669, where the article 3184 of the Civil Code, as amended by the act of 1843 was construed and applied.

The record does not enable us to make the apportionment, and the cause must be remanded for that purpose.

It is therefore ordered that the judgment appealed from bo so amended as to increase the amount thereof in favor of intervenors and against the defendant to nineteen hundred and ninety-five dollars and nine cents, with legal interest from thirtieth October, 1866, and so as to grant them a privilege on the crop concurrently and proportionately with that given to the plaintiff as lessor; that as thus amended the judgment be affirmed, and the cause remanded to the lower court to make the apportionment of the crop or its proceeds between, the plaintiff and intervenors in proportion to the amounts allowed them respectively by this amended judgment. Costs of appeal to be paid by the appellees.


text:
    No. 117.
    Succession of Emile M. Tauzin, on Opposition to Final Account. Virginia Bossier et als., Appellants.
    The Supreme Court has appellate jurisdiction only, and any faot not presented in tho court below will not'be noticed on appeal. Constitution^ article 74; O. P. 902.
    Notes given by the heirs for the price of slaves at probate sale cannot be charged against them in the account rendered by the administrator.
    from District Court, parish of Natchitoches. Lewis, J.

      Tier son, & Levy, for appellee. S. M. Hyams, for opponents, appellants.
   Howe, J.

Virginia Tauzin, wife of J. 3. Bossier, Ambroisine Tau-zin and Alida Tauzin have appealed from a judgment homologating the final account and tableau of distribution presented by A. L. Deb-lieux, administrator.

Tlio administrator haying died, pending the appeal, the same has heen revived against J. Jules Bossier, syndic of the creditors of the.,, succession. The syndic has filed in this court a peremptory exception that tlio debts claimed to be due in this case to Ambroisine and Alida Tauzin were partly for the purchase of slaves, and that the balance claimed to bo due thereon results wholly from such purchase, and prays that the cause be remanded to the lower court for inquiry into these facts. The exception is verified by affidavit. • We are of opinion that the exception must be overruled. The alleged facts are not ap-. parent on the face of the record, and we cannot receive any new evidence in this court. Our jurisdiction is strictly appellate and we can only review such questions of fact as were before the lower, court, and upon such evidence only as was there presented. Constitution, article 74; C. P.902.

The appellants Virginia Bossier- and- Ambroisine and Alida Tauzin were charged in the account with certain notes given for the price of slaves. This appears by the, account, and the notes themselves set forth in the record. To this extent the judgment appealed from is erroneous, and the account and tableau must be, in this respect, corrected. It is shown by calculation that with this rectification Ambroi-sine and Alida Tauzin were entitled to the net amount of $,5546 26 on the eighteenth February, 1866, and are entitled to legal interest thereon from that time; that Virginia Bossier on the sixth April, 1867, was entitled to the net amount of $2562 90, which will bear legal intprest from that date.

It is therefore ordered and adjudged that the judgment appealed from be amended so as to sustain the oppositions of the said appellants to the extent hereinbefore set forth; that the said Ambroisine and Alida Tauzin bo placed on said account and tableau as creditors for the net amount of $5546 26, witli legal interest from February 18,1866, with mortgage and privilege, as set forth in said account; that the said Virginia Bossier be placed upon said account and tableau as a creditor for the net amount of $2562 90, with legal interest from April 6, 1867, and mortgage and privilege as set forth in said account; that the amount of the said notes given by the said appellants for the purchase of slaves be stricten from the list of assets upon the debit side of the account, and that in all other respects the said judgment be affirmed. Costs to bo paid by the succession,


author: Lddeliso, C. J.

text:
    No. 174.
    C. F. Dranguet, Administrator v. Emile Rost.
    Tho act of the sovereign power in proclaiming tho abolition of slavery throughout tho United States annulled all contracts based on slavery, and article 128 of the State Constitution did not affect such contracts by prohibiting the courts from enforcing them. 'Wainwiight v. Rridges, 19 A. 234.
    A promise made after emancipation, to pay a promissory note given for a slave, cannot bo judicially enforced. Constitution art. 128.
    from, tlie Ninth Judicial District Court, parish of Natchi-toches. Orsborh, J;

      Pierson & Levy, for plaintiff and appellant, Morse & Jlyams, for defendant and appellee.
   Lddeliso, C. J.

