text:
    No. 132.
    M. P. G. Allen, Executrix, v. M. S. Cutliff and Husband.
    'The purchaser of real property at a succession sale, during tlie late war, is protected in his title and ownership thereto hy the provisions of article 149 of the constitution of 1868, it it appear that all the proceedings in regard to the sale of the property were upon their face regular.
    APPEAL from tlie Tenth Judicial District Court, parish of Caddo.

      Lerisee, J. Lobert J. Looney, for plaintiff and appellant.

      8. L. 'Taylor, for defendants and appellees.
   Taliaferro, J.

The plaintiff, as executrix of her husband, James S. Allen, deceased, sues the defendants to recover two town lots, with the valuable buildings and improvements upon them, constituting what was formerly known as the “ Commercial Hotel,” but now called the “Brooks House,” situated in Shreveport, on lots eleven and twelve, in block No. forty-nine, on Milam street. ..

The petitioner sots out that on the ninth oí December, 1863, her son, Henry E. Allen, without her authority or consent, made an application for and obtained an order of court for the sale of the property mentioned in her petition, and that on the sixth of February, 1864, under this order, the property was sold for cash and purchased hy Mildred S. Cutliir, one of the defendants, at the price of $17,600, which has never been paid, nor any part thereof, to any'person legally authorized to receive it.; and she avers that if any pretended payment has been made of the-prioe specified it was made in Confederate States treasury notes, and to II. E. Allen, who had no authority to receive it. She ¡specially denies ever having given him a power of attorney to act in these matters. She repudiates all his acts pretended to he done under her authorization. She avers that the calling of the family meeting to Authorize the sale oí the minor’s interest in the property, and all their Acts in relation thereto, and especially their recommendation to invest the minor’s share of the proceeds of sale in Confederate bonds, are utterly null and void. That the court was without right to homologate the proceedings. She avers defendants have had the use and enjoyment of the property since the first of May, 1865, and that the revenues of it are worth $525 per month. She prays citation and judgment annulling -the aforesaid proceedings of the family meeting and the order of court homologating the same, and the decree of the court ordering the sale. She prays in the alternativo that the property sued for be decreed to belong to the succession of James S. Allen, deceased, .•and that petitioner bo put in possession of it, and that she recover from the defendants $21,525 rents and revenues thereof; or, that she have judgment against the defendants for the sum of $17,660, the unpaid price of said property, with five per cent, interest per annum from sixth February, 1864, -with the vendor’s lien on the said property •as security ior the payment of the price and for costs and genera? relief.

The answer admits possession of tho property since the sixth of FebTuary, 3864, under a title good aud sufficient in law. The defendants then detail the facts and circumstances under which the purchase was añado, and which are substantially the same as those set forth in the petition, with this difference, that the defendants aver that all the proceedings were regular and legal. They allege that those proceedings were commenced and completed with the plaintiff’s approbation •and consent, or that at any rate she subsequently ratified and approved 'them, and can not now impeach their validity. They allege that they fliave made improvements and repairs on the premises worth $10,000. For these repairs and improvements in case of eviction they claim $10,000 with interest, and also if evicted the plaintiff and Henry E. Allen are bound in warranty to refund the purchase price. They pray the plaintiff’s demand be rejected; that they be quieted in their title ••aud possession; that in the event judgment be rendered against them they recover $17,600 with interest, and the further sum of $10,000 with interest and costs.

Judgment was rendered in the court below in favor of the defendant, Mildred S. Cutliif, recognizing her title and quiotiug her in possession «of the property.

The plaintiff prosecutes this appeal.

It appears that early in the summer of the year 1857 James S. Allen ■died in the parish of Caddo, leaving an estate appraised at about •■$30,000, and leaving a will by which his widow, the present plaintiff, was appointed executrix. • She qualified in that capacity, and also as tutrix of her two minor children, the heirs of the decedent. It is ia -evidence that about May, 1858, the widow removed to the State of Virginia, and it is not shown that she has ever been in Louisiana since. •Shortly before leaving she appointed L. M. Nutt, an attorney at law of Shreveport, her agent aud attorney in fact, clothing him with ample powers, general and special, to represent her in her capacity of executrix. It appears from the record that on the twenty-seventh of March, 3860, her attorney filed a petition in her name setting forth the propriety of having the property which is the subject of this controversy ■sold, and prayed an order for the convocation of a family meeting to take the matter under consideration, and advise accordingly. A meeting assembled, advised the sale and prescribed the terms. The proceedings were homologated by order of court and a decree rendered on ■the eighteenth of April, I860, for sale of the property in conformity with the terms fixed. Nothing further was ever done in the matter. ■On the ninth of December, 1863, a petition of the same purport was filed in the District Court of the parish of Caddo by Henry E. Allen, one of the heirs of James S. Allen, now become of age, and who professed to act iu the name of his mother in her capacity of executrix, and signed his name as attorney in fact. A family meeting was called, aud it advised the sale as a matter of advantage to the remaining minor, and directed that after payment of debts the portion of the proceeds coming to the minor should be vested in other real estate or in Confederate States bonds. The proceedings were duly homologated, the sale ordered, and the property sold for cash under benefit of appraisement on the sixth of February, 1864. The appraisement was made on the twenty-third of December, 1863. The valuation was $10,000. The property was sold lor $17,600, and paid iu Confederate money. No power of attorney from the executrix to Henry Allen was ever seen. ■ He himself, on the stand as a witness, stated that in the-absence of Mr. Nutt, the agent and attorney in fact of his mother, lie-had assumed the responsibility and carried through the business with, out the consent or knowledge of his mother, the executrix. Nutt, the attorney in fact, testified that the power of attorney given to him by-Ike executrix had never been revoked. That before the war he had permitted Henry E. Allen, the person -who had provoked the sale in-question, to collect rents, pay bills and hire the negroes. "This witness,, it seems, was absent when the sale -was made, and knew nothing of it until after it had taken place. In this case the proceedings in regard to the sale of the succession property were upon their lace regular. The purchaser appears to have acted in good faith. The estate was much in debt. Heavy liabilities were at the time of the sale still hanging over it, and on account of which, as we have seen, the executrix and tutrix in 1860 had convoked a family meeting- to advise in relation to a sale of property to provide means of payment. It is shown that Henry E. Allen, tlio pretended attorney in fact and one of the heirs, paid a largo amount of this indebtedness. An order of court was rendered for the sale of the property; the sale was duly advertised and made in conformity with the order. This should protect the purchaser in good faith. The purchaser paid the price in such currency as was then prevalent when the sale was made, and she went into posses-' sion of the property. Under this state of facts we think this purchase at a judicial sale, clothed with all the legal formalities, made in good faith, accompanied by the payment of the price of adjudication, and delivery and possession of the property, constituted an executed contract intended to be made valid by article 149 of the constitution. Lee v. Taylor, 21 An., p. 514.

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

Rehearing- refused.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 240.
    James D. McEnery, Tutor, etc., v. William H. Letchford Co. et al.
    If the property of tho minor has boon seized by a, judgment creditor of. the tutor in his individual capacity as tho tutor’s individual */».jperty, the tutor is tho proper paity to enjoin the salo thereof in behalf of tho minor. If, however, the question of toe validity of tho minor’s title to tho property becomes tho subject of adjudication, then the uudertutor is the i>roper party to bring the suit.
    "Where tho titlo to property is ostensibly in the minors, a judgment creditor of tho tutor in his individual capacity can not maintain a seizure thereof on i ho ground that the tutor i» in possession, unless ho allego that tho title of tho minors is simulated. In such a caso the judgment creditor must first resort to a revocatory action.
    APPEAL from tlie Fourteenth Judicial. District Court, parish of Ouachita.
    TV. J. Q. Baker, Attorney at Law, Judge ad hoe.

      Isaiah Garrett, for plaintiffs and appellees.

      John Say, for defendants and appellants.
   Howe, J.

The plaintiff, as tutor of his minoi children, enjoined the-sale of certain lands and immovables by destination thereto attached upon the allegation that they were, the property of the minors, but had been seized under judgments in favor of the defendants against M. T.. Mason, James D. MoEnery and S. Weil & Bro. We find it necessary to consider hut two points :

Jfirst — The defendants except to the right of the plaintiff, James D. McEnery, to stand iu judgment on the ground that the executions enjoined in this case were issued against him personally, and that if the property should he sold the funds would go to pay his debts, a fact which creates in him an interest opposed to that of tho minors and makes it necessary that the under tutor should bo a party plaintiff! They cite in support of this view C. C. 301; 2 La. 146; 11 La. 189; 7 R. 169; 2 Au. 960. The exception was overruled, and they filed a general denial merely. The court a qua, .gave judgment perpetuatingtlie injunction and quieting the minors in their title and possession of the property described in tho petition. We think there is some force in the exception, so far as the demand of the plaintiff that the minors he quieted in their title is concerned. To do that we think it would be moro regular to require the under tutor to be present as a party, so that the minors might he bound in caso tho defendants should be successful.

But so iar as the demand for an injunction against the seizures complained of is concerned, we think in this case the tutor alone can stand in judgment. It would be a vain thing, therefore, to dismiss or remand when we perceive that the plaintiff is entitled to a part of the iclief prayed for, and such part will answer the purpose he has in view. The minors, in this case, are in i>ossession under a title ostensibly valid and recorded iu I860. The defendants disregard this title and proceed by direct seizure in 1867. They do not allege simula■tion. Tlicir answer is a general denial. There is not a whisper in tho a-ecord against the good faith and reality of the minors’ title and tho fiduciary character of the possession of the plaintiff, their tutor. The record presents a bald case of seizure of what is ostensibly the property of the minors, without any revocatory action. It seems clear that under such circumstances the tutor, whom the law endows with the possession and charges with the administration of the minors’ estate, has a right to enjoin such a seizure and compel the creditors to resort to a proper action.

