text:
    No. 937.
    Sydney B. Robertson v. A. Levy and Wife.
    An agent cannot bind his principal on a promissory note, under a general power of attorney. To bind the principal on the note(tlie power of the ageutinust be express and special. O. O. 2966.
    A . PPEAL from the Fifth District Oourt of New Orleans, Leaumont, J.
    . M. Grivot, for plaintiff and appellee.

      Ed. Philips, for defendants and appellants.
   Ilsley, J.

Amotion is made to dismiss the appeal in this-case, on several grounds, but the facts stated to sustain the motion do not appear in the record.

The appeal is regular in every respect, and the motion to dismiss is overruled.

The only evidence found in the record to sustain the judgment of the lower Court is the-promissory note sued on, purporting to have been signed by J.Levy, as agent for Mr. and Mrs. A. Levy, and the consideration of the note is stated to be for supplies for the Hope plantation. The defendants were interrogated on facts and articles—first, in relation to the genuineness of the signature of J.' Levy on the note ; and second, as to whether Jules Levy was the agent, and empowered to administer their Hope plantation, in the parish of Pointe Coupée. These taken for confessed, merely prove the signature of J. Levy, and that he was the agent, and empowered to administer the Hope plantation of the defendants.

The agent .had only general powers of administration, but no special authorization to sign the note for the defendants is shown. C. C. 2966, Nugent v. Hickey, 2 An. 358.

It is neither alleged nor proved, that the wife was separate in property from her husband, or that the debt inured to her separate benefit; on the contrary, the allegation that the note was given for supplies for a plantation belonging to Mr. and Mrs. Levy, show that it was a community debt, lá A. 712. ‘

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and it is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the defendants and against the plaintiff, as in case of .nonsuit, and that the plaintiff pay. the costs in. .both courts.


source: Caselaw Access Project

author: Taeiajferro, J.

license: Public Domain

text:
    No. 1382.
    John Arrowsmith v. N. H. Rappelge et al.
    To entitle a party to an appeal it must be shown that he has an interest in maintaining or reversing the judgment of the lower Court.
    Ho damages will be allowed on appeal, except on moneyed judgments. O. P. 907.
    A PPEAL from the Sixth District Court of New Orleans, Duplanlier, J.
    P, Soulé and Jas. C. Walker, for plaintiff and appellee.

      Buchanan & Gilmore, for defendant and appellant..
   Taeiajferro, J.

This case is before the Court, on a motion to dismiss. The plaintiff brought a petitory action against Rappelge, to recover six squares of ground lying within the city limits. Subsequently by amended petitions, he caused fu-st, Mrs. McCormick, and afterwards Giraud, to be made parties defendants to the suit. He sues the first two for six squares of ground, and the third, Giraud, for one of the six squares. Giraud called Mrs. Ann Hook, Gaston de Pontalba and Alfred de Pontalba in warranty.

Pending the delays to call in the warrantors the plaintiff took judgment final against Rappelge alone. Prom this judgment Giraud took an appeal.

The plaintiff and appellee moves to dismiss the appeal, on the grounds:

1. That the appellant has no interest in the judgment appealed from, and has not been aggrieved by it.

2. That the appellant has not made his co-defendant, Rappelge, and his warrantors, parties to the appeal.

We are of opinion that the appellant was not required to make his co-defendant and warrantors parties, as we do not see what interest they can have in the judgment being maintained.

Nor is it clear that the appellant himself has any interest in, or that his rights are affected by the judgment rendered against his co-defendant, Rappelge. The appellant is not a party to that judgment. It determines only that the plaintiff is owner as against- Rappelge. The appellant, it seems, would lose nothing, if the judgment against Rappelge were maintained, and gain nothing by its reversal.

The appellee prays damages for a frivolous appeal. The judgment appealed from is not what is termed a money judgment, and damages cannot be allowed. C. P. Art. 907.

It is therefore ordered that the appeal be dismissed, at the costs of appellant. l.N-S. 4 N. S. 342. 2 Rob. 391.


author: InsiiET, J.

text:
    No. 927.
    James H. Bowman v. James Gonegal.
    A,contracfc was entered into, during the existence of the late war, between defendant, residing in the . city of New Orleans, after the occupation of the city by the Federal forces, with John J Pettus, then Governor of Mississippi, one of the so-called Confederate States, for the supply of the so-called Confederates, with a large quantity of salt and other goods, in exchange for cotton and other produce: JTeld—That the contract so made is illegal on its face, absolutely null and void, and cannot be judicially enforced.
    The Supreme Court of Louisiana will not lend its aid to settle disputes relative to contracts reprobated by law. It will notice their illegality ex officio, and allow it to be suggested without any plea, and at any stage of the proceedings.
    A contract must have a lawful purpose, and if it have an unlawful cause—if it be contrary to good morals or public order, it can have no effect.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Harrison & Hunton, for plaintiff and appellant.

      Sullivan, Billings & Hughes, for defendant and appellee.

      Brief of Harrison & Hunton, for plaintiff and appellant.
    —The Court below dismissed the petition, because, in its opinion, the contract with Governor Pettus was illegal, and because that illegality vitiated the contract between plaintiff and defendant.
    With all due respect for that Court, we insist that Bowman’s right to the §5,000 is in no manner affected by the illegality of those contracts, even if they be illegal.
    If those contracts were legal they would, of course, present no obstacle in the way of a recovery by plaintiff. If, however, they were illegal, it was the duty of the parties to abandon them. Tbe parties did abandon these contracts by a failure to execute them. But whether they were abandoned or not, the plaintiff had the right tó withdraw the money advanced by him for an illegal purpose, (if it was illegal) at any time before it was applied to that purpose, and thus in the exercise of a clear right this suit was brought. 2d Parson’s Contracts, page 258.
    Thus, money staked as a bet on an election,’ or any unlawful game, may be recovered at any time before payment to the winner. See 2d Smith’s Leading Cases, top pages 807, 308, 458; 2d Kent, side pages, 467, 468.
    The law recognizes a loons penitentice, and this locus penitentice continues until the illegal purpose is consummated. . ..
    Had the contract with Governor Pettus been carried into effect by Gonegal, plaintiff would have had an equal interest in the profit and loss thereof as partner, and even if it were illegal, yet under the decision of the Supreme Court of the United States, in the case of Brooks v. Martin, 2d Wallace, page 70, this Court would not permit Gonegal to rely on the illegality to secure the profit to himself, or to defeat plaintiff’s right to an account.
    That contract, however, was not carried into effect, nor is plaintiff claiming any rights under it or under either of them. There is no mode for the enforcement of a right under an express contract, exoept by a specific execution, or by damages for a breach of it; plaintiff, however, claims neither the one nor the other. Any such claim, under an illegal contract,' would be defeated on the well-established principle, that the Courts will not aid in the enforcement of an illegal contract. So far from attempting to enforce either of these contracts, the present action is based on the fact, that these contracts were abandoned by common consent, or that it was impossible or unlawful to carry them into effect; and, therefore, that plaintiff was, in either of these events, entitled to a return of his money.
    But, are these contracts illegal ?
    The Courts never presume illegality, and therefore never pronounce a contract illegal, if it be susceptible of any other interpretation. See Henning’s Dig. (new edition) 2d vol., page 1013, Art. 17 ; also page 1012, Article 1. * * * * * . !

      Brief of•'Sullivan, Billings & Hughes, for defendant and appellee.—
    * * * II. We shall now proceed to show that the advance
    of this Confederate currency, the whole transaction entered into and enterprise contemplated by the parties were illegal, and that the illegality was of such a nature as to preclude any.action being maintained, either based on this advance or directly on the contract, or springing out of anything done as an inducement or aid connected with it.

      First. The five thousand dollars, being in currency issued by the so-called Confederate States, and having been advanced by plaintiff to be used for the joint benefit of himself and defendant, cannot form the basis of an action.
    The Confederate notes were payable only in' case the Confederate government was acknowledged—only in case the rebellion succeeded. They were, therefore, pro tanto pledges for its success, and the inducing others to take them was nothing but the accumulating in the community motives, tending directly to the success of treason. Now the plaintiff seeks to recover for these seeds of destruction, which he says he passed to defendant to be scattered for their joint benefit. The case is stronger than the one put by Chief Justice Eyre, in Lightfoot v. Tenant, 3 Bos. & Pull. 356, of “the man who sold arsenic to one whom he knew intended to poison his wife with it.” For, while arsenic might be used for a good purpose, any disposition of the Confederate currency would be criminal.
    Secondly. The plaintiff asks the Court to hear his case, which is, that for the purpose of being admitted as a partner in a contract made between defendant and Governor Pettus, of Mississippi, he made an advance which he invokes the aid of the Court to enable him to recover back. Now, an examination of the references to this contract, pages, (5, 6 and 7) shows that Gonegal entered into this contract with Pettus, in his capacity as governor. It was therefore a contract to furnish the head of an organized community of public enemies with provisions. It was an offence punishable by our Articles of War, with death.
    Articles of War adopted by Congress, April 10, 1806, Art. 56: “ Whosoever shall relieve the enemy with money, victuals or ammunition, or shall knowingly harbor or protect an enemy, shall suffer death, or such other punishment as shall be ordered by the sentence of a court martial, ” Revised U. S. Army Regulations, 1863, p. 494.
    And a necessary portion of the plaintiff’s case is, that he made his advance to aid in carrying out this contract.
    Thirdly. The contract into which plaintiff was thus admitted, and for the furtherance of which he advanced whatever he did advance, was a contract by which Gonegal, a resident of New Orleans, agreed to carry across our lines into the enemy’s country some 50,000 sacks of salt. As to the illegality of the contract, in this respect, the attention of Your Honors is respectfully asked to point II, in the brief of defendant, in Fee v. Gonegal, No. 919. See Bams v. Holbrook, 1 An. 176.
    This was an action brought to recover $500, the amount of a bet deposited by plaintiff with defendant as stakeholder.
    The Court, after a thorough review of the decisions in the Federal and State Courts, as well as our own Courts, say (p. 179): “Before the question, whether the stakeholder shall be permitted to retain what does not belong to him, stands another, which overshadows it, which is, whether the plaintiff can be heard when he asks the assistance of the Court to relieve him from the consequences of having violated the law. It is our duty to say that he cannot. The law leaves him where his conduct has placed him, * *
   InsiiET, J.

