author: Spofpord, J.

text:
    Henry Johnson v. Robert R. Barrow.
    A conditional endorsement does not bind the endorser if the condition be not accomplished.
    Appeal from the District Court of Terrebonne, Gole, J.

      Beatty & Bush, for plaintiff and appellant.

      Goode S Laycoclo, for defendant.
   Spofpord, J.

This suit is brought against the endorser of a promissory note of the following tenor:

“Donaldsonvilke, 80th Oct., 1851.
“ One year after date, I promise to pay to the order of Rdbei't R. Barrow the sum of five hundred dollars, for value received, payable at the office of the Recorder, Donaldsonville.
(Signed) John Hutson."

The endorsement is in these words:

“Houma, Parish op Terrebonne.
“ I endorse the within note for the benefit of Mrs. Hutson in the purchase of a tract of land from Gov. H. Johnson.
(Signed) R. R. Barrow.”

The defendant pleaded that this restrictive endorsement does not bind him, inasmuch as the special object for which it was given was never consummated, Mrs. Hutson not having purchased a tract of land from the plaintiff Johnson.

There was judgment in the defendant’s favor, and the plaintiff has appealed.

It is needless to recapitulate any other facts than that Mrs. Hutson did not buy a tract of land from Henry Johnson, nor contract to do so in any manner which could bind her.

The condition with which the defendant clogged his endorsement of the note never having been accomplished, the plaintiff has no action against him.

The judgment is, therefore, affirmed with costs.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Robert R. Barrow v. Valery Landry.
    Where a part of the testimony taken in the lower court has been lost, the case will be remanded for a new trial.
    Appeal from the Fourth District Court for the Parish of Ascension, Ratliff, J.

      J. H Ilsley, for plaintiff.

      O. A. Johnson, for defendant.
   Merrick, O. J.

Since the appeal was.taken in this case, a material portion of the evidence has been lost, as appears by the certificate of the Clerk and his return to the writ of eertiorari.

Under the authority of the cases of Ennis v. Murphy, 11 Rob. 477; Agricultural Bank v. Alexander, 1 An., 246, and Lyons v. Andrews, 5 An., 602, the cause must be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed and that this cause be remanded for a new trial, and that the costs of the appeal abide the event of the final decree.


author: Voorhies, J.

text:
    City of New Orleans v. Ship Windermere, Captain Wilson and Owners.
    The duties which the law imposes on common carriers of passengers by water, in relation to the treatment and accommodation of passengers during the voyage, necessarily cease on the termination of the voyage. If, during the voyage, a contagious disease breaks out on the vessel, and on her arrival at port the city authorities find it necessary, in order to prevent the spreading of the infection, to have her sick passengers sent to the hospital to be treated, the owners of the vessel cannot be made liable for the expenses incured thereby.
    "When the consignees of the ship have paid the contribution imposed by the Statute as hospital money, and the act of introducing the passengers is not in violation of any prohibitory law, an action for damages arising from a quasi offence will not lie.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. Livingston, for plaintiff and appellant.

      Dwtmt & Horner, for defendants.
   Voorhies, J.

This is an action for the recovery of $525, alleged to have been disbursed by the plaintiff for the medical treatment of nineteen small pox patients, landed by the ship Windermere at New Orleans in April, 1854, and conveyed to Luzenburgh’s hospital, in order to prevent the spreading of the infection. The disbursement, it is alleged, was “for and on account of the master and owners of the ship,” without any obligation on the part of the plaintiff to make the same; but which was done on account of the destitute condition of said passengers ; and that the defendants, having no right to bring to this port and land passengers thus afflicted with a contagious disease, became liable to pay all the expenses incurred thereby.

The defendants pleaded the general issue. Judgment was rendered in their favor and the plaintiff appealed.

The record shows that on the voyage of the Windermere from Liverpool to New Orleans, with nearly five hundred passengers on board, and when off the island of Cuba, the small pox broke out and attacked indiscriminately the passengers and the crew ; that no disease of any kind had appeared until then on the ship ; that the crew all recovered; and that some of the passengers were still sick when the ship reached New Orleans, and were cared for by the city authorities. It is also in proof that the hospital money, or contribution of $2 per head under the Statute, was paid by the consignees of the ship.

The law imposes certain duties on the common carrier of passengers by water in relation to the treatment, accommodation, &&, of the passengers during the voyage. At the end of the voyage, such duties must necessarily cease. We are not aware of any legal obligation on the part of the common carrier to provide for the necessities of the passengers, however destitute may be their condition on the arrival of the vessel. Angelí on the Law of Carriers, §010 et seq. The claim against the defendants does not appear to us to be even founded in good conscience, for they have been compelled to pay a tax or contribution for the support of the hospital. We, therefore, consider the facts of this case insufficient to constitute a quasi contract between the litigants; O. C. 2272 et seq. ; 13 Duranton, § 637. But it is insisted that the defendants are liable to the plaintiffs for damages arising from a quasi offence. Articles 1753, 2294, 2295 and 2296 of the Civil Code are relied upon by the plaintiff to maintain the action. It is not pretended or shown that the act of which the plaintiff complains was in violation of any prohibitory law or municipal ordinance. Whether the disease originated from the cause attributed to the owners of the ship, or not, it appears to us immaterial, for it cannot afford any legal ground of action in favor of the plaintiff. It suffices us to say that the Acts of Congress, approved March 2d, 1819, and February 22d, 1847, afford abundant protection to unwary emigrants from the fraud and cupidity of unprincipled ship owners.

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


author: Lea, J.

text:
    R. W. McRae v. Purvis, Gladden & Co.
    The plaintiff in an action is not bound to set forth, and at the same time accompany by a specific denial, matters of defence which the defendant may urge in his own behalf.
    An injunction will not be maintained in arrest of an execution on grounds that might have been ' pleaded in defence before judgment.
    A PPEAL from the Ninth District Court for the Parish of Pointe Coupee, Cooley J.

      W. JX. Cooley, for plaintiff.

      A. Provosty, for defendants.
   Lea, J.

The defendants obtained a judgment against the plaintiff for $4799 05, with interest thereon, upon his endorsement of a protested draft of which they were the holders and owners. This judgment was rendered after due citation to the plaintiff, served personally, and after all the delays and formalities of the law had been complied with, Notice of judgment having been duly served, a writ of fieri facias was issued, by virtue ofwhich the plantation and slaves of the plaintiff in this suit were seized.

This suit is brought for the purpose of annulling the judgment referred to on the following grounds, viz:

That said judgment was obtained by fraud on the part of said Pwvis, Gladden & Co. in concealing and denying a credit on said draft for the sum of $2240 21, to which he was entitled, and which the said Pwvis, Gladden & Co. well knew to have been paid on said draft, that it was impossible for plaintiff to prove this payment for the reason that it had been paid by the drawer of the draft, a fact which was unknown to plaintiff until a longtime after it was so made. That as soon as the suit of Pwvis, Gladden & Co. was instituted, and he perceived that no credit was given on said draft for said payment, he immediately employed counsel to defend said suit, and plead said sum in diminution of said claim; but that although he knew that said note was entitled to a credit he was ignorant of the precise sum, and that although he used all reasonable and legal diligence to ascertain the amount yet he was unable to do so until after judgment had been rendered in the case.

The petitioner further avers that in consequence of the prevalence of the yellow fever in the parish of Pointe Coupee he was compelled to leave the State, and that the defendants took advantage of his known absence to procure the confirmation of a judgment by default, well knowing that the plaintiff was not in the parish to swear to the facts necessary to obtain the legal delay. That not knowing the exact amount of the credit to which he was entitled he could not plead it as a defence to the action against him — wherefore he prays that the judgment rendered against him be declared null and void, that he be decreed to be entitled to a credit of $2243 21, on the note; and further, that he recover $5000 damages against the defendants for obtaining the judgment by fraud as aforesaid. He further asks that the execution issued upon the judgment be enjoined, and that the injunction be made perpetual.

It is evident, from a mere statement of the case, that by the plaintiff’s own showing, ho has no offset whatever to set up against the greater part of the judgment, which.“he seeks to annul, and against the execution, of which he has obtained an injunction; and, as respects that portion against which he pretends to have an offset, it is evident that he resorted to no such measures of defence as can be deemed in law the exercise of a proper diligence. Though cited personally, and with a full knowledge of the matters of defence now urged in.support of the injunction, he allowed a judgment by default to be confirmed and made final without filing an answer, or interposing any other plea or suggesting any right of offset. No application was made for further time to file an answer, nor was any affidavit made for a continuance, nor was any suggestion made, whether supported by affidavit or otherwise, of an inability to make a proper defence. It appears to us that to annul a judgment so rendered upon grounds existing and known to have existed before the rendition of the judgment would be offering a premium to neglect. The GO^th Article of the Code of Practice has no application to such a case. The judgment was obtained fairly and upon proper evidence, and not through frand or mal-practices. The defendants were not bound to set forth, and at the same time accompany by a special denial matters of defence which the plaintiff in the injunction neglected to urge on his own behalf. An injunction will not be maintained in arrest of an execution, on grounds that might have been pleaded in defence before judgment. 3 Ann. Rep., 209; 1 Ann. 284; 8 Ann. 101; 6 Ann. 800. We think, therefore, that the exception taken by the defendants should have been maintained, and the injunction dissolved with damages. This view of the case makes it unnecessary to examine the questions of fact put at issue by the answer on the merits.