Second — As already stated there was no charge of simulation in the pleadings, and it is not necessary to discuss alleged informalities in tho minors’ title. We think, on the merits, that tho injunction should ho perpetuated, but the question of title of the minors left open as the ■subject of a direct action if the same be deemed desirable.

It is therefore ordered that the judgment appealed from, so far as it perpetuates tho injunction issued herein, with costs of the lower court, be affirmed, and in other respects reversed; and tiiat appellee pay the •costs of appeal.

Ludeling, C. J., recused


author: Ludeling, C. J.

text:
    No. 204.
    Consolidated Association of the Planters of Louisiana v. James W. Mason et als.
    If the judge a quo has omitted or failed to sign a judgment dismissing the action on exception filed hy the defendant, such failure.or omission -will not authorize the plain tiff to abandon tho suit, because the plaintiff or defendant may have such judgment signed by tho presiding judge.
    A judgment dismissing tho suit on exceptions filed hy tl'ie defendant is a final judgment against the plaintiff, and forms res judicata as between tibe parties to the action.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Ray, J. Morrison t& Farmer, for plaintiffs and appellants.

      ■Stubbs & Gobb, and Richardson c6 MeEnery, for defendants and appellees.
   Ludeling, C. J.

This is an hypothecary action to enforce the stock mortgage executed by Mason and wife against property in the possession of the estate of J. Ilarfc.and of E. Tisdale, and for a personal judgment against the estate of Mason.

The defendants filed the following exception : “That on the twenty-eighth day of October, 1868, piaintiff filed in your honorable court ii suit entitled ‘Consolidated Association v. J. W. Mason’s Estate,’ No. 800 on the docket thereof, plaintiffs in said petition being the same, defendants the same and the cause of action the same, which said suit was dismissed at plaintiffs’ costs on peremptory exception filed therein hy James Hart, third possessor of the alleged mortgaged property, hy Hon. Thomas H. Crawford, judge of said court, on the eleventh of September, 1869, as will appear hy reference to the record of said suit iliereto annexed and made a part hereof. Your appearers allege that said judgment so dismissing plaintiffs’ action is as to said succession ¡and all parties holding tinder it, final and res judicata. Whereupon they pray that as to the estate of Hart and all those holding titles un:der it to said property, plaintiffs’ petition he dismissed and for general relief, etc.”

Tiie record before us shows substantially the following facts

That the plaintiff, defendants and the cause of action are the same in suit No. 800 of the docket of the District Court of the parish of 'Ouachita, and in this case. That in the former suit Hart for himself •and his vendee, Tisdale, filed the following exception

“Thatthelandand immovables now ownedby this appearer and the portion sold by him to Tisdale, now sought by plaintiffs to be held subject to their mortgage against Mason, is not and never has been subject to said mortgage in tliekands of this appearer or any third person, for the reason that said immovable has never been precisely described as to its situation in the act of conventional mortgage attached to plaintiffs’ petition as required by law, Second. That the record of the mortgage sought to be enforced by plaintiffs in this case is unconstitutional, null and void, and not binding on this appearer or any third person, for this, that the public act of mortgage sought by plaintiffs to be enforced in this case is and has ever been in the French language, and not in the language in which the constitution of the United States is written, contrary to the constitution and laws of this State.” And the estate of Mason filed the following exception: “ That the charter of the bank of the Consolidated Association has been declared by law forfeited, and that the president and directors of said bank, whose petition defendant is called upon to answer, are without authority to sue and can not stand in judgment.”

That these exceptions were argued and taken under advisement on the eighth and nintli day of September, 1869, and on the eleventh of September, 1869, the following entry was made in the minutes of the ■court: “Judgment — Exceptions filed by all the parties sustained, and the suit dismissed.”

No other judgment appears in the record, nor is its absence explained in the record. Subsequently an appeal was prayed for, an order of .appeal was granted, bond was given, and the appellees were cited; .but the transcript was never filed in this court, which fact appears from the certificate of the clerk of this court given to the appellees.

The judge a quo sustained the plea of res judicata, and the plaintiffs have appealed. It is contended that the judicial admission of the plaintiffs in their petition for an appeal estops them from now denying that there was a final judgment in suit No. 800. We do not think so. If the judgment was not written up and signed, and the plaintiffs’ attorneys by some oversight applied for an appeal prematurely, we can not think that their clients are forever after concluded by this mistake. Neither are wo prepared to say that the judgment was not signed; everything in the record before us, except the absence of the judgment itself, tends to show that there was such a judgment, and there is no evidence to show it was not signed. But oven if the judgment was not signed, and, therefore, if it did not technically constitute res judicata, still wre believe that the exception to the new suit should be maintained and the suit should be dismissed, because the proof in this record shows that suit No. 800 was tried and decided. If it is not a final judgment, if Is because of the neglect of the judge a quo to sign it, and either party has the right to have that judgment signed by the presiding judge. It would be inequitable and harassing to defendants to permit plaintiffs to abandon their suits after a judgment had been pronounced against them, and to institute new proceedings for the same cause of action by failing to have the judgment signed.

The plaintiffs insist that the judgment is not res judicata because it dismissed the suit. The extract from the minutes shows that the exceptions filed by all the parties are sustained and suit dismissed.” This was a judgment in favor of defendants, and though it dismissed the suit, it was not a nonsuit. It decided that the pretensions of the plaintiffs were illegal, null and void.

It is therefore ordered and adjudged- that the judgment of the District Judge be affirmed with costs.


text:
    No. 222.
    The State of Louisiana v. Toney Vester.
    The objection by tbe «accused tlmfc he was not served with «a correct list of the jury that was to try him comes too late if not made until after verdict. It cannot be entertained if made for the first time by a motion in arrest of judgment.
    APPEAL from the Tenth Judicial District Court, parish of Madison.

      1lough, J. W. W. Farmer, District Attorney Fourteenth Judicial District, for the State.

      H. P. Wells, for defendant and appellant.
   Howe, J.

The defendant having been found guilty of manslaughter and sentenced to imprisonment at hard labor, has appealed. The only point he makes is one which was made in the court below for the first time on a motion in arrest of judgment. It is that he was not served with a correct list of the jury that was to try him, as required by-statute. This was a right created for his benefit and which he was competent to waive in toto, and which has often been held to be waived if not claimed before trial. 2 An. 732; 6 An. 690; 12 An. 679; 14 An. 667. If a want of the service of any of the list at all may be cured by want of objection and verdict, a fortiori, may remedy such a defect as an imperfect list

Judgment affirmed.


text:
    No. 180.
    A. M. Ross v. Harvey Adams.
    A renunciation of prescription after it has been acquired must'bo express. A written proposition by the maker of the note, after prescription has been acquired, to take out -a life insurance policy in favor of the holder is not such an acknowledgment of the debt as the law’ requires to establish a renunciation of an acquired prescription.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Hay, J. Newton <0 JUall, lor plaintiff aud appellant.

      Todd di Brigham, for defendant and appellee.
   Howe, J.

Action on a promissory note due in 1800 ; citation served in 1870; plea of prescription of five years; judgment for defendant and appeal by plaintiff.

The plaintiff sought to prove a renunciation of acquired prescription by the following letter:

“February 7, 1869.

■“Hr. A. Hoss:

“ I will take out a life insurance in your favor on a ten annual payment if that will suit you. Come and see me or make an agent in Bastrop, and I will promptly attend tlie business. For the .sum of money that I w-ill he able to pay you only (annually ?) it wouldn’t pay you to come after it. Yours, etc., IIABYEY ADAMS.”

In connection with this it appeared that the defendant had never owed the x'laintiff any debt but the one declared upon.

Wo can not think that this letter furnishes the written evidence which, under the statute of 1858, is necessary to establish a renunciation of an acquired prescription. Ib contaius no express renunciation nor any promise to pay the debt in suit.

Judgment affirmed.


text:
    No. 226.
    The State of Louisiana v. Romeo Axiom.
    The objection by tlie accused that bo was not served with a correct jury list comes too late, if not made until after verdict.
    A clerical error in the minutes of the court by which the name of a g*rand juror has been 'ncorrectly spelled may be corrected mono protenc, so as to correspond with the names on the venire. Such discrepancy, if corrected, is not good ground for a new trial. 2 An. 745; An. 94; 10 An. 198.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Hough, J. IF. IF. Farmer, District Attorney Fourteenth Judicial District, for the State.

      J. O. Seale, lor defendant and appellant.
   Howe, J.

The defendant having been convicted of manslaughter aud sentenced accordingly has appealed and presents two points:

First — That he was not served with a correct jury list. This point, made for the firs.t time after verdict, came too late. State v. Vester, lately decided; 23 An. —; State v. Clark, 23 An. 194.