The present action grows out of the following agreement, entered into in Mississippi, on the 27th March, 1863, between the parties to this suit: • .

“ Whereas, James Gonegal has this day entered into a contract with John J. Pettus, Governor of the State of Mississippi, whereby the said Gonegal agreed to exchange fifty thousand sacks of salt for cotton ; and whereas the said James H. Bowman and the said Gonegal have agreed to become partners in the said contract; and, whereas, the said Bowman has advanced five thousand dollars in cash, to be used as capital in carrying the said contract into effect; now, in consideration of the premises, it is agreed that the said Bowman becomes an equal partner with the said Gonegal, with said John J. Pettus, governor as aforesaid, and all profits and losses arising from said contract are to be shared and divided equally between the’said Bowman and the said Gonegal,.and if any other goods of any kind are brought from New Orleans by the said Gonegal, the said Bowman and Gonegal are to become equal partners in the same, and share equally all profits and losses arising therefrom.”

And the present suit is to recover back from the defendant the five thousand dollars in cash, which was, by the agreement, to have been, but was not, used by the defendant to carry out the same.

The answer of the defendant admits the receipt of the nominal amount claimed under the agreement, but avers that the said sum was advanced by the plaintiff in the currency of the so-called Confederate States, and that he was prevented from using it on account of the unexpected situation of military affairs, and the change in the lines of the armies of the United States and so-called Confederate States, and he makes a tender of the amount in the same species of paper.

There was judgment in the Court below for tfie defendant, and the plaintiff has appealed.

It is urged in this Court by the appellee, that the cause of the agreement was unlawful and against good morals and:public order; but it is contended on the other side, that the question of illegality, in the consideration or object of a written contract, is properly raised in only one of two modes: 1st. Where the contract, on Us face, admits of no other com struetion but an illegal one. 2d. Where the contract is prima facie legal, and the defendant brings up the question by pleading and proving the illegality.

It has been repeatedly held by this Court, that it will not lend its aid to settle disputes relative to contracts reprobated by law. It will notice their illegality ex officio, and allow it to be suggested without any plea, and at any stage of the proceedings. 2 Hen. p. 1007, g 1. When it appears clearly that the agreement is for an illegal purpose the Court will dismiss the parties; but this is in the interest of public justice, and not of the party who seeks to profit by the acts of his adversary, of which he has been the participant. 6 An. 317.

The question then is, whether the contracts between the Governor of Mississippi and the defendant, and between the plaintiff and the defendant, on which the plaintiff’s action is based, read in connection with the momentous events that were in progress at the time the contracts were executed, and which we notice judicially are stamped with illegality—if so, the plaintiff’s action must be dismissed. “Ubi dantis et aeceptantiá tuípitudo yersatur non posse repeto decimus.”

The object of the war then waged was oh the part of one of the belligerents to sever the Union, and to destroy the government of the United States, and any contract that tended to aid in the consummation of that object was in direct violation of law, and it was manifestly with the interest of promoting this object that the contracts referred to were entered into. They were agreements to supply enemies of the United States, whilst a state of war was existing—with a large quantity of salt and other goods, of any kind, to be transported from New Orleans into the lines of the Confederate (so-called) army.

There is nothing redeeming on the face of the contract referred to. It is in view of the then existing state of things, stamped with illegality, and nothing appears in the record to efface the taint with which it is imbued. It is not even shown that the plaintiff voluntarily abandoned the speculation.

In Brooms’ Legal Maxims, marginal paging, 643, a case is put which seems to have a practical bearing on the position which the plaintiff occupies in this suit. It is this : “ If A agrees to give B money for doing an illegal act, B cannot, although he do the act, recover the money by an action; yet, if the money be paid, A cannot recover it back. So the premium paid on an illegal insurance, to'recover a trading with an enemy, cannot be recovered back, though the underwriter cannot be compelled to make good the loss. And at page 645, the author thus sums up the law, on the subject of illegality, as affecting the standing of parties in Court ¡

“Upon the whole, then, it seems that the true test for determining Whether or not the objection that plaintiff and defendant were in paridelicio can be sustained, is by considering whether the plaintiff can make out his ease otherwise than through the medium and by the aid of the illegal transaction to which he himself was a party. For instance, A based an illegal wager with B, in which C agreed with A to take a share ; B lost the wager, and A, in expectation that B would pay the amount on a certain day, advanced to O his share of the winnings. B died insolvent before the day, and the bet was never paid ; it was held that A could not recover from C the sum thus advanced.” The plaintiff, observed Gibbs, C. J., (Simpson v. Bloss, 7 Taunt. 246, 250), says : “The payment was on a condition which has failed, but that condition was that B, who was concerned with the plaintiff and defendant in the illegal transaction should make good his part by paying the whole bet to the plaintiff, and it is impossible to prove the failure of this condition without going into the illegal contract in which all the parties are equally concerned.

We think, therefore, that the plaintiff’s claim is so mixed up with the illegal transactions, in which he and the defendant B were jointly engaged, that it cannot be established without going into proof of that transaction, and therefore cannot be enforced in a Court of law.

In the case of Armstrong v. Foley, 11 Wheat. 258, as Was said by this Court in Davis v. Holbrook, 1 An. page 178, the Supreme Court of the United States, through its organ, Chief Justice Marshall, lays it down, as a general principle, which is perfectly settled, that no action can be maintained on a contract, the consideration of which is wicked in itself, or prohibited by law; and the Court, after declaring valid contracts unconnected with the original illegal act, although '-remotely caused by it, continues :

“ But if the importation is the result of a scheme between the plaintiff and defendant, or if the defendant has any interest in the goods, or if they are consigned to him with his privity, in order that he may protect them from the owner, a promise to repay any advances made under such understanding or agreement is utterly void.”' Davis v. Holbrook, 1 An. 178. Gravier’s Curator v. Carraby’s Executor, 17 La. 131.

A contract must have a lawful purpose—and, if it have an unlawful cause, if it be contrary to good morals or public order, it can have no effect. Civil Code, Arts. 1772, 1887, 1888, Pothier’s Obligations, g 43 e seq; Bartle v. Coleman, 4 Peters 186.

Marcadé, differing from many jurisconsults, imbued with the doctrine of the Roman law and taught by Pothier, that the law cannot be invoke d to sustain an action based upon an illicit agreement. He says the articles of the French Code, identical with our own, will not permit one man to enrich himself at the expense of another. And that Article, 1376, C. N., declares in the most absolute njanner, that whoever receives what is not due to him must restore it, without any distinction—why or how the thing not due came into his hands. This obligation of restoration with us, exists only in cases in which an alleged benefit arises from a lawful act.

Our Courts will not condescend to decide controversies tainted with illegality or immorality, as “Nemo cdlegans suam turpitudinem est audiendus.” They deem such agreements absolute nullities, and quod nullius est confirman nequit.

It is therefore ordered, adjudged and decreed,, that the plaintiff’s action be dismissed, at the costs of the appellant.


author: Taliaeebro, J.

text:
    No. 700.
    Henry Samory v. Samuel M. Montgomery.
    Where a party, whilst residing in Louisiana, executes a mortgage on his property here, and afterwards removes with his family to another State or country, and remains absent for two or three years, leaving no agent in charge of his property, or authorized to represent him, doi* housekeeper in possession of his former domicile and residence, with no known intention of returning, he must be regarded and treated by the mortgage creditor as an absentee, who in a suit against the property mortgaged, may cause a curator ad hoc to be appointed to represent the absentee, with whom pro-ceedings can be conducted contradictorily, and a valid judgment rendered against him.
    A non-resident is entitled to an appeal within two years from the date of the judgment of the lower’
    “Where a party takes an appeal, as an absentee within two yearsj but more than one year from the date of the judgment appealed from, he cannot, after the appeal is granted, claim to be a resident, for the purpose of defeating the judgment of the lower Court, rendered in conformity with the proceedings authorized by law, against absentees and non-residents.
    A PPEAL from tlie Third District Court of New Orleans, Sandlin, J.

      E. Eilleul and Bandell Hunt, for plaintiff and appellee.

      Wm. S. Sunt, for defendant and appellant.

