text:
    Succession of Canonge—The Third Municipality of New Orleans, Appellants.
    The privilege given to the Municipalities of New Orleans, by sect. 7 of the statute of 20th March, 1840, to secure the payment of taxes due to them, exists but two years after the taxes ave due; and, in the absence of any proof of the period at which a tax became due, or of the time the assessment roll was furnished to the treasurer of the municipality, it wil he presumed that the roll was returned by the day fixed by law as the latest period for its return, and the tax will be considered as having become due from that day. Stat. Efch March, 1840, ss. 1, 8.
    The rent reserved in a contract of rente fondero is a perpetual charge imposed on, and inherent in, the property itself, which follows it into whatever hands it may pass. C. C. 3757, 3758, 2763. The recourse of the owner of the rent, upon the property itself, for the payment of the rent, exists independently of the mortgage accorded to him by art. 2762 of the Civil Codo, and cannot be affected by his omitting to record, or to reinscribe, in the office of recorder of mortgages, the contract by which the rent was reserved.
    The action for arrearages of rent due under a contract of rente fonciere, is prescribed by three years. C. C. 3503.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J.
   The judgment of the court was pronounced by

King, J.

The administrator of Jeanne Amélie Canonge presented a tableau of distribution of the succession of the deceased, the homologation of which was opposed by the Municipality No. 3, on the ground that the opponents had not been placed upon it as creditors for the taxes due for the years 1843 and 1844, and for arrearages of ground rent, both of which are claimed with privilege. The privilege for the tax of one of the years was allowed by the court below. The claim for arrearages of ground rent was refused. From this judgment the municipality has appealed.

There iá,an admission in the record, that the sums claimed both as taxes and ground rent are correctly stated in the account of the opponents. The only question which arises is, whether they are entitled to a privilege.

1. To secure the payment of taxes, the 7th section of the act of 20th March, 1840, p. 51, grants, to the municipalities of New Orleans a special privilege on the property on which they are imposed, for two years from the time the taxes become due. In the absence of proof in the record, a difficulty presents itself in ascertaining at what time the taxes became due, which can only be removed by reference to the laws prescribing the duties of the assessors. The act of the 6th March, 1840, p. 29, ss. 1, 8, provides for the appointment of assessors for the city of New Orleans, to be made on the first monday of February of each year, and requires that those officers shall furnish, at the latest, on the first mon-'day of October, to the treasurer of the municipality, a certified copy of tho assessment roll. The taxes then become exigible. It has not been shown at what time this return was made. In default of proof it will be presumed that the officers accomplished their task, and made their return by the first monday of October, the time prescribed by law, and that the taxes for 1843 became due on that day, when, under the statute, prescription commenced to run. The claim of the opponents was not preferred until the 16th December, 1845, at which date the privilege forthe tax of 1843 had been extinguished by prescription. It was correctly refused by the court below.

II. The succession of the deceased was the owner of a piece of property, subject to the payment of a ground rent to the municipality. The contract by which it was acquired appears to have been inscribed in the mortgage office about the day of its date in the year 1809, but not to have been subsequently renewed. It is contended that, by our Code, the rentor has, for the payment of his rent, a mortgage on the property, which must be inscribed in the mortgage office, in order to produce effect against third persons; and that, by the failure of the municipality to reinscribe their mortgage, it has been prescribed, and recourse against the property for the payment of rent lost.

Grailhe, for the appellants. A. Canonge, contrfi.

The rales of our Code which regulate the contract of rent, have been principally derived from the French law, with but little modification in those of its features which we have adopted. In France, as well as in Louisiana, it is of the essence of the contract, that it conveys the property in perpetuity, that the rent reserved is a charge imposed upon the property itself, which is inherent in it, to which it is perpetually subject, and which follows it into whatever hands it may pass. Civil Code, arts. 2752, 2757, 2758, 2763. Pothier, Contr. de Bail ■1 Rente, cap. 1, Nos. 1 to 5.

In France no mortgage is established in favor of of the rentor, but he may exercise an action for the recovery of arrearages, which Pothier terms a kind of hypothecary action, but which he distinguishes from that action properly so called. The proceeding grows out of the nature of the contract itself, which renders the estate subject to the rent the debtor of the rent. It is only called by French commentators an hypothecary action, from its resemblance to that proceeding in some of its most important consequences. Pothier, Contr. de Bail á Rente, Nos. 90, 91.

The provisions of the French law which give rise to this action are believed to be identical with those of our Code. A similar proceeding, by whatever name it may be known, results necessarily from those provisions of our law, which declare tile rent reserved to bo a charge imposed on the property, to which it is perpetually subject, and which follows it into whatever hands it may pass. A recourse upon the property itself, which is the debtor, for the payment of the rent, exists independently of the right of mortgage accorded to the rentor by art. 2762 of the Code.

It is probable that the authors of our Code intended, by the article last quoted, to place this contract on the same footing on which it stands in France, by giving to the rentor a right of proceeding against the property subject to the rent, as in cases of hypothecated property, instead of granting a mortgage on the estate. Be this as it may, the legislature has given another right, equivalent in many respects to that of mortgage, in others superior, for the purpose of securing the rents due.

The probate judge erred, in our opinion, in rejecting the claim of the opponents for the last three years. • The rents which had previously accrued had been prescribed. Civil Code, art. 3503. ^

It is therefore ordered that so much of the judgment of the Probate Court— as rejected the claim of Municipality No. 3 for arrearages of rent charge, be avoided and reversed. It is further ordered that said municipality be placed on the tableau of distribution of the succession of J. A. Canonge, deceased, as a creditor, for the sum of $622 44, being for arrearages of rent for the last three years previous to the filing of the opposition, to be paid by preference out of the proceeds of the sale of the property subject to the rent; that the tableau be amended further, by deducting from the balance of $2,235 54, applied to the judgment in favor of Alfred and Armand Mewicr, the said sum of $622 44, the claim of the Merciers being inferior to those of the heirs of J. A. Canonge, and to the privileged claims. This leaves the sum of $1613 10 to be applied to the payment of the claim of Alfred and Armand Mereier. The costs to be paid by the succession, and to be deducted from the sum of $1613 10,


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Succession of Canonge—Alphonse Canonge et al., Appellants.
    Art. 1274 of the Civil Code which, for the purpose of making a partition among the heirs, authorizes the reduction into cash of the proceeds of the sale of succession property sold on a credit, by deducting ten per cent ayearforthe period of such credit, applies only where one or more of the heirs demand a sale for cash, for their portions, while the others, for their shares, require the property to be sold on credit. But where the property of a succession, with the assent of all concerned, has been sold on a credit, not more thanfive per cent a year can bo deducted, for the period of such credit, for the purpose of reducing the amount to cash, in order to effect a settlement with the creditors and heirs of the deceased.

      APPEAL from the Court of Probates of New Orleans, Bermudez, J.
   The judgment of the court was pronounced by

King, J.

The heirs of the late Jeanne Amelie Canonge have appealed from a judgment of the Probate Court, amending a tableau of the succession of the deceased, presented by her administrator.

Some time after the death of J. A. Canonge, her son, Alphonse, was appointed her administrator, and the effects belonging to the succession in community between her surviving husband and herself, as well as those which were her separate property, appear to have been confided to his administration, and were sold under an order of the Probate Court, the price payable, one fourth in cash, and the remainder on credits of one, two and three years. These terms of sale were assented to by all the parties in interest. The succession of J. A. Canonge was determined, by a decree heretofore rendered, to amount to the sum of $28,857,35. During the existence of the community, J. F. Canonge was appointed the tutor of Alfred, and Armand Mercier, and, in that capacity, he received them estates, amounting together to the sum of-, as has also been settled by a judgment rendered in their favor. These two debts, independently of others, leave the community largely insolvent. During the administration rents were derived from property of the community.

In the account rendered, the assets of the estate are credited with only one half of these rents. The other half is represented to belong to J. F. Canonge, as the owner of one half of the community.

The administrator proposedin his tableau to reduce to cash the instalments not yet due, by deducting from their amount, ten per cent per annum, for the time they had still to run, and to apply the sum thus reduced, first to the payment of the heirs of the deceased; the residue, after the payment of the privileged claims, is represented to be the profits of the community, and is placed to the credit of J. F. Canonge, as the surviving partner of the community.

The Merciers opposed the discount of ten per cent per annum, proposed for the purpose of reducing the credit instalments to cash, and claimed that a deduction of five per cent only should be made, contending that the proceeds of the sale are not to be partitioned among the heirs as such, but to be applied to the payment of debts upon which legal interest is due. They further claimed that the whole amount of rent received should be carried into the mass, and applied to the payment of the community debts.

The administrator relies on the 1264th article of the Civil Code, as his authority for reducing the sums not due to cash, by a discount of ten per cent. That article applies alone to the case where one, or more of the heirs of the deceased demand a sale for cash for the share coming to them, while the others require the property to be sold on credit for their portions. In that event, the whole proceeds of sale are reduced to their cash value, by a deduction of ten per cent per annum from the sums not due, for the purpose of making the partition.

A. Canonge, for himself and the other appellants. Soulé, for the opponents.

In the present instance, the succession of the deceased consisted chiefly of a claim against the community, and the community property was sold, upon terms which the Merciers assented to, for the purpose of satisfying that, with other debts. In the distribution of these assets, the heirs are to be regarded only as creditors, and their claim, like others, is to be paid by the administrator with five per cent interest, from the death of the deceased, if the estate be sufficient for that purpose. Code of Pract. art. 988. The only discount, therefore, which the administrator could have made, was that of five per cent, which was equivalent to an allowance of that rate of interest to the creditor.

