text:
    Mary E. Rucker et al v. Moses Liddell.
    Where a party sells land to another, a right of way being reserved to the vendee, the vendor within a reasonable time, is hound to point out the place where the right of way is to he exercised. C. G. 1907, 2450, 2451.
    Where a party to a sale of land is hound to furnish a right of way, he cannot enforce the payment of the price until he has complied with that obligation.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      Splane and Cook, for plaintiffs,
    submitted the following points and authorities : 1. The right of way or passage formed part of the object of the sale; it was the duty of Lid-dell to furnish the passage before he could bring suit for the recovery of the price. C. C. 1907, 2450, 2451, 2452, 2455, 2458 and 2459. 2. There was an active violation of this contract on the part oí Liddell, by putting up a barn and fence on the place where the passage was given. C. C. 2926, 11 L. R. 289. 3. The general rule that the delivery of immovables accompanies the act of sale, ceases to be applicable in this case, it is an exception. C. C. 2455, 2458. 4. The seller, before he can expose or claim payment of the price, to exhibit a valid and unencumbered title. 11 L. R. 551. 5. The sale of a thing belonging to another is void. C. C. 2427. 1st Ann. 284. 3d Ann. 326. 6. An injunction lies to prevent any act which, if consummated, would afford a ground for a claim for damages. 5 N. S. 501. 7. If the place where the servitude that is due is not designated in the title, he who owes the servitude is bound to fix the place where it is to be exercised. C. C. 775, 773, 776 et seq. 1 R. R. 321. 8. The creation of a servitude is an alienation of a part of the property. C. C. 727, 728, 729. As to delivery: C. C. 2462, 2465, 2466.

      Wilson and McClarty, for defendant,
    contended : 1. That he has fully performed his contract; he has delivered the land and the right of way to the plaintiffs, and they were the objects of the sale for which the price was to be given. That the time for designating the right of way was not fixed by the contract of the parties, and the obligation imposed upon the defendant, being for the benefit of plaintiffs, is to be fixed by the demand of the plaintiffs. In those cases where by the terms of the contract no particular time is fixed for the performance, it is presumable that it is to be discharged at the demand'of the obligee, and not before. 6 N. S. 229. 2. But even if the defendant was bound to designate the place for the exercise of the right, without regard to a precedent request by the plaintiffs, his failure to "do so was a passive breach of the contract; and in order for plaintiffs to avail themselves of any legal remedy for the injury such breach may have occasioned, they must put defendants in default. C. C. 1906 and 1927. The rule requiring a creditor to put his debtor in default as a preliminary step to legal redress for the passive breach of a contract, applies as well to the case in which it is pleaded as an exception as where it is made the ground of a direct action. 15 L. R. 297. In this case there is no evidence of demand being made by the plaintiffs on the defendant to designate aplace for the exercise of the right of way, until the institution of this suit; shortly after which the defendant caused a space of thirty-two feet to be left along the rear line of Richardson’s land, for the exercise of the right of way. 3. But even if it be conceded that the defendant has failed to perform his contract, and such ftilure affords the plaintiffs good cause to obtain an injunction, the judgment of the court a quo is erroneous, in arresting the payment of so large a portion of the price when the act which the defendant failed to perform was of so small value in comparison with the value with the other objects of the sale. Where an agreement contemplates the performance of several acts, a partial performance will authorize the recovery of the price, subject to a deduction of such damages as may result from the failure to discharge the other parts of the agreements. 3 L. R. 384. 4 L. R. 465. The law does not allow the buyer to retain the thing purchased and the price, and as the plaintiffs do not demand a rescission of the contract, they are entitled to withhold only such a part of the price as may be sufficient to satisfy them for the damages sustained by the failure of the defendant to perform his part of the contract. There was no such damages sustained. The evidence shows that plaintiffs used a nearer and more convenient way over the land of Oliver Nelson than he could have obtained over the land of Liddell, and by the fact that he never demanded a way from the defendant.
    The court below states in the opinion rendered in this cause that the defendant, by the enclosure along his rear line, obstructed the exercise of the right of way, and that this obstruction-authorizes the plaintiffs to withhold the price. But we contend : 1. That the place of the right of way not being designated could not be obstructed by the levee and ditches. 2. That if it was obstructed, it is a trespass which entitled plaintiffs to compensation for such damages as they have sustained thereby, but does not authorize them to withhold the price, unless they sought and are entitled to a rescission of the contract, except such a portion of it as would satisfy them for such damages. That no damages being sustained by them, they have no right to withhold the price or any part thereof. Wherefore we contend that the judgment of the court a quo is erroneous, that the injunction herein should have been dissolved with damages and costs.
   The judgment of the court was pronounced by

Rost, J.

We are of opinion that there is no error in the judgment in this case. The defendant sold the plaintiffs two tracts ofland, with the right of way from one to the Other over his own plantation. The ground necessary for the exercise of the right of way not having been designated in the sale, the defendant, was bound to fix, within a reasonable time, the place where it was to be exercised. C. C. 775, 2455. The defendant, so far from complying with this legal requisite, has made a ditch and erected a levee across the land on which the servitude is due, having neither performed, nor offered to perform, all that which on his part he was bound to perform. The plaintiffs are not in default, and cannot be compelled to pay that portion of the price for which the order of seizure issued. C. C. 1907, 2450, 2451. 11 L. R. 551.

It is urged, that the judgment is erroneous in arresting the payment of so large a portion of the price, when the act which the defendant failed to perform was of such small value in comparison with the value of the land. The record does not enable us to ascertain the relative value of the right of way; and if it did, the contract is entire, and cannot be divided by us. The cases cited from 3 L R. 3, and 4 L. R. 465, are not applicable to the case of a purchaser withholding payment of the price on account of the partial inexecution of the contract on the part of the vendor.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Aspasie Thibodeaux v. Victor Herpin.
    The principle that a party is not permitted to contradict by parol proof a notarial act of sale, docs not apply to a married woman who seeks to set aside an act purporting to be an act of sale, opon the ground that it was in fact a disguised donation to her husband.
    APPEAL from the District Court of Lafayette, Overton, J.

      Voorhies, Mouton and Simon, for plaintiff.

      Nicholls, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The object of this action is to annul an act of sale executed by the plaintiff in favor of the defendant, upon the ground that the conveyance was in reality a disguised donation to her husband, Francois Herpin, by means of an interposed person, the defendant. She charges also, in substance, that it was not her intention to vest any title in the defendant; that it was her desire to give the property in usufruct to her husband, and that she had been fraudulently induced by her husband and his brother, the defendant, to believe that the only way to accomplish the object was to make a conveyance to Victor, who was afterwards to transfer to his brother. She also alleges that the defendant never claimed the property until after the death of his brother; that after the execution of the pretended act of sale, it was not delivered to him, but remained in the plaintiff’s possession until her husband’s death, after which the defendant took forcible possession of a portion of it. That the pretended price was not in reality paid, and that the money counted and ostensibly paid in presence of the notary was returned immediately after the sale was passed.

At the trial of the cause, the plaintiff offered the deposition of a witness, which is appended to a bill of exceptions, for the purpose of' proving: 1st. That the sale made by the plaintiff to the defendant was simulated, and intended as a disguised donation in favor of the plaintiff’s husband, Francois V. Herpin, the defendant’s brother, the said defendant being an interposed person for that purpose. 2. That the plaintiff was fraudulently induced by the representations of the defendaat and his brother to believe that this was the only way by which she could legally convey the property to her husband, which it was her intention to have done. 3. That she had never given her consent to an absolute conveyance to defendant, from whom she never did receive any valid consideration for said sale.

To the introduction of which testimony, says the bill, the defendant, by his counsel objected, on the ground that the same was inadmissible to contradict, vary, or add to the act of sale, a counter-letter being the only means by which the said act of sale could be affected; the judge being of opinion that said objection was well founded, sustained the same; to which opinion the plaintiff excepted, See. We think the court erred, and that the case must be remanded for a new trial.

The capacity of married women is limited. By the article 2421 of our code, a contract of sale between husband and wife can take place only in three enumerated cases ; none of which are presented in the case at bar. By the article 1747 it is declared as follows: “Husbands and wives cannot give to each other, indirectly, beyond what is permitted by the foregoing dispositions. All donations disguised, or made to persons interposed, shall be null and void.” These provisions of law were undoubtedly dictated by the apprehension of an abuse of his authority by the husband, and of the exertion of an undue influence by the wife, through the affections she might inspire. But it is said by the defendant, even if this be a donation disguised under the garb of a sale to the defendant, into which the plaintiff has been drawn by fraudulent representations, she shall not be permitted to prove this by parol, because, in doing so, she contradicts the written act; and in support of this proposition he relies upon articles 2234, 2256, 124, 2367, 1779, 2415, C. C.