      Brief of Randell Hunt, for plaintiff and appellee.
    —Samuel M. Montgomery appeals from a judgment rendered against him on the 8th December, 1863. His petition for an appeal was filed on the 15th July, 1865—more than nineteen months after the judgment was rendered and signed.
    He alleges that he is a resident of New Orleans; that the judgment was obtained during his temporary absence from the State, and that by law he had a right to take a devolutive appeal from said judgment at any time within two years from the day of rendition.
    The right of appeal is essential to the correct and pure administration of justice, but the public good requires that the right shall be exercised within a definite time, in order to put an end to litigation and uncertainty as to the law and the rights of individuals.
    Now, the law of this State, in regulating and fixing the time of appeal, has drawn a distinction between parties who claim the right. It divides them into two separate and distinctive classes—one class embracing and comprising all parties who reside in the State ; the other, all parties who are absent from it. To the former, it allows one year; to the latter, two years for the exercise of the right; but each class is limited to its alloted time, and is prohibited forever thereafter from exercising it. Code of Practice, Art. 593. “ No appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered, if the party claiming .the same reside in the State, and after two years if he be absent therefrom. ”
    Content with this distinction and division the law makes no further discrimination between parties claiming appeals. It does not subdivide, separate and distribute into different and subordinate classes those who reside in the State or those who are absent therefrom. It deals in the general, and avoids, rejects or ignores the special and particular. It prescribes one general rule for all who reside in the State, including every one who resides therein. In like manner, it prescribes one general rule for all who are absent from the State, including, every one absent therefrom. Every party, then, who claims an appeal must fall within one or the other of these categories. He must be included either in the class of those who reside in the State, or in the class of those who are absent from it. If included in the first class, his right of appeal is barred by the lapse of one year; if included in the class of the absent, his right extends through a period of two entire years.
    Now, Samuel M. Montgomery either resided in the State, or was absent therefrom. If he resided in the State, no appeal lay on the 15th July, 1865, the day of his petition of appeal, from the judgment rendered against him on the 8th December, 1863, because more than a year had expired after the judgment was rendered, and this Court must reject this appeal. But if, on the other hand, he was absent from the State, the the appeal did lie at the time he claimed it, because two years had not expired from the rendition and signing of the judgment. He can only maintain his appeal upon the ground that he did not reside in the State, and was absent therefrom.
    What, then, is his position ? Did he reside in the State ? If he did, his appeal is gone. If he did not, his entire argument against the judgment appealed from is futile. Which horn of the dilemna will he take ? * * * * -x- * *
    In this condition of things the question presented itself to the plaintiff; What was he to do to secure his rights, and to obtain the payment of the large amount due him by the defendant, and of which he stood much in need ?
    He had no alternative ; no means or recourse but to enforce his mortgage right. The act securing that right, contained a confession of judgment in his favor, and expressly conferred upon -him authority to seize and sell the mortgaged property under executory process. It went further, and waived and renounced, on the part of the mortgagor, the benefit of appraisement—dispensing with the'same, and empowering the mortgagee “ to seize and sell the property without appraisement. ”
    The plaintiff, however, did not proceed in this summary manner, although he might have lawfully pursued his remedy via execuliva under the mortgage, and might have had the property sold without appraisement, yet he would not. He adopted a milder course,.and proceeded via ordinaria. He obtained a judgment, and had the property appraised—a legal representative of Montgomery joining in the appraisement. All the other provisions of law, made for the purpose of securing to a debtor the full value of property sold under judgments of Courts of this State, were observed. The property was duly advertised, and all persons desirous of purchasing it had the opportunity of competing, for it. It was sold at auction; it brought more than two-thirds of its appraised value, and was adjudicated to the plaintiff, because he was the highest bidder for it. * * First. He contends that he was not properly and duly cited; that the appointment of a curator ad hoc to represent him was not warranted by law; that there was no coniesiaiio litis, and, therefore, that the judgment is a nullity.
    Second. That he had an attorney in fact, whose name appeared in the petition, and who was a resident of New Orleans, and no citation was served upon him.
    Third. The judgment, if not a nullity, must be restricted to the property mortgaged.
    Neither of these grounds is sufficient to support the defendant’s appeal. . Let us examine them in the order in which they are stated, and First. The allegation that he was not cited in the Court below, and that the appointment of a curator ad hoc to represent him was illegal.
    His argument, in support of this ground, is substantially:
    “ This is an action in personam. The petition and the notarial records annexed, show clearly that the acknowledged residence of the defendant was in New Orleans. The law required the citation and petition to be served on the defendant, in person; or, if he was absent to be delivered to a free person, apparently above the age of fourteen years, living in the house. C. R. Art. 187-89. There is no other mode in which the citation and the petition in this case could have been served. Art. 190 of the Code of Practice is express : “ The petition and citation must have been served on the defendant in person, or left at his domicile, in the manner provided in the two preceding articles.” They were not so served.”
    “The sheriff’s return on the citation was, “ that he learned the defendant was out of the State.” This was not a substantial, compliance with the Code of Practice. If the defendant was out of the State, he may have been temporarily absent, and the citation should have been served at his domicile, to which it appears he has since returned. It is not the act of inhabitance (or residence) which constitutes the domicile, but the fact coupled with the intention of remaining. The plaintiff, therefore, was not entitled to have a curator ad hoc appointed to represent the defendant. 'There was no citation, no conleslaiio litis in the case, and the judgment is a nullity.”
    The argument is well summed up by my learned colleague, Mr. Filleul, in these words: “ The theory upon which the appellant bases his hopes of success is, that the plaintiff’s action is a personal action, and that such an action cannot be prosecuted unless the defendant be served with process of citation, according to Arts. O'. P. 189, 190, that is, personally, or at his domicile. ” * * * *
    Our law declares, that an action by which a person proceeds against one who is personally bound towards him, in order to compel him to pay what he owes to him, is a personal action ; and it is called personal because, it is attached to the person bound, and follows him everywhere. It lies against him who has bound himself personally and independently of the property which he possesses. C. P., Art. 326. On the other hand, a real action relates to claims on immovable property or to the rights to which they are subjected. It lies to enforce the rights which a party possesses upon property. It not only lies against the debtor, in whose hands the property -is, but it lies also against him who, without having contracted any obligation towards the plaintiff, is nevertheless bound towards him as the possessor of immovable property, on which the plaintiff claims a right. The action which the creditor brings, in order to have property which has been hypothecated or mortgaged to him by his debtor, seized and sold for the payment of his debt, is a real action. Where the creditor has no executory title against his debtor, he can only seize and sell hypothecated property after having obtained judgment in the usual form. But where he has such a title he may proceed either via executiva or via ordinaria. C. P., Arts. 7, 41, 42, 61, 62, 63. The mixed action partakes both of the real and the personal action.
    Now, what was the action instituted in this case ? What was its object? What judgment did it seek ?
    The plaintiff, in his petition, alleged himself to be the owner of certain promissory notes, amounting to $15,640, exclusive of interest, drawn by the defendant, and secured by mortgage of a certain lot of ground, with the buildings thereon, forming the corner of Camp and Common streets, in this city. He prayed that the defendant be cited to appear and answer, and after due proceedings, condemned to pay the amount, with mortgage privilege upon the property described.
    Citation was issued. The sheriff returned it, endorsed as follows: Received, November 9th, 1863, After diligent search and inquiry made, S. McCutcheon Montgomery could not be found, and I learned that he was out of the State. Returned, November 18th, 1863.
    The plaintiff thereupon presented a supplemental petition to the Court, in which he set forth the absence of the defendant from the State. He alleged, “that he has instituted before this Court a suit against the defendant, a resident of this city, founded on obligations secured by mortgage; that the said defendant has been- (ordered to be) duly cited, but after diligent search, and inquiry made lie could not be found, and the competent officer charged to deliver him the petition and citation, was informed that he was out of the State, as it fully appears by the sheriff’s return of the papers made in this case,” He proceeded to allege further, that “ this suit is instituted for the purpose of subjecting the mortgaged property to the payment of said debt; but, as the said Samuel McCutcheon Montgomery is absent from the State, it is necessary to appoint a curator adhoc to represent him, in order that judgment may be rendered contradictorily with the said curator in this suit.”
    The Court appointed a curator ad hoc, and after - due proceedings, rendered a judgment in favor of the plaintiff and against the defendant, for the amount claimed, with lien and privilege on the property mortgaged.
    I leave this point with simply quoting the statement from 2d Annual, already referred to:
    “ One who owns real estate in this State, specially mortgaged to secure the payment of a note, and is not represented by any agent authorized to defend suits instituted against him, may be sued for the purpose of subjecting the mortgaged property to the payment of the debt, by.the appointment of a curator to represent him; a judgment rendered contradictorily with such curator will be binding on the absentee, as far as it can be executed on the property specially affected, in favor of the creditor. Such judgment can have no effect beyond the property mortgaged.”
    And now I proceed to examine the second link in the chain of the defendant’s argument. He says:
    “ The petition and notarial acts annexed to it, show that the defendant was a resident of Now Orleans. He repeats this, with a mere verbal change, in the same page: “ The plaintiff’s petition, and the notarial acts annexed to it, establish the fact that the defendant was a resident of New Orleans.” And then again repeats it as a matter proved; in a subsequent page: “ The plaintiff’s petition, and the notarial records annexed, show clearly, as already seen, that the acknowledged residence of the defendant was in New Orleans. He, therefore, should have been served at that acknowledged residence, as the Code of Practice requires.”
    This position is utterly irreconcilable with that hitherto maintained by the defendant. The Court has seen that if a party reside in the State he cannot appeal after a year has expired, from the day on which a final judgment was rendered against him, and that Montgomery now claims the appeal nineteen months after the judgment in this case was rendered against him, upon the ground that he did not reside in the State, and was absent therefrom. How then can he say that he was a resident of this State ? He is precluded from making the assertion by the very fact of appearing before the Court. * * *
    This leads me to the examination of other links in the defendant’s chain of argument. He says:
    “ The Code of Practice requires citation and petition to be served, by being delivered to a defendant in person, or by being left at his domicile; jf he be qbsent, with a free person, apparently above the age of fourteen years, living in the house.” C. P. Arts. 87, 88. 89 and 90. The Supreme Court has decided that the return of the sheriff should, on all occasions, follow substantially these words of the Code of Practice ; but the sheriff did not, in this case, serve the petition and citation on Montgomery in person, nor leave them at his domicile in the manner provided by law, His return on the citation, that he learned the defendant was out of the State, was not a substantial compliance with the Code of Practice, and did not authorize the appointment of a curator ad hoc to represent the defendant. The defendant may have been temporarily absent, as proves to have been the case, and citation should have been served at his domicile, to which it appears he has since returned. He was not an absentee, in the sense of the Code, authorizing the appointment of a curator ad hoc.