The position assumed by the administrator that, the surviving husband was entitled to one half of the rents which accrued upon community property during the administration, we deem to be equally untenable. By the death of Jeanne Amélie Canonge, the community was dissolved, and the right of the surviving husband to manage its concerns, ceased with that event. The community was largely insolvent. Its effects appear to have been inventoried, administered and sold, for the purpose of making a final liquidation of its affairs. The property composing it was the common pledge of the creditors, and it was the duty of the administrator to render it, with all the fruits and revenues which it yielded while under his administration, available to them. If he has failed to collect any part of the rents, or has permitted them to be received by others, the creditors are not to suffer from his laches.

The appellees claim that the heirs of the deceased be decreed to bear, each his proportionate share of the charges incurred in the liquidation of the succession. The separate property of the wife, sold for the purpose of effecting a partition among the heirs, should, no doubt, support the expenses necessary to effect that object. There is nothing, however, in the record to show what portion of the proceeds were derived from sales of separate property, and what were the charges to which it was liable.

Those costs which accrued in converting the community effects into cash, and in distributing them among the creditors, are to be borne by the mass, from which they should be first deducted, in order to ascertain the sum for distribution.

We find no error in the judgment of the Probate Court as relates to the subjects of controversy on this opposition. In the decree rendered on another opposition to the same tableau brought up on a separate appeal, ante, p. 209, we have determined that the Municipality No. 3 is entitled to the sum of $622,44, for arrearages of rent charge, which affects the rights of the appellees, and renders it necessary that we should, instead of affirming the judgment generally, render the same decree which has been rendered in the case of the succession of Canonge on the opposition of Municipality No. 3.

It is therefore ordered that, the tableau of distribution be amended as directed in the case of the succession of Canonge, on the opposition of Municipality No. 3 to the account filed by the administrator, decided this day, ante p. 209, the appellants paying the costs of both courts; and in other respects, that the judgment appealed from be affirmed.


author: Rost, J.

text:
    Doriocourt, Executor v. Jacobs et al., Executors.
    The action of the creditors against the legatees of a succession, tp compel them to contribute out of the property received by them to the payment of the debts, is prescribed by three years, to be calculated from the opening of the succession. But where a legatee was also one of the executors of the deceased, the proscription must be considered as suspended while he acted as executor.
    No action can be maintained by the creditors against the legatees of a succession to compel them to contribute out of the property received by them to the payment of the debts, unless it bo shown that the effects of the succession, undisposed of by the deceased, are insufficient to discharge them.
    Executors are liable, jointly and severally, for the property subject to the executorship, unless the testator has divided their functions, and each has confined himself to those allotted to him. C. C. 1674.
    THE defendants appealed from a judgment of the Court of Probates of New Orleans, Bermudez, J., in favor of the plaintiff.
   The judgment of the court was pronounced by

Rost, J.

In 1841, William, F. Jones bequeathed to J. B. Barker real estate and slaves, and appointed him his executor jointly with one F. G. Turner, giving them the seizin of his succession. After the death of Jones his will was probated, and letters testamentary issued in favor of both executors. Barker subsequently instituted proceedings against his co-executor to have him deprived of the ex-ecutorship for legal causes assigned, and to compel him to account. He was deprived of the executorship by the decree of the court; judgment was rendered against him for the sum of $9,710 32, the amount due by him as executor, and interest at the rate of twenty per cent a year thereon. J. B. Barker, his co-executor, was appointed by the court dative testamentary executor. He refused to accept, and the present plaintiff was appointed in his place.

We do not comprehend how J. B. Barker could withdraw, as it is alleged he did, from the executorship, nor in what manner he evaded the provision of article 1674 of the Civil Code, that when there are several executors, they are all jointly and severally accountable for the property subject to the executorship. The appointment as dative executor of a person who had already accepted that trust under the will, is a proceeding which the record leaves unexplained.

J. B. Barker having siuce died, leaving the defendants his executors and residuary legatees, the plaintiff, in his aforesaid capacity, claims from them three of the slaves bequeathed by Jones to Barker, in order to subject them to the payment of the debts of the succession, on the ground that the judgment against Turner has not been satisfied, and that the other assets of the succession are exhausted, leaving debts unpaid to the amount of about $3000.

The facts are not disputed; but the defendants contend that more than three years had elapsed from the opening of the succession of Jones, to the institution of this suit, and that the claim is prescribed under article 1380 nf the Civil Code. The letters testamentary under the will of Jones were granted on the 2d of June, 1841, and this action was commenced on the 4th of January, 1845. The article of the Code relied on is positive, and provides that actions against legatees, in cases like the present, are prescribed by three years, to be calculated, from the opening of the succession.

T. R. Wolfe and J. C. Clarice, for the plaintiff. Glenn, for the appellants.

If J. B. Barker had not been one of the executors of Jones, the defendants would clearly be within the exception they invoke; but as long as he remained executor he could not sue himself, and the prescription was suspended. The time and manner of his withdrawal from the executorship are not shown; and the cause presents, on that account, another insuperable difficulty. Executors being bound in solido till they have been legally discharged, the legal presumption is that J. B. Barker was responsible for the amount of the judgment obtained by him against Tamer, and, until that presumption is rebutted by proofs of a legal discharge, the insolvency of the succession of Jones is not established, and this action is premature. For the reasons assigned it is ordered that, the judgment be reversed, and that there be judgment in favor of the defendants, as in case of non-suit, with costs in both courts.


author: Eustis, C. J.

text:
    Millaudon v. The First Municipality of New Orleans.
    Where in a case affecting the interests of all the tax-paying inhabitants of a municipality, the evidence in the record shows'tlmt other much more important evidence exists, and Í3 within the power of the party, the production of which is essential to a just and equitable decison, the case will be remanded, tnat it may be introduced.
    APPEAL by the defendants from a judgment of the Parish Court of New Orleans, Maurian, J.
   The judgment of the court was pronounced by

Eustis, C. J.

On an examination of this case we came to the conclusion at once that we could not determine it. Those charged with the government of this municipality and with the management of its important concerns, are not the parties in interest in this suit; it is the tax-paying inhabitants who are to be affected by its result. "Were the former alone concerned, we should be justified in leaving them to the consequences of their own acts; but we cannot consent to adjudicate finally on the rights of the latter, in a case presented to us as this is.

From the evidence adduced, we are satisfied that much more important evidence exists, and is within the power of the party, and which has not been exhibited.

The evidence which we must have, if it exists, before we can decide the case, relates to the matter set up in the answer concerning the condition of the Navigation Company, and the relations of the plaintiff with that corporation, its officers and agents, and particularly as to his connection with the resolutions of the 'board of directors which concern transactions relating to the pledge of the bonds, and which have been offered in evidence. The copies of the deliberations of the board of directors do not contain the names of the directors, nor the whole proceedings, and we cannot consent to determine a case like this in the last resort, on a partial consideration of the facts on which it must depend.

We wish it to be understood that, we leave all the question involved in this case entirely open, and remain, in relation to them, entirely uncommitted. We have intended to confine ourselves entirely to a statement of the evidence, which we consider ought to have been adduced, being satisfied of its existence by what is already before us, without expressing any opinion as to its effect. We also suggest that the Orleans Navigation Company be made a party to this suit, and, ^yjth its records and the documents in relation to this business, a court can have every means of arriving at a just and equitable conclusion, in relation to every branch of this difficult cause.

Benjamin and Micou, for the plaintiff. Soulé, for the appellants.

The judgment of the Parish Court is reversed, and the case remanded to the Third District Court of New Orleans, for further proceedings, with permission to the parties to amend their pleadings and make newparties; the appellants paying the costs of this appeal.


author: bliiDELL, J.

text:
    Hoffman v. The Western Marine and Fire Insurance Company.
    Where goods insured against fire are destroyed, the insurer is bound to pay their value at the time of the loss; if damaged only, he is bound for the difference between, their value in their sound and damaged condition. Where the goods are so much damaged as not to be saleable in the ordinary mode, a fair sale at auction made by the assured, after reasonable notice to the insurers, or with their knowledge, may^e considered by a jury in estimating the damage, and in ascertaining the amount of the indemnity; but the price for which such damaged goods were sold at auction by the assured, without notice to, or knowledge by, the insurers, of the sale, is not sufficient evidence of the value of the goods in their damaged condition.
    Where in an action on a policy of insurance containing the usual condition that, if there be any fraud or faljí swearing, all claim under the policy shall be forfeited, there is a difference between the amount of loss sworn to by the insured in his account presented to the insurers and that proved on the trial, such difference is not conclusive evidence of fraud and false swearing; but the burden of proving that the difference was the result of error, and not of an intention to defraud the insurers, is on the plaintiff, and, in the absence of any satisfactory explanation, it must be considered as imposing on the insured a forfeiture of all claim under the policy. ^ p
    Where, in an action against an insurer for loss by fire, the defence is that the assured himself set fire to the premises, the evidence for the defence is not required to be as full and conclusive, as would be necessary to support an indictment for arson.
    A court may, at the instance of a party, order a case to be tried before a jury, even after the trial had been commenced before the court alone*
    APPEAL from the Commercial Court of New Orleans, Watts, J.
   The judgment of the court was pronounced by

bliiDELL, J.

This is a suit on a fire policy upon merchandize, bedroom furniture, &c., in a store occupied by plaintiff. The amount claimed is based upon an account annexed to the petition. This account is composed mainly of items exhibiting the sound value of the goods, as appraised in the store after the fire. A few of the items are for goods lost or destroyed at the fire, put down at an appraised Value. From the total of these items thus appraised, is deducted the nett amount Which the goods and furniture produced at an auction, ordered by the plaintiff after the company had refused to pay him, and for the balance— the difference between the appraised value and the auction sales, being $1231 19, the plaintiff sues, and has obtained a verdict. The evidence at the trial was of the same character. The appraisements of the goods and furniture were offered, and the accounts of the auction sales were also offered. The jury gave their verdict for the precise balance stated in the account annexed to the petition.