The argument is satisfactorily answered by what was said in Pilie v. Patin, and has been reiterated in numerous decisions since. There the wife had acknowledged, in the act of mortgage, that she owed the mortgagee a certain sum for a loan made to her to enable her to pay a debt which she owed to her sister. She was permitted to prove by parol, that the real consideration of the mortgage was a debt of her husband. The introduction of the evidence was resisted on the ground that it contradicted the written agreement. But the court suid: “"When certain persons, such as minors or married women, are incapacitated from contracting engagements of a particular kind, any stipulation obtained from them contrary thereto are in fraudan legis, and if it were not open to them to show the real nature of the transaction, the laws made for their protection would have no effect. It is not a good answer to say that persons so incapacitated should take a counter-letter; for to admit this argument, would be to make them the victims of the weakness which induced the law to throw its shield over them.” 8 N. S. 693. See also the Firemen’s Insurance Company v. Cross, 4 R. R. 509. Macarty v. Roach, 7 R. R. 359. Patterson v. Fraser, ante p. 586.

It is therefore decreed, that the judgment of the district court -be reversed; and it is further decreed, that this cause be remanded for a new trial, with instructions to the district judge to admit in evidence the deposition of Joseph Buard, and for further proceedings according to law; the costs of the appeal to be paid by the defendant.


author: Preston, J.

text:
    W. C. Dwight v. W. W. Rice et als.
    Tho commissioners of an election who act in good faith under an act of the Legislature prescribing the mode of conducting elections, are not responsible in damages for rejecting a vote under that act, although the law upon subsequent investigation before the courts should be pronounced unconstitutional.
    The oath prescribed by the 12th section of the act of March, 1846, to be administered to a voter whose vote is challenged, is not unconstitutional; and the vote of one who cannot take that part of the oath relating to duels ought to be rejected.
    APPEAL from the District Court of St. Mary, Voorhies, J.
    S. Duncan, for plaintiff.
   The judgment of the court was pronounced by

Preston, J.

The petitioner presented himself at the polls in the parish of St. Mary, on the 7th of November, 1848, and offered to vote at an election of Electors of President and Vice-President of the United States. His vote was challenged, on the ground that he had sent a challenge to fight a duel since the adoption of the New Constitution. The oath prescribed by the 12th section of the act approved the 1st of June, 1846, was tendered to him by the commissioners of election. He declined taking the part of the oath that he had not sent a challenge to fight a duel with deadly weapons with a citizen of this State since the adoption of the Constitution; and thereupon, in pursuance of the 13th section of the act, his vote was not received.

He sues the commissioners of the election for damages, on the ground that the 12th and 13th sections of the act “for the uniform regulation of elections in the State of Louisiana,” are unconstitutional, and therefore inoperative, null and void. There is no doubt, for the contrary is not suggested, that the commissioners of election honestly and truly believed these sections of the law constitutional and valid. They are not, therefore, liable for carrying the law into effect, even if subsequent investigation should lead to the decision 'that the law is unconstitutional. The condition of a public officer would be hard indeed, if, while he followed the very dictate of a statute, believing it to be constitutional, and which had not been the subject of judicial investigation and decision, he should be condemned to pay damages for so doing, even if the statute should be subsequently considered unconstitutional by the judiciary. Laws are the will of the people, expressed through their legislative representives. Now, we find no statute or article of the code to the effect that damages should be inflicted under the circumstances of the present case. We have, then, to ask ourselves, in the absence of express law, what equitably is the will of the people in such a case. The best means of ascertaining it is to ask ourselves if the General Assembly would enact alaw to impose damages on the commissioners of elections under such circumstances. And the response of every man’s bosom must be, that the Legislature would not, if it were proposed, enact a law inflicting damages upon the commissioners of .elections for carrying into effect an express statute which they believed to be-.constitutional, even though it.shonld be subsequently decided that the law was unconstitutional. We are of opinion, however, that the sections of the law requiring the oath against duelling, and directing the vote of a citizen not to be received on a refusal to take the oath, are not unconstitutional, but wise provisions to carry the letter and spirit of the Constitution into effect.

The argument to the contrary is, that the 130th article of the Constitution directs that duellists shall be deprived of holding any office of trust or profit, and of enjoying the right of suffrage under the Constitution; that to effect this object an official oath is prescribed by the Constitution to officers to exonerate themselves from the disqualification, but that no oath is prescribed by the Constitution to the citizen to exonerate himself from the disqualification to exercise the right of suffrage; and therefore, it was the intention of the framers of the Constitution that no such oath should be prescribed by the Legislature, and that to require it violates another constitutional provision, that no man shall “ be compelled to give evidence against himself.”

This last clause of the Constitution, invoked by the counsel of the plaintiff, is expressly limited in its application to criminal prosecutions, to which the examination of the qualifications of a voter at an election cannot be assimilated. And a man disqualified from voting is not compelled to approach the polls to deposit an unconstitutional vote, and is not therefore “compelled” to prove his disqualification. Nor did the Convention manifest its intention, by prescribing the clauses in the official oath against duelling, that the Legislature should not require the oath of the citizen to the same effect, in order to exercise the right of suffrage. The 130th article qf the Constitution, excluding duellists from offices of trust and profit and the right of suffrage, was all that strictly belonged to the organic law of the State. But the Convention deemed it so important, that they, in some degree, legislated to effect their object so far as to prescribe that officers should exonerate themselves from the disqualification by their official oaths. But as to the right of suffrage; the Convention merely directed for wise purposes, that the duellist should not exercise the light of suffrage, very properly leaving to the Legislature to devise and prescribe the modes of preventing it. The Convention, however, imposed this injunction on the Legislature: “The privilege of free suffrage shall be supported by laws regulating elections and prohibiting, under adequate penalties, all undue influence thereon, from power, bribery, tumult, or other improper practice,” which all think requires the Legislature to pass laws to protect all entitled to vote in the enjoyment of the right of suffrage, and also, reasonable laws to prevent those who are not entitled to vote, from voting. And as the Convention resorted to the oath of officers to exonerate themselves from the disqualification of duelling, it was reasonable in the Legislature to resort to the oath of the citizen, in exercising the right of suffrage, to exonerate himself from the same disqualifications.

Previously to the adoption of the New Constitution, a very great evil existed in this State. Men perhaps of inferior minds and acquisitions, and not superior in real courage, often endeavored to drive from the polls, and from the service of the State, their superiors in every virtue, by challenging them to physical combats. Any pretext was seized upon for this purpose, and men of talents and virtue were often unwilling to expose themselves to deadly combats, even to attain the station of usefulness to which their talents and virtue entitled them. It was, however, perfectly well known from experience, that men could not be convicted of any offence for assaults, maims or homicides perpetrated in duels. This had been often tried without effect. The Convention therefore determined to arrest this great evil, and correct this vicious state of society by other means, which in other States had proved effectual, and has so far been attended in this State with the same highly beneficial result. The Convention determined that no person should hold office who violated the laws against duelling; and to effect the object of this determination, prescribed that all officers should exonerate themselves by their official oath. Still, the evil would exist as to those who, without aspiring to office, wished to exercise the right of suffrage. To remedy it, the Constitution prescribed that a citizen of this State who shall fight a duel with deadly weapons with a citizen of this State, or send or .accept a challenge, &c., shall be deprived of the right of suffrage under this Constitution.

The Constitution had already enjoined, that laws should be made to exclude from the right of suffrage persons convicted of bribery, perjury, forgery, and other high mines and misdemeanors. But it was felt and known that persons could not be convicted of duelling. Wherefore, by a subsequent clause in the Constitution, the fact of duelling was made a disqualification to enjoy the right of suffrage. A manifest distinction was made between the fact and the conviction of the offence. As to infamous offences, it was known that a conviction could be easily effected by prosecution, and, therefore, a conviction was required to disqualify the citizen. As to the offence of duelling, it was known that a conviction could not be effected by prosecution, because all prosecutions for the offence had failed. Therefore, the Convention declared, that the fact of duelling should be a disqualification to enjoy the right of suffrage, and left it to the Legislature to devise the means of enforcing the disqualification. The Legislature, by the act of 1846, prescribed the oath of the party, as a means of ascertaining the disqualification.

When a citizen claims a right, it is proper that he should show himself qualified to exorcise that right; if this qualification is denied, or disqualification is alleged, and to show his right, it is certainly very reasonable to refer the matter to his own testimony. He is not called upon to testify against himself, which is only forbidden in criminal prosecutions, but claiming a right, the claim is referred to his own conscience. He can put his vote into the box if he has not sent a challenge. He violates the Constitution, the laws, and the rights of his fellow citizens if he puts it into the box, having fought a duel or sent or accepted a challenge since the adoption of the Constitution, because our citizens have agreed by their organic law, which all are bound most sacredly to obey, that the citizen who fights a duel with a citizen, or sends to or accepts a challenge from a citizen, shall not enjoy the right of suffrage.