    The term absentee embraces a person who has resided in the State, and has departed without leaving any one to represent him. It means, also, the person who never was domicilated in the State, and resided abroad. C. C. Art. 3522, No. 3. The Code thus declares a person an absentee only when he has abandoned his domicile in this State, with the intention of not returning within any definite period. The judgment is a nullity for want of citation. ”
    The greater part of this has already been refuted in simply investigating the fact of Montgomery’s residence. Such is the force of truth ! Error flies before it, or falls prostrate and harmless at its feet. The sheriff could not serve the citation personally upon Montgomery in New Orleans, because Montgomery was absent from the State. He could not leave it at his domicile or residence, because Montgomery had no domicile in New Orleans. The record proves that his family was in Virginia from the beginning of the month of December, 1861, and that he himself left New Orleans in January, 1862, and never returned until July, 1865. He thus departed from the State, and was absent from it nearly a year before the proceedings in the case were begun—without making any provision for the payment of his debts to the plaintiff, and without leaving a domicile in it occupied by his family, at which legal notice could be served upon him.
    Having rendered it physically and legally impossible for the sheriff to serve a citation upon him in person or at his domicile, nothing was left for that officer, to whom the citation hadbeen issued to b,e served, and who had vainly made diligent search and inquiry after him, and had learned that he was out of the State, but to return the citation and state the facts to the Court. This was done in the manner I have described. If any attempt had been made by the plaintiff to obtain a judgment by default upon this return, the Court would undoubtedly have refused it, because of the insufficiency of the return. If, from inadvertency or error, the Court below had granted and afterwards confirmed such a judgment, this Court, upon a proper application, would certainly have set it aside. But the plaintiff made no such attempt. Nor did he sue out a new citation to be served on the defendant, for he knew it would be vain and impossible to serve it, or make any further attempt to bring the defendant into Court by this means. He saw, then, that it was useless to hope for any judgment rendered upon citation. What, was he to do ?

      Here was Montgomery, a person absent from the State, but who owned property in it,, which gave jurisdiction to the Court; that property was specially mortgaged to secure the payment of the notes on which the plaintiff was suing, and Montgomery was unrepresented by an agent authorized to defend suits against him. Did he belong to the class of absentees, who may be brought before our Courts through curators ?
    The first chapter of the third title of the Louisiana Code, which treats of the euratorship of absentees, provides for the appointment of curators for the benefit of those persons, in order that their estates may be administered and their interests protected. The fifty-seventh article of the chapter afterwards provides curators to them, in particular cases, for the benefit of persons who may have suits to institute against absentees, and are unable to commence them, because the absentees cannot be arrested, nor citation served either personally or at their domicile. C. C., Arts. 60 and 57, George v. Fitzgerald, 12 La. 600.
    The Article 116, of the Code of Practice, contains a very similar provision to that of Article 57 of the Civil Code.
    A question soon arose, and was presented to the Supreme Court: What is the meaning of the words “absent” and “absentee,” in those provisions of our law ?
    The Article 3522, of the Civil Code, de verborum significations was referred to, and the definition relied on by Montgomery, was examined. It was determined that the part of it in these words: “Absentee is the person who has resided in the State, and has departed without having any one to represent him ”—included persons who temporarily resided out of the State, as well as those who abandoned their domicile therein permanently, and that persons who leave the State and reside abroad, with the intention of returning within a definite time, are such absentees as may have their property in the State subjected to the payment of their just debts, through curators duly appointed to represent them; and this is in conformity with the obvious dictates of justice and enlightened public policy. * *
    The first case, in which the appointment of a curator ad hoc to represen t an absent defendant, under the provisions of this Code, was presented to the Court—was one of great interest—not ■ only from its novelty, but from the distinguished character of the defendant, and the circumstances under which he was sued.
    Edward Livingston was a practising lawyer at the bar of New Orleans, of great eminence and ability, remarkable at once for powers of learning, eloquence and powers of argument. He came to New Orleans soon after the acquisition of Louisiana by the United States, and fixed his domicile in the State. He continued to reside here with his family until the year 1825, when he was elected a member of the House of Representatives of the United States from this State. He went'to "Washington to discharge his official duties, with the intention of returning to his home in Louisiana, the seat of his affections, after the expiration of his term of office. While he was in attendance on Congress he was sued by one Ramsey, who, on the sheriff’s return, that Livingston was not to be found in New Orleans, had a curator ad hoc appointed to represent him. Under these circumstances, the question was presented to the Court, whether Livingston was an absentee in the sense in which, that word is used, in the part of the Code that treats of the appointment of curators ? The question was ably argued, and the Supreme Court of the State, after careful consideration, unanimously held that he was. Neither the fact that he was absent on public service, nor that the office of a member of the House of Representatives was merely temporary for a term of two years only, nor the provision of law, that a citizen accepting such an office retains his ancient domicile, (0. C. Art. 46) was considered as excepting him from the class of absentees. The Court said:
    “ Curators are appointed at times for the interest of the absentee; at others, for that of the creditors; as when he leaves his concerns in such a situation that those creditors cannot establish their claims or enforce payment. In such a case justice as forcibly requires the appointment of a curator to a person absent on public duty as to any other person.
    In 12th La. the Court declared: “That previous to the promulgation of the Louisiana Code and Code of Practice, the appointment of a curator ad hoc to an absentee was not authorized by law. But our present Codes seem to have provided for all eases in which absent persons may be interested, or in which rights are to be exercised by or against them, whether domiciliated in or out of the State. ”
    The interpretation thus given by the Court to the term “absentee,” has been steadily adhered to ever since 1825. I refer to the cases in the Reports, some of which arc selected and cited by my colleague in his brief for an unbroken current of authority upon this point, running down even to the case in whicn this Court has decided upon a similar question, that Charles M. Conrad, whose domicile was in New Orleans, but who was a representative from this State in the House of Representatives of the late so-called Confederate States, was to be considered an absentee from the State, and as such entitled to appeal from a judgment against him at any time within two years after it became final in the Court below. Lambert v. Conrad, 18 A. 145.
    Montgomery, then, was clearly an absentee, and the plaintiff had a right to cause him to be represented by a curator ad hoc. Nor is this right in any way affected by the fact, that the plaintiff apparently endeavored at first to bring Montgomery into Court by the ordinary means of citation.
    The law has not provided for the manner in which the absence of a •defendant must be proved, in order to justify the appointment of a curator ad hoc, but wisely leaves it to the discretion of the Court authorized to make the appointment. The 57th Article of the Civil Code merely declares, “ that the Judge shall appoint a curator ad hoc, to defend the absentee;” and the 116th Article of the Code of Practice, “ that a curator ad hoc be named to defend the suit.”
    The practice in the Courts has been for the Judge to appoint a curator, either upon the return of the sheriff, showing the absence of the defendant, or upon the oath of the plaintiff himself, or of a third party, and even of the plaintiff’s son, (who is, under the general law, incompetent to testify in any manner in which his parent is concerned) to the absence of the defendant, and sometimes upon a mere suggestion unsupported by oath.