It is ordered that the judgment appealed from be reversed; that the prayer of the plaintiff’s petition be rejected; that the injunction issued herein be dissolved and set aside; that the defendants recover of the plaintiff three per cent, additional interest upon the amount of the judgment enjoined, from the date of the order of injunction, viz: March 19th, 1856, until the day of its dissolution, together with $200 special damages, and that the costs of suit in both courts be paid by the plaintiff and appellee — reserving, however, to the plaintiff his right to sue for and recover from the defendants, in a separate suit, any sum of money to which he is entitled in consequence of any obligation on the part of said defendants growing out of the alleged facts in the petition set forth.


author: Merrick, C. J.

text:
    City of New Orleans v. J. L. Imley.
    Where an appeal is taken from an interlocutory order and it neither appears that the matter in dispute exceeds $800, nor is alleged that the order appealed from -will work an irreparable injury, the court will ex officio dismiss the appeal, although the appellee has not moved for the dismissal.
    Appeal from the Second District Court of New Orleans, Morgan, J.
    F. O. La/oUle and O. Morell, for plaintiff.

      J. Van Balsón, for defendant and appellant.
   Merrick, C. J.

Although no motion has been filed to dismiss the appeal in this case, and the counsel for the appellee cannot he heard on this question, we think the appeal should he dismissed em officio.

The suit was commenced by a writ of provisional seizure under section 103 of the Act of 1856, relative to the city of New Orleans. The defendant having taken a rule upon the plaintiff to show cause why the writ of provisional seizure should not be set aside, has appealed from the order refusing to set aside the writ. There is nothing to show that the property seized is worth $300, and the defendant has not even alleged that the order refusing to set aside the repeal will work him irreparable injury. It will he time to consider the interlocutory orders when the cause shall come regularly before us on appeal from a decree on the merits, should such decree be adverse to the defendant. See case of Plique v. Bellome, 2 Ann. 293.

It is, therefore, ordered that the appeal in this case he dismissed, without prejudice to the rights of the appellant on any subsequent appeal from any decree on the merits. And, it is further ordered that the appellant pay the costs of the appeal.


text:
    Peter Klein v. Frederick Wild.
    It is the amount due at the institution of the suit which constitutes the matter in dispute, and determines the right to- appeal as affected by the amount involved.
    Appeal from the First District Court of New Orleans, Bolertsori, J.

      J. J. Michel, for plaintiff.

      Bwamt & Somov, for defendant.
   Voorhies, J.

The pluries writ oí fieri facias issued on the judgment in this case was set aside on a rule taken by the defendant.

The plaintiff is appellant from the judgment thereon rendered.

The defendant and appellee claims the dismissal of the appeal on two grounds, one of which is, that the matter in dispute is not within our jurisdiction.

The writ calls for the sum of $183 17, as the debt, with legal interest thereon from the 5th of May, 1850, until paid, and $32 20, as costs, making in the aggregate a sum less than $300. But it is insisted that the additional costs, since accrued, are sufficient to increase the sum, which forms the subject matter in controversy, to an amount exceeding three hundred dollars.

To determine the question of jurisdiction, it appears to us that the proper test is to ascertain whether an appeal lies from the judgment sought to be carried into execution. We think it is clear, under the well settled rule, that an appeal would not lie in the present case. It is the amount due at the institution ofthe suit which constitutes the matter in dispute. See Mason v. Oglesby 2 An. 793. Having no power to revise the judgment of the inferior court on appeal, we certainly have none with matters merely incidental to its execution, which are properly confined to that tribunal.

It is, therefore, ordered that the appeal be dismissed at the appellant’s costs.


author: Spoefokd, J.

text:
    John P. Todd v. Paton & Co.
    Where no ground is laid for an action of nullity, an injunction is allowable only for a payment alleged to have been made after judgment rendered.
    Where a judgment, the execution of which lias been enjoined, bears interest, such additional interest only can be allowed, under the Acts of 1881 and 1833, on dissolving the injunction, as will make the rate allowed equal to the highest conventional interest. Whatever else is allowed can only be in the shape of damages, and the interest is to be allowed only upon the principal of the debt enjoined.
    Appeal from the Sixth District Court of New Orleans, Cotton, J.

      T. A. Ba/rtlette, for plaintiff and appellant

      JDurcmt & Hornor, for defendants.
   Spoefokd, J.

The plaintiff has enjoined and seeks to annul a judgment obtained against him by the defendants.

The injunction was dissolved with damages, upon exceptions taken to his petition.

There is no ground laid for an action of nullity. The plaintiff does not allege that he has found the receipt to which he alludes. C. P. 607.

The allegation as to moneys made upon the original claim in Pennsylvania, is vague, insufficient, and predicated upon hearsay.

The injunction is an attempt to revive a controversy which was settled in the former action. Such a course is inadmissible, for litigation must have an end. This was a proper case for the infliction of the highest damages, as it is only for a payment alleged to have been made after judgment rendered, that an injunction is allowable. Acts 1855, p. 324, sec. 3.

The judgment enjoined bore interest at the rate of six per cent. The interest allowed upon the dissolution of the injunction, therefore, should only have been two per cent, instead of five per cent., as allowed by the District Judge. Where a judgment, the execution of which has been enjoined, bears interest, such additional interest only can be allowed, under the Acts of 1831 and 1833, on dissolving the injunction, as will make the rate allowed equal to the highest conventional interest. Whatever else it may be proper to allow, must be in the form of damages. See Maxwell v. Mallard, & Armistead, 5 Ann. 702; Act March 14th, 1855, sec. 7, (Sess. Acts, p. 325.) And the interest is to be allowed only upon the principal of the debt enjoined, not upon the aggregate of principal, interest and costs. Lizardi v. Hardaway, 8 Rob. 20.

It is, therefore, ordered that the judgment of the District Court be amended, by reducing the interest allowed on the dissolution of the injunction from five per cent, upon the total amount enjoined, to two por cent, upon the sum of $1,147 16, and that in all other respects the said judgment be affirmed; the costs of appeal to be borne by the defendants and appellees.


text:
    Andrew Stewart v. His Creditors.
    The receljjt by a husband residing abroad, of money belonging to his wife, does not entitle the wife to a legal mortgage on property acquired by the husband in this State after their subsequent removal to it.
    Appeal from the Sixth District Court of New Orleans, Ootton, J.

      G. & O. E. Schmidt, for Mrs. Stewart, appellant.

      3. R. Dennis, for Syndic, appellee.
   Lea, J.

Andrew Stewm't, an insolvent debtor, made a surrender of his property for the benefit of his creditors. Portions of the property surrendered consisted of real estate situated in the parishes of Orleans and Jefferson, which had been specially mortgaged to different creditors.

In these conventional mortgages Mrs. Stewart, the wife of the insolvent, had intervened, and made the usual renunciation of the legal mortgage in favor of married women for the reimbursement of their dotal and paraphernal effects. The Syndic, in due course of administration, sold the property surrendered, and the litigation now before us arises out of the contest for the distribution of the proceeds. Mrs. Stewart is appellant from a judgment rejecting her claim to be paid in preference to the creditors by special mortgage.

The appellant avers that she was married to Stewart in Alabama in 1845; that her husband then-resided at Tampico, in the Republic of Mexico, to which place she went with her husband immediately after her marriage, and where she continued to reside until their removal to this State; that her father died in 1849, leaving a will, by which he instituted her sole heiress of his estate, which was composed of real and personal property, amounting in value to $25,000, all which was received by her husband between the years 1849 and 1854, for the restitution of which she avers that she has by law a legal mortgage, not only by the laws of this State but by the laws of Mexico, which was the place of the intended matrimonial domicil at the time of her marriage.

She further avers that the pretended renunciations in favor of the creditors by special mortgage, if any such exist, were informal and illegal, never having-been read or explained to her before obtaining her signature, or before the failure of her husband.

We think it is established 'by the evidence that the appellant was married in Alabama, in 1845, to Andrew Stewart, who then resided in Tampico, to which place she and her husband repaired immediately after the marriage; that the father of the appellant died in 1849, leaving to her his whole estate, with the exception of certain specified legacies; that in the same year Stewm't, acting as administrator, sold the whole of the property, real and personal, for the sum of $8802, of which he rendered an account at the time. Subsequently, on the 14th April, 1851, he rendered another account, showing a balance of $5063 25 in favor of his wife. These proceedings were all conducted in Alabama, where the estate of the father was opened.

It does not appear from the evidence when Stewm't and his wife removed to this State, but -we think it is satisfactorily shown that Stewart did not receive any portion of the proceeds of the estate of Randall after he removed to this State. Under this state of facts we think but one question is presented for our solution, viz: Does the receipt by a husband residing abroad, of money belonging to his wife, entitle her to a legal mortgage on property acquired by him after a subsequent removal to this State ? If this question is to be answered in the negative, it is unnecessary to inquire whether the renunciations made by the appellant in favor of the special mortgagees are valid or not.

It is not material to inquire what the laws of Mexico provide with reference to the rights of married women. The laws of a foreign country cannot of themselves confer any rights upon real estate situated in Louisiana. The relations of parties, and the rights incident to those relations, will be recognized and enforced as being of a binding character everywhere, except in cases where their enforcement is disregarded from considerations of public policy or convenience; but remedial or accessory rights conferred merely by the laws of a foreign nation can have no force or vitality within the limits of any other independent sovereignty. The question, therefore, must be examined with reference exclusively to our own legislation on this subject.

The 2367th Article of our Code provides that in cases where it is proved that the husband has received the amount of the paraphernal property alienated by the wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursing of the same.