This appeal is from a judgment rejecting plaintiff’s demand, which is based on a note given for a slave. It is urged that, as the defendant promised to pay the note after the emancipation of slavery, he became- legally liable for the debt, for which ho v-as already hound, in foro conscientiw. This is contrary to the principles decided in the case of Wainwright v. Bridges. It is also contended that the article of the Constitution of this State, which declares contracts for the sale of persons null and void, and prohibits the courts from enforcing them, is violative of the . Constitution of the United States. The decision in the Wainwright case is predicated upon the theory that the sovereign power had abrogated slavery, and all contracts based on slavery. If this he true (and we have reaffirmed it toe often to question its correctness now), the State Constitution did not affect the obligation of these contracts by prohibiting courts from enforcing them, or by declaring a fact, that they were null.

It is therefore adjudged that the judgment of the District Court be affirmed with costs of appeal.


author: Taliaferko. J.

text:
    No. 2.
    State of Louisiana ex rel. Simeon Belden, Attorney General, et al., v. Henry J. Leovy.
    Tho title of the act of the Legislature of 1868, No. 27, entitled an act ** to determine the mode ‘ of filling vacancies in all offices for which provision is not made in the constitution ” is sufficiently comprehensive to embrace the objects of tho statute.
    Section one of this act does not violate the constitution in requiring vacancies in municipal offices to be filled by appointment.
    The Common Council of the city of New Orleans have no power to fill vacancies in offices oí the corporation arising from death, resignation, or otherwise. In such cases it is made the duty of the Governor to appoint for the unexpired term. Acts of 1868, No. 27. § 1.
    from the Fifth District Court of New Orleans. Beaumont, J.

      Simeon Belden, Attorney General, J. It. Beckwith in pro. per., B. Madison Bay and W. JR. Mills, for relators. Thomas J. Semmes and Francis Monroe, for defendant and appellant.
   Taliaferko. J.

This action is brought under the act of the Legislature approved eighth September, 1868, usually termed the “ Intrusion Act,” prescribing the mode of proceeding against persons usurping or illegally holding public offices. The relators charge that the defendant, Leovy, is unlawfully holding the office of city attorney and exercising its duties without legal right, and they aver that James 11. Beckwith is the legal appointee to that office, holding a commission from the Governor of the State. They pray that his legal right to that office be judicially decreed and that the defendant, Henry J. Leovy, be adjudged an usurper of said office and that his claims and pretensions to the same be declared to be without authority of law and void, and that he pay all costs of these proceedings.

The defendant filed a general denial. Sets up light to the office by virtue of an election by the Boards of Aldermen and a commission thereupon issued to him by the Mayor of the city, and prays that plaintiff’s petition be dismissed.

There was judgment in the court below in favor of the relators, deciding that James B. Beckwith is legally entitled to hold the office of City Attorney, and to have been legally appointed to said office for the unexpired term thereof, and until his successor shall have been duly elected. The judgment further decrees that Henry J. Leovy is an intruder into said office and without lawful right to hold it or exercise its duties.

From this judgment the defendant has appealed.

"VVe find at the outset an exception by defendant, the purport of which is that the petition of plaintiff is not in the name of the State as required by law but in the name of the Attorney General, who is not authorized to stand in judgment. The petition is drawn in conformity with the statute relating to proceedings of the kind. (See case of State of Louisiana v. Kreider decided at the late Monroe term of this court.) The exception was properly overruled.