      In the case of Livingston, the curator was appointed on the sheriff’s return. In the case of Ferguson, the curator was appointed upon the statement in the petition. In the case of Gooley, 9th La, p. 78, upon the oath of the plaintiff’s son.
    In the present case, the absence of the defendant was suggested by the plaintiff in the petition praying for the appointment of a curator, was supported by the return of the sheriff, a sworn -.officer of the Oourt ; is distinctly admitted to be true by the defendant himself in his petition of appeal, and is placed beyond the possibility of a doubt by the other evidence in the record. It is equally well established, that the defendant and his family were absent from and resided out of the State ; had no domicile here, and no agent authorized to defend him in Oourt, as I will hereafter demonstrate. It is clear, then, that this is a case in 'which the appointment of a curator ad hoc was absolutely necessary, and that the Judge acted wisely in making an appointment, and, I may add, in the selection of the individual appointed, a member of the bar, of integrity, and attentive to every interest entrusted to him.
    Under our law, the appointment of a curator ad hoo to an absent defendant, authorizes the service of all requisite notices in the case to be made upon the curator, with whom the suit must be carried on contradictorily until the final judgment. In 4th La., Judge'Mathews said: “Defendant being absent could not be cited in the ordinary mode prescribed by law, and the curator may be supposed to supply the place of citation. ” In the 5th La. 489, Judge Porter said : “ That the curator was enabled, after his appointment, to answer to the petition and to act for the defendant, and that it could not be considered an objection to the regularity of the cause.” In 9 th La. 77, Judge Martin said : “As the curator ad hoc is the person against whom the proceedings are to be conducted contradictorily between him and the plaintiff, it follows, as a consequence therefrom, that upon him the citation is to be served ; and the construction which would require the previous citation of the party, would be the cursed one, which corrodes and destroys the text.” I need not cite further authorities on this point, for it is an established principle invariably recognized by our Courts. When then the defendant says, that there was “ no citation,” and “ no coniesialio lilis” in the case, I point to the record before the Oourt; to the appointment of the curator, and the proceedings had prior to his appointment; to the sheriff’s return, establishing the service of the petition and citation upon him, to the answer of the curator to the petition ; to his appearance in the Court contradictorily with the plaintiff, on the trial of the cause, and to the judgment rendered in the Oourt a quo ; as conclusive proof that there was a “ citation ” and “ a coniesialio lilis,” such as the law demands to legalize the judgment. * * * *
    I pause here for the present for the purpose of collecting the links in the defendant’s argument that I have examined, and of exposing their true condition as I place them before the Oourt.
    He appears in this Court as an absentee from the State, claiming the right of appeal from a final judgment against him, rendered nineteen months prior to his petition for the appeal; and at the same time he ’contends that he was not an absentee, and is entitled to the benefit of laws passed for residents only. * *
    I think I have now shown that every link of defendant’s argument, upon the first and main point on which he asks that the judgment in this case be set aside, is defective and imperfect, cracked and flawy, and must be condemned and rejected by the Court.
    The second ground on which defendant asks that the judgment be set aside, is:
    Second. “ The petition of the plaintiff, and one of the acts of mortgage making part of it, show that P. E. Bonford, a resident of New Orleans, was the agent and attorney in fact of the defendant. The appointment of a curator ad hoc, therefore, was not warranted by law. ”
    Upon this point my colleague has said : ‘ ‘ The name and life of P. E. Bonford belong to the history of the late war, and the part that Louisiana took in that conflict.
    All writers on evidence agree that .historical facts need not be proved, and upon this principle I am authorized to state that it is well known that the lamented Mr. Bonford espoused the cause of secession with great zeal; that he left New Orleans in April, 1862, when the Federal forces arrived here ; that he linked his fortune to that of the Confederacy ; that he was made a Judge of the Supreme Court organized by Governor Allen, the then Governor of that portion of the State which was then in rebellion against the- United States, and died in the Confederate lines. It was impossible, therefore, to serve citation on him, even if he was empowered to represent the defendant, which is denied. ”
    The power of attorney given to Mr. Bonford, was limited and specific. It is not shown to have been such as to authorize him to represent Montgomery in Court, and to allow legal proceedings to be carried on under it, contradictorily with him so as to bind Montgomery. He could not, therefore, be legally cited. 9 L. 77.
    It is unnecessary to add anything to this. I pass, therefore, to the third ground on which the defendant asks that the judgment be set aside, namely:
    Third. The judgment must be restricted in its operations exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam.

    I concur entirely in the proposition. Before I bring to the notice of the Court the authorities with which I desire to close this argument, there is one circumstance which has continually presented itself to my mind, in the consideration of this case, and which I have no doubt has suggested itself to the Court, .upon which I will say a few words. If the defendant was only temporarily absent from the State ; if he really had a domicile in it; if he had any person there on whom citation could be served ; and if he thought all or any of these facts would be of service to him in annulling the judgment of which he complains, and had any proof to establish them ; why did he.not proceed by an action of nullity, and produce, or offer to produce testimony to prove the facts ? Upon his theory of the law—a theory which we deny, and have shoivn to be incorrect—what would have been easier than for him (if his assertions be true) to bring forward his witnesses, and prove them ? His failure t ■ attempt this can only be ascribed to the fact, that he knew the plaintiff would disprove every one of his assertions; and that, therefore, even with his theory of the case, it was wiser for him to rely upon vague intimations, the supposed absence of proofs of the negative and bold assumptions, than to meet the plaintiff upon the fair and equal ground of legal proof.
    And now I submit the authorities to which I have alluded. They point out the course that ought to be pursued by creditors in cases like the present, and show that the plaintiff has pursued precisely that course, and that the judgment rendered in his favor is valid in law, as it undoubtedly is founded on justice.
    The defendant, indeed, does not pretend that he did not owe the debt for which the judgment was rendered ; on the contrary, he himself gave the confession' of judgment that it was due. He does not pretend that he has been deprived of any means of defence ; on the contrary, he admits that he had no defence. He cannot pretend that the suit was brought with greedy and oppressive haste ; on the contrary, he is obliged to admit that the plaintiff waited two full years after the debt was due, before he instituted his action. The only ground on which he hopes to succeed, is one of mere sheer, dry technicality. Delusive hope! The law combines with equity in upholding the judgment of the defendant. But to the oases.
    In Millaudon v. Beazley, 2d An. 960, the plaintiff sued upon two promissory notes, secured by a special mortgage. The defendant being an absentee, a curator ad hoc was appointed to represent him. It was objected, that the defendant could not be brought into Court by a curator ad hoc. The Supreme Court said : The defendant owned property in the State, which was specially mortgaged to secure the plaintiff’s claim, and in such cases our laws expressly permit absentees to be proceeded against judicially, upon being represented by a curator adhoc. C. C. 57; C. P. 116. * * * *

      Brief of E. Filleui—Additional brief of plaintiff and appellee.
    —The appellant having filed his brief on the very day fixed for the argument of this case, it was impossible for the appellee to answer to the points made for the first time on appeal.
    The appellee will, therefore, beg leave of the Court to file additional argument in answer to the appellant.
    The theory upon which the appellant bases his hopes of success is, that the plaintiff’s action is a personal action, and that such an action cannot be prosecuted, unless the defendant be served with process of citation according to the Arts. 189, 190, that is, personally, or at his domicile. The appellant argues also en désespoir de cause, that the appointment of a curator ad hoc was unauthorized, and the service of citation should have been made at the last domicile of the defendant, according to Article 167 C. P., while there is not in the whole record an iota of evidence to bring him within the operation of that Article, 167 C. P.
    The defendant did not prove, and does not allege, that if citation had been left at his last domicile, it would have reached him, nor do the circumstances of this case tend to prove that he had removed within a short
      radius in. the same parish, or aneighb orin gone, wherehe could have repaired to the old domicile, or where the information that a suit instituted against him could have reached him. But let us remark that this Article 167, C. P., was not enacted with a view of conferring any privileges on the defendant, but in odio debitoris dolosi; that, therefore, it would be difficult to imagine a case where this Article would operate in favor of one whose conduct has been the cause of uncertainty about his real domicile.
    It is an easy task to show the fallacy of the premises, upon which the appellant rests his reasoning, and draws his conclusions. If his premises are wrong, his conclusions must be wrong, because in logic, correct and true conclusions and consequences can never flow from wrong premises.
    And first. What is the nature of the action ? The record shows that it is a suit to foreclose a mortgage, to subject real property to the satisfaction of a mortgage.
    This is the highest and purest type of the real action, and the one always quoted by illustration or example of a definition of the real action. “ L’action est réelle, parcequ’elle émane du droit que nous avons sur uno chose. Ex jure quod quis in re habet profiscitur actio in rem et peu importe quel soit le droit; domaine directe ou utile usufruit servitude ou gage.” • Encyclopédie, Yerbo Actions. Article de Mr. Marie.
    This definition of the real action is the same in the Louisiana Code of Practice. Arts. 41, 42.
    Article 61, C. P., says : That an hypothecary action is a real action, which the creditor brings against the property which has been hypothecated to him by his debtor in order to have it seized and sold for the payment of his debts. See also Arts. 62, 63.
    Thisis the action which has been instituted by the plaintiff. According to Article 63, C. P., the plaintiff having a title importing a confession of judgment, could have demanded that the property mortgaged to him should be seized and sold immediately.
    Instead of resorting directly to this summary proceeding, showing more leniency to his debtor, the plaintiff proceeded via ordinaria. It is with a bad grace that objection is made to this form of proceeding by the appellant, but the objection is of no avail, because all civil actions may be prosecuted via ordinaria, C. P., 95 to 98.
    The form of proceeding does not change the character or the nature of the action, and a real action prosecuted via ordinaria preserves its character of real action, just as much as if it was prosecuted in an executory or summary way. .
    Those premises being well established, let us examine what steps were taken to bring the property of the defendant into Court, and to have it seized and sold by the sheriff to satisfy the mortgage of the plaintiff.
    ■ In the first place, in the body of the petition, he could have suggested to the Court that the defendant was absent, and upon this bare suggestion the Court, in the exercise of a wise and sound discretion, could have legally appointed a curator ad hoc, to represent the absent defendant.
    We know perfectly well that this suggestion is usually verified by the oath'of the plaintiff, or by some other preliminary showing, but we do not consider it essential, because it is not written in the Article 116 of the Code of Practice, and Article 57 of the Civil Code—which are the only fountains and sources from which is derived the right of the Court to appoint curators ad hoc to absent defendants. (See arguments of the' original brief.) In the case of Cooleys. Seymour, 9 L. R. p. 78. The suggestion to appoint the curator ad hoc was supported by the oath of the son of the plaintiff.
    The oath of a plaintiff’s son is certainly entitled to no more weight and value than a mere suggestion of the plaintiff himself. The Supreme Court paid no attention to the objection raised in that case, and considered that by appointing the curator ad hoc, the Court had wisely used its discretion.
    My conviction is irresistible that it is so ; because the co-relative of Art. 57, C. C. and 116 C. P. are found in Arts. 267, 268, 614 C. P., which give the right to the absent defendant of annulling the judgment rendered against him, upon proving that the allegations of the plaintiff were untrue. It was a right of which the defendant could have availed himself. But as he has not done so, w'e have the right to assert that he did not do so, because he knew that all our allegations are true, and that we could prove them to be so at any time.
    The plaintiff, by an excess of precaution, (this case being an important one) thought that it would be better to prove beyond a doubt, the absence ■ of the defendant, and the impossibility of serving any citation on him, either personally or constructively. He, therefore, resorted to the best' and highest mode of proving the absence of the defendant.
    On the 9th November, 1863, he placed the citation and petition in the hands of the sheriff, and on the 18th, he obtained what he thought the-highest evidence of the defendant’s absence, in the sheriff’s return in these words: “After diligent search and inquiry, the defendant could, not be found, and I learned that he was out of the State.” If the sheriff of the parish who is acquainted, or is presumed by law to be acquainted with every resident of the territory of his jurisdiction, who summons all jurymen, attends at all the State elections, and summoning all the witnesses before all the Courts of his territorial sheriffalty, after diligent search and inquiry for nine days, has been unable to find in the city of New Orleans, a man who had mortgaged his real estate property for upwards of S16,000, in gold, who belongs to one of the most ancient and wealthiest families of the city. That if the said sheriff was unable to find out his last domicile, the plaintiff had certainly acquired the right and conscience to say that the utmost diligence had been used, and tho Judge about to exercise a wise discretion, could certainly rest at peace at night, and when laying his head on his pillow, he might with satisfaction, say that he certainly had not wronged the defendant in appointing a curator ad hoc to represent him and his property ; that he certainly was truly absent, and that there was nobody in charge of his property ,* and, that if there was a chance to use this discretion, and appoint a curator ad hoc—this was the very case which the legislator, no doubt, had in contemplation.
    But, supposing that the defendant had a last domicile, an expression which is almost without meaning by the difficulty of understanding what ideas it conveys, what relations there are between the person and the last domicile, and how long, and when, and how a person preserves his last domicile. The service could not have been made at this last domicile, as Your Honors will see by the following decisions: I must remark that the privilege of citing a defendant at his last domicile is given by law to the plaintiff, for the purpose of punishing cunning or fraudulent debtors who avoid the suits of their creditors, and that it is strange, and passing-strange, that a party who puts obstacles in the way of his creditors, should reap any benefit of his misconduct, and of a state of uncertainty created by himself to prevent the legitimate prosecution of his creditor’s claim, and should use as a weapon the shield and sword which the law has put on the body and in the hands of his opponent. See C. P. 187, and C. C. Article 42.
    In logic and in law, a man has but one domicile, and the citation must be left at that domicile, when it is not served personally. C. C., Articles 189, 190.
    In November, 1863, the defendant had no domicile in New Orleans ; he ' had left it a long time before ; he was residing out of the State with his ■wife, and we are going to prove it, and prove it by authentic act and by record. And though the sheriff’s return is not attacked, we will render it unassailable. * - * * *
    The extravagant value affixed by the defendant to the property mortgaged by him is not proved by the record; we will manifest our respect for the Court, in not answering to this strange and disrespectful allegation; we are convinced that the Court will not consider anything upon which issue has not been fairly joined as proved by the record.