The mortgage exists independently of any registration, and takes precedence of conventional and judicial mortgages of a subsequent date, even though the latter may be registered. Analogous provisions in the laws of Prance have divided the opinions of their jurists upon the issue presented in this case. Troplong and Merlin concur in the doctrine that a minor or married woman, even though not a resident of Prance, have, for the security of their rights as such, a legal mortgage on the property of their tutors or husbands situated in Prance. See Troplong Priv. et Hyp. vol. 1, p. 247, also Merlin, verbo Remploi.

On the other hand, Duranton and others broadly announce the doctrine that the iaws of Prance are made for the protection of Prench subjects and not for foreigners 19 Duranton, 418.

The first named commentators base their opinion upon the principle that the law which subjects property to a tacit mortgage is a real statute and therefore affects immovable property, without reference to the residence of those who seek to enforce those claims upon it. We certainly do not wish to place our dissent from this opinion, as applicable to property situated in this State, upon a recognition of the narrow and inhospitable doctrine which appears to have contracted the views of the last named commentators. In so doing wo should violate all the precedents of our own jurisprudence. Our laws are not framed exclusively with reference to the rights of our own citizens.

On the contrary, our reports are full of decisions in which the privileges conferred by our laws have been extended to contracts made out of the State, without distinction among creditors, whether dependent upon the place of the origin of the debts or the residence of the creditors. But every law must be construed, not only with reference to the policy which dictated it, but in connection with similar legislation on the same subject In imposing such an incumbrance upon real estate as that which necessarily results from legal and tacit mortgages, the Legislature evidently contemplated the protection of a class of persons who were unable to protect themselves, and whom they were therefore bound to protect. Por this reason they have subjected the rights of their own citizens to incumbrances which, though of doubtful policy, it cannot be supposed were intended to operate in favor of those whom it was no part of their duty to protect.

It is the duty of the State to protect its own widows and orphans and those of its own people who are laboring under legal incapacities. Accordingly, in our Code, we find a system of legal mortgages in favor of married woman, minors, interdicted persons and even absentees, whose property is the subject of administration in this State; but upon what principle of public policy, or even of common justice, could the rights of mortgage creditors in this State be postponed to the claims of an interdicted person residing in France upon the property of his curator situated in this State, for an indebtedness growing out of an administration in that country? And the case would not be altered in principle, even though the curator should subsequently have removed to this State.

In the language of the decision in the case of Pratt v. His Creditors, in 12 Rob., 508: “We cannot adopt a conclusion so injurious to the rights, the interests and the convenience of our citizens, unless it be forced upon us by some stern and unbending provision of law.” But from a review of the various Articles of the Code on the subject of legal mortgages, it appears to us that they point conclusively, not only to the supposed residence in the State of the party whose property is sought to be subjected to their operation, but to the security of a debt originating in the State. Thus provisions are made for the registration of these mortgages, and it is made tlys duty of tutors, curators of interdicted persons, and also of husbands, to make known the existence of such mortgages, by having them recorded — a provision necessarily inapplicable to non-residents.

The whole tenor of our legislation on this subject appears to us to repel the idea that it was in contemplation of the Legislature to extend the operation of our system of legal and tacit mortgages to cases where the debt itself originated out of the State, at a time when the debtor was also a non-resident. See, on this point, the case of Arnold v. McBride, 6 An. 703.

Judgment affirmed.


text:
    Williams, Phillips & Co v. W. M. Benton.
    A witness, called to testify to the existence and contents of a deed, cannot be objected to on the ground that he obtained his information as attorney of the party against whom he is called to testify, if the deed had been intrusted to him after the relation of attorney to the party had ceased.
    The fact that the party against whom evidence is offered of the contents of a deed is in possession of the instrument does not authorize secondary evidence to prove the contents of it, without first giving him an opportunity of producing the original.
    Appeal from the District Court of Carroll, Farrow, J.

      Snyd&r & Montgom&ry, for plaintiff.

      Short S Pcwham, for defendant and appellant.
   Merrick, C. J.

A case between these parties, on the same obligation, was before this court in 1845. A judgment of non-suit was then rendered against the plaintiffs, the court being of the opinion that the action was prematurely brought.

The present is a renewal of that action, and we refer to the case between these parties in 10 An. 158 for a statement of the facts. On the trial of the second case, in order to prove the existence in defendant’s possession, and contents of the transfer from Liles and Garriok, the patentees of the land, Louis Selby was placed as a witness upon the stand by the plaintiffs. His testimony was objected to, on the ground that no notice had been given the defendant to produce the document, as required by Article 140 of the Code of Practice, and moreover, that the witness, having obtained his information as an attorney at law, could not be permitted to disclose the same.

From the imperfect manner in which the testimony of the witness was taken down, it is not certain but the instrument was again intrusted to the witness after his relation of attorney to the parties had ceased. If so, the knowledge he then acquired is competent testimony. Greenleaf, § 244.

On the other point, we see no reason to except this case from the general rules of evidence. In order to recover, it was necessary to show that the title of Liles and Oa/rriclc had either been transferred or enured to the benefit of Wilson, or the title which he had conveyed the defendant.

The fact that the defendant himself was in possession of the proof did not justify the resort to secondary evidence, without giving him an opportunity of producing the original. The reason of the rule is, that possibly the instrument, when produced, will be less favorable to the plaintiff than the parol proof which they may obtain.

The secondary evidence of ,the witness ought to have been excluded, unless the plaintiffs had been unable to obtain the original, after having availed themselves of the means of procuring it prescribed, by the Code of Practice.

As it is probable that the plaintiffs may be able to establish their demand on a new trial, we will award it.

We cannot forbear to remark that the record' in this case, as is too often the. case, is made out in a negligent and careless manner, which makes it difficult to examine. The rights of parties depend upon the care of the Clerk in taking down the testimony and in making up the transcript of appeal in a legible and orderly manner, and there is no obvious excuse for a record made out as this has been.

It is ordered, adjudged and decreed by the court,, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, there to be proceeded in according to law, and the views herein expressed; the plaintiffs to pay the costs of the appeal.


author: Spofeoed, J.

text:
    City of New Orleans v. L. A. Pellerin.
    Where property is offered for sale by the Sheriff under a writ of fi. fa., on a credit, and the person to whom it is adjudicated does not offer such sureties as the Sheriff is willing to accept, nor take any proceedings against the Sheriff to force him to accept the sureties offered, the adjudication does not of itself confer a title. The regular course for the Sheriff in such a case is to offer the property again for sale immediately under the same writ, but if it is afterwards regularly sold by the Sheriff under the seizure of another creditor, the purchaser acquires a valid title.
    Appeal from the Fifth District Court of New Orleans, Augustin, J.

      G. & G. E. Selvmidt, for plaintiff in rule and appellant.

      M. if. Oohen, for appellees.
   Spofeoed, J.

On the 19th of January, 1856, the Sheriff' of the parish of Orleans, acting under a writ of fl. fa., issued in the above entitled case, adjudicated certain real estate to Henry Pellerin, for the sum of $17,500, for which the purchaser was to give his twelve months’ bond, with good security. But the purchaser was not put in possession. The back taxes were not paid by him, nor was the only security offered by him accepted by the Sheriff. The writ was returned on the 19th of March, 1856, with a statement that this sale was not complied with.

On the 22d of March, 1856, the same property, having meanwhile continued in the Sheriff’s possession under various seizures, was adjudicated, with another lot, to J. A. Barelli, for 17,000 cash, he having caused it to be seized and regularly advertised under an order of seizure and sale issued in his favor upon an act importing confession of judgment and containing the pact de non alienando,

Henry Pellee'in has taken a rule on the Sheriff to show cause why he should not make him a deed of sale in conformity with the adjudication of the 19th of January. The rule was filed on the 3d of May.

The rule was properly dismissed under the evidence. The purchaser has never complied with his duty by offering good security. He took no rule on the Sheriff to show cause why the security he did offer should not be accepted. The testimony in this proceeding satisfied us, as it did the District Judge, that the Sheriff acted discreetly in declining to accept the only persons tendered as security by the bidder.

The regular course for the Sheriff to have taken, would have been to offer the property again for sale immediately under the same writ.

“If the person to whom the property has been adjudged shall refuse to pay the Sheriff the price of the adjudication, or to offer the proper sweties when the sale has been made on credit, the Sheriff shall expose to sale anew the thing seized and adjudge it to another person.” C. P. 689. Lafon v. Smith, 3 La. 475.

But the neglect of the Sheriff to proceed to an immediate resale of the property under the same writ, cannot bo complained of by the purchaser, who has never complied with his bid by a tender of such security as the law exacts. If he could demand a deed under these circumstances, he would get property without paying the price. It is now too late for him to offer any new security, which, however, he does not appear to have offered. He rests his case upon the assumption that the adjudication made him absolute owner of the property. Meanwhile, he having no deed, the property has been sold under a judgment against the recorded owner to Bamelli, who has been notified of this rule, and who is in possession under a title valid upon its face, and unassisted by any direct proceedings.

The original owner, and the judgment creditor under whose execution the adjudication was made to Henry Pellerin, are no parties to this proceeding. The plaintiff in the rule, being a mere bidder who failed to comply with his bid, is without interest to attack the title of Bwelli, or the proceedings under which he acquired the title.

Judgment affirmed.


author: Spofford, J.

text:
    John P. Mason, Executor, v. W. E. Hall, Executor, and Williams, Sheriff.
    The principles settled in the case of the same plaintiff against K B. Fuller ^ ante p. 68, as to the power of Clerks of Court in the country to grant orders of sale, are affirmed.
    APPEAL from the District Court of Tensas, Snyder, J.