Wé find the facts to be these:

On the thirtieth day of June, 1868, the Boards of Aldermen and Assistant Aldermen elected J. B. Eustis City Attorney.

On the fifteenth of September following J. B. Eustis resigned the office. On the same day the Boards of Aldermen and Assistant Aider-men elected Henry J. Leovy City Attorney. ■ Beckwith, the plaintiff, was appointed City Attorney by the Governor and duly commissioned by him on the ninth of March, 1869.

The inquiry is, which contestant is-the lawful City Attorney ?

By the act of the Legislature approved August 19, 1868, it is provided that whenever vacancies occur in any office, State, parish or municipal, such vacancies shall be filled by the Governor, etc.

The defendant objects that this act, Ho. 27, is null and void as being violative of the constitution of the State for the reason that the object of tile law is not expressed in the title so far as municipal officers are concerned. This objection is without Weight. The title is sufficiently comprehensive. It is u to determine the mode of filling vacancies in all offices for which provision is not made in the constitution.”

It is argued that Eustis was never in office because he could not take the required oaths, and consequently that the election of Leovy was for the full term, as that of Eustis was intended to be, and therefore there was no vacancy to be filled.

The ability of inability of Eustis to take the required oaths is no matter of inquiry before this court. We find from the record that he was formally elected, that some two months afterwards he formally resigned, and that a successor was formally elected to fill the vacancy arising from his resignation. If it were relevant to consider the question of his ability to take the required oaths we should not feel prepared to infer his inability from any thing that appears in the record. The same argument might be offered against the ability of the defendant to qualify as it appears hé took part of the oath prescribed by the act No. 39, and now declares the act unconstitutional.

There being a vacancy in the office of City Attorney at the time of Eustis’s resignation it was incumbent upon the Governor to fill the vacancy, arising as it did during the term, by appointing a person to discharge the duties of the office during the unexpired period of that term and until the next regular election in due course of law.

The election of Leovy by the Boards of Aldermen is null, being an act they were without power to perform.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs in both courts.

Rehearing refused.


text:
    No. 46.
    A. B. Hughes, Administrator, v. R. T. Stinson et al.
    A judgment rendered by a judge of one of the courts of the State deriving his title and office irom the State authorities while the State was in insurrection is legalized by article 149 of the State Constitution adopted in 1868.
    A judicial sale, made in coniormity with the laws oí the State, after the twenty-sixth of January, 1801, is legalized by article 149 of the Constitution adopted in 1868.
    AL PPEAL from the Tenth Judicial District Court, parish of Bossier. Weems, J.

      Snider & Griffin, for plaintiff and appellee. Tí. W. Turner, lor defendants and appellants.
   Taliaferro, J.

This action is brought upon two promissory notes drawn in solido by the defendants, each note for the sum of $11,733 25, dated January 16, 1862, and payable, respectively, twelve and twenty-four months after date, with interest at eight per cent, per annum from date j one of the notes being subject to a credit of one thousand dollars paid on the twenty-fifth of July, 1863. The payment of these notes are secured by mortgage and vendor’s privilege on certain lands described in the petition. There was judgment rendered as prayed for, with recognition of mortgage and privilege upon the lands. From this judgment the defendants appealed.

The defense set up is that the land purchased and for which the notes were executed was sold at a probate sale under and by virtue of orders from a pretended court, which, with all its officers, held their assumed powers from the insurgent authorities then in rebellion against the government of the United States, and that the proceedings had under the illegal authority in relation to the sale of the property, the appointment of an administrator, etc.; are null and void, and that the defendants being without title are not bound for obligations having-no legal effect.

It is proper to remark that this suit was instituted in August, 1865, and the appeal taken from the judgment was filed in this court at the August term 1866.

The constitution of this State adopted in 1868 provides by article 149 that all judgments and judicial sales, marriages, and executed contracts made in good faith and in accordance with existing laws in this State, rendered, made or entered into between the twenty-sixth day of January, A. D., 1861, and the date when this constitution shall be adopted are hereby declared to be valid,” except certain legislative acts enumerated in that article.