The insurer’s’ liability is distinctly defined by the policy, and by well ascertained principles of the law of insurance. If goods are wholly destroyed by fire, the insurer is bound to make indemnity, by paying their value at the time of the loss. If the goods be not destroyed but damaged, the insurer is bound, by the like rule of indemnity, to pay the assured the difference of value between the goods in their sound and in their damaged condition. The idea of a right of abandonment of the goods, which seems to have existed in the plaintiff’s mind, and in that of his principal witness, who assisted him in making out the appraisement, is entirely unsanctioned by the law of fire insurance. Insurance companies sometimes assent to the sale of damaged goods at auction to ascertain the value, but they are under no obligation so to do, without a clause to that effect. When they assent to that corase to ascertain the damaged value, the indemnity is the difference between the auction return and their sound value at the date of the fire. Where a sale is thus made with their assent, or, without their assent, yet upon notice to them, it is obvious that they could have an opportunity of being represented at the sale, and of taking measures to prevent an undue sacrifice.

The court below was requested by the defendants’ counsel, “ to charge the jury that, the difference between the price for which the goods injured by the fire were sold at public auction and the valuation of said goods before they were injured, was not a proper criterion to fix and determine the amount of indemnity for which the defendants were liable under their contract of insurance, and that the amount of damage or injury sustained by the property insured ought to have been proved by other testimony, or legal evidence; but the court refused to charge the jury as requested, but charged them, on the contrary, that the auction sale and valuation of the property as aforesaid, afforded a proper basis to establish the amount of indemnity to which the plaintiff was entitled.” The minds of the jury might have been misled by this refusal, and charge of the court, and it is natural to suppose that they were so, as they have given their verdict for the precise difference between the appraisements and the auction sales.

In our opinion the charge of the court should have been that, one assured in a, fire policy is entitled to recover the fair market value, at the date of the fire, of} goods totally destroyed, and, as to goods damaged, the difference between the'value, at the date of the fire, of goods in their damaged state and like goods undamaged ; and that in ascertaining the damaged value, a fair sale at auction made j by the assured, in cases where the goods are so, much damaged as not to be sale-able in the ordinary mode, and upon reasonable notice given to the insurer or, with the insurer’s knowledge, maybe considered by the jury in estimating the', extent of damages, and ascertaining the amount of indemnity. But that when j an auction sale is made by the assured, without notice to, or knowledge by, the ] insurer, the mere returns of sale are not of themselves sufficient evidence of the damaged value.

In the present case the insurers were parties to the appraisement, their own agent having acted and signed as one of the appraisers; and as no fraud or mistake in the framing of the appraisement is proved, the company is bound by it, as prima, facie evidence of the sound value of the goods, both of those lost or destroyed at the fire, and of those which existed at the store, after the fire, in a damaged condition. But there is no satisfactory evidence in addition to the auetion sales, to show the extent of the damage.

It is obvious that, by taking the mere auction sale, made without proof of notice or privity of the insurer, afair measure of indemnity is not given, for goods sold under the hammer as damaged goods, might well be sacrificed. In the present case we are not able to say whether there was a sacrifice as to the merchandize, as the appraisement was single, to wit, of sound value only. But with regard to the furniture, it appears that the appraisers made a double appraisement, estimating the value before the fire at $231, and the damage by the fire, which was the loss to the plaintiffs, at $45; thus leaving its value in its damaged condition at $153 54; whereas it was sold at auction for the gross sum of only $48 12, and a nett sum of $42 46, which latter amount only is credited to the insurers by the plaintiff’s petition and by the finding of the jury. We should not suppose the sacrifice as great in the case of the merchandize, but we are still left in doubt by the evidence as to the extent of the damage, having no guide but the auctioneer’s return.

Under these circumstances, and without entering into a consideration of the charges of fraud, we deem it our duty to remand this cause. In doing so, how-^ ever, it is proper to notice some other questions of law presented in this case.^'

The defendants asked the court to charge the jury that, “ the difference Be-' tween $3,688 80, the amount sworn to by the plaintiff in the account presented by him on the 5th August, 1843,” (threo days after the fire,) “and the account in evidence, is to be considered by the jury as evidence of fraud and false swearing by the plaintiff, so as to bring him under the effect of the 9th condition of the policy of insurance in this cause.” The condition is the usual condition ; it follows the usual clause as to giving notice to the company, delivering a particular account, &c., and is in these words: “Also if there appear any fraud or false swearing, the claimant shall forfeit all claim by virtue of this policy.” The plaintiff, on the other hand, asked the court to charge that, “if the plaintiff fail to sustain, his affidavit by direct evidence to the amount claimed, he is not therefore necessarily to be considered as having sworn falsely, and thereby forfeited the policy.”

The court gave the charge as requested by the plaintiff, but added that, the false swearing must be an intentional false sweai'ing, for the purpose of recovering from the insurance company an amount of value beyond what the party knew to be the value of the goods in the store. And the court further chai’ged as requested by the defendants.

We think the course of the judge was substantially correct. His charge, as a whole, substantially amounts to this : that the jury will consider whether the discrepancy between the account sworn to and the value as proved at the trial, is to be fairly attributed to an intention to defraud the insurer, or to an innocent error on the part of the assured ; that the burden of explanation is upon the plaintiff; and that, if the discrepancy be unexplained to the satisfaction of the jury upon a fair consideration of the whole evidence, it imposes upon the assured a forfeiture of all claims by virtue of the policy.

The defendants asked the court to charge the jury that, “ the evidence to prove that-the plaintiff set fire to his own store is not to be as full and conclusive as on an indictment against him for arson, but that the same may be shown by presumptions as well as by direct evidence; and that, if they believe presumptive or circumstantial evidence exists to support such a defence in this case, they must find for the defendants.” The court refused so to charge, but appears, in the terms of plaintiff’s application, to have charged the jury that, “ in a claim against an insurer for loss by fire, when the defence is that the assured himself set fire to the premises insured, the facts are to be as fully proved as on an indictment for arson; but where a policy provides against fraud and false swearing, any evidence which will satisfy a jury that there was fraud or false swearing, is sufficient to justify a verdict for defendants.” The court further added, in adopting the plaintiff’s application, that, “ in a matter of this kind, every species of evidence, whether circumstantial or presumptive, which tends to convince the mind, may be adduced, whether on the one side or the other.”

W. H., and R. Hunt, for the plaintiff. ¡Maybin and Roselius, for the appellants.

We think that the jury should not have been instructed to require the same full proof to discharge an insurer, as would be necessary to convict the assured for arson under our statutes. The position of the claimant in the one case, and of the prisoner in the other, are not identical; and a jury might, perhaps, with justice refuse to condemn the defendant in the criminal prosecution, to whom, upon the same evidence, they would refuse a verdict, were he the plaintiff in a suit upon a policy of insurance.

The defendants’ exception to the order that the cause should be tried by a jury, after the tidal by the court had commenced, is not tenable. The plaintiff made his motion for a jury, on the suggestion of the court, that the court desired the trial to be by jury. If a court may, ex officio, order a new trial after a judgment has been rendered, it may well suggest and grant the trial of the cause by a jury after the case has been opened. This was a matter within the discretion of the court below, and, considering the nature of the controversy, was very properly exercised.

' It is therefore ordered that the judgment of the court below be reversed, and that this cause be remanded to the Fourth District Court of New Orleans, for a new trial; the plaintiff paying the costs of this appeal.1--


text:
    Sauvinet v. Landreaux, Recorder of Mortgages.
    Art. 3302 of the Civil Code, which declares that, “ to prove that mortgages exist on the property of atntor orcuratorof a minor, interdicted, or absent person, it shall suffice to record in the office of mortgages a certificate from the judge who appointed such tutor or curator, declaring the fact of appointment, and the amount of the appraisement by the inventory of of the property confided to his administration,” does not exclude any other mode of proving, or making public such a mortgage; the object of that article is to relieve the judge from the necessity of furnishing, and the recorder from that of requiring, the highest evidence of its existence. The inscription of the bond of a tutor or curator, reciting his appointment and the sum for which he is answerable to the minor, is sufficient; and the recorder will be responsible for any injury resulting from his omission to mention in any certificate of mortgages furnished by him, the mortgage existing on the property of the tutor or curator. 0. C. 3357.
    The inscription in the office of the recorder of mortgages of any act which conveys to third persons knowledge of a mortgage, fulfils the object of the law, which is to give notice of the incumbrances upon immovables. The notice is equally binding, whether the knowledge of the mortgage be derived from the inscription of the order appointing the tutor or curator, from the certificate of bis appointment, or from bis bond. C. C. 3315, 3316,

      The mortgages in favor of minors on the property of their tutors or curators, are expressly excepted by art. 3333, from the provision of the Civil Code which declares that, the effect of the registry of a mortgage ceases after ten years reckoning from their date, unless rein-scribed before the expiration of that period.
    Where a legal mortgage exists in favor of minors, on property of the tutor sold under execution, and the evidence shows that the tutor was insolvent and that judgments to a large amount had been obtained against him, the purchaser has such just reason to tear that a suit may be commenced against him in virtue of the general mortgage, as will authorize him to retain enough of the price to pay off the mortgage, unless the suing creditor prefer to give him security against it. C. P. 679, 683, 710. C. C. 2535.
    from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

King, J.

This action is instituted to recover from the defendant the amount of a legal mortgage inscribed upon the books of his office, which he omitted to include in a certificate furnished by him as recorder of mortgages. In the lower court there was a judgment against the defendant, from which he has appealed.