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


text:
    Elizabeth Davis et al. Thomas Wilcoxen.
    Where lands have been held in common, the action for partition is barred only by thirty years prescription.
    Under the act of 25th of March, 1328, a certified copy of a sheriff’s deed recorded in the oifice of the clerk of the court is admissible in evidence, without accounting for the absence of the original.
    A judgment, execution, and sheriff’s return showing a sale and sheriff’s deed, are evidence of a forced alienation of property, and impose on those who attack them the necessity of showing that the forms of law have not been complied with.
    APPEAL from the District Court of St. Mary. Voorhies, J.

      Splane, for plaintiff.

      Brent, for defendant.
   The judgment of the court was pronounced by

Preston, J.

John and Henry Bosler claimed a tract of land situated at the confluence of the Atchafalaya river and bayou Téche, which was supposed to have a front of twenty five arpents on the Téche, by forty arpents depth. In the year 1811, it was confirmed to them by the board of commissioners for the adjustment of land titles in the Western District of Louisiana, to the extent of 640 acres.

John Bosler had died, leaving a child, and Henry had been appointed the administrator of his estate.

On the 24th of November, 1809, five arpents front of the land by the ordinary depth had been sold as the property of Henry Bosler for his taxes, to Conrad Rohan.

In a suit of PincTcly against Henry Bosler, administrator of the estate of John Bosler, in the parish court of the county of Attakapas, on the 27th day of January, 1811, the sheriff, by virtue of an execution, sold the undivided half of the twenty-five arpents front belonging to the deceased, to Alexander Power. The deed was acknowledged before the parish judge, on the 21st of April, 1811, and recorded in his office, on the 21st of August, 1812. On the same day, by virtue of two executions in his hands, in the suits of McKeever Sf Co. v. Henry Bosler, and Coleman v. Henry Bosler, the remaining 74 arpents front of the claim, by forty in depth, were sold to Ramos Davis for $300. The sheriff’s deed was in like manner acknowledged before the parish judge, on the 21st of April, 1811, and recorded in his office the 21st of August, 1812.

By mesne conveyances, the defendant, acquired the interest of Conrad Rohan and Alexander Porter in the tract, but not that of Ramos Davis.

In 1832, Rebecca Bosler, the daughter and only heir of John Bosler, and claiming to be the only heir of Henry Bosler, instituted suit against the defendant for the whole tract of land. He called his vendors in warranty, who set up in defence the above mentioned tax and sheriff’s sales. The parties compromised the suit, by which the defendant acquired all the rights of John and Henry Bosler to the whole tract of land.

In the year 1845, the widow and heirs of Ramos Davis commenced the present suit against the defendant for the 74 arpents front on the Téche, sold by the sheriff to their ancestor in 1811.

If the sheriff’s sale to Davis was legally made, and is sufficiently proved, they are entitled to recover, unless their action is barred by the prescriptions of ten, twenty, and thirty years, as plead by the defendant and his warrantors.

The defendant purchased and exhibited title for but five hundred and fifty-seven acres of the land, and cannot be said to have possessed as owner a greater quantity until his compromise with Rebecca Rosier on the 19th day of October, 1835. From that time until the commencement of this suit, in November, 1845, ten years had elapsed; but the plaintiffs were non-residents during the whole time, and the prescription of twenty years alone could, divest them of title, even if they all had been of age. And if the plaintiffs are entitled to an undivided part of the land, their action of partition is prescribed only by thirty years, which had not elapsed at the institution of this suit.

Is there, then, sufficient evidence of the forced alienation of 7J arpents front of the land to Ramos Davis? The plaintiffs gave in evidence two judgments rendered after issue joined against Henry Rosier. The executions issued upon them, which the sheriff returns: “that he had sold at public vendue, in the above suits, the right, interest and pretensions of Henry Rosier in and to 7J arpents front by the ordinary depth, situate near the junction of the bayou Téche with the Cliafalia, known by the name of the Indian Head, being so much of an undivided tract of twenty-five acres. Terms of sale: amount of costs cash, and the remainder at one year credit; purchaser, Dr. Ramos Davis. $300. Attakapas, January 27th, 1811. Ran. Eastin, Sheriff.” The other execution was returned partly satisfied by the sale. A sheriff’s deed was made, and recorded in the parish judge’s office in pursuance of this sale. A judgment, execution, sheriff’s return upon it, and deed are evidence of a valid forced alienation of property, and imposes on those who attack them the necessity of showing that the forms of law have not been complied with. Poultney’s Heirs v. Cecil, 8 L. R. 321.

We are of opinion, that the judgment, execution, and sheriff’s return, showing the adjudication and receipt of the money from the purchaser, are sufficient to prove the sale, without the deed. The adjudication by the sheriff, and payment of the price by the purchaser, are now, by the express provisions of the Code of Practice, sufficient to transfer the property, and, we think, were sufficient, under the statutes in'force in 1811. The sheriff’s deed was an additional renouncement of title to the purchaser, but the defendant’s rights were entirely ' divested by the judgment, execution, adjudication, and payment of the price by the buyer.

We are, moreover, of opinion, that the copy of the sheriff’s deed was properly admitted in evidence in this case, and that the bills of exception to its admission in evidence, and to the refusal to admit the clerk’s certificate to show that it was not recorded in the clerk’s office, are untenable.

The act of 1805, regulating the practice of the Old Superior Court, required sheriff’s deeds to be recorded in the clerk’s office. But the parish court in which the judicial proceedings took place, by which the property in controversy was sold, was created in 1807. The judge was not provided with a clerk, but performed the duties of the clerk himself. He issued the executions in the suits in which the property was sold, himself. The sheriff sold the property and made his returns to the judge, and not a clerk. The judge recorded the deed in his own office, thus assimilating his practice as much as he could, in pursuance of the 27th section of the act, to the practice of the Superior Court. It was the proper place to record the deed in the judge’s office who issued the execution. It is true, a new' parish had been created before the deed was recorded, in consequence of the delay of the sheriff in making and returning the deed for record. Still, although the land fell into the new parish, it was proper to return and record the deed in the court in which it should have been recorded when the sale was made; because the act of 1813, requiring sheriff’s conveyances to be recorded in the conveyance office of the parish where the land was situated, had not been passed.

The sheriff’s deed was therefore properly recorded; still, until the passage of the act of 1828, a copy of the record could not be given in evidence without proving the loss of the original. The act of 1828 provided, that “a copy of any sale or deed of conveyance heretofore made and executed by any sheriff, or any other person exercising and performing the duties of sheriff in this State, certified to be a true copy by the clerk or deputy clerk of the court, in whose office such sale or deed of conveyance is or may be recorded, shall be received as evidence in the same manner and have the same effect in every respect as a duly certified copy of an authentic act.”

Under this act, the certified copy of the deed was properly received in evidence, and fully establishes the rights of the plaintiffs. Indeed, as the said sheriff’s sale was plead with very special reference to it in the suit of Rebecca Bosler against the defendant, it was no doubt used to obtain a better compromise. She could, with little pretence claim, as heir of her uncle, that part of his property which had been sold before his death to satisfy judgments and executions obtained contradictorily with him in person.

The district judge has equitably apportioned the superficial quantity of the land belonging to the plaintiffs and defendant, the original claim having been curtailed by the government. He has correctly established the liability of the warrantor, and made the proper disposition of the claim for improvements ; and we are of opinion his judgment is correct in every respect.

It is therefore decreed, that it be affirmed, with costs.


author: Rost, J.

text:
    Margaret A. Broussard v. Syphroien Dugas et al.
    A wife who has obtained a separation of property from her husband, is entitled to a mortgage for her paraphernal property only on the real estate of the husband.
    Improvements on the public lands are not real estate.
    The wife is entitled to a mortgage upon her husband’s real estate for her paraphernal property from the time it was received by him.
    APPEAL from the District Court of St. Landry, Overton, J.

      B. A. Martel, for plaintiff.

      B. F. Linton, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The claims for which the appellant has obtained a judgment of separation of property against her husband being paraphernal, give her no privilege on his property to the prejudice of the seizing creditor whom she has enjoined. She has a tacit mortgage on the real estate and slaves of her husband; but improvements on the public lands are not real estate, and no mortgage attaches upon them; the injunction was therefore properly dissolved. jr*

The appellant assigns as a ground of error, that the judgment should have been with mortgage on her husband’s estate from the time he received the sums claimed, as prayed for in the petition. We consider this ground well taken; and in this respect the judgment must be changed.

It is therefore ordered, that the judgment in this case be amended so as to allow the appellant a legal mortgage on the real estate and slaves of Syphroien Dugas-, from the 25th day of July, 1838. It is further ordered, that the judgment as amended be affirmed; the costs of appeal to be paid by said Dugas.


text:
    Patterson & Co. v. Fraser and Wife.
    A married woman who has given a mortgage upon her paraphernal property to secure advances which, in the act, she acknowledges to have inured to her benefit, is not thereby estopped from showing that the advances were not for her benefit, and that she is not bound by the act of mortgage.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      W. C. Dwight, for plaintiffs.