      Brief of W. H. Hunt, for defendant and appellant.
    —On the 10th of November, 1863, Henry Samory instituted a personal action in the Third District Court against Samuel M. Montgomery, a resident of New Orleans, to recover—first, the sum of $15,640, exclusive of costs and interest, the amount of four promissory notes, drawn by the defendant tó his own order, and by him endorsed ; three of $5,000 each, dated New Orleans, 24th'of May, 1861, and payable six months after date, and the other for the sum of $640, drawn by the defendant to his own order, and by him endorsed, through his agent, E. E. Bonford, dated New Orleans, January 13th, 1862, and payable twelve months after date ; and second, another sum of $782, for attorney’s fees. These four notes were secured by mortgage, by public acts passed before Edward Barnett, Notary Public, on May 28th, 1861, and 13th January, 1862, on a certain lot of ground, with the buildings and improvements thereon, in this city, forming the corner of Camp and Common streets. The plaintiff prayed that the defendant be cited to appear and answer, and that after legal delay and due proceedings had, he be condemned to pay the amounts claimed, with mortgage and privilege on this property.
    Citation issued, addressed to the defendant, and was returned by the sheriff on the 18th November, with this endorsement: “ After diligent search and enquiry made, S. McCutcheon Montgomery could not be found, and I learned that he was out of the State. ”
    The plaintiff, on the return of this citation, filed a supplemental petition, praying the Court to appoint a curator ad hoe to represent the' defendant, and that he might be cited through such curator ad hoc. The Court appointed a curator ad hoc, who filed for answer a general denial. The cause was tried, and a personal judgment was rendered against the defendant for the amount of the plaintiff’s claim, with privilege on the property mortgaged.
    The plaintiff, thereupon, caused a fieri facias to issue on the judgment, and the mortgaged property was seized and sold by the 'Sheriff, on the 5th February, 1864, and adjudicated to the plaintiff for the sum of $14,000.
    The defendant has appealed, and now asks that the judgment and sale be set aside, on the following grounds :
    First. This is an action in personam. The petition and the notarial acts annexed to it, show that the defendant was a resident of New Oi-leans. The returns of the sheriff, on the citation, do not show that the defendant had changed his place of residence by departing permanently from the State. The petition and citation should, therefore, have been served at the domicile of the defendant, as directed by the Code of Practice, Arts. 189 and 190 ; and the appointment of a curator ad hoc was not warranted by law, under the circumstances.
    The correctness of the judgment appealed from is to be determined upon the evidence in the record. The plaintiff having obtained, without legal citation, as the appellant contends, a judgment against the defendant, caused his property, worth to-day some $70,000, to be seized and sold by the sheriff, and bought it in for only $14,000. It is but natural that, under such circumstances of hardship, the defendant should ask the Court to scrutinize closely the legality of the means by which he is sought to be subjected to a sacrifice so ruinous to himself, and so highly advantageous to his creditor.
    It is to be borne in mind that this is not an executory proceeding, or an action in rem, but an action in personam. The judgment of the Court a quo is against the defendant for the amount of the notes and attorney’s fees sued for.
    The plaintiff’s petition and the notarial acts annexed to it, establish the fact that the defendant was a resident of New Orleans. The answer of the curator ad hoc does not contradict the fact. The citation was addressed to the defendant in person. The return of the sheriff, upon the citation, constitutes the only evidence on which the right'to have the defendant represented by a curator ad hoc, depends.
    The plainest principles of law and justice require that every man should have a full opportunity of being heard in his defence, when suit is brought against him. This opportunity can only be afforded by giving him notice of such suit. This notice the law requires to be given by the service of citation upon him. Such service may be actual or constructive. If service be made personally upon the party, he has received actual notice. But “ when, from certain facts the law implies notice in judicial proceedings, they must all concur, in order to establish such constructive notice.” 16 La. 596.
    These principles are obviously wise and just. They are established by textual provisions in our law, and in an unbroken series of decisions from the earliest days of our jurisprudence down to the present time.

      A careful examination of this return shows nothing to warrant the presumption, that the defendant had left the State permanently, or was an absentee in the meaning of the law. The term absentee “embraces a person who has resided in the State, and has departed without leaving' any one to represent him. It means, also, the person who never was domiciliated in the State, and resides abroad.” O. 0., Art. 3522, No. 3. The Code thus declares a person an absentee, only when he has abandoned his domicile in this State, with the intention of not returning within any definite period ; and, evidently, does not mean that a party temporarily absent from home, even though out of the State, has abandoned his residence in this State, and become in legal acceptation, an absentee. If a different construction be placed on the provisions of the law, the most unjust and ruinous consequences would flow from it. Any citizen, whose footsteps lead him, by chance or design, to cross the boundaries of Louisiana, even for a day, would then become an absentee, whose property would be liable to attachment, and whose interests would be committed to the mere formal'protection of a curator ad hoc. The sheriff’s return, in this case, does not state that he had learned that the defendant had permanently left the State, but merely that he “ learned he was out of the State. ” If he was out' of the State, he may have been temporarily absent, as proves to have been the case, and citation should have been served at his'domicile, to which it appears he has since returned.
    In the' case of Brown v. Trent, 12 L. G03, the defendant was sued as a citizen of the parish of O uachita, where he had his domicile. At the time the notice of judgment was served, he had removed, either temporarily or permanently from the State. The Court decided: “If the absence was temporary, he certainly has not lost his domicile ; and if permanent, 'the house in which he last lived, is the one where the citation 'should be served.”
    In the case of Sparks v. Weaiherby, 10 L. 595, the Court said: “When there has been no personal service of a citation, its want can be supplied only by pursuing strictly the provisions of law, which substitute for it any other species of service. The Code of Practice, Art. 189, requires that f‘ service must be made, by leaving copies oí the citation and petition at the usual place of domicile or residence of the defendant; if he be absent, by delivering them to a free person, apparently above the age of fourteen years, living in the house. ” * * * The expressions, in the above article, evidently contemplate a temporary absence ; arid the provision itself is based on the presumption, that the party sued will receive intelligence from citation being made where he usually resides. ”
    A change of domicile must be shown by express and positive evidence. So long as any reasonable doubt remains, the legal presumption is against such change. In the case of Cole v. Lucas, it -was decided that a domicile once acquired remains until a new one is acquired, “facto et animo.” One going to another State for health, pleasure or any temporary purpose, with the intention of returning, has a mere transitory residence, which constitutes no new domicile, "nor an abandonment of the old one. It is not the act of inhabitance which constitutes the domicile, but the fact, coupled with the intention of remaining. In case of doubt, the original domicile is considered to be the true one. 2 An. 916.
    The Oode of Practice provides that citation and petition may be served by being delivered to the defendant in person, or by being left at his domicile. Art. 187.
    The service is made in person, when the citation and petition are delivered to the defendant himself, Art. 188.
    It is made at the domicile, when copies of the citation and petition are left at the usual place of domicile or residence of the defendant, if he be absent, by delivering them to a free person, apparently above the age of fourteen years, living in the house. Art. 189.
    The petition and citation must be served on the defendant in person, or left at his domicile, in the manner provided in the two preceding articles, in all cases, where the defendant is of age, enjoys civil rights, is present in the place, or has there his acknowledged domicile or residence. Article 190.
    The plaintiff’s petition, and the notarial-records annexed, show clearly, as already seen, that the acknowledged residence of the defendant was in New Orleans. He, therefore, should have been- served at that acknowledged residence, as the Oode of Practice requires.
    In the case of Collins v. Walling, 6 An. p. 702, the Court decided the return of the sheriff should, on all occasions, follow substantially the words of the Oode of Practice. The sheriff’s return on the citation, that he “ learned the defendant was out of the State,” without adding he had left the State permanently, is not a substantial compliance with the Oode of Practice, and did not entitle the plaintiff to have a curator ad hoc appointed to represent the defendant. In every case in which a curator ad hoc has been legally appointed, satisfactory evidence 'was produced that the defendant was either a non-resident, or had left the State permanently, without leaving any one to represent him. The judgment, therefore, is a nullity, for the want of proper citation of the defendant.
    Second. The petition of the plaintiff, and one of the acts of mortgage making part of it, show that P. E. Bonford, a resident of New Orleans, was the agent and attorney in fact of the defendant.
    Article 196 of the Oode of Practice, requires that if the person absent has an attorney in fact, whose name appear in the petition, the sheriff shall serve the same on that attorney in fact, in person, or at his domicile. There is no evidence in the record showing that any effort was made by the sheriff to find P. E. Bonford, or that he had left the State permanently, so that he could not be cited. The plaintiff was, therefore, guilty of laches, in not requiring the sheriff to serve the citation upon the attorney in fact.
    In the case of Cooley v. Seymour, 9 L. 276, the sheriff returned that the appellee was out of the State. This ease was not decided on the sheriff’s return, the appellant having furnished proof by' his affidavit, that the appellee resided in Philadelphia. But Judge Martin, in commenting on the sheriff’s return, said: “The affidavit, that the appellee resided in Philadelphia, prevented the objection that might be made to the service of citation, as evidence by the sheriff’s return of the absence of the appellee, which, if occasional only, does not dispense with a citation at his domicile.”
    The appointment of a curator ad hoc to represent the defendant, who, in his absence, had been represented by an attorney in fact, a resident of New Orleans, was not warranted by law, under the circumstances ; and there having been no conieslalio liiis, the judgment is a nullity.