      Thomas P. Farrar, for plaintiff and appellant.

      Staey & Sparrow, for defendants.
   Spofford, J.

This case resembles in many of its features that of the same plaintiff against Ezn'u B. Full&r and George W. Williams, Sheriff, just decided.

The injunction, however, in that case was dissolved upon an exception taken to the bond, and in this, upon an answer to the merits.

But we find the order here enjoined to be even more distinctly an order of seizure and sale improperly issued by the Clerk, than that granted in the former case.

The order here is as follows : “ Having read and examined the within petition and the note annexed, and the document therein referred to, the said note having been duly acknowledged by John P. Mason, testamentary executor of Rodney G. King, deceased, it is ordered that said note for $7,000, with eight per cent, interest thereon till paid, since the 4-th day of January, 1854, be and the same is hereby ranked as a just claim against the succession of the said Rodney G. King ; and, it is further ordered that the tract of land described in the foregoing petition, together with the buildings and improvements, farming utensils and ungathered crops, be sold according to law, for cash, to satisfy said debt and the cost of this proceeding.”

(Signed)

“Julius Aroni, Clerk.”

Eor the reasons given in the case of the same plaintiff against Full&r, it was not competent for the Clerk of the District Court of Tensas to render such a judgment as this. That it is a judgment, we have the concurring opinions of the district Judge who dissolved the present injunction “ with ten per cent, damages on the amount enjoined, viz, seven thousand dollars,” and of the counsel for the defendants and appellees who, in this court, have prayed us to amend the judgment appealed from by awarding “ twenty per cent, damages on $7,000, the amount enjoined.”

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that the injunction sued out herein be reinstated and made perpetual; the plaintiff to recover costs in both courts.


author: Vooriiies, J.

text:
    Succession of Andreas Anderson.
    The functions of an executor are at an end when a judgment has been rendered on his final account and no appeal is taken from it.
    When the final account of the executors had been opposed by the residuary legatees and the production of their bank book demanded, the judgment rendered on such opposition being unappealed from, is res judicata^ and may be pleaded as a bar to a subsequent claim against them for 20 per cent, per annum interest, as the penalty under the statute for failing to deposit the money of the estate in bank.
    Interest cannot be claimed distinctly from the principal; the law makes no distinction between interest claimed as damages and interest as in other cases; the interest should have been claimed on the trial of the opposition.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. & G. B. Schmidt, for the legatees, appellants.
    Whitalcer, for executors.
   Vooriiies, J.

Ambrose lamfear, as agent of the residuary legatees of the late Andreas And&rson, is appellant from a judgment discharging a rule taken by him, on the 24th of April, 1866, on the testamentary executors, to hold them liable for the payment of interest at the rate of 20 per cent, per annum on all the sums collected by them for the succession and which they had failed to deposit in bank.

The plea of res judicata, one of the grounds relied on by the executors, is, in our judgment, a conclusive bar to the appellants’ right of action.

In May, 1855, the residuary legatees were recognized as such under a judgment of the court below, and ordered to he put in possession of the succession in due course of administration. On the 10th of November following, a final account was filed by the executors and opposed on several grounds by the agent, who also required their bank book duly liquidated to be exhibited, so as to ascertain if they had complied with the requirements of the law, and if not, to pay the penalty imposed for such neglect. There was evidence taken upon this point. The account thus rendered was, after having been modified in some respects as prayed for, duly homologated on the 19th of January, 1856, by a judgment of the court below, in which it was also ordered that Lanfewi' should be put in possession of the property and rights of the residuary legatees in the estate. No appeal appears to have been taken from this judgment. We must presume that the agent has been put in possession of the property thus adjudicated in favor of his principals. The functions of the executors were therefore at an end; and the right to enforce the penalty under the statute for a failure to make such deposit, even had it existed, also ceased.

In the Succession of Mann, 4 An., 28, it was settled that interest could not be recovered distinctly from the principal, the law making no distinction between interest claimed as damages, as in the present case, and interest as in other cases. For interest ex mora is in all cases a measure of damages. It is, therefore, clear that the appellant is not entitled to a recovery on the rule; that he should have insisted on the right of his principals to interest on the trial of his opposition to the account. The facts inthe>-Succession of Pasgmer, 11 An., 279, on which the appellant also relies, are materially different from those in the present case. The rule in that case was not cumulated with the provisional account which was passed upon; consequently, the plea of res judicata could not avail the party who, besides, continued in office.

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


text:
    Leopold Bujac, Agent, v. Pierre Loste et al.
    The administrator of a succession, as respects debts due to himself by the deceased, is upon the same footing as the other creditors.
    The homologation of the account and tableau of distribution must be held conclusive upon the heirs of the deceased as well as upon all other persons.
    Apeal from the Second District Court of New Orleans, Morgan, J.

      J. J. Michel, for plaintiff.

      P. S. Biron, for defendants.
   Merrick, C. J.

This case presents two questions for our consideration, viz:

1st. Whether the homologation (after the usual notices) of an administrator’s account and tableau of distribution wherein he has placed himself as a creditor of the deceased, is binding upon the absent heirs in the absence of citation to the attorney of the absent heirs or the heirs themselves ?

2d. Whether the administrator is bound to cause the houses belonging to the succession to bo insured ?

I. We see no reason to exclude the administrator from the benefit of Articles 1057 and 1172 of the Civil Code, as it respects debts due him by the deceased. He is so far as such debts are concerned a creditor. Now, as the law accords to the creditor the right to administer, in preference to certain other persons, it is not to be supposed that it was intended by the law-giver to place him, as it respects his claims against the deceased, in a worse condition than other persons. 1039, 1114.

We think that the homologation of the account and tableau of distribution must be held conclusive upon the heirs as well as upon all others. The authorities cited áre, as we conceive, in no manner in conflict with the view here taken.

II. On the second point, we are not prepared to assert that there may not arise cases in which it would be the duty of the administrator to insure portions of the property of a succession.

The property destroyed by fire (the ground of complaint in this case) was a dwelling house at that time in the city of Lafayette, in the parish of Jefferson. It was a rough building, made of plank from fiatboats, and not worth more than three hundred dollars. It is not shown that the building was in an exposed situation, or if exposed, that it was customary to insure in that neighborhood, and that the insurance could have been obtained at a reasonable rate. We do not think sufficient cause has been shown to throw the loss upon the administrator.

As the lower court decided the case in conformity with our views on these questions, the judgment appealed from must be affirmed.

Judgment affirmed.


author: Merrick, O. J. Spofford, J.,

text:
    Succession of Ann Waters, Widow Zacharie.
    The heir who has permitted thirty years to elapse without having done any act showing an intention to accept the succession is barred by prescription from any rights as heir. O. 0.1028.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. W. Duncan and G. B. Singleton, for opponent and appellant.

      George Bustis, for appellee.
   Merrick, O. J.

Article 1023 of. the Civil Code is in those words: “The faculty of accepting or renouncing an inheritance becomes barred by the lapse of time required for the longest prescription of the rights to real estate.” The French text of the Article and Article 789 of the Napoleon Code are identical.

The French commentators are much divided as to the meaning of the Article, so much so that Marcadé, after examining the opinions of Delaporte, Malville, Vazeille, Duranton and Malpel, says that of the other authors who have taken part in the controversy, their systems may be reduced to three. He however adds his own, making a fourth. The interpretation of the article in question is forced upon us by the issues in this case, and we thus perceive at the outset that the French authorities with so much discord among them can furnish but little assistance in the present inquiry.

Did the Article read simply, the faculty of accepting an inheritance becomes barred by the lapse of time required for the longest prescription of the rights to real estate, it would present no difficulty, and we could have no hesitation in concluding that the heir who should suffer thirty years to elapse without evincing his intention to accept a succession then opened would lose his right of accepting, and the inheritance could not be claimed by him into whose hands soever it might have gone.

The prescription, however, purports to be a bar not only to the faculty of accepting but also that of renouncing. Now if a party who has not accepted the succession within the thirty years cannot afterwards accept it, it would seem that he had effectually renounced the succession. Therefore, the difficulty of the interpretation arises in our endeavour to ascertain whether the legislature may not have intended something more by the limitation of the period in which the heir may renounce. But if the Article is to be taken literally then he who is called to the succession, being seized thereof of right cannot renounce after thirty years, he is therefore unconditional heir, but not having accepted the succession he has also lost the faculty of accepting it, and, therefore, at the same time he is not heir — which is absurd.

Some writers, however, endeavor to reconcile even this difficulty by supposing that the person called to the succession must be considered as heir as it respects the creditors, for he cannot renounce; and that he is not heir as it respects those in possession, for he cannot accept. But this violates one of our rules of interpretation, because it distinguishes where the lawgiver does not distinguish, and it violates the equitable maxim: Qui smtit onus commodum debet sentire.

Marcadé, who from his late position and the force of his reasoning, has recently exercised a great influence upon the jurisprudence of France, and whose arguments have not been without weight on many questions on this side o'f the Atlantic, deserves to be quoted on this question, he says, vol. 3 103, “Pour nous, ces interpretations multipliées et si contradictoires nous ont toujours étonné, et le vrai sens de PArticle nous a toujours paru facile. L’Article, en effet, déclare que le successible, aprés trente ans, depuis l’ouverture de la succession, aura perdu définitivement la faculté W accepter ou de répudier, c’est-ádire le droit de choisir entre I acceptation et larenoneiation: ensorte que, aprés ce délai, il ne peut plus opter et sa position est irrévocablement arrétée. Et quelle est cette position? rien de plus simple ce nous semble. Par le fait máme de la mort du défunt, le successible s’est trouvé revétu de titro d’hériticr, il a été saisi de la succession: seuloment il avait le choix ou de rendre cette position irrévocable par une acceptation, ou de s’cn dépouiller par une renonciation. Or, la loi dit qu’aprés trente ans de silence, il n’a plus ce choix : done il reste alors m statu quo, c’est-a-dire qu’il demcure héritier sans qu’il lui soit désormais possible de renoncer.”