Henry Chevarre executed, in favor of the plaintiff’s testator, a special mortgage upon real property in the city of New Orleans, for the purpose of securing the payment of a note for $1800. The defendant who was, at the date of the act, recorder of mortgages, furnished, at the request of the parties, a certificate of the encumbrances upon the property proposed to be hypothecated, in which no mention was made of a tacit mortgage against Chevarre, resulting from his appointment to the tutorship of several minors. After the maturity of the note, the plaintiff, who is the legatee of the original holder, recovered a judgment against Chevarre for its amount, under which he caused the hypothecated property to be sold. The certificate from the mortgage office, produced at the sheriff’s sale, exhibited a legal mortgage in favor of the minor heirs of Diez, for $1250, which had been inscribed anterior to the date of the certificate furnished by the defendant. The property was adjudicated to McDonogh, who insisted on retaining in his hands, out of the price, a sum sufficient to extinguish the mortgage in favor of the minors. He has been made a party to this suit, and pleads, in defence, that Chevarre is insolvent, and he has just cause to fear that a suit will be instituted against him for the amount of the tacit mortgage in favor of the minors.

The obligations resting respectively on the tutor, the judge who oppoints him, and the recorder of mortgages, with regard to the inscription of legal mortgages in favor of minors resulting from tutorships, are clearly defined. It is the duty of the tutor to make public the legal mortgage in favor of his ward, with which his property is burthened, by recording the act on which it is founded in the office provided for the purpose; of the judge, to cause the registry of all legal mortgages resulting from appointments of tutors made by him; and of the recorder to receive, inscribe, and give certificates of such mortgages when required. Civil Code, arts. 3299, 3334, 3355, 3356.

In the present instance the tutors bond was delivered to the recorder to be registered, as evidence of the mortgage in favor of the minors. The defendant, maintains that, the tacit mortgage in favor of the minor, results from the order of the judge appointing the tutor, and that this order, or the certificate of the judge declaring the fact of appointment, and the appraised value of the estate confided to'the tutor’s administration, are the only acts which constitute legal evidence of the mortgage, and which, when registered, it is incumbent on the recorder to certify as mortgages extant on his records. He insists that the bond. neither created, nor was evidence of, a mortgage, and that he was not required to certify its existence.

Art. 3302 of the Civil Code provides that, it shall suffice to record in the office of mortgages, a certificate from the judge who appointed a tutor, declaring the fact of appointment and the amount of the appraisement in the inventory of the property confided to his administration, to prove that a mortgage exists on the tutor’s property.

The object of this article is, not to exclude any other mode of proving, or making public, a mortgage in favor of a minor, but to dispense the judge from furnishing, and the recorder from requiring, the highest evidence of its existence. The bond furnished and inscribed in the present instance recited the appointment of the tutor, and the sum for which he was answerable to the minors, thus setting forth the material facts in relation to which the judge is permitted to give his certificate, and in regard to which third persons are to be informed. Any act inscribed in the recorder’s office, which conveys to third persons the knowledge of a mortgage, fulfils the object of the law, which is to give notice to the world of the incumbrances upon immovables, and to afford means of information to all interested in making the enquiry. Whether the knowledge of a mortgage be derived from the order of the judge appointing a tutor, the certificate of the appointment, or the bond of the tutor, the notice is equally binding upon the party who is informed of its existence. Civil Code, ai'ticles 3315, 3316. The registry of the bond was, in our opinion, sufficient to give the required publicity to the legal mortgage in favor of the minor heirs of Diez, and the recorder is clearly answerable for any injury that may have resulted from his omission to include it in his certificate. Civil Code, art. 3357.

The defendant contends that, this mortgage in favor of the heirs of Diez had been extinguished by prescription before the date of the certificate which he furnished, having been recorded more than ten years previous to that time. Legal mortgages in favor of minors are expressly excepted by the Code from the prescription of ten years, which destroys the evidence of mortgages in ordinary cases. Civil Code, art. 3333.

The last ground of defence set up is that, the purchaser at the sheriff’s sale has illegally withheld payment of a part of the price of the property adjudicated. The law creates a distinction with reference to the rights of purchasers at sheriffs sales, when the property is burthened with special or general mortgages, prior to those of the seizing creditor. When tho incumbrance is of the former kind, the purchaser retains in his hands, out of the price, the amount required to satisfy the previous special hypothecation. If the mortgage be general, he can only retain a part of the price, for the purpose of paying it, when a suit has been commenced against him, in virtue of the general mortgage, or where he has just reason to fear that such a step will be taken. Code of Pract. arts, 679,683. 710. Civil Code, art. 2535. In the present instance, McDonogh alleges his apprehension that he will be disquieted by an action of mortgage. The evidence shows that Chevarre is insolvent, and that judgments to a large amount have already been obtained against him. The existing and growingdisorder in his affairs is such as to inspire the purchaser with a well founded dread of eviction, and to authorise him to retain in his hands a sufficient amount out of the price of the adjudication to pay the legal mortgage in favor of the heirs of Diez, unless he be secured against it. Either the seizing creditor, or Landreaux, may furnish this security; the latter is equally interested with the former in the payment of the adjudication. The object of the law is to protect the purchaser in Ms title and possession. That end will be accomplished whether the one or the other party furnish the security, and, on its being given, the purchaser must be held to pay the price. The judgment of the inferior court must be so amended as to conform to this opinion.

Marsoudet, for the plaintiff. Eyma and Le Gardeur, for the appellant.

It is therefore ordered, that so much of the judgment of the District Court as condemn the defendant to pay the amount of the legal mortgage in favor of the minor heirs of Diez, with interest, be affirmed, and, in other respects, that it be avoided and reversed. It is further ordered that the execution of this judgment against Landreaux be suspended for sixty days, and if, at the expiration of that delay, either he, or the seizing creditor, shall have furnished the security required by art. 710 of the Code of Practice, and article 2535 of the Civil Code, the same will be in satisfaction of this judgment against him. It is further ordered that, upon the security referred to being furnished as above required, John McDonogh pay to the plaintiff the sum of 51250, by him retained out of the price of the property adjudicated to him, and described in the plaintiff’s petition, with interest thereon from the date of the adjudication to him. The defendant is to pay the costs of the court below, and the plaintiffs the costs of this appeal.


text:
    Nicholson, Syndic v. Chapman.
    Notes payable after date, received by syndics, or other administrators, in the settlement of insolvent estates, and in liquidating successions, can be discounted only under authority of the court. Per Curiam: Notes and money belonging to creditors in the hands of syndics, are in judicial deposit or sequestration; they are the exclusive property of the creditors, and subject entirely to their control, under the direction of the court by whose authority the syndiG was appointed, and under which he is bound to act. C. C. 2942, 2948.
    Where the word Syndic is appended to the name of the indorser of a note, it is notice that the note belongs to the estate in the hands of the syndic, and that it cannot be indorsed without an order of court 5 and the purchaser is bound, at his peril, to ascertain whether such an order exist. He can acquire no right under the note adverse to the party to whom it really belongs, and in whose interest the restrictive indorsement is made. The proceeds of the note when paid represent the instrument, and belong of right to the estate. The fact of the syndic having given security for the faithful performance of his duties, cannot affect the claims of the creditors for the conversion of their property by a third person.
    An indorsement is restrictive when it has words expressly making it so, or when it is. made in favor of a person who cannot make a transfer.
    The relative rights of the holder of a bill or note and the party beneficially interested in it, are by no means identical with those existing between the former, and the maker or other party. A payment may be well made to the holder of a bill, though he maybe bound to accountfor the proceeds to a third person to whom they belong.
    APPEAL from the Commercial Court of New Orleans, Watts, J.
    T. A* Clarke, for the plaintiff.

      Maybin, for the appellant.
    The endorsement “ G. W. Pritchard, Syndic," was not notice to the defendant that the note belonged to the estate of which Pritchard was syndic, the endorsement being in blank. 2 Robinson, 303. 0 Mass. 423. 15 Id. 272. 14 La. 254. If the blank endorsement were notice, it is no objection to defendant’s title to the note. 31 Eng. Com. Law Kep. 212. 37 Id. 236. 41 Id.gl42.

      Chymes, appeared on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

George W. Pritchard, an insolvent debtor, was appointed syndic of his_ownjestate,jand of that of G. W. Pritchard & Co., and received two certain notes in payment of property sold by him belonging to thd syndicate. These notes were placed by him in the hands of John Kilty Smith, a broker, and, in September, 1841, were negotiated by the broker to the defendant, and the proceeds paid over to Pritchard. One of these notes, made by Francis T. Har-man, to the order of Benjamin Thomas, was endorsed in blank by the latter, and at the time of the discount by the defendant bore this endorsement, also in blank: G. W. Pritchard, Syndic. Pritchard applied the proceeds of the notes to his own use, and was a defaulter to the syndicate in a large amount. The plaintiff was appointed in his stead, and represents the creditors. He has brought this suit to recover from the defendants the amount of two of the notes, and interest; but the only question is, as to his right to recover the amount of the note drawn by Harman, for §¡1433 33J.

The first ground of defence, which it is material to notice, is that, the defendant discounted the notes in the usual course of business, and for a valuable consideration, and that in all his conduct in relation to the discount he acted bond fide, and became thereby the lawful owner of the note. There is nothing connected with this transaction which attaches any suspicion to the good faith of the defendant. He paid an adequate consideration for the note, and his fair dealing has not been questioned.