Second — That Moses Brockett who appeared by the clerk’s minutes,, at the time the motion for a new trial was made, to have been impanneled' as a grand juror, was not on the venire of jurors, was not a-registered voter of tho paiish, and was not a competent, juror. It might have been added, probably with equal truth, that there was no such person in being. For it plainly appears that the name Brockett in tho minutes was a clerical error for Crockett; that Moses Crockett was on the venire, was impanneled on the grand jury, and was a competent juror; and that this error was duly corrected, so ihat tho-minutes now show the true fact and not the fiction behind which the-appellant seeks to take shelter. This correction of the minutes was-properly made. 2 An. 745; 9 An. 94; 10 An. 193

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 279.
    State of Louisiana ex rel. New Orleans, Mobile and Texas Railroad Company v. James Graham, Auditor, et al.
    Tlio act of tli© General Assembly of Louisiana, approved February 21,1870, extending tlie* aid of the State to tlie Row Orleans, Mobile and Texas Railroad Company, is a contract between the State and tlie company. In granting State aid to this company to enable it to construct the road through her limits, tlie Legislature was evidently influenced from motives of public policy, and the aid given can not therefore be regarded as a simple donation to a private company.
    Tho effect of the third amendment to tho Constitution of tlie Stato, which forbids the increase of tlie Stato debt beyond tho sum of twenty-five millions of dollars, is not retroactive. The Legislature granted the State aid to the Rew Orleans, Mobile and Texas Railroad Company from motives of public policy before tbe adoption of the third amendment to the Constitution, limiting the State indebtedness.
    Meld — That this grant of State aid, being a contract with the company which was mad©' before the amendment to the Constitution was adopted prohibiting the increase of the • State debt above twenty-five millions of dollars, and being made in tlie public interest, this aid can not now be withheld by the State, notwithstanding its indebtedness has • reached the limit imposed by tho Constitution.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. John A. Campbell, for relator, appellee,

      llornor & Benedict, iov respondents and appellants.
   Taliaferro, J.

This is an action brought by mandamus to compel the State Auditor and State Treasurer to register certain bonds issued' by the State in aid of the company in the construction of their railroad through the Stato of Louisiana. This act of registration the-defendants are required to perform by the soventli section of the act of incorporation, approved twenty-first of February, 1870. The relators show that by that act the State is bound to furnish in aid of the enterprise State bonds of the State of Louisiana to the amount of three millions of dollars, to be issued in installments of seven hundred and fifty thousand dollars each as the work of construction progressed and should be completed to certain specified points within tho boundaries • of tho State. Tlioy show that according to the conditions of the legislativo act aforesaid, they have completed the construction of the road from a point on the Mississippi river opposite New Orleans or Carrollton to the Bayou Lafourche, and that the company, by the terms of the said act of incorporation, is entitled to receive State bonds for the first installment of seven hundred and fifty thousand dollars. They show that according to the provisions of the act of incorporation the Governor of 1he State has caused to be executed the number of State bonds required for the first installment of seven hundred and fifty thousand dollars, and have been presented 1o the Auditor and Treasurer for registration, an act the relators aver the said officers are required to perform by the seventh section of the act of incorporation. They allege that the Auditor and Treasurer refuse to perform the act of registration so required' of them by law, and declare their purpose not to perform it.

A rule nisi was granted by tho judge a quo, and the defendants show for cause: That by the third amendment of the Constitution of the State, promulgated on the fifteenth of December, 1870, it is provided that “prior to the first day of January, 1890, the debt of the State shall not be so increased as to exceed twenty-five millions of dollars;” that prior to the first day of June, 1871, tho debt of the St ite exceeded the sum of twenty-five millions of dollars; that the claim set up by the relators formed no part of the debt of the State on the fifteenth day of December, 1870, and are not now a part of thjat debt, and they form no part of the current expenditures Of the State necessary for its. government or for the maintenance of its peace and order; that the Legislature was without power to pass tho act under which the relators, claim, the act being null and void, as having been passed in violation of tho third amendment of the State Constitution. The respondents aver that the relators constitute a private corporation, its property' private property; that it is managed and controlled for the individual, benefit and advantage of its stockholders, and that the Legislature was without power to pass an act of donation or gratuity to a private person or corporation for his or its private advantage and benefit, and that the act aforesaid is therefore null and void; that as officers of the State of Louisiana, they have taken'an oath to support tho Constitution thereof, and can not be required to perform an act in violation of their oaths.

On hearing the case in the court below, the judge a quo ordered the mandamus made peremptory, and the respondents have appealed.

Tho legislative act approved February 21, 1870, extending the aid of tlie State to the Now Orleans, Mobile and Chattanooga Railroad Company must be regarded in the light of a contract between the State and the company. That act, as we have seen, became a law of the-State by tbe approval of the Governor on -the twenty-first of February, 1870. The amendment to the State Constitution forbidding the increase of the State debt beyond the sum of twenty-five millions of dollars was promulgated and went into effect on the fifteenth of December, 1870. The effect of this amendment can not be retroactive. This must be determined upon elementary principles. Besides, upon no sound view of the purpose and intention of the people of the State in incorporating the third amendment into their State Constitution, can we conclude that the amendment contemplated any infringement of the obligations of the State lawfully entered into prior to its adoption. The act of the twenty-first of February, 1870, was in aid of an important public work, doubtless regarded by the Legislature as tending very greatly to increase the commerce and prosperity of the State, and as of paramount importance as a measure of public policy. Considering what we take to have been the controlling motives of the Legislature in extending the aid of the State to the construction of the road through its limits, we can not regard the aid so given as a more donation or gratuity to a private person or a private corporation for its private advantage and without effect, as urged by the respondents. We think that in refusing to register the bonds as required by the act we have had under consideration, the respondents erred.

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


author: Howe, J. Taliaferro, J.,

text:
    No. 136.
    B. G. & S. R. Stewart v. Looney & Wells.
    In this caso the facts show that tlio tutor of the minors purchased a piece of property in the town of Shreveport in "the name of the minors ho represented; that ho was much indebted at the time, and that the heirs ho represented had no means of their own which were available at the time; that at his death the lands or lots were inventoried as his property, and sold at Ms succession salo. This action is brought by the heirs (since become of age) for the recovery of the lands or lots purchased by their tutor in their name. The defense of the purchasers at the succession sale of the tutor is that the title to the heirs by the tutor is a fraudulent simulation. Held that under this state of facts, and under the ruling in the case of Frazer v. Prichard, 6 An. 728, the purchasers at the succession sale had the right to allege and show the simulation.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.
    Levisee, J. JSntt & Leonard for plaintiffs and appellants.

      Looney & Wells, iu person, defendants and appellees.
   Howe, J.

This is a petitory action to recover certain lots of ground in the city of Shreveport, which plaintiffs allege they acquired by purchase from B. F. Logan on tlie twenty-eighth December, 1*63.

The defense is that the plaintiffs’ title is a fraudulent simulation.

There was judgment for defendants, and plaintiffs have appealed.

It appears that, at the date of the act ot sale from Logan In December, 1863,, the plaintiff's were minors; that they were not living at Shreveport where their father, H. T. Stewart, resided.; that they had no property (except perhaps a very trifling sum due them eventually from the succession of their mother, which amount, if existing at all in 1863, was too insignificant to he taken into account); that H, T. Stewart had unsatisfied judgments hanging over him; that he purchased the property in the name of his minor children, the plaintiffs, with the purpose admitted to one witness, at least, of putting it in their names to conceal it from these judgments; that he, and not the minors, furnished the money to make the cash payment of two thousand dollars, and gave two notes in his children’s name for one thousand each, one of which has been paid by his administrator; that he remained in possession of the property up to the time of his death in 1864; that it was inventoried as an asset of his succession; and that it was sold at succession sale as his property and purchased by the defendants.

We thiuk the defendants had the right to plead simulation as against the title and claims of the plaintiffs. This point was expressly decided in the case of Frazer v. Pritchard, 6 An. 728, and inferential in the succession of Weigel, 18 An. 49.

The only question, then, is whether the defense of simulation here set up is established, and we concur with the judge a quo, who saw and heard the witnesses, that it is; that the interposition of plaintiffs as parties in the act of sale from Logan was fictitious; that the property was really that of II. T. Stewart at the time of his death; that it was inventoried as a part of his succession; and that it was sold under •a decree of a competent court at public sale, and purchased by the defendants.

Judgment affirmed

Rehearing refused.

Taliaferro, J.,

dissenting. The simulated, in contradistinction to an actual though fraudulent sale, has been often defined in the decisions of this Court. It is that which is clothed with the empty forms of a sale, without possessing two of the elements essential in the contract of sale : the consent of the parties and the payment of a price. In the simulated sale, as repeatedly decided, there is no intention in ■ the parties that a sale shall take place. .What is presented as the consent is in reality no consent; the exhibition of the payment of a price, is not the payment of a price. There exists no aggregaiio mentivm in the parties to form a sale. The aggregatio mentium in the simulated sale is to delude’and deceive others by holding up to their view a spectral illusion, a vain and empty vision of a pretended contract, unreal, unsubstantial, the mere shadow of a title, and nothing but a shadow.

It has been well settled by numerous decisions of this Court, running back through a series of more than thirty years, that simulated sales convey no title, and that a creditor may disregard the thin veil thus thrown around his debtor’s property, and seize it directly without resorting previously to the courts to have the fictitious, nugatory title judicially set aside. And why 1 Simply because no sale has been made. A’s property, in such a case, continues to be his property although it be enveloped with the vana effigies, the airy shape of a sale to B.

On the other hand, the law bestows a degree of regard and respect upon actual contracts, even though they be fraudulent, and forbids that they be disregarded entirely as in cases of mere simulation. The actual contract, although fraudulent, can not be so summarily dealt with. In contracts of that character one of the parties may be in good faith. His rights must be protected: In all cases of an actual contract, where it is tainted with fraud intended to injure third parties, the complaining party must invoke the aid of the law, lay bare the fraudulent act by proof, show how it injuriously affects his rights, and obtain a judgment annulling the sale, before ho can render the property, fraudulently sold, subject to his just claims. Cases have been frequent where parties, in hot haste to reach the property of their debtors, and seizing it in third hands, alleging simulation, have been enjoined, and upon a hearing in the courts have had their proceedings set aside and themselves thrown back upon the revocatory action. The distinction between mere simulated sales and actual though fraudulent sales, has been broadly drawn and distinctly marked. The cases in which this has been done are so numerous that it is unnecessary to refer to them in detail. Still, a practice reprehensible in my opinion, lias been to no smalL extent inaugurated, which confounds this obvious distinction, and which, as caprice may direct, attacks actual contracts under the pretense that they are “simulated and fraudulent.” This practice is deemed a proper and convenient one to resort to when the revocatory action is prescribed. By simply calling the act “ simulated and fraudulent,” itis dealt with as a pure simulation. A pretended or sham contract is necessarily both simulated and fraudulent; but an actual contract, whether fraudulent or not, can never be simulated. It is a solecism to apply the term simulated” to a contract which the parties made real, and intended to make real.