This interpretation, which appeared so easy (facile) to Mr. Marcadé, seems to us full of difficulty when applied to the Code of our own State. Eor, if the Article only means that by the silence .during the thirty years the person called to the succession has lost the right to renounce, and has become absolutely fixed as heir; the other portion of the Article concerning the faculty of accepting, as Mr. Zacharie justly observes, is obliterated.

Again, it is not to be supposed that the legislature, if that were its intention, would have expressed its meaning so obscurely or would have placed so prominently in the sentence the words “ the faculty of accepting,” and which in the context would strike almost every reader as the most prominent and therefore the principle object of the Article of the Code in question, and he would find, moreover, on reflection that the heir who neglected to bring his action to re-vindicate a succession was barred by the lapse of thirty years; C O. 3312. That the heir who suffered his co-heirs to enjoy the succession separately for thirty years was also precluded iron his action of partition, O. C. 1228, and he might well suppose that the legislature intended the like provision in regard to the acceptance of a succession, which can hardly be distinguished from these two prescriptions.

It seems, therefore, much more reasonable to give effect to what appears to us the pi’incipal object of the Article 1023 than to annul it altogether, and carry into effect that which appears only to be secondary, and certainly occupies only a second place in the sentence.

It is true that Art. 1007 of the Code declares that he who is called to the succession, being seized thereof in right, is considered the heir as long as he does not manifest the will to divest himself of that right by renouncing the succession.” The seizin here spoken of is only by relation to the acceptance. If the heir accepts, he is considered as always having been heir; if he renounces, he is considered as never having been heir, O. O. 981. Moreover, during the period in which the heir neither accepts nor renounces the succession, it is subject to prescription in favor of third persons, and to all lawful acts done with the administrator or curator, (C. C. 1024, 3492; 2 An. 408,) consequences which are inconsistent with a real seizin.

We, therefore, conclude that the legislature intended to declare in one part of the Article, that if he who is called to an inheritance is silent for thirty years, and does no act, evincing his acceptance of the succession, he is barred by prescription. We do not find it necessary to put any construction upon the second portion of the Article. It will be in time to consider the difficulties presented by it whenever the case arises in which their explanation, if possible, is required.

The facts to which the foregoing conclusion applies are the following: Mrs. Ann Waters, widow Zaahcme, died previous to the 19th day of September, 1822, leaving several children and a last will and testament, in which she appointed James W. Zuchw'ie, her son, and Richard, Relf, her son-in-law, executors. The will was admitted to probate, and letters of executorship issued on the 24th, and the executors qualified by taking the prescribed oath on the 25th of September of the same year, 1822. Louisa Om'oline Adelina Zachwrie, one of her daughters, was married to the present opponent. By that marriage there was issue, one child. Mrs. Shields died on the 9th day of October, 1823, and her child, on the 9th day of March, 1824, just five months afterwards. By the death of his wife and child, as heir to his child, he acquired the right by transmission to his wife’s interest in her mother’s estate. That estate the executors represented as insolvent. The opponent contends that it was solvent. The difference arises from the respective constructions which the two parties putupon the sale of the plantation andslaves. The one party contending that, in addition to the price bid ($100,000) the purchaser bound himself to pay certain outstanding mortgages, amounting to $72,000, the other party denying the justness of this conclusion.

The present proceedings were commenced by the opponent on the 11th day of May, 1854, it being the first act-on the part of the opponent, so far as we can learn from the record, showing an intention to accept the succession of his child, his wife and of her mother. A period of more than thirty years had therefore elapsed between the time opponent was called to the successions of his child, wife and mother-in-law, and the commencement of this suit. We are, therefore, not embarrassed with the one year in which the seizin of the executors continued, to wit: from the 25th day of September, 1822, to the 25th day of September, 1823, nor the five months during which the child might be supposed to have been a minor. It may, however, be proper to remark that the will contained no clause continuing the powers of the executors, and that, therefore, under the Code of 1808, they had no power longer to represent the succession ; Old Code 244, Art. 100 ; 4 M. R. 340, 009 ; 1 N. S. 243 ; 16 L.R. 344. Theh acts after that period must be viewed as those of negotiorum gestores.

If the construction which we have placed upon Article 1023 of the Civil Code is correct, it must follow that Theodore Shields, by his silence and inaction for more than thirty years, is barred from the prosecution of this suit.

The question standing at the threshold of our inquiries being thus decided adversely to the pretensions of the opponent, it is idle to pursue our investigations further.

The judgment dismissing the opposition is affirmed.

Spofford, J.,

concurring. The equivocal phraseology of Article 789 of the Napoleon Code, which has so long puzzled and divided the French commentators, was unfortunately perpetuated in our imitative codes.

We have to determine not what was meant in France, but what was the understanding of the Louisiana Legislature. In the search for that understanding, we should look at all the legislation upon the same subject, since an ambiguous phrase in one Article may sometimes bo made clear by reference to another Article in connection with it. Especially if our lawgivers, while upon the general subject, have added anything to that which they borrowed from the French Code, such additions may disclose what was their understanding of the doubtful Article; and what they meant is to us the law.

“The faculty of accepting or renouncing an inheritance, becomes barred by the lapse of time required for the longest prescription of the rights to real es-estates.” C. C. 1023.

The ingenious theory of Marcadé and some others, upon the construction of this Article is, that it creates no prescription against the faculty to accept, nor yet against the faculty to renounce per se; but that the faculty of choosing-between an acceptance and a renunciation alone, is barred by the lapse of thirty years; so that if the heritable person holds his peace and makes no choice during that term, he becomes irrevocably and unconditionally heir by the operation of law.

But the Legislature which adopted our Civil Code in its present form, gave unmistakable evidence of an intention on their part to organize a prescription against the right of accepting an inheritance, and not merely against an option between acceptance and renunciation. They originated' and added^ to the Old. Code two clauses in Article 1014, the last of which declares : “ If, on the contrary, the heir has only refused to accept and has not renounced, [i. e. has neglected to avail himself of this right of choice] he can claim the surplus [alluded' to in the preceding clause] on accepting-the-succession, provided his right of acceptance be not prescribed against."

Here is a legislative recognition of the existence of a special prescription against the right of acceptance. Where is the term of that prescription- to be-found, if not in Article 1023 ?

A similar argument might perhaps have- been deduced from an expression in Article 790 of the Napoleon Code, which was adopted into both of our Codes, and is thus translated in the first clause of Article 1024 of the Code of 1825 r “ So long as the prescription of the right of accepting is not acquired against the heirs who ha/oe renounced, they have the faculty still to accept the inheritance, if it has not been accepted by other heirs, without prejudice, however; to rights which may have been acquired b-y third persons upon the property of the succession, either by prescription or-by lawful acts done with- the administrator or curator of the vacant estate.”

Marcadé sought to avoid the difficulty which this Article doubtless suggested to his analytic mind, by treating it as if it established’ an exceptional prescription against the right of accepting only .on the part of an heir who hadrenouneed ; but this led him into what appears to me to be the greatest difficult}1- of having to supply by analogy, a special term for a prescription against the right of accepting, which, according to his view, was nowhere regulated by the law maker, and only existed as against one who had renounced. “ Ge renonpant, dit notre Article, pourra accepter encore, ‘tantquo la prescription du droit d-’accepter n’est pas acquise’ contrelui. Quel est le délai de eette prescription ? La loi ne le dit pas expliciiement; mais il paraít évident que notre Article doit s’expliquer par 1’Article précédent, et que le délai de trente ans depuis l’ouverture de la succession, qui éteint le choix entre l’acceptation ot la répudiation, cst aussi celui qui éteint le droit d’accepter organise par noire disposition 3 Marcadé, 238.

But here again our legislators, both in the Codes of 1808 and of 1825, have added to the provisions of the Code to which they were so much indebted an original clause, which shows that they thought something more than an option was barred by the Article under discussion. They went pn to declare, that “ in like manner, so long as prescription of renuneiation is not determined the heir may still renounce, provided he has made no act to make himself liable as heir.”

Our lawgivers then have placed in antithesis, “ the prescription of the right of accepting” and “the prescription of renunciation.” Is it possible that this could have meant that there was no prescription against either faculty, but only a prescription against a choice between the two ?

But it is said that if the right of acceptance is barred by thirty years, it was unnecessary to say any thing about the faculty of renunciation. This argument would be unanswerable to my mind, if all the other interpretations proposed to be put upon Articles 1023, did not, under our Oode, involve analogous or still graver objections.

The rule that some effect should be given to all the words of the law, is qualified by the condition that it be possible. If lawgivers sometimes nod, if they occasionally add an idle word to their statutes it is no more than the great masters of human 'wisdom in all departments of letters have done before them.

It is true that, where the right of accepting an inheritance is barred, the faculty of renunciation falls with it, as there is nothing left for the heir to renounce.

I think the Legislature of Louisiana intended in Article 1023, to fix a term of prescription against the right of acceptance, and to intimate the consequence of its lapse without an acceptance ; that consequence, I think, is that the successible becomes a stranger to the succession.