In the settlement of insolvent estates, and in liquidating successions, it is quite usual for notes, payable at long terms, received by syndics and other administrators, to be put into market and discounted. This is absolutely necessary in order to meet "those claims which are demandable in cash, or to satisfy heirs who insist on an immediate settlement of their rights. But to give to the syndic, or administrator, the power to have notes discounted, an authority from the court is necessary. It is sometimes given in the meeting of the creditors, and, in the confirmation of their proceedings, the authority becomes complete. In this case there was no semblance of authority to the syndic, and the act of negotiating these notes was a flagrant breach of trust.

"We consider notes and money belonging to creditors in the hands of syndics, ns being in judicial deposit or sequestration. They are in litigation ; the creditors in concurso are contending for them; and they are the exclusive property of the creditors, and subject entirely to their control, under the direction of the court, under whose authority the syndic is appointed and is bound to act. Civil Code, arts. 2942, 2948.

The endorsement, “ G. W. Pritchard, Syndic,” is notice that the note belonged to this estate, and that it could not be discounted without an order of court. "Whether that order existed or not, the person purchasing the note was bound to ascertain. The endorsement was sufficient to put him on inquiry. It was positive information that the note was not an ordinary one, negotiable at the risk of its holder, but formed part of a fund which did not belong to the party holding it, but to those whose depositaiy he was.

We understand that a person taking a note of this kind can acquire no rights raider it adverse to the party to whom it really belongs, and in whose interest tbs restrictive endorsement is made, and of which it gives notice; and that the P]'oceeds of the note when paid, represent the instrument, and belong of right to its original owner. Byles on Bills of Exchange, p. 89. Chitty on Bills, 10th edition, and notes, pp. 200, 231, 232, 233.

An endorsement is restrictive which has express words making it so, or which is made in favor of a person who cannot make a transfer. Bailey on Bills, 69. Story on Notes, § 141, 142.

The counsel for the defendant has cited several decisions from the English and American Reports, to show that this endorsement would be no obstacle to the recovery on this note by the holder, against the maker. It is obvious that this position, were it established, does not control this case. The relative lights between the holder of a bill or note and the party beneficially interested in it, are by no means identical with those existing between the former and the maker, or other party to the bill or note. A payment may be well made to the holder of a bill, and still the holder may be bound to account for the proceeds to a party to whom they in law belong. Bailey on Bills, 79, and cases cited. Under the English law, on the death of the holder of a note or bill, the right of transfer is vested in his administrator, or executor. If he becomes bankrupt, it devolves on his assignees. Bailey on Bills, 78. Chitty on Bills, 201, 202.

It is urged that Pritchard gave security for thé faithful performance of his duties as syndic. We do not consider this fact as affecting the claims of the creditors, for the conversion of their property by a third person.

It appears that Pritchard applied the proceeds of this note to the use of a firm of which he was a member, which afterwards became bankrupt, and that the syndicate, being a creditor of the fii’m for the amount of Pritchard’s defalcation, $9777 76, received two dividends of the bankrupt estate, to the amount of $1965 60. For these dividends, of which the creditors have had the benefit, in the proportion which the amount of this note of Harman bears to the amount proved in bankraptcy, the plaintiff must account to the defendant, and the amount must go to his credit in this suit. The judgment of the court below must be changed in this respect. Any future dividends must also belong rate-ably to the defendant. The proof made of the debt in the bankruptcy will stand for his benefit.

The judgment appealed from is reversed, and judgment entered for the plaintiff, for the sum of $1146 67, with interest from 5th January, 1844; the plaintiff and appellee paying the costs of this appeal.


author: Kino, J.

text:
    Succession of Rolland.
    Since the adoption of the constitution of 1845, a tablecm of distribution of the effects of a succession, which proposes to allow certain sums to the attorney of the succession and to the attorney for the absent heirs, cannot be homologated as to such allowances, the courts being without authority to make any allowance by way of fee or compensation, in any suit or proceeding, except for the payment of such fees to ministerial officers as may he established by law. Art. 71. Per Curiam: Where an administrator requires the aid of counsel he may legally pay for such services, as for those of any other agent; but the propriety of such pay- . ment, like any other made on account of the succession, may be contested by any creditor, or other person interested.

      APPEAL from the Court of Probates of New Orleans, Bermudez, J.

      David, for the appellant. No counsel appeared for the other parties,
   The judgment of the court was pronounced by

Kino, J.

The opponent, Desirée Marcos, has appealed from a judgment of the Probate Court, rejecting her claim for services rendered as a nurse to F. Holland, deceased, during his last illness.

Her claim is for attention for six months, at $2 a day. It appears that the malady of the deceased was pulmonary consumption, for which he underwent medical treatment, for six months previous to his death. During that time the opponent was in the daily habit of giving him personal attention. At the expiration of the first four months, she stated to one of the witnesses that her attentions were gratuitous, and rendered in consideration of her regard for the invalid. Shortly after this conversation the deceased became more seriously ill, and from that time, until his death, was, for the most part, confined to his bed. The opponent continued to render him personal services; was several times sent for, by the deceased; passed several nights by him; had her servants in attendance on him; constantly dressed a running issue on his person; supplied him with drinks and articles of food suited to his condition; and gave all those attentions which his suffering state required. The judge below rejected her claim on the ground that she was not a professed nurse, and that her attentions were merely acts of benevolence and neighborly kindness.

It is true that, until within six weeks, or two months of Holland’s death, Marcos intended to give her services free of charge. It is not to be presumed, however, that when her attentions became more frequent and onerous, and her duties more painful, she still intended to render them without remuneration.

One of the witnesses estimates such services as were rendered by the appellant, to be worth $2 a day; and we think that sum should be awarded to her for fifty days, with a privilege. Civil Code, arts. 3158, 3169.

The sums proposed in the tableau to be allowed to the attorney for the estate, and the attorney for the absent heirs, have been opposed. ¥e have lately held that, since the adoption of the present constitution, courts are without authority to make allowances by way of fee or compensation, except for the payment of such fees to ministerial officers as may be established by law. Constitution, art. 71. Pandelly v. His Creditors, ante p. 21.

"Where an administrator needs the aid of counsel, he may legally pay for such services, as for those of any other necessary agent. The propriety of sijch disbursements will, however, be subject to revision; and, like every other payment „ made on account of the succession, is liable to be questioned by the creditors, or others interested in enforcing a prudent and economical administration of the funds confided to his charge.

It is therefore ordered that, so much of the judgment of the Probate Court as rejected the claim of Desiree Marcos, and made allowances of fees to the counsel for the estate and for the absent heirs, be avoided and reversed. It is further ordered that Desiree Marcos be placed on the tableau of distribution of the succession of F. Holland, as a privileged creditor, for $100, for services rendered as a nurse during the last illness of the deceased; that said tableau, thus amended, be homologated and confirmed, and the funds in the hands of the curator be distributed in accordance therewith. The costs to be paid by the succession.


text:
    Jones et al. v. The Merchants Bank of Baltimore.
    THIS case was remanded to the Fourth District Court of New Orleans, for further proceedings, no opinion being pronounced on any question of law arising in it.
    Hammer, for the appellants. Wharton, for the defendants.


author: Slidell, J.

text:
    De Kerlegand, Administrator, v. Robin, Administrator.
    One sued as administrator for a debt alleged to be due by tbe deceased, having no personal interest in tbe case, is a competent witness to prove tbat tbe claim had been paid by the deceased.
    APPEAL from the District Court of St. Landry, Overton, J.

       A second case, between the same parties, was remanded at the same time, and for the same reasons.

   The judgment of the court was pronounced by

Slidell, J.

The plaintiff sues the defendant in his capacity of administrator of a succession, for certain debts alleged to have been contracted by the deceased. At the trial of the cause the defendant presented himself as a witness to prove that the claim had been paid by the deceased, offering also to be examined on his voir dire to exhibit his freedom from any personal interest. The plaintiff objected to the reception of this witness on the ground, “ that he was the administrator of the estate touching whose interests he was called to testify; and because he was a party to the suit in the capacity of administrator.” The court below sustained the objection.

We are of opinion that the court below erred. The proposed witness, though a defendant, was acting in a capacity purely representative. No personal responsibility was claimed. A mere agent and trustee of the heirs and creditors, it was wholly immaterial to him, personally, whether the claim of plaintiff should be sustained or rejected. Even for costs there was no personal liability. Thus the mind of the witness was free from any temptation to sacrifice the interests of the opposite party, or offend good morals by false swearing, We are not willing to shut out the investigation of truth, by the objection, purely technical, and advanced ¡upon common law authorities, that, in his official cajiacity, he is a party to the record. The reason of the rule with regard to the incompetency of parties, is inapplicable to a case like the present. In England, the rule in question has, we believe, been recently reformed, its rigour having been found inconsistent with sound reason, and detrimental to the administration of justice.

W. B. Lewis, for the plaintiff. Swayze and Taylor, for the appellant.'

It is therefore decreed that the judgment of the court below be reversed, and that this cause be remanded for a new trial; the appellee paying the costs of appeal.


author: Eustic, C. J.

text:
    Exparte Stockman et al.
    Partitions of succession property in which a minor is interested, can only be made by the court in which the succession was opened. C. P. 924 § 14, 1020,1022.
    APPEAL from the District Court of St. Landry, Overton, J.

      Greiner, for the appellants.
   The judgment of the court was pronounced by

Eustic, C. J.

The heirs of Margaret JDuJfin, deceased, whose succession was opened in New Orleans, in 1831, applied to the court of the Fifteenth Judicial District, for an order of sale and pai-tition of certain real estate, situated in'the parish of St. Landry. One of the heirs of the deceased is a minor, and not represented. She did not join in the application. The properly came to Margaret Dujjin, from the succession of Thomas Bledsoe, deceased, who died in the parish of St. Landry in 1811, and was inventoried as part of his succession. The application was based on the idea that, the property still formed a portion of the succession of Bledsoe; but the judge considered that it was a part of the succession of Margaret Dujjin, and that succession being opened and under administration in the parish of Orleans, the court of the Fifteenth District had no jurisdiction over the case; and he dismissed the application.