    Third. The judgment rendered in this case, if not a nullity, must be restricted in its operations exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam.

    In the case of Thayer el al. v. Tudor, 2 An. 1010, the plaintiff, a resident of Boston, instituted suit against the defendant, also a resident of Boston, to secure the amount of two mortgaged notes. A curator ad hoc was appointed to represent the defendant, and a personal judgment rendered against him for the amount of the notes. The Supreme Court decided that a judgment rendered against the defendant can have no effect beyond the property mortgaged. See also the case of George, Curator, etc., v. Le Grand, 3 An. 652.
    In both these cases, there was evidence that the defendants resided permanently out of the State. But in the case now before the Court, there is no such evidence. On the contrary, it is shown that the defendant was a resident of New Orleans, and had an attorney in fact, who was also a resident of New Orleans ; and the return of the sheriff, that he learned that the defendant was out of the State, is not proof that he had left the State permanently, is altogether consistent with the fact of his temporary absence, and did not entitle the plaintiff to have a curator ad hoc appointed to represent him.1
   Taliaeebro, J.

In November, 1863, the plaintiff filed this suit against the defendant, alleging a large amount of indebtedness by him to the plaintiff, as owner and holder of five promissory notes, secured by mortgage on a house and lot in the city of New Orleans. The plaintiff had judgment in his favor for the amount claimed, with recognition of the lien and privilege on the mortgage property described in the petition, and copies of the mortgages adduced in evidence. Judgment was rendered on the 8th of December, 1863. On the 15th July, 1865, the defendant obtained an order of appeal. He urges as irregularities in the proceedings, that having his domicile in Now Orleans, he was entitled to personal citation; that although absent at the time, that absence was only temporary, and that he was not an absentee of that hind, which, in legal contemplation, a creditor is authorized to proceed against by causing a curator ad hoc to be appointed. He further contends, that he had an agent in New Orleans, whose name appeared in the petition, and that no copy of petition or of citation was served on the agent.

The plaintiff proceeded via ordinaria. A citation was issued, and the sheriff made return, “ that after diligent search and enquiry made, Samuel McOutcheon Montgomery could not be found, and I learned that he was out of the State.’*

The plaintiff then, by supplemental petition, prayed for and obtained the appointment of a curator ad hoc to represent the defendant, and obtained against him so represented, the judgment complained against.

The facts appear to be that Montgomery, the defendant, left New Orleans in 1861, or at least that he was absent in January, 1862, and there is nothing making it probable that he returned before the summer of 1865.'

He was absent with his wife in the State of Virginia, during the greater part of this time. We find no act of procuration in the record from the defendant to P. E. Bonford, who acted in the capacity of agent or attorney in fact for defendant and wife, in the execution of the second mortgage to the plaintiff in January, 1862. Bonford was a Judge of the Supreme Court of the State at or soon after that time, under the appointment of Henry W. Allen, acting as Governor under Confederate rule. The probability is, that he was absent from New Orleans after the capture of the city in April, 1862, by the Federal forces.

The act of mortgage executed by him in January, 1862, recites that Bonford was the “ agent and attorney in fact of Montgomery.” We are not authorized to infer that his powers were sufficient to enable him to defend suits, or to authorize the service of citation upon him. It is sufficiently clear, that at the time the plaintiff’s suit was filed, in 1868, Montgomery had no agent in New Orleans upon whom citation could be served, or against whom, as the representative of Montgomery, legal proceedings could have been carried on.

The only question in this case is, was Montgomery at the time this suit was instituted an absentee in legal contemplation, to whom a curator ad hoc might be appointed, and contradictorily with whom a suit might be prosecuted, and a valid judgment obtained against the absent person.

If the term absentee can only be applied to persons who never had a domicile in the State, or, who having had a domicile in the State, has left it permanently, and lives permanently beyond its limits, it is plain that such a construction of the term would operate injurious and vexatious delays to creditors seeking to enforce claims against their debtors. On the other hand, not every casual and temporary excursion of a resident from the State can convert him into an absentee, and render him liable to be harassed by his creditor, who, to gratify improper feelings, might resort to unnecessary acts to injure him. But, where in a case like the present, the debtor is absent two or three years, has property in the State, but who leaves no housekeeper or person upon whom a citation can be served, has no agent to represent him, it would be leaving him a large margin for the procrastination of payment of his debts to permit him, under such circumstances, to plead that he had a domicile in the State, and argue his right to personal citation, when, for so long a period, he was absent, and had left no person upon whom such citation 'could be served. We think such a perversion of terms inadmissible.

That the appointment of a curator ad hoc, in a case like the present, is clearly within the scope and intendment of our law, there can be no doubt. Neither is it in conflict with the spirit of our jurisprudence. The defendant refers to the case of Cole v. Lucas, 2 An. 950, on the subject of domicile. Chief Justice Eustis, in that case, said : “ A person going to another State for health, for pleasure, or any temporary purpose, with the intention to return, has a mere transitory residence which constitutes no new domicile, nor an abandonment of the old one.” The facts of this case, as well as those of 16 L. 595, and those of 12 L. 603, also quoted by defendant’s counsel, as relates to the circumstances and character of the absence, differ widely from those of the one under consideration. Montgomery left New Orleans, it seems in the year 1861, during the war. It is shown that his family left here also ; that they resided in Virginia ; there is no evidence showing an intention to return. He was engaged in war; he might not survive the perils of war. The city of his former domicile was in possession of the United States military forces. He might not desire to return. Taking the whole range of circumstances attending his absence, we think the case very different from that of a person absent a short time for health, pleasure or some temporary purpose, with the known intention to return.

If the defendant had a-domicile in and resided in the State, he had no right to an appeal, for the time had elapsed within which he was entitled to appeal.

How he could be an absentee to entitle him to two years to take an appeal, and at the same time claim to be personally cited, seems to present some incongruity.

The case of Mr. Livingston, 6 N. S. 15, referred to by plaintiff’s counsel, shows that the appointment of a curator ad hoc might be made to represent a person absent temporarily on public business, when he had' left no agent upon whom process could be served.

In 12 L. page 604, it was laid down that “previous to the promulgation of the Louisiana Code and the Code of Practice, the appointment of a curator ad hoc to an absentee was not authorized by law. But our present Codes seem to have provided for all cases in which absent persons may be interested, or in which rights are to be exercised against them, whether domiciliated in or out of the State. ” This seems to have been the practice heretofore generally adopted.

The ease of Dupuy v. Hunt, in 2d Annual, made no innovation upon this practice. It simply settled that the absentee must have property in 'the State upon which the action of the Courts could fake effect, and that judgments rendered against absentees had no effect beyond the property proceeded against.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts. 14 L. 447. 15 L. 81. 2 An. 634. 6 Rob. 189. 13 An. 505. 18 An. 145.


author: Taliaferro, J.

text:
    No. 1263.
    Ashford Addison, Dative Testamentary Executor, v. Pauline Seltoon et als.
    The doctrine in the- case of Wa-inwright, Administrator, v. Bridges, (auto page 234) reaffirmed.
    A PPEAL from the District Court, Parish of Livingston, Ellis, J.