The practice I have adverted to has, I am disposed to think, been resorted to in the case now before the Court. The sale from Logan to the minor children of Stewart, represented by their father, is attacked as simulated and fraudulent.” The facts presented by the record satisfy me that there was, in this case, an actual contract. It. is clear to my mind that Stewart intended to buy in his representative capacity, and that Logan intended to sell. A large portion of the price was paid. A delivery was made, and Stewart went into possession as the natural guardian of his children. No law prohibits a father from buying property for his children. Certain formalities are required to be observed in the purchase of property for minors by their tutors, but the neglect of these do not necessarily annul the acts so made.

The record satisfies me that there were really few debts owing by Stewart at the time of his death. The pretended judgments displayed by the administrator appear to have been either paid or prescribed before the administration. No creditor seems to have presented them. The administrator is himself at a loss to know who represented the debts placed on his final account. The two largest items of indebtedness, @1080 to Brooks & Price and $471 to Swink, were stated by the administrator to have been contracted on a Confederate money basis. These were debts for which he should not be allowed a credit, for he was not bound by law to pay them. The other debts are chiefly if not entirely debts having their origin in the administration of the estate. The judgment creditors alone, if there were any, might have seized at their peril the property in- tho name oí the plaintiffs, and alleged in defense that the sale was simulated. But the judgment creditors in this case were mythical. They were unknown, and consequently were not pressing claims. Has the administrator greater rights than the creditors he represents? Where none of them could resort to a seizure oí property on the ground of simulation, shall the administrator step forward, place upon his inventory property tiro title to which he finds not in the name of the decedent, but of other parties, and proceed to advertise and sell it? Suppose that Stewart intended a fraud upon his creditors, and the administrator acting in their interest felt it his duty ■to have tho sale set aside and the property declared to belong to tho estate. He could only have brought a revocatory action for that purpose, and he could only have done that where there were creditors who have been injured by the sale. 6 An. 494. No showing of the sort has been made in the case now before this court.

The administrator in this case has moved altogether ex propio motu. His administration, so far as it purports to have been regularly conducted, is itself a simulation, The administrator, it does not appear, was a creditor, and yet he appears to have been far more vigilant than those whom he represents were creditors. The course he has pursued strikes me as anomalous, and but little deserving the sanction of the tribunals of justice.

The defendants’ counsel rely chiefly on the case of Frazier v. Prichard et al., 6 An. 728. The court there said the act of Frazier was a simulation, but simulation of a particular kind. The facts in that case were that Frazier bought for his minor children a tract cf land from Morris, taking, the title in their names. A valuable consideration was actually given; a sound price was really paid. The tract of land was delivered, and Frazer took possession of it under the sale. I regard this case as isolated. It stands alone and unsanctioned by any previous or subsequent case. Ibis confronted by a host of decisions which are uniform in declaring a doctrine utterly at variance with it, and which mark it as antagonistic to the well settled jurisprudence of the State. In that jurisprudence it has been long and definitely determined that by a simulated sale no title passes. The logical sequence of that doctrine, when applied to the facts of the case at bar, is that the property taken as Stewart’s is not his, but Logan’s, for, being a simulation, no title passed from Logan. If the deed from Logan is a sheer simulation, then there is no deed. No title passed, if the deed is invalid. But we are told that title passed by it to Stewart himself. If title passed by the deed, io is valid, and can not bo attacked as a simulation. But if valid it must speak for itself. We must learn from its own recitals to whom the title passed. This court is powerless to interpret a valid written contract to mean anything different from that which the plain purport of the language used indicates. The alternative is stern and inevitable. The act purporting to bo a sale from Logan to the plaintiffs is a title to the plaintiffs or it is a title to nobody. If it be a title to the plaintiffs, the defendants have no right to attack it as a simulation. I think the p aintiffs should have judgment in their favor, reserving to the defendants their right to proceed according to law by a revocatory action to set aside the plaintiffs’ title.

I concur with Mr. Justice Taliaferro in the dissenting opinion expressed in this case. W. G-. WYLY.


author: Howell, J.

text:
    No. 206.
    G. W. C. Trezevant, Administrator, v. Junius Courtney.
    la an action by the creditors to annul a sale made by the sheriff of the debtor’s property, on the ground that the purchaser is an interposed person who took the title fraudulently for the jmrposo of defeating them, the declarations of the debtor before the sale, made out of the presence of the purchaser, which are not shown to be brought home to him before the sale, are not sufficient to establish that he purchased the property for the debtor. Brand may bo proved by parol evidence, but unless the fraudulent declarations of one of the parties is shown to have reached the other party, and to have been the motive for his action, the transaction will not be set aside on the ground of fraud.
    APPEAL from the Fourteenth Judicial District Court, parish of Ricliland.

      Ray, J. IT. W. Drake, for plaintiff and appellee.

      Richardson <& MeEnery, for defendant and appellant,
   Howell, J.

This is an action by the administrator of the succession of Eben Miller, deceased, to have declared simulative, fraudulent and of no effect a sheriff’s sale made on sixth July, 1867, of a certain tract of land to defendant, in the suit of W. Oliver v. Joel McDonald, on the grounds that the defendant being a person interposed, the real purchaser was the said Miller, who paid the price and who was insolvent at the time of sale and of his death, and used the name of defendant to conceal his property from his creditors. The defendant denies the simulation and fraud, and avers that he bought the property with his own funds for his own benefit. Judgment was rendered in favor of plaintiff; and deiendant appealed.

The evidence in the record does not satisfy us of the correctness of this judgment. The principal proof; tending to show that defendant was interposed to cover up the property of the deceased, is in the testimony of two witnesses, J. T. Grubbs and the deputy sheriff who made the sale, and consists of statements which, they say, were made to them by the deceased, out of the presence of the defendant before the sale, to the effect that ho wished to purchase the land, but would put the title in the name of the defendant, who is his son-in-law, and resides in another parish, to prevent his wife and other creditors from reaching it. But a knowledge of these statements or such instruction, on the part of the deceased, is not brought home to the defendant, and hence they are not evidence against him. The court did not err in admitting this evidence, as fraud may bo proven by parol, and the parties can not be controlled in the order of introducing their evidence; but unless the statements or doings of one of the parties to the alleged fraud are connected with or brought to the knowledge of the other, they can not establish fraud in the latter. 18 An. 848, and authorities there cited. It is true the deputy who made the sale states the fact that some three or four weeks before the sale the deceased deposited in his hands money for the purchase of the land, stating- it to be his own money, but he docs not say that said money was so used; on the contrary, his official return shows that J. Courtney, the defendant, was the purchaser as the. last and highest bidder through his agent for a particular price, a portion of which was “paid cash in hand,” and the balance the “said Courtney retained in his hands to satisfy the pro rata share of the two notes of equal rank with the one herein mentioned, as shown by the mortgage certificate.”

The testimony of the defendant and the correspondence between him and the deceased, sustain the position that the defendant was the real purchaser, with the understanding that the deceased was to occupy the property as a home, put it in repair, improve and cultivate it at his own expense during his lifetime, the rent or use of it to be compensated by the improvements pub on it by him.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant quieting him in the possession of and title to the land described in the petition, with costs in both courts.


author:
Taliaferro, J.
      Ltjdeling-, C. J., Howe, J.

text:
    No. 104.
    John H. Mitchell, Dative Testamentary Executor, v. Abraham Levi.
    A purchaser of a tract of land at probate sale made under an order of a court of competent jurisdiction, directing a sale of all the property of the succession, is not affected by the failure of the executor to have such land placed on the inventory or to have it accurately described on the inventory.
    If it appear that gross negligence and want of due precaution has characterized the actions of the executor in the manner of conducting the administration of the estate he represents to an extent which amounts to a fraud on the estate, yet the purchaser at probate sale, in good faith and unconnected with the fraud, is not affected thereby, if it be shown that the order under which he purchased emanated from a court of competent jurisdiction and the proceedings thereunder were regular upon their lace.
    The fact that one of two law partners is the executor of an estate does not disqualify the other member of the firm from acting as the agent of a creditor of the estate.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Bay, J. W. J. Q. JBalcer, for plaintiff and appellee.

      Morrison & Farmer, for defendant and appellant.
   This case was tried by a jury in the court below.

Taliaferro, J.