      Henry Gibbon, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The defendant in this case is a married woman. In January, 1845, at which time she was about sixteen years of age and married, a family meeting was held to deliberate upon her affairs. In the proces verbal its members state that the land and slaves inherited by her from her father are “liable to certain debts, the payment of which can be, and probably will be enforced against the said estate at considerable costs and expense, and even at a great sacrifice, unless arrangements should be made to settle the said debts, which cannot be effected except by a loan of money; and that it was therefore the interest of the minor that she be authorized to mortgage her lands and slaves.” Four of the members advised that she should be authorized to obtain a mortgage loan of $6000. The fifth, her maternal uncle, dissented as to the amount, and was of opinion that $3000 would suffice for the contemplated purpose. These proceedings were homologated by the parish judge; and the decree was, that she be authorized to obtain a loan upon mortgage pursuant to the opinion of the majority. Parol evidence was admitted, and we think properly, to show that she owed two debts, one to the Canal Bank and one to J. B. Theall. And as it does not appear that there were any others, we might infer, independent of the assertion of the witness who was a member of the meeting, that these were the debts contemplated by them. It is proved that these debts were not paid out of the money borrowed from the plaintiffs. They appear, on the contrary, to be still outstanding. In January, 1846, a notarial deed was executed by Mrs. Fraser, assisted by her husband, in favor of the plaintiffs. In this deed, she recites that she acts with the authorization of her husband, and in accordance with the deliberations of the family meeting. She declares that she is indebted to the plaintiffs, a commercial house doing business in Philadelphia, in the sum of $6000, “ for advances made her by the said firm, and which she acknowledges to have received in full, and for which amount of six thousand dollars, she does, by these presents, give good acquittance and discharge.” . She binds herself to pay the arik^nt to the plaintiffs at their counting house in Philadelphia in three installments, and mortgages her lands and slaves to secure the payment. No money is stated or appears to have been paid at the time. The advances, whatever they were, are antecedent, and rest simply upon the acknowledgment in the deed. There is no testimony aliunde to show their nature or amount, the circumstances under which they were made, or the purposes to which they were applied. The defendant .does not appear to have been separated in property. In 1-847, the first installment not having been paid, suit was brought by the mortgagees demanding a personal judgment against Mrs. Fraser, and a sale of the mortgaged property. In her answer, she denies that the sum of $6000, or any part, was ever received by her or applied to her use and benefit. She alleges that she was a minor at the date of the mortgage, and was entirely under the control of her husband; that the property mortgaged was paraphernal, inherited from her father, and not liable for debts of her husband. There was judgment in favor .of the defendant, and the plaintiffs have appealed.

From the inexperience and weakness of the sex, and the strength of the marital influence, the law takes the married woman under its protection, and does not permit her to bind herself for the benefit of her husband’s creditors, nor to appropriate her property to the payment of his debts. The contracts which she is permitted to make are those in which the consideration is for her separate advantage. It was therefore said by Martin, J., in Brandegee v. Kerr and Wife, that the circumstance of the wife having a separate advantage in the contract, is of the essence of the obligation.

To permit the naked acknowledgment of .the wife to bind her without other proof, is inconsistent with the spirit and policy of our laws and jurisprudence. The influence of the husband will readily obtain from the wife such a declaration.

It would defeat, in many cases, the protecting spirit of the law, if the burden were thrown upon the married woman to prove that the money professedly loaned to her was used by the husband, and that the form of the contract, which marital influence had induced her to adopt, was merely a cloak for a violation of the law. It seems more proper to throw the burden of proof upon the creditor, who knows he is treating with a person whose capacity is limited, and who is legally assimilated to a minor.

In the present case, the wife has acknowledged, in the act, that the sum of $6000, for which she mortgages her patrimony, was for advances theretofore made to her by the plaintiffs. Why did they not prove .the nature and circumstances of the advances 1 The proceedings of the family meeting were referred to as an authorization of the contract into which she was entering. There is nothing to show that the purpose which its members contemplated, the payment of outstanding charges upon her patrimonial estate, was accomplished. On the contrary, it is shown affirmatively that they were not paid out of the money borrowed ; and they appear to be still unpaid.

Not being satisfied under the evidence that the alleged advances were made to, or inured to the benefit of the wife, we cannot render judgment against her, or order her paraphernal property to be sold to pay the plaintiffs. See Perry v. Thompson, 3d Ann. 188. Taylor v. Carlile, 2d Ann. 579. Pascal v. Sauvinet, 1st Ann. 428. Firemen’s Insurance Company v. Cross, 4 R. R. 510. Brandegee v. Kerr, 7 N. S. 64. Count de Gaalon v. Matherne, ante p. 495.

The judgment of the district court is therefore affirmed, with costs.


text:
    Joshua Baker v. Samuel Irwin et al.
    In an action by the vendee against the -vendor of a steamboat for damages occasioned by the bursting of a boiler, the plaintiff must prove that the boiler was defective at the time of the sale, to be entitled to recover.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      Maskell and Splane, for plaintiff.

      W. C. Dwight, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This is an action to recoyer the amount of damages sustained by the explosion of the boiler of a steamboat sold by the defendant to the plaintiff. It is alleged that the explosion was attributable to defects of the boiler which existed at the time of the sale.

The b.oat was sold to the plaintiff in February, 1847, and the explosion took place between five and six months afterwards — the boat being in use during that interval. The plaintiff has endeavored to prove the unsoundness of the boiler at the time of the sale, by the testimony of the person who commanded her, and of some others who saw the boiler after the explosion, and also by testimony as to their age, ,&c. The defendant has produced several witnesses who had known them during the preceding year. Some of them had assisted in putting in the boilers in the preceding fall, others had been employed as engineers on board of the boat since that time, or had other reasonable opportunities of becoming acquainted with their condition. They had also been inspected by the proper officer of the government on the 13th October, 1846, and were reported good and sound. From a careful consideration of all the testimony, we are unable to adopt the conclusion that the boilers were unsound at the time of the sale, and that the explosion which occasioned the damages incurred by the plaintiff was attributable to the cause alleged. It will be observed that the evidence of competent persons is clear on the point that a good boiler may be injured in a short period by unskilful management. It is an unfavorable circumstance to the plaintiff’s case that the captain was the only white person employed on the boat. The engineer was a negro slave. The testimony given by the captain as to the circumstances of the explosion indicate, in our opinion, want of attention to the engine on the part of the engineer at the time of the disaster.

It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment in favor of the defendant with costs, in both courts.


text:
    Sarah Day v. Susanna Collins.
    Since the act of 25th of March, 1844, a child has not a right to sue the surviving parent for its share of the community as inherited from the deceased parent.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      W. C. Dwight, for plaintiff.

      A, R. Splane, for defendant.
   The judgment of the court was pronounced by

Preston, J.

William Collins died in the latter part of the year 1844, leaving a widow and ten children. The plaintiff, one of the children, sues her mother for a tenth of her father’s estate. The estate consists of a small tract of land, a negro, and personal property, the whole estimated in the inventory at $3640. The whole is presumed by law, and indeed sufficiently proved, to be property belonging to the community which had existed between the defendant and her deceased husband.

The act of the 25th of March, 1844, provides, that in all cases when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life, so much of the share of the deceased in the community property as may be inherited by the issue. The defendant has chosen to exercise her rights under this law ; and there is no case in which it could be more equitably claimed than when a widow is left with so small a fortune with which to provide for, in health and sickness, to clothe and educate, so many children.

The plaintiff contends that, at all events, she is entitled to a judgment declaring her to be the owner of the undivided tenth of her father’s estate. This appears to have been matter of notoriety, disputed by nobody, and least of all by her mother, the defendant; and no prescription against her undivided interest in the land and slave could run, as she feai-s, while in the enjoyment of her mother. '

The defendant opened the succession of her deceased husband, and may be required to liquidate it so as to establish the exact value of the estate after settlement, and thus to show the eventual interest of the plaintiff in the estate. An improper estimation or omission in the inventory, and indeed any errors in the administration, might be corrected in this settlement. The plaintiff is not entitled, since the passage of the act of 1844, to sue for or recover her interest in the community property of her father during the life or widowhood of her mother. And the record shows an entire willingness on behalf of the mother to liquidate the communily amicably.

The judgment of the district court is therefore affirmed, with costs.


text:
    Narcisse Terrio v. Antoine Guidry.
    A sale under execution does not affect a prior legal mortgage in favor of a minor.
    The prescription of five years possession of a slave under a just title, is not applicable to a casein which a minor attempts to exercise upon the said slave alegal mortgage in favor of said minor.
    Our code contains no express provision upon the prescription of legal mortgages.
    Where a purchaser at sheriff’s sale is evicted of the property purchased, his recourse is first against the defendant in the execution on which the sale was made. C. P. 713.
    APPEAL from the District Court of Lafayette, Overton, J.