Article 1020 of the Code of Practice provides that, the partition of a succession, in which a minor is interested, shall be made by judicial authority; and, by article 1022, partitions of succession property are to be made by the courts of probato of the place where the succession is opened. Article 924 § 14 gives to courts of probate exclusive power to ordain and regulate all partitions of succession in which minors are interested.

The general jurisdiction vested in the District courts by the constitution we do not think makes any change in those articles of the Code of Practice, which give to the court in which the succession is opened exclusive jurisdiction over the mortuary proceedings, and those which the Code requires to be conducted before the tribunal seized of the jurisdiction of the succession.

If there be any persons having any interest in the succession of Bledsoe adversely to the heirs of Margaret Duffin, the law has made abundant provision for their security. They can require a separation of the effects of that succession from that of Margaret Duffin, and have them applied to the exclusive benefit of the creditors of the succession of Bledsoe. Civil Code, arts. 1370, 1397, 1398, 1404, 1406.

From the examination we have been enabled to give to this case, we have come to the conclusion that, the judge waswarranted in declining to act'on this application, and that the District Court of New Orleans, in which the mortuary proceedings of the succession of Margaret Duffin are now pending, is the proper tribunal to act on the matters set forth in the petition of the parties.

Judgment affirmed.


author: Kiitg, J.

text:
    Hebert v. Mouton et al.
    Where in an action against the heirs, to recover an amount claimed for services rendered to their ancestor during her last illness, &c., it is proved that the plaintiff, onbeing interrogated by the parish judge while malting the inventory, confessed that he liad in liis possession' money belonging to the deceased, but refused to state the amount, he will be non-suited.
    APPEAL from" the District Court of Vermillion, Boyce, J.

      Crow and Por-for the for the defendants.
   The judgment of the court was pronounced by

Kiitg, J.

The plaintiff claims $400, for services rendered to Marie Lise Mouton, deceased, during the year last preceding her death, for funeral expenses and taxes paid, alleging that the defendants, who are the children of the deceased, have accepted the succession of their ancestor purely and simply. The defendants pleaded a general denial, and that the plaintiff, at the time of instituting his suit, was in the possession of funds belonging to the succession of the deceased, to an amount larger than that claimed in his petition. There was a judgment of non-suit rendered in the court below, from which the plaintiff has appealed. It appears from the testimony that when the inventory of the effects of'the deceased was being made, the plaintiff, upon being interrogated by the parish judge, declared that he hold a sum of money belonging to the deceased, but refused to disclose the amount, although several times warned by the judge of the consequences of his refusal, saying that he acted with legal advice.

Under this state of facts, we cannot accord to the plaintiff the relief he asks. He has acknowledged that he is the debtor of the deceased, and the amount of his debt, whatever it be, extinguishes by compensation to that extent his claim against the defendants. The knowledge of its amount appears to be confined to himself, the other party to the transactions out of which it grows having died. His refusal to make the disclosure deprives us of the means of deciding finally upon the matters in contest, without doing injustice to one or the other of he parties litigant. Judgment affirmed.


text:
    Mayer et al. v. Prudhomme, Executor.
    Though an order allowing an appeal be obtained in due time, if the bond be not filed within the time allowed for an appeal, tjio appeal must be dismissed.
    APPEAL from the Court of Probates of St. Landry, Garriques, J.

      Linton, for the appellant. W- B. Lewis, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The judgment in this case was signed on the 16th day of June, 1845. On the 13th September, 1845, an order of appeal was obtained, but the bond of the appellant was only filed on the 11th August, 1846, being more than one year from the signing of the judgment. The motion to dismiss must prevail. Sec. 3 Rob. 78. 2 La. 323. Appeal dismissed.


text:
    Wilcoxen v. Bowles.
    A lessor may sue for rent, whether due or not, and seize provisionally the effects subject to his lienfound upon the premises, where he has good reason to believe that the lessee will remove them, and that he may be thereby deprived of his lien, on making oath to those facts. C. R. 285. 287.
    Any doubt as to the interpretation of a contract, may be removed by the construction put upon it by the acts of the parties themselves.
    Where the rent of land leased for the cultivation of sugar is payable in a portion of the crop, it will be presumed, in the absence of any express stipulation, that it was intended that the sugar should be delivered in the usual manner, that is, in hogsheads or barrels ; and the lessee cannot claim any allowance for the cost of the hogsheads or barrels.
    APPEAL from the District Court of St. Mary, Boyce, J.

      W. L. Brent and W. C Dwight, for the plaintiff. Maslcell and Lewis, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiff leased to the defendant a sugar plantation for three years, from the first of January, 1842, for which the latter stipulated to pay to the former annually, one-fourth of the sugar, molasses, corn, potatoes, and oranges produced upon the property leased. In 1844, there was produced upon the plantation 114 hogsheads and 2 barrels of sugar, 5130 gallons of molasses, and 140 barrels of corn. The portion of the sugar of that year destined for Wilcoxen, was set apart, marked, and placed under a shed, by a person who appeal's to have acted as the common agent of the parties in making the division. In January, 1845, a few days before the conclusion of the sugar grinding, Bowles signified his intention to ship the sugar designated for the plaintiff, unless the latter should pay him the value of the hogshead s.Jn which it was contained. The plaintiff thereupon institued this action for a fourth of the crop of sugar and molasses produced in 1844, for the value of one-fourth of the corn and oranges, and for a sugar mill broken during the grinding. He also claimed the amount of two promissory notes, and obtained a provisional seizure of forty-hogsheads of sugar, in order to secure the performance of the stipulations of the lease.

The defendant pleaded first, that the suit was premature, having been instituted before the sugar making had been completed, and at a time when the stipulated rent was not due. He also alleged that, he had performed the obligations of Ms contract, and claimed several small sums in compensation, and, among them, the price of the hogsheads in .which the sugar of the two previous years had been delivered, and those containing the plaintiff’s portion of the crop of 1844.

The plea of prematurity was overruled, and a judgment rendered in favor of the plaintiff for the amount of the two notes, with interest as claimed, for the price of one-fourth of the corn, and for ono-fourth of the crop of sugar and molasses, deducting a small quantity of each of the latter articles which had been previously delivered. Several small sums were allowed to the defendant in compensation, amounting collectively to $101 80, and his claim for tjie value of the sugar hogsheads was rejected. From this judgment the defendant has appealed.

"We think that the plea of prematurity was properly overruled. The lessor is permitted to sue for rent whether due or not, and to seize provisionally tho effects subject to his claim found upon the land leased, when he has good reason to believe that the lessee will remove the property on which he has a privilege, and that he may thereby be deprived of his lien, upon making oath to those facts. The required oath was taken by the plaintiff in the present instance. Code of Pract. arts. 285, 287. This well recognised principle renders it unnecessary to inquire whether the manufacture of the sugar crop had been completed, or the lease had expired before the inception of the suit.

The defendant contends that, at the date of the institution of this action, a delivery had been made to the plaintiff of his portion of the sugar crop, by marking the hogsheads designated for the latter, and placing them under a shed, the use of which had been reserved by the lessor. His declarations made subsequent to these acts, of his intention to ship the sugar unless the price of the hogsheads should be paid, show conclusively that he did not himself consider that the sugar had been delivered, but, on the contrary, that it still remained in his possession.

The claim of the defendant for the value of the hogsheads delivered and to be delivered, we deem equally untenable. There is no stipulation in the lease as to the mode of delivery. But the understanding of the parties and the construction which they gave to their contract, is placed beyond question by their acts. Witnesses state that the sugar of the previous years was delivered to the plaintiff in hogsheads, and that no claim for the value of the hogsheads was made by the defendant. In the absence of other means of arriving at the intention of the parties, the stipulation to give the fourth of a crop of sugar, would imply that, the delivery was to be made in the manner usual with planters, either in hogsheads or barrels.

After a careful examination, we think that all the claims have been allowed to the defendant which the evidence authorized.

Judgment affirmed.


text:
    Parrott et ux v. Wikoff et al.
    Where the moaning of a contract is doubtful, the intention of the parties may bo inferred from the manner in which they have executed it. C. C. 1940,1951.
    APPEAL from the District Court of St. Landry, Boyce, J.

      T. íL, and W. B. Lewis, for the appellants. Swayze and Taylor, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The conclusion to which we have come on the merits of this case dispenses with the necessity of examining the preliminary and incidental questions, which have been presented to us in argument, and the plea of prescription which has been urged on behalf of the defendants.

On the 12th day of July, 1811, the Commissioners of the United States for the Western District of the late Orleans Territory confirmed to John JDinsmore, of the county of Opelousas, his claim to a tract of land containing about five hundred superficial arpents, being for ten arpents front by the depth of fifty-two arpents, bounded on the south side by land conceded to Pierre Richard, and on the north side by land conceded to Joseph Cormier, situated in the county of Opelousas, in the quarter of Bellevue, and held by virtue of a grant from the Spanish government to Charles Como, bearing date the 4th of March, 1776— to have such form and marks, natural and artificial, as should be represented on a plat to be returned by the principal deputy surveyor of the district. In pursuance of this order a survey was made, and a plat returned and recorded, fixing the township and range in which the tract was located, and establishing the form, boundaries and marks which were attached to it.