The executors and unconditional heirs have an interest to plead this exception against the pretended heir, who opposes their account.

I, therefore, concur in the decree.

Argument of counsel for opponent and appellant, on an application for a rehearing :

With your honor’s indulgence, we propose, in the following pages, to elaborate some of the points made in our application for a re-hearing.

I. The question which first commands our attention is, what is the true interpretation of Article 1023 of the Civil Code ?

A strictly literal interpretation of this Article, that would give effect to every part of it, is impossible. The true meaning lies below the surface, but can easily be brought to view by the aid of other provisions of our Code relating to the same subject matter.

It is declared in general terms in Articles 934, 935, 936, 937 and following, that “ the succession is acquired by the lawful heir, who is called to the inheritance immediately after the death of the deceased person to whom he succeeds,” see also O. O. 234, Art. 122, 124; and “ that this right is acquired by the heir by the operation of law alone, before he has taken any steps to put himself in possession or has expressed any will to accept ?”

This rule refers to testamentary as well as to legal heirs but not to particular legatees. Art. 934.

We are not to understand, from these provisions, that the heir who is called to the inheritance acquires it by mere operation of law, independant of any act of his own, immediately after the death of the deceased person to whom he succeeds, in every instance. Other provisions of the Code place limitations on these, which must not be disregarded.

For example, vrregulwr hews “before being put into possession of the estate left to them are not considered as having' succeeded to the deceased from the instant of his death.” Art. 944.

Again, the universal legatee by the death of the testator is seized in full right of the succession, indopendant of any acts of his own, in default of heirs to whom a portion of the testator’s property is reserved by law. Art. 1602, (see French text.) But when there are forced heirs living at the decease of the testator the succession is not acquired by the universal legatee immediately on the death of the testator, but on the contrary, the forced heirs are seized of right by his death. Art. 1600; see also O. C. 234, Art 122, 126.

The rule, that the heir is seized by mere operation of law, independent of any act of his own, immediately on the death of the person to whom he succeeds, we find, is subject to the following modifications and exceptions:

1. Those heirs to whom a certain portion of the property is reserved by law are seized of right immediately on the death of their ancestor.

2. The universal legatee is also seized of right, immediately on the death of the testator, unless there are forced heirs living who have not been legally disinherited, (Art. 1617,) in which case the seizin only vests in him after he has complied with the requisites of Art. 1600.

3. The other regular heirs (not forced) are seized of right, immediately on the death of their ancestor, provided there are no forced heirs or a universal legatee ; Art. 1600, 1602, 1605. In which event they are not.

4. The legatee under a universal title is seized of right, immediately on the death of the testator, only in default of regular heirs (either forced or not) and a universal legatee. Art. 1005.

5. Irregular heirs are never seized of right by the death of the person to whoso succession they are called; they are permitted to take possession only by the order of court. Art. 925, 943.

If we keep these distinctions in view we will experience no difficulty in arriving at the true meaning of Article 1023.

Article 1007 provides that, “ he who is called to the succession, being seized thereof in right, is considered the heir as long as he does not manifest the will to divest himself of that right by renouncing the succession.”

That is to say, whenever the law vests the seizin in the person called to the succession: it also invests him with the quality of heir; and that quality he can only divest himself of by renouncing the succession in the manner prescribed by Art 1010. So long, therefore, as the seizin lasts the heirship continues.

Article 1023 provides that, “ the faculty of accepting- or renouncing an inheritance becomes barred by the lapse of time required for the longest prescription of the rights of real estate.” Now, what is the acceptance of an inheritance ? It is nothing more than the assumption of the quality of heir, while the renuneiatioa of an inheritance is simply the disavowal or rejection of that quality. It is, therefore, the right of assuming the quality of heir that is lost when the faculty of accepting is barred, and the right of disavowing- or disclaiming- it that is lost when the faculty of renouncing is barred by proscription. Now, Article 1023 means simply this: Whenever an acceptance is necessary to invest a person with the quality of heir it must be made within thirty years from the time he is called to the succession, or the faculty is lost. And, on the other hand, whenever a renunciation is necessary to divest the person called to the succession of the quality of heir it must be made within thirty years from the time that quality is imputed to him, or the faculty of making it is lost.

Now, we have already seen that whenever the person called to the succession is seized thereof in right, and in this case only, he is invested with the quality of heir by mere operation of law, independent of any act of his own, and is considered heir so long as the sezin lasts. In this case, therefore, acceptance is not necessary to invest him with the quality of heir, and he, therefore, does not lose his right to the inheritance by the lapse of thirty years. But, on the other hand, inasmuch as the law, in this case, imputes to him the quality of heir, he must, ii he wishes to divest himself of that quality, do it within the period limited, or he loses the faculty of so doing and becomes heir irrevocably.

Our construction of this Article may be stated as follows:

1. Whenever an acceptance is necessary it must be made within the time limited, or the faculty is lost.

It is only necessary when the person called to the succession is not seized thereof in right, and is not consequently invested with the quality of heir by mere operation of law.

2. Whenever a person is invested with the quality of heir by operation of law, he can only divest himself of it by a renunciation made within the time limited.

The practical effect of this construction is as follows:

The forced heir loses the faculty of reeouncing by the lapse of thirty years.

So also does the universal legatee if there are no forced heirs. If there are forced heirs, however, it is the faculty of accepting, which he loses by the lapse of that period.

Regular heirs (not forced) lose the faculty of accepting by the lapse of that period when they are forced heirs or a universal legatee who have renounced ; but, if there are neither forced heirs or universal legatee, he loses the faculty of renunciation.

The legatee under a universal title, when there are forced heirs, a universal legatee or other regular heirs, loses the faculty of accepting by the lapse of thirty jmars; when there are neither, it is the faculty of renunciation he loses.

The irregular heir loses the faculty of acceptance by the lapse of that period.

This construction of Article 1023 is supported by the following considerations :

1. Without violating any rule of interpretation, and by adhering almost to the letter, it gives effect to every part of the Article. And, in this respect, it has the advantage of your Honors’ construction, which virtually eliminates one entire clause — a mode of interpretation only to be resorted to as the surgeon resorts to the knife in the last extremity. Every rule of construction should be consulted before the Judge assumes the functions of a legislator.

2. It is consistent with, and gives effect to other provisions of the Code relating to the same subject matter, in which respect your Honors’ construction is again defective.

_ For example: Article 1024 provides that “ So long as the prescription of the right of accepting' is not acquired against the heirs who have renounced, they have the faculty still to accept the inheritance, if it has not been accepted by other heirs, without prejudice however to rights which may have been acquired by third persons upon the property of the succession, either by prescription or lawful acts done with the administrator or curator of the vacant estate.”

“ In like manner, so long as the prescription of renunciation is not determined, the heir ma}'- still renounce, provided he has done no act to make himself liable as heir.”

It is the last clause of this Article which cannot be reconciled with the views which jrnur Honors have expressed. Mr. Justice Spofford treats the clause, “faculty of renouncing,” in Article 1023, as surplusage. A vice from which, unfortunately, our legislation is not free. Article 1023 is copied from the French Code, and is, in fact, but a literal translation of Article 789. Now, admitting the possibility that the author of the French Code inadvertently inserted the clause refered to, and that the compilers of our Code copied the error without detecting it, this however does not account for the presence of this clause, or a similar one, in the last paragraph of Article 1024, which paragraph is not found in the French Code. If it crept into Article 1023 by error, it is not likely that our Legislature would have taken especial pains to perpetuate it by reproducing it in the subsequent Article, by the insertion of a paragraph for that very purpose. It is evident that our Legislature, by thus adding to the legislation of the French Code, intended to provide for certain cases which they foresaw might arise under our Code. * . * * * *

But we contend that the Legislature intended to fix a term of prescription against the faculty of renouncing also; and if it has not made its intention sufficiently clear by Article 1023, we cannot fail to discern it in the subsequent Article; and the construction which wo have put on Article 1023 is consistent with this intention.

The law, as we have seen, invests certain persons with the quality of heir, independent of any act of their own, and if they suffer a certain period to elapse without divesting themselves of that quality, by a renunciation of the succession, they lose the faculty of so doing; but they may renounce at any time previous to the expiration of that period; or in the language of Article 1024, “ so long as the prescription of renunciation is not determined, the heir may still renounce, provided he has done no a,at to malee himself Kable as heir.”— Can.the meaning of this Article be mistaken ? Does it not clearly refer to a class of persons who, without having accepted the succession or having inter-meddled with it in any way, are nevertheless considered heirs so far, that unless they divest themselves of that quality within a certain period by renunciation, lose the faculty of doing so thereafter, and become irrevocably liable as heir ? It does not refer to the heir who has expressly accepted: for after an acceptance there can be no renunciation. It does not refer to the person who has made himself liable as heir, by a tacit acceptance, for he is expressly excepted by the Article. It must, therefore, refer to the person who has remained silent, who has abstained from the succession. But unless the seizin of the inheritance is vested in this person, unless he is considered heir independent of any act of his own, what has he to renounce ? — what does he lose if the faculty of renunciation is barred ? — and what are the consequences to him ?

3. His Honor, the Chief Justice, remarks that “the seizin spoken of in Article 1007 of the Code, is only by relation to the acceptance. If the heir accepts, he is considered as always having been heir: if he renounces, he is considered as never having been heir.” C. 0., 981.