      Morse and Nichols, for plaintiff.

      Mouton and Voorhies, for warrantors.

      Crow and Greig, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an hypothecary action. In 1830, Lloy Landry was appointed dative tutor of the plaintiff. In 1843, the plaintiff sued him for an account of the tutorship, and obtained against him a judgment for the sum of twelve hundred and seventy-eight dollars, besides interest. The judgment was in part satisfied, and the execution issued thereon returned no property found to satisfy a balance of eight hundred and sixty-three dollars and forty-five cents. The plaintiff now seeks to enforce his legal mortgage for that amount on a slave in the possession of the defendant, which belonged to Eloy Landry during the tutorship; besides adducing in evidence this judgment against Eloy Landry, and also the execution and the return thereon, he has proved the reality of his claim, and complied with all the formalities required in the action of mortgage.

The defendant urges, as grounds of defence, that he acquired the slave in controversy at a judicial sale made at the suits of some of the creditors of Eloy Landry, and that the slave passed to his possession free from incumbrance. He further alleges that, at the time of the institution of this suit, he had been in possession for five years under the sheriff’s sale, and that the claim of the plaintiff is barred by prescription. He prays that the creditors who caused the slave to be seized and sold be cited in warranty; and that in case he is compelled to surrender the slave, he may have judgment against them for the value thereof. These parties answered, denying the allegations in the answer and the right of the defendant to call them in warranty.

There was judgment against the defendant condemning him to deliver the slave claimed in default of paying the sum due the plaintiff. The judgment also rejected the claim in warranty. The defendant has appealed.

The sale of the slave under execution did not affect the legal mortgage of the plaintiff, and the prescription which the defendant invokes is not applicable to the case. Our code, differing in that respect from the code of France, contains no express disposition on the prescription of mortgages. Under article 713 of the Code of Practice, the defendant’s recourse is against Landry alone; he has no right to call the seizing creditors in warranty.

The judgment is affirmed, with costs.


text:
    Adele Roy et al. v. Euphrosine Roy et al.
    Where a party owning an entire tract of land cuts certain canals for draining the land, and afterwards sells the entire tract, upon re-acquiring a portion of it, his vendee cannot, by erecting levees, &c., interfere with the drains previously established. They are servi tudes which cannot be interfered with.
    APPEAL from the District Court of St. Landry, Overton, J.

      L.J. Eupré and J. E. 'King, for plaintiffs.

      Lewis and Porter, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that the defendant has erected on the side line of her plantation adjoining her (the said plaintiff’s land) a levee which obstructs her natural drains, and causes the rain water to overflow her land; she prays for damages, and that the levee be removed at the defendant’s expense.

The defendant has answered by a general denial; and has further alleged that what the plaintiff claims as a natural drain is a pond surrounded on all sides by high land. That in this pond, and between the plaintiff’s and defendant’s land, there is an elevation which arrests the natural flow of the water, and that the plaintiff has no right to drain ponds and other low places in her field across the defendant’s land, particularly when they can be more easily drained at other points. She prays for damages, and for a trial by jury. On this issue the case was tried before a jury, who found for the plaintiff one hundred dollars damages, and that the defendant be compelled to remove the obstructions. The defendant having failed in her application for a new trial, judgment was rendered against her, and she appealed. Her case has been argued in writing in a manner highly creditable to her counsel and satisfactory to the court; but we are of opinion, that nothing has been shown which would justify our interference with the verdict in a case so peculiarly within the province of the jury.

Previous to the year 1840, the land of the plaintiff and of the defendant formed but one tract, and belonged to Antoine Nézat, who cut through the centre of the pond mentioned in the pleadings a canal, which he extended through the high land beyond the defendants land, so as to drain said pond; he then cut upon the land owned by the plaintiff the ditches which now exist, for the purpose of draining it through this canal over the land now owned by'the defendant. In 1840, he sold the land thus drained to the defendant, who continued the same system of drainage, and cut an additional drain from a point of the land now owned by the plaintiff, to the Little Téche.

In 1847, the defendant, being still largely indebted for the land to her vendor, gave him in payment that portion of it which the plaintiff holds. This giving in payment was made without any reservation as to drainage. The destination of the canal by the former owner to the draining of the entire tract is equal to a title, and as the act of transfer of the property is silent respecting that servitude, it continues to exist in favor of the plaintiff’s and against the defendant’s land. C. C. 763 and 765. The plaintiff, however, should not render that servitude more onerous, either by his act or by his omission, and the defendant has the right to require that the drain into the Little Téche be kept open.

The judgment is affirmed, with costs.


text:
    L. J. Dupre et al. Executors, v. F. M. Desmaret.
    The speculative opinions of physicians derived from a post mortem examination are not, by themselves, full proof of the length of time during which a redhibitory disease existed in a slave before his death.
    APPEAL from the District Court of St. Landry, Overton, J.

      John E. King and L. J. Dupré, for plaintiffs.

      E. H. Martin, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant is sued for the price of several slaves purchased at the probate sale of the succession of the late Jacques Dupré, among which was one named John Bull. The payment of the price of John Bull is resisted on the ground that before and at the time of the sale he was affected with a redhibitory malady, of which he died, more than a year after the purchase. The case was tried before a jury, who found a verdict in favor of the defendant, with fifty dollars damages ; the plaintiffs have appealed from the judgment rendered on this verdict.

The counsel for the defendant asserts truly, that it is the settled jurisprudence of this court to respect the verdicts of juries on questions of fact, unless they are clearly erroneous ; but a verdict may be erroneous not only because it is con-tray to evidence, but also when the evidence upon which it is based is insufficient in law to make full proof of the facts in relation to which it is adduced. In the case of Seaton v. Municipality Number Two, 3d Ann. 44, the jury had assessed the damages for the breach of a building contract upon the speculative opinions of the witnesses, and their estimates of probable profits. We set aside the verdict, on the ground that evidence of that description did not make full proof of the damages sustained. The witnesses in that case were architects and builders. It is no disparagement to the healing art to say that the speculative opinions of the adept in its mysteries have not greater certainty than those of the architect in matters connected with his profession. Adopting, therefore, the same rule with both, we consider that the opinions of physicians as to the duration of a chronic disease, the existence of which has been ascertained by a post mortem examination, are not, by themselves, full proof of the length of time during which it has existed.

The slave, John Bull, died more than fourteen months after the sale. The physicians who made the post mortem examination, state that he labored under a disease of the heart accompanied by a general dropsy. They think that this disease was brought on by dirt eating. One of the witnesses thinks, and the other believes, that the disease must have existed two years. One of them says, that it was incurable when he first saw the slave, about six months after the sale. This conjectural evidence is unsustained by any other; the state of facts which it tends to establish is rendered extremely improbable by the testimony of many witnesses who knew the slave, and had him under their charge during the eight years which preceded the sale. They all state that he was robust, and, to all outward appearance, free from any chronic disease; that he was one of the stoutest men on the plantation; that he had none of the signs of a dirt eater, and that they do not believe he was one. None of the witnesses assert that the disease of which the slave died was incurable at the time of the sale; and the proof of its existence at that time is not satisfactory.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the plaintiffs for the sum of eight hundred and seventy-five dollars, with interest at the rate of eight per cent on one-half thereof, from 27th December, 1848, and on the other half from the 27th December, 1849, until paid, with costs in both courts.


text:
    L. J. Dupre et al. Executors, v. William M. Prescott.
    Ina‘z¿di¡jbitory action for the price of a slave, the party cannot recover unless a physician he called $ within a reasonable time, although the slave may have been afflicted with a r#dhihitoiy disease.
    APPEAL from the District Court of St. Landry, Overton, J.

      John E. King and L. J. Dupré, for plaintiffs.

      Lewis and Porter, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs in this case brought suit against the defendant to recover the price of the slave Ignace, purchased at the probate sale of the succession of the late Jacques Dupré. The defendent, as in the case just determined, refuses to pay, on the ground that the slave was, before and at the time of the sale, affected with a redhibitory disease of the heart of long standing, of which he shortly afterwards died.

The first jury to whom the case was submitted, being unable to agree, were discharged; it was submitted to another jury, who found a verdict in favor of the defendant. The plaintiffs have appealed from the judgment rendered thereon.