JDinsmore appears to have resided on this tract, and to have improved it, and, on the 12th of Nov., 1817, he sold it, with all the buildings and improvements to Hubert Jany, and describes it as “bounded on the east end by the purchaser,” and gives it the dimensions of ten arpents in front, by fifty-two in depth. On the 16th December, 1818, Jany sold the tract to Wilcoff, the principal defendant, but described it as having ten arpents front on the bayou Tesson, by a a depth of fifty-two arpents. Wi'koff resided on this land and improved it, and, on the 7th of Sept., 1836, sold it to Be Kerlegand, under the description of a certain tract of land situated in the prairie Bellevue, in the parish of St. Landry, having ten arpents fronting on the bayou Tesson, by fifty-two arpents in depth, &c. This sale was made for $6000, payable on a credit. It was sold, with all the improvements, which, at the time of the sale, were worth $5000 ; and is described as having been purchased by the vendor from Jany, in Dec., 1818. The notarial office is mentioned in which the act of sale from Jany is made. In this act from Jany the land is described as having been purchased from Binsmore.

In March, 1837, Be Kerlegand, before any portion of the purchase money was paid, sold the tract of land, with the buildings and improvements, to the plaintiffs, as he had purchased it from Wikoff, giving to the eastern extremity of the tract the description of having ten arpents fronting on the bayou Tesson, by fifty-two arpents in depth. The plaintiffs were fully subrogated to all the rights of De Kerlegand, and assumed the payment of the purchase money to Wikoff. They paid two of the notes given by De Kerlegand for the land, but refused to pay the last.

It will be observed that Jany, in his act of sale to Wikoff, changed the description of the eastern line of his tract. Dinsmore described it as bounded on lands of the purchaser, Jany; but when the latter sold it to Wikoff he described it as fronting on the bayou Tesson, and this description has been preserved in the subsequent sales.

Wikoff instituted his hypothecary action against the plaintiffs on the last note due for the purchase by De Kerlegand, and the plaintiffs obtained an injunction against the proceedings. On the trial of the case judgment was rendered dissolving the injunction, and directing the hypothecary action against the plaintiffs to proceed without interruption, and giving the defendant in injunction damages against the plaintiffs, and their surety, in solido.

The plaintiffs, in their petition for an injunction, charge that, before completing the payments for said land as stipulated, they discovered — what they did not know when they purchased — that neither De Kerlegand, nor Wikoff, ever had any title to the land described in their two acts of sale, but that their title covered a portion only, and that not the most valuable; and that the portion amounting to one hundred and fifty or sixty acres, lying on the bayou Tesson, never did belong to either of them, and that the sale of that portion is null; that the said land on the bayou, or about two hundred superficial acres, is all woodland, and by far the most valuable portion of the whole tract, and that the rest is of little value. The usual allegations of warranty &c., are formally made, and the plaintiffs pray for a recision of the sale, or, in the alternative, for a reduction ef the price. In relation to this allegation alone we proceed to determine the case.

It is admitted that neither of the parties, nor their vendors, ever owned any portion of the land between the bayou and the eastern limit of the Dinsmore tract. The bayou Tesson is not navigable, and it is not contended that there is any benefit to be derived from the proximity of land to it. There axe between forty and fifty acres of woodland in the land along the bayou, which is worth about five dollars per argent, and this alone gives it more value than the rest of the land. The plaintiffs resided on the tract of land contiguous to the Dinsmore tract, at the time of the purchase and since.

The tract of land as confirmed to Dinsmore, of which a plat was returned and recorded in tire land-office, is in the form of a parallelogram, and the north eastern corner of it rests on the bayou Tesson. A line from this point, extending ten argents south, bounds the eastern extremity of the tract. The bayou, after leaving this corner, is very crooked, and the extension of the southern lateral line of the tract, from the termination of the fifty-two argents to the bayou, which includes the superficies of nearly two hundred acres, measures at least forty acres. Within this space are parts of several tracts fronting on the bayou, held under concessions, tl:e location of which is not questioned. The extension of this lateral line would cut off the front of theso tracts on the bayou. The question before the court is, whether the land sold was the Dinsmore tract, in its rectangular form, as held by Dinsmore, by Jany, by Wikoff, by De Kerle-gand, and by the plaintiffs, without complaint, from 1837 till 1842, when the last payment was exacted, or whether it included the land along, the bayou within the prolongation of the southern lateral line, by reason of the use of the terms “fronting on the bayou Tesson.”

That the parties have always been in possession of the Dinsmore tract of ten arpents by fifty-two in depth is not questioned, and that Wikoff never owned, or possessed, any land east of the eastern limit of the tract, is conceded. That the plaintiffs have the quantity of land called for in the acts is admitted, and, as the northern lateral line terminates on the bayou Tesson, it follows that it must extend fifty-two arpents west, and that, at that point, the western boundary of the tract must be fixed. In the plat returned by Lawson, the surveyor, on the confirmation of the Dinsmore tract, the western limit was designated and marked by a post at each corner, and McCauley, the surveyor who made the last survey, under the order of the court, which we have before us, a witness offered by the plaintiffs, swears that, he found the corners of this tract, and the posts as planted by Lawson and referred to in the recorded plat. This puts beyond the possibility of a doubt the western boundary of the tract, which is established by visible and official marks of unquestionable authority.

The plaintiffs contend that Wikoff sold a tract of land having certain specified boundaries, so clearly defined as to leave no room for doubt as to the object sold; and that the call in the a cts of sale for a front on the bayou Tesson is imperative, and carries with it all the land included between the extension of the lateral lines up to the bayou. The rule laid down by the late Supreme Court in the case of Morgan v. Livingston, 6 Martin, 224, is relied on, in support of this position. Admitting that rule to be applicable to this case, its operation would be to cut off the fronts of all the estates on the bayou within about forty arpents from the boundary of the possessions of the plaintiffs and their predecessors, and thus preclude all access to these estates from the bayou. These tracts of land were located by the land commissioners on the bayou, and the Dinsmore tract was located with only one corner resting on it. Their lines are nearly at right angles with the bayou, and, with a small variation, are in the same relation to the lateral lines of the Dinsmore tract. That in the face of these facts it can be supposed that Wikoff warranted the extension of the Dinsmore tract in its whole front to the bayou, or that the plaintiffs, residing on the tract adjacent at the time of the sale, and afterwards occupying and improving the land from 1837 to 1842 without objection, believed that the tract of land they purchased and held had any such extent, or that any doubt could be reasonably entertained, from the means of information with which the plaintiffs were surrounded, in relation to the object sold, we cannot consider to be within the bounds of a reasonable probability ; and we should feel ourselves bound, before giving effect to this call, which would lead to such results, to carry out others which would be consistent with the known state of facts, and which would render a compliance with this impossible. But the rule in Morgan’s case is not applicable to this, in any sense.

It is true that the words fronting on the river denote generally, in grants and conveyances, a riparian estate bounded on a river. But the bayou Tesson is not a river; it is a bayou, small, dry the greater part of the year, and in no respect navigable, or susceptible of being used for the purposes of a river. There are no riparian charges, to which the estates bounded on it, or through which it passes, are subjected; no roads which front proprietors on rivers are bound to give to the public. We are not prepared to lay down any general rule in relation to the distinction which we here notice; but, in relation to this case, we are satisfied that the designation of this bayou as a boundary in these acts, does not create a riparian estate in the sense of those terms under our laws, and that it has no more effect than the designation of any other natural object as a limit; and that, furthermore, the land which it is contended this designation embraces has no advantages in point of position over the rest of the tract, and is not in any manner to be distinguished from it, the forty-five acres of woodland being the only fact which it is possible to maintain gives it any additional value over the ordinary prairie land. Considering then the bayou Tesson as a designated boundary given in the acts, can it be carried into effect consistently with the other calls or descriptions, and with the state of facts which we know materially to exist ?

I. If the bayou be the boundary, the plaintiffs would have nearly two hundred more superficial arpents of land than the acts of sale call for, or they, or their predecessors, have ever possessed.

II. The western boundary of the tract being fixed by the ox’iginal survey, the extent of the lateral lines is limited to fifty-two arpents, and the lines at each extremity are parallel.

III. A location with the bayou for-the boundary, having the quantity of land mentioned in the acts of sale, would destroy entirely the shape of the tract. By the extension of the southern lateral line to the bayou, and by making the real1 line parallel with the front according to the course of the bayou between the lines, which is,;in an oblique direction, at the western extremity, the tract would terminate in an acute angle of less than forty degrees, and the southern lateral limit be can'ied nearly forty acres beyond the original location, and terminate in an angle corresponding to that opposite, and thus destroy the rectangular form of the tract.

IV. The extension of this line would not answer to the call of ten acres fronting on the bayou; it would give upwards of twenty, and the line would be nearly at right angles with the lines of the tract fronting on the bayou on which it would inpinge.

It is obvious that a description leading to such consequences as this, renders it incumbent on the court to look elsewhere than to the mere literal words for the intention of the parties. The other words of description in the act leave no doubt as to the intent of the parties, in relation to the thing sold. The Dinsmore tract as occupied and possessed from the year 1812, under the limits designated on the plat, recorded in the land-office, was the object bought and sold; and, if the consequence of the adoption of the location on the bayou contended for by the plaintiffs, rendered the intention of the parties doubtful by reason of their excluding other descriptions equally formal in the acts of sale, we have it in oto power to remove all difficulties in respect to the true and bond Jide intent and meaning of the contract, by referring to the manner in which the parties have executed it themselves. Civil Code, arts. 1940, 1951.

It is not pretended that there has ever been any land held under the Dinsmore title, other than that now possessed by the plaintiffs, which corresponds in quantity and limits to the original survey of Lawson. It was so possessed by Wilcoff. De Kerlegand never complained of any defect of quantity or location; and the plaintiffs, who resided on the adjacent tract at the time of the sale, appear never to have been sensible of their wrongs, until nearly five years after they had occupied the property, and the last payment was sought to be exacted.