We think the proceedings had in . regard to the sale of lands purchased by defendants as well as the judgment rendered against them were conducted in good faith and m accordance with existing laws of the State, and that they are consequently legalized by the provisions of article 149 of the present State constitution.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed With costs in both courts.


author: Howell, J. Ludeling, C. J.

text:
    No. 134.
    John Frazier v. Eliza Hardee et als.
    Cotrespassers are liable in solido, and citation of one will interrupt prescription as to all.
    In an action in damages for trespass, the defendant is not permitted to attack plaintiff’s title, or establish title in himself.
    from the District Court, parish of Winn. Orsborn, J.

      Jack A- Pierson, for plaintiff and appellant, Btjan é White and J. M. B. Tucker, for defendants and appellees.
   Howell, J.

This is a possessory action against four defendants as cotrespassers and the first question is the prescription of one year.

The disturbance took place in the fall of 1866, and a suit was; instituted by plaintiff in November of that'year, and three of the defendants cited. In January, 1863, the court; house and the record of said suit were burned. In May following, tliis suit was instituted, and two of the parties previously cited and the one then omitted were served with citation, the fourth one (and who was before cited), is not a party to this suit, having died since the institution of the suit in 1866, and his legal representative not being cited herein.

It is clear that prescription was interrupted as to two of the defendants, Eliza and William Hardee, from November, 1866, to twelfth of January, 1868, when the court house was burned, unless it is held that the institution of this suit must be construed as an abandonment of the former, in the sense of article 3485, of the Code, and the interruption considered as having never happened. We are not prepared however to give such a construction to the acts of plaintiff. His conduct shows that he did not abandon his suit against the defendants. He persisted in his judicial demand, and by no act of his was it necessary to adopt the course which he has pursued.

The next question is, what effect had this interruption as to these two cotrespassers upon the third one, Isaiah Hardee, who was not cited in 1866.

By the act of 1844, rc-enacted'in 1855 (see Kev. Statutes, p. 80, § 19), cotrespassers are liable in solido. By article 2092, C. C. a suit brought against one of the debtors in solido, interrupts prescription with regard to alland by article 3517, “ a citation served upon one of the debtors in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs.”

The prescription was therefore interrupted as to Isaiah Hardee by the suit in 1866.

Cotrespassers being liable in solido need not all be necessarily joined in the same action.

The exception as to informalities and inaccuracies in the copies of petitions should have been in limine lilis.

The judge a quo did not err in refusing to allow defendants to attack the title of plaintiff, or establish title in themselves. C. P. 53.

On the merits, the case is clearly with plaintiff. The defendants, after having been permitted by plaintiff’s lessee to take refuge in a part of the dwelling from the overflow in 1866, by acts of violence and threats caused the said lessee to abandon the place and leave them in possession.

The evidence upon the'claim for damages shows that there were from seventy to one hundred acres of cleared land worth three dollars per acre per annum rent, that the annual rent of the place is worth three hundred dollars, and that the defendants cut and sold from one hundred to one hundred and fifty cords of wood, worth fifty cents per cord in the tree. We will adopt eighty-five as the number of acres and one hundred and twenty-five as the number of cords of wood in estimating the amount of damages.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiff and against the defendants Eliza Hardee, William Hardee and Isaiah Hardee in solido, for tlie possession of the tract of laud with the buildings and improvements thereon described in the petition, and that he be restored to and put in possession of the same iu due course of law. And it is further ordered that plaiiitiff recover of the said defendants in solido seven hundred dollars with legal interest from the date of this judgment as damages and costs in both courts. . ’

Ox Rehearing.

Ludeling, C. J.

In this case it is ordered that no writ of possession be issued until the first day of January, (1870) eighteen hundred and seventy, and that the rehearing be refused. -