The probate sale took place on the 27th of December, 1847; the witness Woods, offered by the defendant, has testified that the slave Ignace was under his charge, as overseer, from February, 1848 until his death, in April of the same year; that his health, during that time, was very bad ; that he laid up better than half of the time, and always complained of his breast; that he was taken very sick on Wednesday; that on the next day a physician was called in, and that on the following Saturday morning, the slave died, and was buried on the next day. Two days after his burial, he was disintered and a post mortem examination was made by two physicians; they state that they ascertained the existence of a chronic disease of the heart of very long standing, and, also, that the middle lobe of the right lung was found in a diseased condition, almost dissolved, with a good deal of matter in it. We understand them to say further, that the affection of the lungs was the immediate cause of the death, and that it may have been an acute disease of very recent origin. They say further, that the pressure against the lungs, caused by the enlargement of the heart, might have increased the disease of those organs. This evidence suggests a possibility, but does not prove a fact. There' is nothing in the record to show that the disease, which was the immediate cause of the death, was either produced or increased by the chronic disease discovered to exist after death. It may, therefore, be doubted whether on that state of facts the defence could be sustained. But there is another ground upon which it is untenable: in cases of this kind, unless a physician be called in within a reasonable time, the purchaser cannot recover, although the slave may have been affected with a redhibitory disease. Kiper, Administrator, v. Nutall Peniston, 1 R. R. 44. Palmer v. Taylor et al. 1 R. R. 412. Lyons v. Kenner, 2 R. R. 53.

The testimony of the defendant’s overseer shows that although the health of the slave was very bad for more than two months before his death, and that he always complained of his breast, no physician was called in to see him until two days before his death. Under the authorities cited, the defence set up cannot be sustained.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the plaintiffs, and against the defendant, for the sum of four hundred and twenty-seven dollars and fifty-eents, with interest at the rate of eight per cent per annum from the 27th of December^ paid, and costs in both courts.


text:
    Succession of Gustave Dejean.
    A married woman who has not renounced the community is presumed to he a partner in the community, and is not permitted to apply the partnership assets to her individual claims, to the prejudice of the creditors Of the community.

      APPEAL from the District Court of St. Landry, Overton, J.

      L. J. Dupre, and J.E. King, for administratrix.

      E. H. Martin, for-opponent.
   The judgment of the court was pronounced by

Slidell, J.

Mrs. Dejean is the widow of the deceased, and the administratrix of his succession. She places herself on the tableau of distribution as a privileged creditor for paraphernal moneys received by her husband, and claimed superiority to her husband’s vendor upon the proceeds of the probate sale of a tract of land. It is conceded that Dejean received during his marriage five thousand one hundred and fifty-eight dollars eighty-eight cents belonging to his wife. The whole of this, except a comparatively trifling amount, was received by him prior to 1848. In thatyear he bought the tract of land on a credit of one, two and three years. One installment only has been paid. The mortgage reserved in the deed of sale by the vendor was not recorded until 1849, after Dejean’s death. --

It is obvious that the pretension of Mrs. Dejean to apply the proceeds of the probate sale of the land to her own paraphernal claim, in preference to the unpaid vendor, has no equitable basis. She attempts to sustain it upon a rigorous construction of the provisions of the code regulating the inscription of mortgages as regards third persons. To what extent in general the wife is to be considered a third person, with reference to mortgagees of the husband, is a question upon which it is unnecessary now to express an opinion.

In the absence of contrary evidence, it is to be presumed, that a community of acquests and gains existed between Mrs. Dejean and the deceased. There is no evidence of a renunciation or settlement of the community. She stands before us, therefore, as still a partner of the community; and as such cannot be permitted to apply a partnership asset to her individual claim, to the detriment of a creditor of the partnership.

The judgment of the district court is therefore affirmed, with costs.


text:
    John J. Gardner v. Dosite Leger.
    The occasional catting of wood on uncultivated land does not constitute such a possession as can be the basis of the prescription of thirty years'.
    APPEAL from the District Court of St. Landry, Overton, J.

      Swayze, for plaintiff.

      E. H. Martin, for defendant.

      W. B. Lewis, for warrantor.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The defendant sets up as his title a donation from the United States, based on settlement and cultivation before the change of government, and pleads the prescription of ten, fifteen, and thirty years. There was judgment in his favor, and plaintiff appealed.

The plaintiff had called in warranty his vendor, John Doyle, who appeared and defended the suit. Judgment was rendered against him in favor of the plaintiff, for the value of the land adjudged to belong to the defendant.

The plaintiff claims title under a grant from the Spanish Government made in 1778, and the confirmation of the commissioners of the land office, bearing date the 18th day of May, 1811. There is no dispute about the location of the land ; but the defendant has proved that more than forty years before the institution oí this suit, Robert Burleigh, who was then the owner of it, had it surveyed,, and that the surveyor commenced the survey on the back line and in the yard of John Léger, under whom the defendant claims title; that Léger and his wife remonstrated with Burleigh, who then agreed to adopt the line E F, on the plat in the record, as his back line, and accordingly planted posts at the corners E and F. Burleigh further directed his son to respect that line and not to cut wood outside of it; he told Léger, at the same time, that he would give him the land. The superficial quantity of land in controversy is about twenty-two arpents, which are included between the side lines of the plaintiff, the line E F and the back line, as it should be run according to call of the titles.

Burleigh died without making the donation of the land to Léger. The tract was inventoried as containing eight arpents front by forty in depth, and on the 8th of April, 1822, it was sold with that front and depth at probate sale to Baptiste Castillo, under whom the plaintiff holds by a regular chain of conveyances.

In 1822 Léger had no title to the land which the defendant now possesses; the act of Congress which confirmed the report of the commissioners in favor of his claim, was only passed on the 31st of March, 1826. His title being subsequent in date to that of the plaintiff, the latter must prevail, unless one of the pleas of prescription set up can be maintained.

It is unnecessary to determine what effect the parol agreement between Burleigh and Léger, as to their division line, would have if Burleigh was still the owner of the land. The purchaser, after his death, had no notice of it, and his l-ights cannot, in our opinion, be affected by it. The portion of land in controversy is wood land, the possession of which followed the title of Baptiste Castille, unless it was at the time of the sale in the actual possession of Léger.

Actual possession has not been shown. The occasional cutting of wood upon uncultivated land does not constitute such a possession as can be the basis of the prescription of thirty years. See McCarty v. Fouche, 12 M. R. 11. And there is no evidence in the record to show, since 1826, acts of possession upon which the prescription of ten years under the title derived from the United States can be based.

It is conceded that the defendant is entitled to that portion of the land in controversy enclosed in his yard.

It is therefore ordered, that the judgment in favor of the defendant in this case be reversed, and that the plaintiff recover from the defendant that portion of land marked in the survey with the letters CDEF, -except so much of it as is enclosed and forms part of the yard of the defendant, with costs in both courts. It is further ordered, that the judgment in favor of the plaintiff against the warrantor be reversed, and the call in warranty dismissed.


text:
    L. A. Webb, Under-tutor, &c., on Opposition of D. D. Webb.

      Where a family meeting convened after the second marriage of the mother of minor children, recommend her as tutrix, it is for the court and not the family meeting to prescribe the security to be given.
    The mother shoald be trusted with the tutorship of her children if it be possible.
    A woman who marides a second time without the consent of a family meeting, loses all ‘ right to the natural tutorship of her children.

      APPEAL from the District Court of St. Landry. Overion, J.

      Swayze and Moore, for appellant.

      Dupré and King, and B. F. Linton, for appellee.
   The judgment of the court was pronounced by

Preston, J.

Delia D. Webb was married to William Wikoff. He died leaving three minor children, the issue of the marriage, of whom the surviving widow was confirmed as tutrix by nature.

In February, 1847, being about to contract a second marriage, with Adolphe Garrigues, she presented a petition to court to convene a family meeting to recommend that she should be retained as tutrix of her minor children. The family meeting was ordered, but did not take place, and the second marriage was solemnized.

After her marriage she applied again for the convocation of a family meeting to recommend her appointment as tutrix to her minor children; and the family meeting did so, but upon conditions, which she declined to accept, and the declarations of the family meeting were not then homologated.

Lewis A. Webb, the under-tutor of the minors, then applied, representing these facts to the court, and asked that a family meeting might be convened to recommend a tutor. The meeting was convened and again offered to recommend the mother as tutrix, ¡upon the conditions before proposed, which she again refused; and thereupon the family meeting recommended that Amos Webb, the grand-father of the minors, should be appointed tutor.

The under-tutor applied for the homologation of the proceedings of the family meeting, which was opposed by the mother. She moreover applied for the homologation of the proceedings by which she was recommended as tutrix upon conditions, except as to the conditions which she prayed might be rejected by the court. The court homologated the proceedings rejecting the conditions, and appointed her tutrix. The under-tutor has appealed.

It has been held, that the natural tptrix contracting a second marriage without being r-etained in the tutorship upon the recommendation of a family meeting of the minors, loses all right to the same, and must be appointed dative tutrix in the same manner as any other dative tutor, and must comply with all the requisites of law. See the case of the Minors Mossy, 3 R. R. 393. Code, art. 272, 288. Code of Practice, 950, 951.

The first requisite is, that the tutor should be recommended to the court by a family meeting of the minors. The appellee contends, that she has been so recommended, because the family meeting had no right to prescribe conditions. That is true; but it is clear to us they did not intend to recommend her except upon the acceptance of those conditions. One of the members of the family meeting, having been examined as a witness, testifies, that he would not have consented to the recommendation without the conditions prescribed by them for the security. The nearest relations of the minors on two occasions formally convened, and acting under the obligations of their oath and their duty to their minor relatives, manifested their fixed determination not to recommend that the mother should resume the tutorship unless she made arrangements prescribed, which they deemed necessary for the security and productiveness of the minors’ property, and their welfare. It cannot, therefore, be said, that there was the recommendation required by law to authorize her appointment as tutrix.