There is no charge of fraud made in the case, and there is no question of law which presents itself for our decision, unconnected with facts upon which the court below has passed, and which we find to.be established by evidence. The judge of the district has allowed the defendants $200 damages, on account of the illegal suing out of the injunction; and we think the allowance ought not to be interfered with by us. It depended upon matters upon which the judge was well qualified to form an opinion, from his position and his opportunities.

■ That an estate, the plan of which under an official survey is deposited in the public records of land titles, should be well known as to its extent and boundaries, by the proprietor and purchaser, is probable in a sparsely populated district like this. That the previous contiguous residence of the plaintiffs strengthens that probability, is indisputable. The Dinsmore lines are spoken of by witnesses as familiar facts, and the reference to the original ownership of Dinsmore, in the act from Jany to Wikoffi, though not proof of knowledge, yet is a means of knowledge, which, coupled with other facts, may be considered as bringing home to the plaintiffs the origin and real extent of his title. There being no charge of fraud, the only ground on which the plaintiffs can have any claim against the defendant is that of error as to the subject of the contract. This has not been proved, and if there was any error as to the location, the error related to a part of the land no more valuable than the rest in point of position, and, as to its extent and quality as woodland, the difference of value is too insignificant to furnish a reasonable cause for withholding any part of the price. Civil Code, arts. 1836, 1837, el seq. There is neither error as to the qbject of the contract, nor the substantial quality of it. The sale was per aversionem; it was of a tract of land built upon, improved and occupied, and not of land of a particular quality.

Our conviction is that there is no equity in the plaintiffs’ case, and and there is no principle of law upon which we can change, in any respect, the judgment appealed from. Judgment affirmed-

       Kins, J., did not sit on the trial of this case.


text:
    Fontenette et al. v. Veazey.
    On the representation of a natural tutrix that, the house in which she resides with her minor children, is falling into lain for the want of necessary repairs, and that she has no pecuniary means to make them, the court, under the advice of a family meeting, may order unimproved property belonging to the tutrix and subject to a legal mortgage in favor of the minors, to be sold, free of such encumbrance, for the purpose of defraying the expenses of the necessary repairs to the house.
    APPEAL from the District Court of St. Martin, Boyce, J.

      Derbes, forthe appellants. Magill, for the defendant.
   The judgment of the court was pronounced by

King, J.

This is an hypothecary action, instituted by the plaintiffs, to enforce upon two lots of ground, situated in the town of St. Martinsville, a legal mortgage, alleged to exist in their favor, to secure the amount of their inheritances from the succession of their father. There was a judgment in the lower court agsinst the plaintiffs, from which they have appealed.

In 1831, Celeste Pellerin, the mother and natural tutrix of the plaintiffs, presented a petition to the Probate Court, representing that the house in which she lived was rapidly falling into decay and ruin; that it was in a condition which endangered the lives of herself and children; and that, unless it was soon repaired, she would be without shelter for herself and family, as she owned no other dwelling. She further represented that, she was destitute of pecuniary means with which to make the necessary repairs, and prayed to be authorized to sell, free from the mortgage of the minors, a sufficient number of town lots to defray the required expenditure, stating that this would rather increase than diminish the security for the estates of the minors. A family meeting advised the sale of a specified quantity of land to meet the expenses of the masonry, another to covor those of the wood-work, and ten additional lots for the purpose of purchasing other materials necessary for the completion of the work. Acting under this authority, the tutrix contracted to convey to the defendant two lots of ground in the town of St. Martinsville as the price of painting to be done upon her house, and the stipulated labor has been performed.

The plaintiffs contend ■ 1st. That painting was not one of the repairs authorized by the family meeting. 2d. That the legal mortgage in favor of minors, can only be removed in the mode provided by the act of 1830. Sess. Acts, p. 46, ss. 1, 2,

I. The family meeting, it has been seen, advised the tacit mortgage to be released, and sales to be made for these purposes, and, after providing for the payment of the wood-work and masonry, designated a larger quantity of land to be sold for the purpose of completing the work than for either of the others. It is difficult to conceive what other descriptions of labor and materials required so large an expenditure, unless painting was contemplated by the meeting. Such repairs are important and useful, contributing to the durability of the building, and to the comfort of its occupants. Unless this fair and reasonable construction be given to the clause it becomes nugatory.

II. The act of 1830 presents no obstacle to the release of the tacit mortgage in favor of minors in cases like the present, nor has it reference to such cases. Among the duties which devolve upon tutors are those of providing for the maintenance, health, and personal safely of their wards, in the execution of which the property of the minor himself may be sold, and, if necessary, the capital may be used. In the present instance property subject to the minors’ mortgage has been sold for purposes for which their own might have been validly alienated, and with the further view of preventing the security for their estates from being diminished, by selling ,i part and reinvesting the price in valuable improvements upon the remainder. Here has been a mere mutation of the property by which the rights of the plaintiffs were secured, and made with an apparent necessity for the change. Judgment affirmed.


author: Slidem., J.

text:
    Miller et al. v. Andrus et al.
    To ascertain whether any reduction is tohemade ofadonationon account of it's exceeding the disposable portion, the property belonging to the donor at the time of his death, must be estimated at its value at that timo. C. C. 1492.
    A donation inter vivos of moveables, or of incorporeal things, is null, unless executed by an act passed before a notary and two witnesses. C. C. 1523.
    APPEAL from the.Court of Probates of St. Landry, Garrigues, J.

   The judgment of the court was pronounced by

Slidem., J.

This suit is a contest between the heirs of Joseph Andrus, in which not only a distribution of the succession is sought, but the annulling, or reduction and collation are claimed, of certain donations inter vivos and mortis causa made by the deceased. The most important item involved in this controversy is, a donation of certain fends, slaves and other property, made inter vivos by Joseph Andrus, the deceased, to his son, Jesse Andrus. The plaintiffs do not object to the validity of this donation in point of form, but they allege that it exceeds the disposable portion and must be reduced. This right of reduction turns upon the question, whether the value, at the time of the testator’s death, of the property thus donated, in the state in which it was at' the period of the donation, exceeds the one third of the mass, formed pursuant to article 1492 of the Civil Code, by aggregating the property belonging to the donor at the time of his death, according to its value at that time, and fictitiously adding thereto the value as above of the donated property, and deducting sums due by the estate. To aid us in the investigation of this question of fact, the parties havo produced the record of the succession; but it does not furnish all the materials requisite for a conclusion; and the statements furnished by the respectivo counsel do not supply the deficiency. The property of the testator must bo considered, according to its value at the date of the decease, and not, as suggested by counsel, according to what it subsequently produced at the sales from time to time made. The inventory made immediately after the decease of the donor, and which is not impeached as unfairly made, exhibits the then value of a portion of the succession; but the other assets, to wit, the debts due to the succession, are merely recited, without any estimation of their value. We are not enabled from the record to establish the amount of capital and interest due at the death of the testator, collected upon them; and it is admitted by counsel that these assets are not good to the full amount. Again, the sums due by the estate are not accurately exhibited. It is true that the record presents the payments made by the executor; but his accounts are not in such a form as to enable us to separate capital from interest accruing since the death, and to fix the precise amount due by the deceased at the date of his death. That is the point of time which, both as to assets and liabilities, must govern in determing the reduction.

There is no ambiguity in the Code (art. 1492), as to the mode of determing the reduction; but we are without the necessary facts for its application, and must therefore remand the cause.

In doing so, it is proper, in order to simplify the further proceedings in this cause, and to facilitate the settlement of a succession which has been open for so many years, to add our views with regard to the rights of Joseph E. Andrus and of Susan Collins.

It appears that Joseph Andrus died, in May, 1834. In October, 1833, the deceased executed in favor of Joseph E. Andrus, one of his children, an instrument in which he acknowledges himself to be indebted to his son in the' sum of $5000, which he binds himself “to pay to Joseph in horned cattle, to be delivered to the said Joseph, his heirs, or assigns, in the month of June next.” The deceased also executed, on the same day, in favor of his daughter, Susan Andrus, the widow Collins, an instrument, in the form of a promissory note, to her order, for the sum of $3500, payable in the ensuing May, with interest.

There is no evidence to establish any indebtedness, in the ordinary course of business, by the father to either of these children. The evidence they have offered to sustain these acknowledgments of indebtedness, is the rendition of services, by them respectively, to the deceased. No other consideration is pretended, and the nature and extent of the services are vaguely exhibited. We aro satisfied that these two obligations are disguised donations; and they have not the form required by law for donations inter vivos. Civil Code, art. 1523. These instruments are void; and the heirs to whom they were given are not entitled to claim their payment in the settlement of the succession.

Swayze, Martin, and T. II. Lewis, for the appellants. W. B. Lewis and ’ Dupré, for the defendants.

It is therefore decreed that, so much of the judgment appealed from as declares valid the donations therein recited, made to Jesse Andrus and to Susan M. Collins, and rejects the claims of said plaintiffs to have said donations collated, and so much also of said judgment as recognizes the validity of the obligations for ¡¡¡¡5000 and ¡¡¡>3500, executed on the 19th October, 1833, by said Joseph Andrus, in favor of said Joseph E. Andrus and said Susan M. Collins, be avoided; and it is further decreed that the said obligations of f5000 and ¡¡¡>3500 be declared null and void, and that no credit be allowed therefor to the said obligees, Joseph E. Andrus and Susan M. Collins respectively, in the settlement of said succession, reserving to said Joseph E. Andrus and Susan M. Collins respectively, any claim which they, or either of them, may have against said succession as creditors for services rendered : and it is further decreed that, this cause be remanded for further proceedings, according to the principles declared in this decree and according to law, the appellees paying the costs of this appeal.