This action is brought by the plaintiff as dative testamentary executor of John Liles, deceased, to annul an adjudication made to the defendant of a tract of land sold at a probate sale of Liles’ estate on the twenty-third of May, 1863, and which was invoked by Morrison, the former executor of Liles. The petition charges, that through the fraudulent contrivance of Morrison, participated in by the defendant, a tract of land belonging to the estate, containing in reality five hundred and ninety-three acres and a half, was illegally and fraudulently sold as containing only three hundred and fifty-nine and a half acres, and adjudicated to the defendant, represented at the sale by an agent, who is also charged with having knowledge of the fraudulent concealment oí the quantify of land sold within the specified boundaries and as having been appointed to this agency by Morrison himself or at his instance. The suit thus brought is properly the sequel of one entitled “John C. Rogers et al. v. C. H. Morrison, Executor, et al,” instituted iu the parish court of the parish of Ouachita and brought by appeal before this court at the Monroe term of 1869. See 21 An. 455. The decree then rendered removed Morrison from his office as executor, but dismissed the demand for the annullment of the sale for want of jurisdiction of the parish court without prejudice to the plaintiff’s rights. The two suits are, therefore, blended, the present plaintiff adopting as his own all the allegations of the plaintiff in the former action. He avers that there was no legal and proper inventory made of the plantation on which the decedent resided; that there was left off the inventory a tract of land purchased by the decedent from John F. Parker, containing two hundred and thirty-four acres cleared and in cultivation; and that Morrison, the executor who caused the inventory to be made, knew tbe fact that this parcel of land belonged to Liles’ estate, and yet failed, refused and neglected to have it placed upon the inventory and appraised; that the advertisements do not -correspond with the inventory nor with the facts, and that the attempt to fix metes and bounds in the advertisements not fixed by the inventory was illegal and a badge of fraud, and rendered the whole sale null and void.

The case was tried before a jury. They found a verdict in favor of the plaintiff and judgment was rendered by the court below annulling the sale to Levi and decreeing the land in controversy to be the property of tile estate of Liles. The defendant prosecutes this appeal.

We do not think it important to discuss the several bills of exceptions that were taken during the trial of the cause, and, therefore, omit a special notice of their contents.

Four several tracts of land lying on the east side of the Ouachita, belonging to Liles’ succession, are specified on the inventorju Three of these lots or parcels are designated as being lots Nos. 6, 3 and the east half of lot No. 4, “ in the partition of the estate of Frantom.” The fourth is described as acquired by the decedent from W. E. D. Scarborough on the twenty-seventh of July, 1850, and as lying on the east bank of the Ouachita river, five miles below Monroe, and containing two hundred and thirty-seven acres, more or less. The aggregate •of the whole is put down as five hundred and seventy acres and forty-three-hundredtlis, appraised at thirty-five dollars per acre. The quantity of each of the three lots of the Frantom land is given. There are no special and exact metes and bounds given to each lot or tract separately or to all the tracts collectively. These lands were sold in ■two parcels, one of which is stated to contain two hundred and ten acres and a fraction, and the other three hundred and fifty-nine and a half acres. The first of these was purchased by Mrs. Liles, the second by Levi. Both in the advertisement of sale and in the sheriff’s proces verbal of sale these lots are given specific boundaries. The lot pur•cliased by the widow is called the Frantom tract, lying on the Ouachita river, bounded above by the lands of the heirs of Reuben Frantom and below by the lands of R. W. Richardson, containing two hundred and ten and three-hundredths acres, more or less. The lot purchased by Levi is called “the plantation on which deceased ^resided at his death, lying on the Ouachita river, about seven miles below Monroe, Louisiana, bounded above by the lands of R. W. Richardson and below by the lands of the heirs of Reuben Frantom, containing three hundred and .fifty-nine and a half acres, more or less.” It is fully established by the evidence that the intervening “ Parker” tract, containing two hundred and -thirty-seven acres, lies within the metes and bounds .given to the nortion of the land adjudicated to Levi.

The plaintiff lays much stress upon the fact that by tbe advertisement and proces verbal of sale tbe same metes and bounds are not igiven that are found in the inventory, and contends that the nullity of' the sale results from stroll discrepancy. It is usual in advertising lands for sale under orders of court to refer to the public inventories of the property for the locations, boundaries and quantities of the tracts or parcels to be sold; but we are not referred to any law which imperatively requires, under pain of nullity of the sale, that the description in the advertisement or sale shall follow exactly that which is given in-the inventory. If such were the rule many sales would be found defective. It often happens that locations and boundaries are imperfectly expressed in inventories. There can be no good reason in such cases why the identical lots or tracts of land may not be more-accurately described and designated in an advertisement or sale by the use of terms which indicate more clearly their locality, extent and boundaries. In the case before us, if the quantity actually contained within the specified boundaries of the tract purchased by Levi were correctly given, both in the inventory and advertisement, would nullity result from the boundaries being expressed as they are in the advertisement and sale instead of the manner used in the inventory,, the lands meant being identical? If so, the sale of the portion of the lands of the estate to Mrs. Liles would, for that .reason, be a nullity : but this is not claimed by the plaintiff. The petition of the executor, Morrison, for a sale of all the property of the estate to pay its debts-was followed by an order responsive to the prayer of the petition. How far the purchaser of a tract of land at a probate sale of succession property, made under an order of a court ot competent jurisdiction, directing a sale of all the property of the succession, could be affected by the failure of the representative of the succession to have the tract placed upon the inventory and appraised, we will proceed to-consider. The testimony in this case forbids the conclusion that the omission to place upon the inventory the tract of land purchased from Parker could have arisen in any other way than through the grossest and most inexcusable neglect of duty on the part of the executor, acting at and prior to the sale. The reasons for entertaining this view of the matter are given in the case in 21 An. referred to, and it is needless here to reproduce them. The matters for inquiry now are-more especially: Did the defendant, Levi, enter into a fraudulent scheme with' any person to deprive the succession of Liles of a large and valuable tract of land under the fictitious purchase? Did he,.' with the intent .to enrich himself by the loss of the estate, become a party to an act of spoliation, if the concealment complained of in-regard to the quantity of land sold be properly so called ? Had his-agent such knowledge, or had his agent any complicity in a scheme to-defraud the succession 2

It is shown that Levi is a judgment creditor of Liles with first mortgage against the property of the estate for a largo debt; that Levi is a commission merchant residing in New Orleans; that Liles dealt with him in that capacity, obtaining from Mm necessary supplies to a large amount to carry on his business of planting; that Morrison & Farmer, as the attorneys of Levi, had charge of and attended almost exclusively to his business in the parish of Ouachita; that the matters relating to his purchase of the land were managed and directed entirely by his attorneys; that the object in view in making the purchase was to secure the debt of Liles; that Levi had never been outlie Ouachita river before the trial of this suit, in which he was a witness, and that he had never seen the land purchased for him by his agent; that he is not in the habit of purchasing or speculating in lands. The plaintiff aims to show that, in fact, by a transfer of certain notes of one Hogan to Levi, and upon which judgment was obtained in favor of Levi, the debt of Liles to Levi was extinguished; but in this we think he has failed. But whether a creditor or not he was bound to pay the price bid for the land, and this, it appears, he was at any time able and ready to do had there been a proper party ready and willing to receive. In fact he made a legal tender of payment, which was refused. In his testimony he disclaims in the clearest and most pointed terms any knowledge of or participation in any measure intended by undue means to acquire the land in question. We are constrained, from our review of the evidence, to say that we find nothing in it which we think warrants the belief that Levi had knowledge of or participated in any fraudulent act in the proceeding. All that is presented to show a different aspect amounts to little more than conjecture or inference. The principle is elementary that fraud is not presumed, but must be proved. There is nothing we find in the testimony which in the slightest degree rebuts the strong exculpatory evidence in behalf of the defendant, and if a fraud were intended on the part of Morrison we should be left to infer that his act was prompted by ulterior views and motives of which .the defendant Levi is ignorant.

We next turn to the position of Farmer, -who acted as the agent of the defendant, Levi, in purchasing the land for him. It is objected by the plaintiff that Farmer was incompetent to act' in the capacity he did and that that renders the purchase by him null. Farmer, throughout the whole proceedings, was the law partner of Morrison, and as such it is strenuously held that Morrison being the executor of Liles’ estate and the proceedings taken in regard to the affairs of the estate being conducted by the firm .of Morrison & Farmer, it was illegal and reprehensible in him to act also in the interests of Levi, which were adverse to those of the succession. The evidence discloses that in regard, to the business and iutcrests of the succession they were •exclusively attended to by Morrison, the executor, although the firm’s name was signed by him to the documents necessary to be filed in •court. We see no such incompatibility in this case as rendered Parmer individually incompetent to act as the agent of Levi in the single act of appearing at the probate sale and bidding for him. He was not tile agent of the succession to sell. His relation to the succession prior to the sale was that of attorney at law. There did not exist in his case the inconsistent relation of buyer and seller in the same person. Perhaps it were best in all things to shun even the appearance of evil, but we imagine it often happens that an agent’s acts have an apparent incongruity when no legal incompeteney exists. ,

Tiie plaintiff, in our understanding of the evidence, has entirely failed to establish that' the agent of Levi had any knowledge of a fraudulent design in the sale of the property of Liles’ estate and consequently of any complicity in it.

The defendant, then, standing in the attitude of a bona fide purchaser, it remains only to inquire whether he is affected by any irregularities or illegalities that may exist in ilic proceedings in regard to Liles’ estate prior to the order of sale. And we would here remark that it has so frequently been held by this court that in sales of the kind in question, the purchaser is not bound to look beyond the order of a competent court directing the sale, it seems hardly necessary to advert to the numerous decisions sustaining this doctrine. In the case of the succession of John Gurney, 14 An. 622, in an action to annul a sale on the ground of grave defects in the inventory, no showing made of the necessity of a sale, and that no notice had been given to absent heirs, the court decided that there were “irregularities which do not render the decree .of the court and the sale under it null and void,” and go on to say: “ The court had jurisdiction, and its decree protects the purchaser, although he was the administrator and one of the heirs at law, in the absence of any charge or proof of fraud against him.” 13 La. 432; 16 La. 440; 3 R. 122; 9 An. 107; 18 An. 485 and 553; 21 An. 505.

We therefore think that under the authority of these and many other decisions, the exception was well taken by the defendant to the refusal of the judge a quo to give this well settled doctrine in charge to the jury.