Nevertheless, as the family meeting acted in error in prescribing the security to be given by the tutor, which alone belonged to the court, and as the mother should be charged with the sacred trust of tutrix to her children if it is possible, we think justice requires, thatthis cause should be remanded to convene the family meeting again, to recommend to the court the most suitable person to be appointed tutor, without considering the security to be given.

It is ordered, that the judgment of the district court be reversed, and that the case be remanded to the district court for further proceedings according to law; and that the appellee pay the .costs of .this app.eal.


text:
    George Gardiner v. Theodore C. Bataille.
    Where it was not necessary that the act of copartnership should be reduced to writing, its avoidance may be established by parol proof. Such evidence no more contradicts the act than proof of payment by a witness does a promissory note.
    APPEAL from the District Court of St, Landry, Overton, J.

      Swayze, for plaintiff.

      Dupré and King, for defendant.
   The judgment of the court was pronounced by

Rost, J.

We are of opinion, that there is no error in the judgment in this case. The award of the amicable compounder was not objected to, because it entirely disregarded the the contract of partnership between the parties, and allowed the plaintiff the value of his services, and the hire of his slaves and teams; the grounds upon which it was set aside were purely matters of form; no exception was taken to the action of the plaintiff on the quantum meruit; and it is proved that after the rendition of the award the plaintiff left the plantation, and the defendant has had the benefit of it so far as it was in his favor. These facts lead strongly to the conclusion that, by consent of parties, the contract of partnership was cancelled. A bill of exceptions was taken to the testimony of a witness who proves that fact, on the ground that parol evidence could not be admitted to contradict the written contract of the parties.

The land and slaves remained the properly of the individual partners. There were no immovables in the partnership stock; it was, therefore, not necessary that the contract of partnership should be reduced to writing. C. C. 2807. If the partnership could have been established by parol it is not easily perceived why it could not be avoided in the same manner. Such evidence no more contradicts the act than proof of payment by a witness contradicts a promissory note. We are satisfied that the fact is as stated by the witness.

On the merits, the judge has applied the testimony to the claims of the plaintiff, with his usual accuracy, and left nothing for us to do but to affirm his judgment.

Judgment is affirmed, with costs.


text:
    Louise Thibodeaux v. Leon Thibodeaux et al., Tutors.
    A special authorization is not necessary to enable a tutor to bring suit against the former tutor of minor children, for a settlement of the account of that tutor’s administration.
    The regularity of a tutor’s appointment cannot be inquired into on an injunction taken out against an execution on a judgment obtained by him.

      An injunction cannot be taken out against an execution upon grounds of which the party was apprised before the judgment was rendered.
    A widow who has had the community property held in common between her and her deceased husband adjudicated to her at its appraised value, becomes indebted to her minor children for their respective shares, and cannot refuse to gay the amount to their tutor, upon the ground that she is entitled to the usufruct of the community property under the act of 25th of March, 1844.
    APPEAL from the District Court of St. Landry, Overton, J.

      B. F. Linton, for plaintiff.

      E. H. Marlin, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff is the surviving wife of Urbain Lavergne, who died in the year 1843. The defendant is the tutor of their children, Syphroien and Urbain Lavergne. The deceased left an estate in community with his widow, which, being the common property of her and her children, was, under article 338 of the Civil Code, adjudicated to her on the 14th March, 1843, at the sum of $3285, its appraised value.

Ou the 17th of May, 1848, the mother was deprived, by judgment, of the tutrixship of her children, for sufficient legal reasons. Léon Thibodeaux, the defendant, was appointed their tutor, and brought suit against the plaintiff for an accountof her administration as tutrix, and had the balance in favor of the minors established at $903 68, by a judgment rendered by consent on the 19th of August, 1848, and has issued execution on the judgment.

The plaintiff, Louise Thibodeaux, has instituted this suit to enjoin the execution of the judgment. She alleges that Léon Thibodeaux is not tutor of the minors, the family meeting by which he was recommended not having been composed of the nearest relations of the minors. She further assumes that the suit, in which judgment was rendered against her, was a suit for a partition; and alleges that the tutor of the minors had no right to institute that suit, because not authorized by the judge, on the advice of a family meeting. She further alleges, that she is entitled to one-half of the estate of her deceased husband in her own right, and the usufruct of the other half during life or her widowhood; and in support of the last claim, invokes the act of the General Assembly approved the 25th March, 1844, relative to community property.

1.The Code, art. 1235, indeed provides that a tutor must be specially authorized to institute a suit for a partition. But the suit instituted by the tutor, the execution in which suit is now enjoined, was not a suit for a partition, but for an account from a former tutor, and the judgment is for the balance of the account.

2.If there was the irregularity alleged in the appointment of the tutor of the minors, it cannot be attacked in a suit for an injunction against the execution of a judgment rendered in favor of the minors against the plaintiff. The appointment should have been annulled in a formal suit instituted for that purpose. Nor can the plaintiff enjoin the judgment rendered in favor of the tutor against her, all the grounds alleged by her having existed and being known to her when she confessed the judgment against her. 5 L. R. 442. 2 Ib. 181. 8 N.S. 513. She could not even have appealed from the judgment rendered upon her confession, and partly executed by voluntary payment, as appears in evidence. C. P. 567. 14 L. R. 523.

3.The ground chiefly relied upon by the plaintiff in support of her injunction that, notwithstanding the adjudication to her of her children’s interest in their common property it remained undivided between them, is untenable. By the adjudication, the common became the separate property of the mother of the minors, and she owed them the price in proportion to their interest in the property. Nor can she, as contended, renounce the adjudication made to her, the more especially as she has alienated part of the property adjudicated to her, and the tutor of the minors has also acted upon the adjudication by suing for and obtaining an account of the price. For the balance of the price, after liquidating the community and the accounts of the minors, he has obtained judgment against the mother.

As Substantially decided by this court in the case of Mills v. Falvey, — Ann. —, the new tutor was entitled to execution if the balance of the account was not paid, and especially as he gave security as required by law for the faithful administration of the minors’ property as their tutor.

The act of 1844, giving the surviving spouse during life, or while unmarried, the usufruct of the community of acquests is inapplicable to this case, having been enacted subsequently to the opening of the succession of the deceased husband and father of the parties.

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


text:
    Francois Hebert v. Ambrose Lacour, Administrator.
    Where a party, being present at the taking of an inventory, acknowledged that he had funds of the deceased in his possession, hut refused to state the amount, afterwards brings suit for a debt which he alleges to be due to him from the succession, he will be non-suited unless he shows the amount of funds he had belonging to the succession; and, in such a case, the defendant is not hound to propound interrogatories to the plaintiif.
    The prescription of one year, C. C. 3499, applies to claims for board in private houses.
    APPEAL from the District Court of St. Landry, Overton, J.

      Lewis and Porter, for plaintiff.

      Morse and Nichols, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This suit is for the same cause of action as that between the same parties, decided by us and reported in 1st Ann. 229. In that case there was a judgment as of non-suit against the plaintiff, because after having acknowledged to the officer who made the inventory of the succession which he sues, that he had in his possession moneys belonging to the deceased, he refused to declare the amount or to render any account of it; thus depriving us of the means of ascertaining the truth and reality of his claim.

Without making any disclosure, he has renewed the action against the succession. A judgment of non-suit has been rendered against him, and he has appealed.

There is nothing in the record to induce us to change our former opinion. The deceased lived with the plaintiff at the time of her death; this circumstance corroborates his statement. He urges that the defendant should have propounded interrogatories to him, and trusted to his conscience. The course he has pursued authorized the defendant to believe that this mode of proceeding would have been attended with danger; and unless he believed that the plaintiff had a conscience, he cannot be blamed for not appealing to it.

It is urged that the parish judge who testified to the declaration of the plaintiff misunderstood him, and that he said, or meant to say, that he had a note of George Peiry in favor of the deceased for sixty dollax's.

The testimony of the parish judge is positive and uncontradicted; it shows not only that the plaintiff had money, but also that he had taken legal advice, and that, in refusing to surrender it, he was acting under that advice. Who his counsel was does not appear.

The evidence of Petry does not contradict that of the parish judge; it only shows that besides money, the plaintiff held anote belonging to the deceased, which he concealed at the taking of the inventory.

It is urged, that if the court persist in their opinion, the plaintiff never can recover what is alleged to be justly his due. The only answer to this argument is, that the ways of the transgressor are hard, and that if a party litigant does not come into courts of justice with clean hands, he has no right to complain of the consequences of his misconduct.