      Wilson é Pipián, for plaintiff,

      »Ellis c6 Addison, for defendant,
   Taliaferro, J.

This suit is founded upon a promissory note, executed by the defendant, Pauline R. Seltoon, a married woman, as principal, and .Kemp and Carter, the other two defendants, as sureties, in favor of tho testamentary executor of the succession of George W. Watterson, deceased, for thirteen hundred and fifty dollars, due 24fch of November, 1861, aud bearing interest from that time, at the rate of eight per cent, per annum. The defence is, that the note was given for the price of a slave purchased by .Mrs. Seltoon, at a probate sale of property of the succession of George W. Watte.rson, deceased, in November, 1860; that there is an entire failure of consideration for which the obligation was entered into, arising from the emancipation of slaves by the government; that tho •plaintiff, having warranted the slave purchased a slave for life, cannot in equity and good conscience require payment of the note sued upon. It is further set up in defence, that the note was executed by the wife without the authority of her husband, aud is therefore null; and lastly, it is urged that the required United States revenue stamps have not been affixed to the note as prescribed by act of Congress, and that the plaintiff cannot enforce the payment of the note on that account.

The plaintiff had judgment, and.defendant appealed.

The defence must prevail. It was held by this Court, in the case of Wainwright, Administrator, v. Bridges, recently decided, that Courts are without power to enforce obligations, the consideration of which was the price of slaves. In this case it is fully shown, that the note sued upon was given in consideration of a sale of that hind.

. It is therefore ordered, adjudged aud decreed, that the judgment of the District Court be annulled, avoided and reversed; -it is further ordered, that judgment be rendered in favor of the defendants, releasing them from the obligation sued upon, the plaintiff and appellee paying costs in both courts.

Justices Labauve and Ilsley dissenting.

For the reasons given in our dissenting opinion, in the case of Wainwright, Administrator, v. Bridges, we dissent in this case.

John H. Ilsley, Associate Justice of the Supreme Court.

Zbnok Labauve, Associate Justice.


author: Tamaeeebo, J.

text:
    No. 39½.
    N. E. Wright v. R. C. Cummings et als.
    A purchaser ab probabe sale is nob required to look beyond the decree recognizing ibs necessity.
    Article 990 of the Code of Practice, does nob imperatively require the preliminary offering of suceession property for sa'e for cash; it may be offered at first sale on credit, when it appears to be to the interest of ail parties concerned, and none except those having an interest in the sale of the property can complain.
    The recording of a proces-verbal of sale, in the parish where the property lie*, is notice to third par-tie*. The omission to record it in the parish, where the succession is opened, will not operate a nullity of the sale.
    A PPÉAL from the District Court, Parish of Caddo, Jones, J.

      James W. Duncan, for appellant.

      L. M, Nutt and J, G. Beall, for appellees.

      Reporter.■—The appeal in this case was made returnable to the Supreme Court, at Natchitoches, at the August term, 1866. By the following agree* ment of counsel, the case was taken to New Orleans and decided.
    N. E. WRIGHT, v. R. O. CUMMINGS et ais.
    ) >- In the Supreme Court of Louisiana. j
    The above-entitled case having been submitted on brief, it is hereby agreed that the same may be decided either at the approaching session of this Honorable Court, to be held at Opelousas or in New Orleans, at Chambers, as the Judges may deem fit, reserving to either party the right to apply for a rehearing at any time within thirty days after he shall have ascertained the rendition of the judgment, or notice given by the cleric of the Supreme or District Court.
    Jas. W. Duncan,
    Attorney for Appellant, Caddo Parish.
    Nutt & Leonard, for defendants and appellees.
   Tamaeeebo, J.

The plaintiff sues for a tract of land lying in the parish of Bossier. His averments of title are 1st: A deed from Ann Schéniick, widow of Abner Schenick, deceased, and surviving mother of the only child of tlieir marriage. 2d. United States patents to Abner Schenick.

The defendants claim, by purchase from J. B. Gilmor, who bought the land at a probate sale of the property of Abner Schenick’s estate. In the lower Court judgment was rendered in favor of the defendants, and the plaintiff has appealed.

This suit was commenced in 1860, in the parish of Bossier, and after some proceedings had there, it was by agreement of parties transferred to the parish of Caddo.

Abner Schenick’s succession was opened in the parish of Caddo, in the year 1844. An administrator was regularly appointed in September of that year, and inventories were taken in the parishes of Bossier and Caddo.

The administrator caused all the property of the succession to be sold, and filed a tableau of debts on the 21st of October, 1846.

The plaintiff attacks the probate proceedings throughout, and alleges numerous illegalities in the administration of the estate. In an amended petition, he avers that Schenick’s succession was opened in the parish of Bossier, and avers the nullity of the administration in Caddo. He has adduced no evidence to support the allegations of the amended answer, and seems to have abandoned them.

It will not be necessary to examine objections taken to the proceedings prior to the date of the order of sale. A purchaser at a probate salé .is not required to look beyond the decree recognizing its necessity. 13 L. 434. 14 L. 146. 7 Rob 66. 2 An 468.

We find that the administrator filed a petition in the proper CoTirt, setting forth that there was land belonging to the estate, in the parish of Bossier, which had been previously inventoried; that it was necessary to splj the foüd> in order to enable him to pay the debts of the succession, and he prayed an order of sale of the land to be made on a credit of twelve months, the purchaser to be required to give the usual security for the payment of the price. An order was rendered on the 9th of November, 1844, as prayed for. The tableau of debts filed in October, 1846; shows clearly that the estate was insolvent, and that the necessity for the sale of the land did exist at the time, the sale was invoked. The plaintiff alleges that no commission issued from the parish of Caddo, authorizing the sale of the land in Bossier ; that the land was sold under an order of the Court of probates of the parish of Bossier, which had not jurisdiction.; that no return of a proces-verbal of sale was made to the parish of Caddo. The proces-verbal of a sale by the probate Judge of Bossier commences with the usual caption, “ State of Louisiana, parish of Bossier, ” and recites that sale was made of the land pursuant to an order and decree of the Court of probates in and for said parish.

A scrutiny of the record of the proceedings satisfies us that this was a mere clerical error. It is clear that the succession was opened in Caddo, although, unadvisedly, no doubt some incipient proceedings were had, as already remarked, in Bossier, yet by consent they were transferred to Caddo, and this was done before an administration had been taken out. The plaintiff appears to have erroneously instituted this suit in Bossier,"liis petition and amended petition being addressed to the probate Court of Bossier, and this is all that was done there in this case, except the taking of the inventory and the making of the sale. The entire proceedings, 'with these exceptions, were carried on in the parish of Caddo. The proces-verbal of the taking of the inventory in Bossier, on the 23d October, 1844, recites that it was made under an order from the parish of Caddo.

It is not shown that any petition for an order of sale of the land in question was ever presented to the probate Court of Bossier, nor that an order of that Court was ever rendered for such sale. Doubtless, no such petition was ever presented or such order granted. We find in the bill of costs of the clerk of the parish of Caddo against the estate, charges for two commissions. Against the date of September 3d, 1844, is the item “commission to Bossier.” This is evidently the commission for making inventory and appraisement of the land in Bossier. The proces-verbal of the making inventory there is dated October 23d, 1844. Afterwards, against the date of 20th October, same year, is the item “Commission to Bossier,” and the proces-verbal of sale is dated 3d January, 1845. These are the only charges in the bill of fees for commissions, and it is manifest that none others were ever issued. The intervals of time that elapsed between the date of the orders and their execution, taken with the other facts, render the.conclusion satisfactory, that the recita], in the deed referred to, was a clerical error, and one that might easily be made.

The objection that the order of sale directed the land to be sold on a credit of twelve months, without requiring it to be first offered for cash, we consider to be of no weight. Creditors have the right to require the Sale of succession property to be made for cash, if their debts are due, provided it bring its appraised value. Code of Practice, 990. But this is optional with them. But here, creditors are not complaining ; neither’ is it shown that any injury has resulted from the administrator’s having taken his o.rder for a sale on twelve months' credit, without-asking for the preliminary act of offering the property for sale for cash. The presumption is rather in favor of his having done an act beneficial rather than injurious to all parties concerned. We do not construe Article 990 of the Code of Practice, as requiring imperatively in all cases, the .preliminary offering for sale the property of estates for cash.

Another ground of illegality alleged by plaintiff is, that no proces-verbal of the sale of the land was returned to and recorded in the parish of Caddo. Th& proces-verbal of the sale was of record in the parish of Bossier, where the land lies, in the year 1852, as shown by a certificate of the deputy clerk of that parish, dated 28 th April, 1852. This was some eight years before the plaintiff purchased, and at least it was notice to him. The omission, if it were omitted, to record the proces-verbal of sale in Caddo was not one of so grave a character as to operate a nullity*of the sale. On the trial of this case, in the early part of 1862, it was taken down as an admission that plaintiff had been for three or four years previous, clerk of the parish of Caddo, and had charge of the papers-of Schenick-’s . estate.

The debts of the succession of Abner Schenick were community debts,- and the property was community property, and bound for the payment of the community debts. The plaintiff’s vendor was the widow in commu1 nity, and her rights as well as those of the heir were only residuary. It is shown that Hart, the administrator, who was a principal creditor of the-estate, was solicited by the widow to take upon himself the administration. He appears to have discharged the trust with fidelity.

The title of the estate, to the land in question was, in our view, legally • divested by the probate sale made in January, 1815 ; consequently, in 1860, at the time the plaintiff received the deed from Ann Schenick, she had no right in the land to convey.

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