Por the reasons assigned, it is ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is ordered that the sequestration taken out by the plaintiff be set aside, and that the defendant be quieted in his title and possession of the tract of land purchased by him at the probate sale of the succession of John Liles, deceased, on the twenty-third of May, A. D. 1868, ¿he plaintiff paying all costs of these proceedings.

Ltjdeling-, C. J.,

dissenting. This is an action to annul a judicial sale on the ground of fraud and other illegalities. A branch of this «ase was before us in July, 1869, and we then said: “We think it established by the record that .the home place really contained about five hundred and ninety acres, and that its sale for $5250, if maintained, would result in a great loss to the estate.” * ® “It appears that he (the executor) has been recorder of this parish ; that he was a neighbor and intimate friend of the deceased; that he was a witness to ■the act of sale from Parker to Liles of the omitted tract; that this act was recorded and indexed at the time the inventory was made; that as attorney for Liles he had occasion to know that during the last year of his life the decedent rented three hundred acres of cleared land of the home place to Hardy, and cultivated himself about one hundred and forty acres; that, at the first offering, he was admonished by Judge Richardson that the place contained upwards of five hundred acres, ■and that he was under the impression himself, as appears by his own evidence, that the plantation contained more land than the advertisement described,, and yet, under such circumstances as these, without snaking a search, he causes the place to be sold per aversionem, in such a way that, if the sale be not hereafter annulled, the defendant Levi will secure five hundred and ninety acres instead of three hundred and fifty-nine and a half acres, which were inventoried.”

At the instance of the defendant the case was tried by a jury, who found a verdict for the plaintiff, and the judge a quo, who heard the witnesses, rendered judgment accordingly.

It appears that Morrison & Farmer were attorneys for the estate of Liles. In the case of Rogers v. Morrison we said that Morrison, as Liles’ attorney, had occasion to know that more lands were embraced within the boundaries than were advertised. Parmer was the agent of Levi, and his knowledge was that of his principal. Only three hundred and fifty-nine and a half acres were inventoried, appraised and Advertised, and only those who possessed information, not furnished by the advertisement, could know that five hundred and ninety acres of land were to be sold.

It was a fraud in both the buyer and the seller to attempt to sacrifice .the property of the estate in such a manner.

The purchaser Levi has never complied with his bid. It was a credit sale — the bidder has never executed his notes with security, as required by law and the advertisement, or paid one cent for the property up to this day. No such notes are produced or shown to have been executed.

Why this extraordinary indulgence to this bidder, when the executor had in such haste obtained an order, within less than six months after the death of the testator, to sell all the property of the estate to pay debts 1

It does not appear that Parmer had a written power of attorney to-buy for Levi, or express authority to sign notes in his name.

Levi testified that he had never been on the place before the sale, and did not know that it contained more land than was mentioned in the advertisement. If this be true, it is dishonest for him to claim five hundred and ninety acres when only three hundred and fifty-nine and a half acres were bid for.

Can an executor sell property which has never been inventoried and appraised 9

The three hundred and fifty-nine and a half acres which were inventoried and appraised were appraised at $35 per acre. The five hundred and ninety acres claimed to have been sold brought only $5,250, or less than one-third of the appraisement per acre.

The order directed that the property of the estate be sold “according- to articles 990 and 991 of the Code of Practice.” These articles-direct that the property should be sold at Us appraisement for cash, and if the appraisement bo not bid, then that it be sold on a credit of twelve months. Two hundred and thirty aeres of the land were never appraised, consequently the terms of articles 990 and 991 were not complied with, nor was the mandate of the court obeyed. The executor was not authorized to make per aversionem by the order of sale, or the law, and he could not legally have done so.

But, even if fraud had not been proved, the defendant should not be permitted to got a title to five hundred and ninety acres of land when he and his agent believed they were buying only three hundred and fifty-nine and a half acres.

I think the Parker tract, which was not inventoried or appraised, could not have been legally sold. C. P., articles 990, 991, 992; 2 An. 996; 5 An. 1. The order to sell property of an estate can not be extended so as to authorize the sale of property not inventoried or appraised, and the sale is void on account of the absence of a judgment or order of a court to authorize it.

But I deem it unnecessary further to refer to the concatenation of circumstances which indicate fraud in this sale.

The verdict of the jury should not be disturbed on a question of fraud unless the evidence shows that their verdict is manifestly wrong.

This, -I take it for granted, can hardly be said to be the case when two of the judges of this court and the district judge, before whom the case was tried, concur in the opinion that the verdict is correct. I apprehend that it will be the first time in the history of jurisprudence that such a thing was done.

I am constrained, therefore, to dissent from the opinion of the court.

Howe, J.

The defendant asked for a jury, and they found a verdict against him. The questions were peculiarly within their province, and I am not prepared to say that their finding was erroneous. .


author: Ludeling, C. J. IIoweix, J., Howe, J.,

text:
    No. 187.
    Walker & Vaught v. G. W. Kimbrough, Administrator—R. B. Sadler, Tutor et al., Intervenors.
    The community is dissolved by the death of one of the spouses, and the title to one-lialf thereof vests absolutely in the heirs, and the other half in the survivor. The survivor is, therefore, without legal authority to encumber or mortgage the one-half interest of the heirs in tho community.
    The parish court has jurisdiction of an action of partition of the community between tho heirs and tho survivor without reference to the amount involved.
    In this case notes were given with mortgage to secure advances to be made and supplies furnished and to bo furnished. At tho close of the transactions, plaintiffs bring suit on the account current, which includes in its items the amounts of the notes, and they ask a recognition and enforcement of the mortgage given to secure tho notes.
    Hold — That tho notes having boon given for a particular purpose, namely, to enable the merchants to negotiate them, and having been taken up by tho agents of the plaintiffs, confusion took place, and they, tho notes, "became extinguished, and the mortgage given to secure them was also extinguished; and that as the mortgage was only given to secure the notes, it had no effect as a security for the account.
    APPEAL from tho Fourteenth Judicial District Court, parish of Morehouse.

      Say, J. Todd & Brigham, for plaintiffs and appellees.

      O. T. Dunn and D. 0. Morgan, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs, Avho are commission merchants, sue for a balance due on an account current betAvcen themselves and the commercial and planting- partnership of Montgomery, Peterkin & Co., composed of Robert D. Montgomery, George A. Peterkin, W. R. Ward and M. D. L. Allen. The petitioners allege that Ward is dead, that M. D. L. Allen has left the State, and that Montgomery and Peterkin are insolvent; and they allege further that the balance duo them, $8205 01, is secured by a mortgage executed by W. R. Ward ou his individual property.

The administrator filed an exception, alleging that tho obligation cued upon is a joint obligation and all the co-obligors are not sued. We are satisfied that the firm of Montgomery, Peterkin & Co. was a commercial partnership, and though they were engaged in cultivating plantations, their obligations are solidary.

The defendant filed an answer containing a general denial and allegations that the account contained illegal, usurious and improper charges to the extent of at least one thousand dollars, and that the interest has been compounded, etc.

Ida Ward, and her husband Sadler, who joined his wife, to authorize her to prosecute this suit, and as tutor to the minor children of W. R. Ward and his wife, C. N. Smith, both deceased, filed a petition of intervention, alleging that their mother died on the eighteenth of March, 1867, and that at the period of her death the property in the possession of the husband was community, and one-half of it belonged to them, subject to the debts; that a portion of the lands thus owned had been regularly partitioned, and the partition had been duly homolgated by the judgment of the court; that their father’s succession is indebted to them in a large amount, for which they have a mortgage' and privilege. They further allege that the plaintiffs are endeavoring to establish and enforce a mortgage to secure the payment of their alleged indebtedness on property, which at the time the alleged mortgage bears date, to wit: the twenty-fourth of April, 1867, belonged to them as aforesaid, as their mother had died anterior'to-that time. They further allege that the account is incorrect in many particulars, which they specify. They allege that the notes (which are said to be secured by a mortgage) were never sold or discounted by Walker & Taught; that the discount which is deducted from said notes and omitted to be credited, of about $1000, together with the interest thereon, was only a device and scheme to wrong Montgomery, Peterkin & Co.

The plaintiffs excepted to the intervention on the ground that the petition disclosed no cause of action ; that the partition under which the intervenors claim a portion of the land mortgaged was absolutely null, for the reason that the court which rendered the judgment was without jurisdiction ratione materia, as the property partitioned exceeded in value $500, and that the property partitioned was community and could not be partitioned until the community had been settled, and that for the same reason they can not claim half the proceeds of property belonging to the community, or any specific part of said property.

This exception was overruled, and answers to the intervention were-filed. But subsequently the judge a quo refused to permit the intervenors to' prove any allegation made by them, and dismissed their intervention on the grounds stated iu the plaintiffs’ peremptory exception. To this ruling the intervenors retained a bill of exceptions.

We think the learned judge erred. The petition alleges that the mother of the intervenors died in March, 1867, before the mortgage was executed. At the moment of her death the rights of the heirs, although residuary, were vested in the half of the property composing the community, and the surviving partner of the community could not-legally mortgage the property so as to affect the rights or interests of the minors. The mortgage itself recites that W. E. Ward is a widower.

The parish court had jurisdiction to partition property of the community. Art. 87, Constitution.

We are not prepared to decide that the partition of the community property was premature. There is nothing in this record to justify such a conclusion. Eor aught that appears, the debts of the community had been paid before partition, and we will not presume that the parish court acted improperly but correctly.

In fact, the theory on which alone the mortgage claimed could be maintained, that the mortgage was intended as a continuing guarantee to secure any balance due on the account, would establish the fact that the debt duo to the plaintiffs is not a community debt.