We have deemed it unnecessary to notice the plea of prescription; but it may prevent further litigation to state, that article 3499 of the C. C. establishing the prescription of one year against inn-keepers and others, has been applied by us to claims for board in private houses.

The judgment is affirmed, with costs.


text:
    Hermance Chachere, Wife of Sittig, v. Mary Gardner.
    A married woman is incompetent to enter into a contract with her husband, by which she receives, in payment of a judgment due to her for her paraphernal property, an assignment of a store and book accounts, obligating herself to pay the purchase money due, and to continue the business of the store in her husband’s name, through him as her agent.
    APPEAL from the District Court of St. Landry. Overton, J.

      Linton and Martel, for plaintiff.

      Dupré and King, for defendant.

      Lewis and Porter, for intervenor.
   The judgment of the court was pronounced by

Slidell, J.

The defendant was the debtor of D. C. Sittig; and the controversy presented in this cause is, whether she shall pay the debt to Mrs. Sittig, who claims under an assignment of the debt made to her by her husband, or to Hinckly, a judgment creditor of Sittig, who has seized the debt under execution and garnisheed Mary Gardner.

The assignment by Sittig to his wife was made under the following circumstances. She held a judgment against him for paraphernal claims, on which there was a balance due of $1003. To satisfy this judgment he transferred to her, by notarial act, a stock of merchandize and the book accounts of his store or mercantile house; the consideration of the sale also being an agreement by her to pay “the balance of purchase money (or privileged debts) due on the aforesaid merchandize, amounting to $3000, as said vendor declares.” These debts are not enumerated. By the same deed, the wife constitutes her husband her agent for the sale of the merchandize and the collection of the accounts. It was also declared to be the intention of the wife, to continue the store or mercantile house for her own benefit, under the name or title it had heretofore borne, namely, that of D. C. Sittig, her husband. At the time of this transfer Sittig was insolvent.

Hinckly charged, that this assignment was simulated, fraudulent and illegal. The jury found a verdict declaring the assignment invalid, and the district judge refused a new trial.

"We think there was no error in this finding. The wife was incompetent to enter into such a contract with her husband; and the instrument, moreover, bears on its face indicia of bad faith. See the case of Spurlock v. Mainers, 1st Ann. 302.

Nor do we find any error in so much of the verdict as recognizes the assignment to Hinckly of the judgment recovered by Gordon against Sittig. It is not pretended that Sittig has paid Gordon, nor that Gordon has made any other assignment of the claims.

It is said, that the debt in controversy is due, not to Sittig but to a commercial firm which carried on business in Sitiig’s name, and in which one Gkoutte was a partner in commendam. The plaintiff, however, in denying the sole ownership of Sittig, is contradicted by her own acts and acknowledgment.

The judgment of the district court is therefore affirmed, with costs.


text:
    John F. Morrough, Administrator, v. Johnson Moss.
    A confirmation by act of Congress is a title upon which the claimant can maintain a petitory action.
    APPEAL from the District Court of Calcasieu, Overton, J.

      Swayze and Moore, for plaintiff.
    B. F. Linton, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, acting as administrator of the succession of Isaac Foster, deceased, claims from the defendant the last installment due on a tract of land purchased by the said defendant at the probate sale of the said succession. The defence is, that the land purchased was one of the Rio Hondo land claims which, under the act of Congress passed in reference to them, were to be located exclusively on the west side of the Calcasieu river, and that the claim sold to the defendant was in part located on the east side of that river, by reason whereof the defendant is entitled to a diminution of the price.

The defendant further alleges, in a supplemental answer, that his vendor had no title to the land; that the claim has never been located in the manner required by law ; and that the commissioner of the general land office cannot issue a patent certificate for it. He prays for five hundred dollars damages. There was judgment in favor of the plaintiff for the sum claimed, and the defendant appealed.

The proces verbal of the sale describes the tract of land as containing about six hundred acres, and as being situated on the west side of the Calcasieu river. It is in evidence that the title of Foster to the land is based on a Rio Hondo claim, which was confirmed to the extent of six hundred and forty acres by act of Congress approved on the twenty-fourth of May, 1828. The defendant has further adduced a certificate of the register of the land office, stating that the plat of the township in which this claim is situated, represents it as including lots four and five of section ten on the east side of Calcasieu river; but the plat itself is not in evidence, and we have no means of ascertaining whether the extent of lots four and five is sufficient to entitle the defendant to a diminution of the price, under article 2470 of the code; but besides, the defendant alleges in his answer, that the survey is illegal, and that no patent certificate has issued. There is, therefore, nothing definite or binding upon him in the location of which he complains, and the errors of the survey, if any exist, can still be corrected.

The confirmation by act of Congress, is a title upon which the defendant can maintain a petitory action.

It has been urged, in argument, that the order of the judge for the probate sale is not shown. This ground is not found in the answer. The defendant, on the contrary, expressly admits the purchase as alleged in the petition. This admission is sufficient to bind him.

The judgment is affirmed, with costs.


author:
Rost, J.
      Slidell, J.

text:
    Daniel Lyons v. Lemuel Andrews.
    Where the record of appeal is complete, with the exception of the evidence which had been lost, so that the clerk could not send it up with the record, and the loss is in no manner attributable to the appellant, the cause will he remanded.
    APPEAL from the District Court of St. Landry, Overton, J.

      E. M. Martin, for plaintiff.

      Lewis and Porter, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who was under-tutor of the children of the defendant, instituted this proceeding to have the said defendant removed from the tutorship, on .the ground that he was unfaithful in the administration of the tutorship, and of notoriously bad conduct. The petition was served at the defendant’s domicil, during his absence; he failed to answer, and a judgment by default was taken. After the legal delays, the plaintiff appeal's to have adduced evidence in support of his allegations, and a judgment was rendered removing the defendant from the tutorship. This appeal is taken from that judgment.

The clerk of the district court has certified that the transcript contains a true and correct copy of the proceedings, with the exception of the evidence adduced by the plaintiff, which is lost or mislaid. The appellant asks that the case be remanded to supply this deficiency, for which he alleges he is in no manner responsible.

It is urged, that to entitle himself to the relief he asks, the appellant should have called upon the district judge, contradictorily with the opposite party, to supply the lost evidence by a statement of it. This would have been the most regular course, but it was probably not the fault of the defendant that it was not resorted to.

Upon charges the most vague and indefinite he has been removed from the tutorship, and deprived of the custody of his children during his absence, and, as it seems, without his knowledge. For the sake of the children, and of humanity, I think we ought to give him the opportunity of being heard, especially as it can cause no injury to the appellee, either in his individual or fiduciary capacity. We think justice requires that the cause be remanded for a new trial.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the appellee paying the costs of this appeal.

Slidell, J.

dissenting. I am not prepared to relieve the appellant under the circumstances. The testimony taken in writing, having been lost or mislaid, the defendant, it seems to me, should have called upon the district judge, contradictorily with the opposite party, to supply the lost evidence by a statement of it. If the judge was unable to make a statement, or if he having made a statement, this court, upon a proper showing, should find any reason to suppose that the statement was defective, there would then have been presented a case for the equitable interference of the court by opening the judgment, and remanding the cause for a new trial.


text:
    Benjamin F. Linton v. Catharine Harman.
    The rale which suspends prescriptions during minority, is exclusively for the benefit of minors, and does not prevent them from pleading prescription against persons of age.
    The only debts for which the prescription which has commenced to run is suspended by the death of the debtor, are those due to the beneficiary heirs.
    The actions of attorneys at law for their fees is prescribed by three years.'
    APPEAL from the District Court of St. Landry. Overton, J.

      B. F. Linton, per se.

      E. H. Martin, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is an attorney at law, sues the defendant for professional services rendered to Eugene Richard, her late husband, during marriage, on the ground that all the property of the community has been adjudged to her by a decree of court, at the price of appraisement, and that she has thereby become liable for the community debts.

The defendant pleaded the prescription of three years under art. 3503 of the Code. There was judgment in her favor, and the plaintiff appealed.

It is not denied, that more than three years elapsed between the rendition of the service for which the plaintiff claims compensation and the institution of this suit. But the plaintiff shows, that three years had not expired from the term of the rendition of the service to the death of Eugene Richard, and makes the following points: 1st. That the plea of prescription being a personal one, it is not competent for the widow or heirs to set it up. 2d. That prescription being suspended against minors, it is also suspended when invoked in their favor in cases like the present.

These grounds are not tenable. The action of attorneys for their fees, no matter against whom instituted, is prescribed by three years. The only debts for which the prescription which has commenced to run in favor of the debtor, is suspended by his death, are the debts due to the beneficiary heirs. Art. 3492, C. C.

The rule which suspends prescription during minority, is made exclusively for the advantage of minors, and was not intended to deprive them of the rights secured by law to persons of age. Moreover, there are no minors in this controversy.

Notwithstanding the equity of the plaintiff’s case, it is not in our power to relieve him.

Judgment affirmed, with costs.