Tour Honor does not, we conceive, intend to say that there is no seizin until after acceptance; but rather, that the seizin is given in expectation of a future acceptance, and is not real. This opinion we respectfully submit is erroneous. The seizin spoken of in Article 1007 is an independent fact. It has no relation whatever to the acceptance or any other act of the heir. It vests in him by mere operation of law, and he cannot prevent it. O. C., 035. It continues in him, without any acceptance, until he has renounced the inheritance. Article 1007. It qualifies him to do certain acts and to transmit rights, which he could not do were it not a real seizin. Arts. 936; 937, 938 and 939. And it is in consequence of the very fact of this seizin being vested in him by mere operation of law, independent of any act of his, immediately on the death of his ancestor, that his acceptance, when made, takes effect from the day of the opening of the succession. Domat O. L., Vol. 2, Art. 2477, Cushing’s edition.

It is the divesture of the seizin which takes place by relation. That is to say, the heir who renounces is considered as never having boon invested with it. Thus the Code, Art. 940 sajis: “If the heir accepts, he is considered as having succeeded to the deceased from the moment of his death.” But he is considered so before he accepts, and even if he never accepts, provided he does not renounce. Art. 938 sajrs: “ The heir is considered as having succeeded to the deceased from the instant of his death.” So that his acceptance does not alter his relations in the slightest degree towards the succession; nor does it invest him with a single right which was not already invested in him by operation of law; it simply takes away from him the right of renouncing. But if he rejects the succession, says Art. 960, he is considered as never having received it, which very distinctly implies that up to the time when this renunciation is made, he is considered as having received it. The seizin, therefore, of the heir is no way affected by his acceptance, though it is by his renunciation.

But admitting your honors’ view to be correct, are we to understand that no distinction is to bo made between the heirs in whom the seizin of the succession is vested by operation of law, and those who can only acquire it by some act of their own, in the application of the provisions of Article 1023, simply because that seizin is by relation to the acceptance? It is difficult to discover by what process of reasoning such a conclusion is deduced from the premises. Whether this seizin is by re.ation or not, it produces important legal effects. See Arts. 936, 937, 938 and 939, and the person in whom it is vested is considered heir so long as it continues; and he can only divest himself of it by a renunciation, by public act. His renunciation is never presumed. O. O. 1007, 1010. Hence in applying Art. 1023, we must distinguish, unless we disregard all rules of interpretation, between those persons who are already seized of the inheritance, who are invested with the quality of heir without an acceptance, and those who are not The distinction between them is too well defined to be overlooked, and it has been too studiously observed by the Legislature to be disregarded by the Judge. There is not a principle contained in the Code, which the Legislature has been more anxious to impress upon us, than that respecting the seizin of the heir. It is first enunciated in Art. 934; it is repeated in Arts. 935, 936, 937, 938, 939, 940, 943, 1007, 1600, 1602 and 1617. And as if the Legislature intended to provide against the possibility of its being overlooked, in the application of the provisions contained in the section respecting the renunciation of successions, (in which section Art. 1023 occurs,) it has been placed at the very beginning of that section. Art. 1007.

4. Again, your honor remarks, ‘ ‘ moreover, during the period in which the heir neither accepts nor renounces the succession, it is subject to prescription in favor of third persons, and to all lawful acts done with the administrator. O. O. 1024, 3492. 2 Ann. 4(iS. Consequences which are inconsistent with a real seizin." If your honor means by rezl seisin, actual or corporeal possession, these consequences are certainly inconsistent with it; but in this case, would the heir who has accepted without having obtained the corporeal possession of the effects of the succession, be in any better position than the succession was previous to his acceptance ? Although the consequences mentioned by your honor are inconsistent with the corporeal possession of the effects of the succession, they are nevertheless entirely consistent with the seizin which the law vests in the heir, and do not in any manner derogate from its real character.

Seizin is either in fact, or in law. The seizin of the heir is a seizin in law. That of the actual possessor is a seizin in fact. I need not say that, while one person is seized in law, another may bo seized in fact — for these are the very conditions necessary to the existence of prescription.

The prescription mentioned in the Articles of the Code, referred to by your honor, is the ordinary prescription, by which property is acquired and debts discharged.

“ The prescription by which property is acquired, is a right by which a mere possessor acquires the property of. a thing which he possesses, by the continuance of his possession during the time fixed by law.” C. C. 3421.

“Prescription runs against all persons, unless they are included in some exception established by law.” C. C. 3487.

Now Articles 1024 and 3492 simply mean, that when a third person has acquired the actual possession of any of the effects of a succession, he can prescribe for them notwithstanding the succession has not been accepted, or is vacant. That is to say, vacant estates, and successions which have not been accepted, are no exception to the general rule laid down in the Article cited, to wit, 3487. Prescription runs against them, as it runs against every person not included in some exception established by law.

To say, therefore, that the seizin of the heir who has not accepted is not real, because third persons may acquire rights by prescription against the succession, during the period it remains unaccepted, is to say that the seizin of the owner of a thing in the actual possession of a third person is never real, because that person may prescribe for it, or that the seizin of the heir who has accepted is not real, because the actual possession of some of the effects of the succession may be in a third person.

The seizin of the heir is a seizin in law, until he has obtained actual possession of the effects of the succession. But it is nevertheless a real seizin; and its nature is in no respect changed by a simple acceptance ; in other words, it continues a seizin in law, notwithstanding an acceptance, until he takes actual possession of the estate.

It is probably in view of the fact that the right of possession which 'the deceased had continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession, (O. O. 936,) that the Lawgiver included successions which have not been accepted, or which are vacant, within the operation of Article 3487; because it would seem unjust that prescription should run against these estates, unless in contemplation of law there was some person in existence whose interest and right it is, to look after and protect them. Now this right it gives to the heir in whom the seizin is vested, before any acceptance on his part. Art. 939.

5. Again, your honor remarks, “that if Article 1023 only means that by silence during thirty years, the person called to the succession has lost the right to renounce, and has absolutely become fixed as heir, the other portion of the Article is obliterated.” This is the interpretation commented upon by Duran-ton, vol. 6, sec. 488.

The construction we propound is not liable to the objection urged, for it gives full effect to evei'y part of the Article, and almost, in accordance with the very letter, supplying nothing but what is necessarily implied.

Whenever it is necessary in order to invest the person called to the successjon with, the quality of heir, that he should accept, he must do so within thirty years, or he loses the faculty of doing so. Whenever, on the other hand, the law invests him with that quality, then if he wishes to divest himself of it, he must do so by renouncing the inheritance before the lapse of thirty years, or he loses the faculty of so doing.

Tour honor further says, that it appears to be the principle object of Art. 1028, to fix a term of prescription against the acceptance of an inheritance. Now the argument in favor of this view, which is based principally on the circumstance that the term acceptance holds a more prominent position in the Article than that of renunciation, (because it comes before it,) is scarcely conclusive ; nor does it derive much support from the (what your honor seems to regard) analogous provisions of Arts. 3512 and 1228. That the Legislature intended to fix the term of prescription against the right of acceptance, cannot be doubted; but it is equally true (if an intention can be clearly expressed in words) that it intended also to fix a term of prescription against the right of renunciation; and any construction of Art. 1023 which does not give effect to this intention, must be radically wrong.

6. Again, Mr. Justice Spofford says: “But the Legislature which adopted our Code, in its present form, gave unmistakable evidence of an intention to organize a prescription against the right of accepting an inheritance, and not merely against an option between acceptance and x-enunciation. They originated and added to the Old Code two clauses in Art. 1014, the last of which declares: ‘If, on the contrary, the heir has only refused to accept, (i. e. has neglected to avail himself of the right of choice,) and has not i'enounced, he can claim the surplus, on accepting the succession, provided his right of acceptance be not prescribed against.’ Here is a legislative recognition of the existence of a special plea of prescription against the light of acceptance. Where is the term to be found, if not in Art. 1023 ? As we have already said, this cannot be denied. But is it necessax-y, in ox’der to give effect to Art. 1014, to mutilate Art. 1023 ? Or, in other words, is the prescription of the faculty of acceptance irreconcilable with that of renunciation? We have, we conceive, shown that it is not. And there is nothing in Art. 1014 which is not entii'e!y consistent with our views. The heir who has simply refused to accept, may claim the surplus on accepting the succession, provided his right of acceptance (if he is one of those against whom the prescription of acceptance runs) be not prescribed against.

II. Theodore Shields has tacitly accepted the succession of Mrs. Zachwi'ie, by suffering judgment to be given against him, in the capacity of heir, without claiming the benefit of inventory, or renouncing the succession. O. O. 994.

On the 6th July, 1831, J. T. Peinberton instituted suit against Lamania Irwin and othex-s, on two promissory notes, for the sum of $10,000 each, being the two notes given by Irwin to Pemberton, when he purchased the plantation from Peinberton. Mrs. Irwin called the heirs of Mrs. Zachwrie in warranty, alleging them to be liable for the amount of said notes, on account of her assumption of them, when she purchased the plantation from Irwin.

Pemberton also instituted suit against the heirs of Mrs. Zacharie on these notes, and the two cases were consolidated. In both of these suits the liability of Theodore Shields as an heir is alleged both by the plaintiff and his co-defendants, and judgment against him is px’ayed for, as well as the appointment of a curator ad hoc.

On the 18th Nov. 1831, G. Schmidt, Esq., was appointed to represent him, and citation served on him. See record of suit of Pemberton v. Heirs of Irwin and Zacharie. Judgment was rendered against Shields for his portion of the debt.