The mortgageor, Ward, died in 1869, and the account runs to about the period of his death, and between the creation of the mortgage and the date of the death of Ward large credits and debts appear on the account, showing that the balance, whatever it may he, is due by Ward and not by the community, which had ceased to exist before the execution of the mortgage. We think, therefore, that the intervenorsshould have been permitted to introduce proof to establish their allegatious. But the conclusion to which we have arrived in the controversy between the plaintiffs and defendants renders it unnecessary to remand this cause.

As between the plaintiffs and defendants, the principal question is whether or not the plaintiffs have a mortgage to secure the balance due them oa account, or the balance due on tbe two notes. We regard this suit as based on the account current. The two notes which were described in the act of mortgage are items in the account, and copies of them are annexed with the account. The notes are alleged to he destroyed, hut no affidavit of their loss or destruction is made, nor is there* any proof» that their loss or destruction had been advertised, which would have been done, as it is necessary, if suit had been instituted on them.

The account current shows that the two notes were made in favor of the plaintiffs, one for $1469 27 and the other for $67J8 52, and that the plaintiffs charged defendants with the amount of these two notes and credited them with the net proceeds thereof, $10,212, and that the-plaintiffs continued to charge interest on the various items of the account preceding the execution of the notes up to the close of the account. We think it is clear that these notes were ncit intended to novate the account or any part of it, hut that it was a mode adopted whereby the agents of the defendants were to raise money for their own use, or to enable them to exact the charges for discounting and advancing. If the notes had been given in settlement of tbe account, tbe whole amount of the notes would have been credited on tbe account, and interest on tbe account would have been arrested.

Tbe notes having performed tbe functions for which they were made, and having been taken up by the agents of the makers, they were extinguished by confusion, and they are now mere vouchers in the hands of the factors to prove items of their account. The mortgage was given to secure the payment of the notes, no doubt the better to enable the factors to discount them, and when the notes were extinguished the mortgage, as an accessory, was also extinguished. C. C. arts. 2217, 3287, 3411; Hill v. Hale, 4 R. 416.

The attempt to explain or contradict the written act of mortgage by the testimony of Walker, one of the plaintiffs, was properly not allowed. The notarial act declares that the mortgage was given “to secure the punctual payment of the aforesaid two promissory notes at maturity, as well as of all interest that may accrue thereon,” and there is nothing which in the remotest degree indicates that the parties intended that the mortgage should be a continuing guarantee to secure the payment of the account current or any balanc'e of account, and we are not at. liberty to make new contracts for the parties.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed; and it is further decreed that there be judgment in favor of the plaintiffs for the sum of $7227 19, willi five per centum per annum interest from judicial demand, with costs of the district court, to bo paid in due course of administration. It is further ordered that the costs of appeal be paid by the plaintiffs and appellees.

IIoweix, J.,

dissenting. On second February, 1867, the firm of Montgomery, Peterkin & Co. owed plaintiffs $11,187 79 on an account, for which they made two notes, with interest after maturities, to the order of plaintiffs and playable in December following. The account between the parties was continued without change. On the thirtieth March, 1807, the proceeds of one of these notes was placed to the credit of the makers, a commercial and planting firm. On the twenty-fourth of the next month (April) it appearing that the debt exceeded the amount of the two notes, the excess was paid by W. R. Ward, a member of the firm of Montgomery, Peterkin & Co., who, at the same time, executed a mortgage on his property to secure the payment of' the notes, for the amount of which he confessed judgment in the act and bound himself to ship to plaintiffs the cotton to be raised on their plantations by his firm. No change was made in the account. On the fifth of June following, the proceeds of the other note was placed to the credit of Montgomery, Peterkin & Co., the makers. On the twenty-eighth December, 1867, the date of tiie maturity of the last of the notes, the amount of both was charged in the account, which being closed, shows a balance something less than the two notes. The question is: Were these notes paid by this course of dealing? I think not. When they were discounted the proceeds were placed to the credit of the makers, but they were still outstanding as a subsisting debt against both the makers and the indorsers and secured by the mortgage executed by Ward, whose succession, as I think, is sued in this action to recover the amount due on them with mortgage. When taken up by the indorsers (the plaintiffs), was it a payment of the notes or did they return to plaintiffs with the mortgage accessory 9 I think the latter. They were evidently paid with the funds of the indorsers, who were bound with and for the makers, and the payment was with legal subrogation, even if not specially protected by the terms of the mortgage. But Ward, the mortgageor, executed the mortgage expressly to secure their payment at maturity. The makers, in whose behalf he gave this security, did not pay them. No funds were provided either by Ward or the makers for their payment, and heneo the obligations of the act of mortgage are still in force. It certainly was not contemplated that the payment by plaintiffs as indorsers would extinguish the mortgage, for it was given in their favor, or of any holder, to secure their payment by the makers or the mortgageor. Had the latter or either of them furnished the funds to make the payment, there would have been no occasion for this suit or any other on this debt.

I think the mortgage is in force upon the property which Ward was capable of mortgaging and deem it unnecessary to determine the nature of the debtor firm.

Howe, J.,

dissenting. All that was necessary to the decision of the case of Ward v. Douglas, 22 An. 463, was the settlement of the question whether or not the plaintiffs herein were entitled to executory process. The question of the existence of the notes and their accessory mortgage is still open.

I think the notes still exist to the amount of advances made and remaining unpaid, and that the mortgage may be enforced.


text:
    No. 243.
    R. W. & R. Richardson v. Solomon W. Downs.
    The father has the legal right to engage counsel to defend his minor son who owns propi rty in his own right, and if the minor, after emancipation, ratifies the employment of counsel in his behalf while ho was a minor, he is legally bound to pay the fees.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Jlay, J. It. W. <& JR. Richardson, in propria personas, plaintiffs and appellees.

      Stubbs é Gobb, for defendant and appellant.
   Ludeling, C. J.

The plaintiffs sue the defendant for $1500 for professional services rendered in five suits against the defendant.

The defense is that at the time the said suits were instituted, defendant was a minor under the control of his father, that the debts for which he was then sued were not due by him; and that the sum charged is excessive.

The evidence discloses the following facts: That the minor had a large property in his own right, inherited from S. W. Downs, deceased; that liis father and mother were both alive; that the father was insolvent ; that the minor was sued in the various suits stated in plaintiffs’ petition; that plaintiffs defended the suits successfully, and that the amounts claimed in said suits, in the aggregate, exceeded $20,000. It further appears that after several efforts to bring the minor into court, he was emancipated; that he himself, after his emancipation, paid the plaintiffs their fee for having him emancipated; he was then personally cited in the causes aforesaid, and was defended by the plaintiffs.

We think the father had authority to bind his minor son by engaging counsel to defend the rights of property of the minor, under the circumstances of this- case, and we think that the facts in this case show that the minor ratified the acts of his father in engaging the services of the plaintiffs. The evidence shows that the fees for the services rendered are reasonable, and the judge before whom the services were rendered believed them fair, and so we think.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.


text:
    No. 227.
    C. T. Dunn v. John Calderwood.
    During tlie late war C, a British subject, entered into a contract with A, a resident of the State, whereby the former was to receive and take in. his possession a large quantity of cotton and ship the same to Europe and divide the profits arising therefrom equally with A. A further condition of the agreement was, that it the cotton was destroyed or taken possession of by either of the contending forces, that then C was to recover and pay over to A his proportion of the amount so recovered on account of such forcible taking or destruction.
    The cotton was not taken or destroyed hy either of the contending forces, hut was destroyed hy the accidental burning of the gin house in which it was stored. C gave his notes at the time of the execution of the contract in favor of A for an amount equal to his estimated interest in the cotton in case it was sold by 0 in Europo. A now brings suit on the note.
    Held — That the contract of the parties in reference to the cotton and for which the note • appears to have been given was not a sale of the cotton, and therefore 0, who had given the note, was not in possession at the time it was destroyed hy fire. That, not being in possession under a title he could not he held liable for the price or value thereof.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Ray, J. R. O. Morgan and R. W. Richardson, fir plaintiff and appellee.

      -Stubbs <& Oobb, for defendant and appellant.
   Taliaferro, J.

The plaintiff sues on a promissory note signed by the defendant on the twenty-second of August, 1863, payable one day after date to C. T. Dunn for $7580.

The defendant excepts to the action, alleging that the plaintiff ought not to recover upon his demand on the ground that his suit is premature, as any liability defendant may incur under the agreement between himself and the plaintiff depends upon the delivery by ulaintiff to the defendant of a certain amount of cotton, to be by him shipped to Europe and sold'on joint account, which cotton the defendant avers the plaintiff has never delivered

The defendant answered, adopting the allegations of his exception, and denied generally the allegations in plaintiff’s petition.

In the court below there was judgment in favor of the defendant, rejecting the plaintiff’s demand. The plaintiff has appealed.

It appears there were two contracts, or one contract evidenced by two instruments, written and printed. These documents fill several pages of the record, and seem clearly to show the purpose and intention of the parties; and it is in reference to that purpose that the entire act or acts must, in the sense and meaning resulting from a consideration of the whole, be examined. The circumstances under which’ tbe parties contracted must be looked to as giving complexion to and explaining the contract they entered into. A state of war existed in the country. Federal troops were advancing into the interior from the Mississippi, and it was apprehended they would pass through the parish of the plaintiff’s residence, where he had a large amount of cotton, some of which was baled, and a considerable portion of it un-' ginned or in the seed. Cotton was thought to be in danger of destruction from both friend and foe. The Confederate authorities had adopted the policy of burning cotton to prevent its falling into the hands of the Federal forces, and it was believed to be in danger of capture by the National troops. Calderwood, the defendant, was a British subject, never having become an American citizen. He, on the ground of neutrality, it was assumed, could protect his own property from being destroyed or appropriated by the parties in conflict. Calderwood signed the note in question, expressing an obligation to pay Dunn a sum of money ($7580), and Dunn signed a receipt to Calder-wood expressing the receipt of $7580 as being in full payment for sixty-two bales of cotton, weighing in the aggregate twenty-four thousand eight hundred pounds, and for one hundred thousand and eight hundred pounds of “ seed cotton unginned.”