These suits were on a joint obligation of the heirs of Mrs. Zachwrie. Shields was a necessary party to them, and was legally in court by the appointment of a curator ad hoe. C. C. 2080. Jelks v. Smith, 5 An. 674; Dupuy v. Hunt, 2 An. 564. Under the jurisprudence of our State, as it stood at the time these suits wore instituted, Shields was properly before the coui’t. C. C. 3522, C. P. 116, 120, 964, 195. George v. Fitzgerald, 12 La. 604; Zacharie v. Blandin, 4 La. 154; Copely v. B. 12 Rob. 79. H.’s D., verbo Absentee, vol. 1, p. 3, No. 21.

The person appointed to represent Shields was a sworn attorney, and it is to be presumed that he did his duty, and duly notified Shields of the institutions of these suits. Beaumont v. Covington, 6 R. 189; Cooley v. Seymour, 9 La. 274.

The proceedings of the court which rendered judgment against Shields must, after the lapse of twenty years, be presumed to have been regular. After the lapse of that period, there is a presumption in favor of every tribunal acting within its jurisdiction, and that all persons concerned had due notice of its proceedings. Gilson v. Jester, 2 An. 503; Gentile v. Foley, 3 An. 146.

III. Prescription was interrupted by the acknowledgment of Shields's rights in the succession of Mrs. ZaehmAe, in 1830 and 1831, by the persons who now plead it.

There is nothing in the nature of the prescription set up which takes it out . of the general rule laid down in O. O. 3486. It operates like all other prescriptions. While it divests the person against whom it is acquired of a right, it vests that right in some other person.

Thus the faculty of accepting the inheritance, or in other words, the portion which the heir loses by the proscription of thirty years, vests in his co-heirs of the same degree or in those next in degree. C. O. 1015, 1016, 1017. And moreover, a mere stranger, or a person having no interest in the estate, or who cannot be benefited by prescription, cannot plead it. C. C. 3429. Now it is clear, that if the person who is benefited by the plea of prescription, or who has an interest in pleading it, acknowledges the rights of the person whose title he prescribes before the term has accrued, there is an interruption.

Your honors hold that the defendants in the opposition, being co-heirs of the opponent, have an interest in setting up the plea. We are to understand, I presume, that it is as co-heirs simply, and not as executors, that they have such an interest. They certainly have an interest as co-heirs, because, if the opponent has lost his rights in the succession, they have acquired them jointly with other heirs who have accepted. But they have no interest as executors, because as executors they can acquire nothing by it, and it is contrary to every principle of law and equity to permit them to set it up for the professed purpose of shielding- their conduct from the scrutiny of justice. Coudtage v. Chamberlain, 4 An. 308. C. C. 3404.

Now this brings us to a question of pleading presented by the record. The exception in which the plea of prescription is set up alleges “that the succession of the said Widow ZachanAe was never accepted by the said opponent, or by the parties through whom he claims,” but it is not alleged that the successions of those persons, through whom he claims, were not accepted by him. In the absence of any denial, it must be conceded that the opponent has accepted their successions. But again, the exception concludes: “Wherefore these appearers, reserving their right to answer more fully to the said opposition, in case this exception is overruled, now pray said exception be sustained and said opposition dismissed,” &c.

Now it is clear that they plead this exception in their single capacity of executors. They are before the court in no other capacity, and they have made no attempt to assume any other. They were called upon to account as executors, and as executors they have accounted.

As executors they cannot maintain the exception; it would be eonbra bonos mores, and as co-heirs they do not plead it. The plea of prescription being strietA jmis, the court can supply nothing. The party wishing to avail himself of it must plead it expressly, and in that capacity in which the law permits him to avail himself of it. If he pleads it in any other, it is the same as if it had not been set up at all. C. O. 3426.

Re-hearing refused.


author: Vooriiies, J. Lea, J.

text:
    J. A. Rozier v. A. A. Maginnis et al.
    There was a judgment decreeing in favor of the x>lainti(f a servitude of passage, &c., over defendants’ lots, for which a suspensive appeal was allowed, oil defendants giving bond in a sum fixed by the court. The condition of the bond given was that the defendants should pay whatever judgment might be rendered against them. IIeld: That it was not necessary that the value of the servitude should be estimated and referred to in the motion for the appeal; that it was the duty of the Judge to fix the amount of the security when the order was granted.
    Article 577 of the Code of Practice is applicable to judgments decreeing the delivery of real estate yielding revenues, and not a right of servitude.
    If the proprietor of two estates, between which there existan apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist, actively or passively, in favor or upon the estate which has been sold. C. C. 765.
    Parol evidence is admissible to prove the existence of such apparant servitude. Where parties have been acting in good faith in the assertion of what they deem to be their legal rights, a case is not made out for damages.
    APPEAL from tho Fourth District Court of New Orleans, Reynolds, J.

      O. RoseUus, for plaintiff.

      F. Haynes and Duncan & McGonnell, for defendants and appellants.
   Vooriiies, J.

Tho appeal in this case is sought to be dismissed by the plaintiff and appellee on several grounds.

I. The defendants have not made such a motion as is required by the statute approved 22d March, 1843.

Tho judgment appealed from was rendered on the 1st of February, signed on the 6th, and on the Vth of the same month the following motion was made for the appeal, to wit:

“On motion of Franh Haynes, attorney for defendants, and on suggestions that they are aggrieved by the final judgment rendered in this case on the 1st of February inst., it is ordered that a suspensive appeal be granted them from said judgment, returnable to the Supreme Court the fourth Monday of March, 1856, the appellants giving bond in the sum of $600, with good and solvent security, conditioned as the law directs.”

We think this is a sufficient compliance with the requirements of that Act. Session Acts of 1843, p. 40; Art 513 of O. P. as amended.

II. That tho motion was made as if a judgment had been rendered merely for a sum of money, when in fact it is for the delivery of real estate, or a servitude thereon, with a perpetual injunction on the defendants from erecting any works or doing any act whereby the use and enjoyment may be impeded.

This objection appears to us to be untenable. The admission of the parties in the record is that the matter in dispute exceeds $300. The statute requires, in cases in which an appeal may be granted by motion in open court at the same term at which the judgment was rendered, that “the Judge shall fix the amount of security, and cause the samo, with the order granting the appeal, to be entered upon the minutes of his court.” This has been done, as we have seen, and the bond is in the usual form.

III. We do not think the defendants were bound to ask that tho value of the servitude should be estimated and z’cforred to in tho motion for the appeal. The plaintiff claims a right of passage, ten feet in width, on the rear poz'tion of two lots of ground owned by the defendants, azid it is adznitted that the matter in dispute (j. e. the servitude, and not the land) is worth more than $300.

■ IY. The objection that the bond is defective, as the defendants have merely bound themselves to pay whatever judgment may be rendered against them, appears to us to be equally untenable. The Article 577 of the Code of Practice is applicable to real estates yielding revenues, and not to a right of servitude.

It is unnecessary to notice the other objections, as we deem them clearly untenable.

It is therefore, ordered that the motion bo overruled.

Lea, J.

The late Alexander McKeener improved a certain property belonging to him, situated on the corner of Prytania and Calliope streets, by erecting thereon certain buildings of different forms and dimensions. At the rear of the property he made an alley-way, paved with round stone and properly graded and planked up, with openings leading into it from each and every one of the tenements. This alley-way was used in common by the occupants of all the buildings.

At the sale of McdTeevet^s estate the property was divided, and on the 19th April, 1854, the plaintiff became the purchaser of one of the lots with the improvements thereon. This lot opened upon the alley-way. The act of sale contains the usual transfer of all the accessory rights incident to the ownership of property, viz: all the rights, ways, servitudes, &c., thereunto belonging or in anywise appertaining. Whatever rights Hazier acquired, they were complete when this adjudication was made. No subsequent sale of other portions of the property could invalidate his rights.

Now at this time there existed air apparent sign of servitude in favor of property purchased by him, which had been accompanied by actual use of the same by the proper occupants of the property. Subsequently the other properties opening upon the alley-way were sold to the defendants, their titles extending, however, not over the alley-way, but only to it. By the terms of the acts of sale made to them, the me of the alley in common with other lots was reserved to them.

It is not preteneed their me of the alley-way for the purposes for which it was designed, has been interfered with by the plaintiff; but the defendants, conceiving that they had a right of property in the soil of the alley-way, and that the plaintiff had not the right to use it, have obstructed the passage and planked it up, so as to prevent the plaintiff from using it.

Now, even if the defendants had purchased the soil which is sot apart for the alley-way, it would have been subject to the apparent servitude in favor of the plaintiffs. Art. 765 of the Civil Code provides that: “If the proprietor of two estates, between which there exist an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist, actually or passively, in favor or upon the estate which has been sold;” and from the very terms of this Article it is manifest that parol evidence is admissible to prove the existence of the apparent sertude thus designated. There was no error, therefore, in admitting parol evidence for that purpose. But in reality the soil of the alley-way was not sold to the defendants, and the very fact that it was not sold is corroborative proof (if any were needed) that the soil had been set apart as dedicated to a perpetual servitude.

In obstructing the alley-way, the defendants were, therefore, mere trespassers, interfering with the enjoyment of a lawful servitude belonging to the plaintiff. They have probably, however, been acting in good faith in the assertion of what they deem to be their legal rights, and, under the circumstances, we do not think a case is made out for damages.

Por a further illustration of this subject we refer to the commentaries of Demolombe on the G94th Article of the Napoleon Code. See 12th yol. Demolombe, page 322, No. 809 etseq.-, also Merlin Comp., yerbo Servitude; also 2d Marcadé, p. 611; by which authors both sides of the question argued at bar have been presented.

Judgment affirmed.