The written instruments express that Calderwood is bound to pay Dunn fifteen cents per pound in gold for the baled cotton, and $3780 in gold for the cotton in the seed “ so soon as the cotton can be transported to Europe and sold.” In one of these instruments Calderwood binds himself to pay Dunn one-half of the net profits made on the sale of said sixty-two bales of cotton, and in the other he binds himself to pay Dunn one-half of the net profits made on the sale of said unginned cotton. One of these acts expresses that Dunn “takes upon himself the risk of the loss of the cotton through the acts of either govern-inent; that is, if the cotton be destroyed or taken either by the Government of the United States or by the Confederate States, and’ the value thereof be not recovered by said John Calderwood after exhausting all proper moans of redress, then and in that case the note which said Calderwood has this day executed in my favor for $3700 shall be canceled and be void.” The other instrument contains the same stipulation, aud declares that after all proper means used by Calderwood to obtain redress the note executed for $4700 shall be canceled and become void.

In the month of April of the year following the plaintiff’s gin house was burned, with the cotton stored in it at the time. There is in the record a large amount of testimony introduced by the plaintiff to establish the quantity of cotton in the gin at the time of the accident, all of which was destroyed by the conflagration. This, he seems to consider, important to show, ás he makes the point that the contract entered into by himself and Calderwood was a sale to him completed by delivery, and that the cotton was at the risk of the purchaser. The destruction of the gin by fire and the resulting loss of all the cotton that was in it at the time is shown to have arisen from an accident, and not from the act or through the agency of either of the hostiLo powers engaged in war.

It is shown that not long before the gin was destroyed the cotton burners” visited the plaintiff’s plantation, and that a small quantify of his cotton was burned by them. The quantity of cotton destroyed by the burning of the gin afterwards, if it were important to ascertain, is involved in uncertainty. It is proved that very shortly before the advent of the burners there had been cotton removed from the plantation. The officer in command of the squad that came to burn the cotton testified that he wont into the gin with the plaintiff to look at the cotton, and that they agreed there “were about seventeen bales, ■seven or eight of it in the lint.” Taylor, a witness, testifies that he was present at the time, and says there were not a hundred bales of cotton in the gin at that time. Aud afterwards witness states that in a, conversation with Dunn, the plaintiff, in regard to the quantity of cotton in the gin house when it was burned, he remarked to Dunn that he (witness) did not think there were a hundred bales, or anything like it, at the time. The testimony of the plaintiff and others show that a considerable amount of cotton, both in the bale and in the seed, was removed just before the coming of the burners to keep it out of their way. The accidental burning of the giu occurred a few days afterwards from fire communicated to it from burning timber in close proximity to it. We do not find that during the interval between the appearance of the cotton burners and the destruction of the gin house, any of the cotton removed before their arrival, was carried back to the gin. But we do not regard it important to know what amount of cotton was lost by. the accident. We can not regard the agreement between tlie parties as a sale. The written instrument containing the agreement sufficiently shows its character. The cotton was to be considered as belonging to Calderwood if it should be destroyed by the Federal Jorces, as in that event there would be a chance for Calder-wood, a British subject, to recover its value from the United States. If it escaped destruction in that direction, Calderwood was to pay him, after sale of the cotton in Europe, one-lialf of the net profits on the cotton. We conclude the plaintiff has no legal or equitable right to recover.

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

Mr. Chief Justice Ludeling recused.


author: Ludicling, C. J.

text:
    No. 183.
    D. C. Morgan, Administrator, v. W. Y. Kinnard et al.
    An act of salé of real property under private signature takes effect against third persons . only from the dato of registry in the proper office and the delivery of tho property. If, thcreiore, real estate has been sold under act by private signature, and the vendor remains in. possession, and the aet is not recorded, a third purchaser by public act acquires a good and valid title thereto, notwithstanding the former sale under private signature.
    A judicial admission or allegation in tho defense to tho payment of notes given for the price of land, that the defendant has no title, will not enable a third person who gets possession of such land, without title, to hold it under such judicial admissions. The general rule is, however, well established that judicial confessions, when voluntarily made, are conclusive against tho parties making them
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Hay, J. 8. G. Parsons, for plaintiff and appellee.

      Newton & Hall and Todd Brigham, for defendants and appellants.
   Ludicling, C. J.

This is a petitory action to recover a tract of land described in the petition. The defendants filed a general denial, and they further alleged that J. T. Payne, now dead, purchased the land at public auction as the property of the estate of James W. Kelly, and that the said Payne and those under whom ho holds, have been in possession more than ten years under titles translative of property.

The evidence in the record establishes the following facts :

That on the twelfth of July, 1856, Mrs. Dicey Kelly executed an act sons seign privé in favor of her son, James W. Kelly, transferring the land in controversy ; that the vendor, Dicey Kelly, remained in possession of the property thus transferred until 1861, when she sold the same property to Isaac F. Norrell by notarial act and gave him possession thereof. That Jamos W. Kelly was in the neighborhood at the time of the sale to Norrell; that he knew of the sale — lie was ft\ quently on the place after the sale to Norrell, and that up to the time of his death, in 1864 or 1865, he permitted Norrell to remain in the undisturbed possession of the property.

Article 2442 [2417] of the Civil Code declares the sale of any immovable made tinder private signature shall have effect against the creditors of the parties and against third persons in general, only from the day such sale was registered according to law, and the actual delivery of the thing sold took place.” 2 An. 912.

The sale under private signature to J. W. Kelly in 1856 had no effect against Isaac P. Norrell who bought from Dicey W. Kelly in 1861, because she had remained in possession from the date of the private act to the time when she sold to Norrell, and therefore he acquired a good title by his purchase in 1861. This view of the case renders it unnecessary to pass upon the bills of exception relative to the reception of testimony to establish the simulation between Dicey Kelly and J. W. Kelly.

It appears from the record that W. Y. Kinnard was appointed administrator of the estate of J. W. Kelly in 1867; that as administrator he sold the property in dispute at public auction, first to Robb & Payne, and afterwards to James T. Payne. The evidence creates at least a strong suspicion that these, sales were coilusively made between the administrator and Payne. The administrator swears as follows:

“I sold it to Payne in 1869. I made a sale of the place once before. 1 cried it off under an order and advertisement, but the terms of the sale were not complied with, and I readvertised and sold it again. I don’t know whether there was any title given in the first sale or not. I think' Mr. Payne paid between $400 and $500 for the land. * * * Ever since. I commenced the administration of the estate I have been cultivating the land, except about forty or fifty acres of bottom land and one hundred acres hill lands. ,In the sale of the land from me as administrator to Payne, it was understood that I was to be a party interested in the purchase. I was to be one-half owner of it. I borrowed my part of the price from Mr. Payne; paid for the land.”

The witness stated on re-examination in chief that his wife was a sister of J. W. Kelly, and that “it was understood that I should use my. wife’s interest in paying her proportion as far as it would go, she being an heir of J. W. Kelly.” This witness swears further that the land in controversy had been transferred to him after the act sons seign privé to J. W. Kelly by Dicey Kelly, and that he retransferred the land in order that Mrs. Kelly might sell it to Norrell. He knew all the facts relative to the simulated and null act of Dicey Kelly to J. W. Kelly, and yet he devised schemes to try to sell vthe property as that ■of James W. Kelly, deceased. The evidence in this record fully satisfies us that James T. Payne also knew all the facts in relation to the title of James W. Kelly and Isaac F. Norrell.

• The former administrator of I. F. Norrell’s estate shows directly that Payne did know all about it, and other evidence corroborates his testimony.

But, be this as it may, the notarial act of sale to Norrell was recorded; the property had been in his possession from February, 1861, to some time in 1866, when he died. The property was inventoried as his after his death, and went into the possession of his administrator, who retained possession until the administrator of J. W. Kelly illegally took possession of it. The sale by Kinnard, administrator, to Payne was the sale of the property of another, and therefore null and void. C. C. 2452.

It is contended that Norrell is estopped from setting up title to this land, because when sued on one of the notes given for the price thereof lie alleged that the consideration of the note had failed, inasmuch as he had not received a perfect title; that the land had been previously transferred to J. W. Kelly.

The same witnesses who prove the above facts state that Norrell, during the pendency of the suit, proposed to compromise the note in suit by paying $2000. It is a general rule that parties are bound by their judicial admissions, and it is also true that admissions made in one suit may sometimes be used in another suit, even though the parties to tlie suit be not the same. But we are not prepared to say that all admissions made in pleading may be used as an estoppel in every suit in which the party making them may be a party.

This suit is itself an example of the harshness and injustice of the rule contended for. Suppose that judgment had been rendered against Norrell on the note, in spite of his defense, he would have the price to pay, and yet any stranger who might get possession of his land could hold it without a legal title, because Norrell had admitted in the contest for the price that he had no title. Doctrines which lead to such unjust conclusions can not be correct.

The evidence in the record shows that a considerable portion of the lands in controversy are cleared, and that they have been cultivated by the defendants; but the evidence does not fix'the quantity of lands •cleared or cultivable, so as to enable the court to fix the amount of rents.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.