text:
    William J. Kyle, Administrator, v. H. Van Bibber.
    Testimony that is irrelevant or secondary, will be excluded.
    The testimony of a witness who has omitted to answer a cross-interrogatory, will be excluded.
    The court cannot disregard a judgment obtained in Alabama, because the proceedings previous to judgment, if tested by our laws, would be irregular.

      When the defendant has been personally cited, the court is hound to presume that the subsequent proceedings and judgment are regular and in conformity with the laws and practice of the place where the judgment was rendered.
    The court understands that, in Alabama, it is requisite to relief in chancery, by opening a judgment, that the complainant should show that the judgment is unjust.
    APPEAL from the District Court of the Parish of Caddo, Bullard, J.

      Crain and Jones, for plaintiff.

      Lawson and Fuller, and Gilbert and Landrews, for defendant.
   By the court:

Slidell, J.

This is an action by the plaintiff, in his capacity of administrator of the estate of Thomas C. Dupree, deceased, upon a judgment obtained by him in that capacity, in Alabama, against Van Bibber, defendant in a proceeding ini garnishment there upon a judgment obtained by said administrator against William J. Campbell. The cause was tried by a jury, who found a verdict for the plaintiff, and from a judgment thereon rendered, the defendant has appealed.

The record teems with bills of exception, which we shall briefly notice. The first is to the refusal of the judge to permit the defendant to file an amended answer. A portion of the matter set up in this answer had been substantially pleaded in a previous answer, and, so far, the amended answer was superfluous.

That portion of the averments in the amended answer which was new, amounts in substance to an attempt to inquire into the administration by Kyle, as trustee of the creditors of one Stringfellow, of certain trust funds assigned by Stringfellow to Kyle, for the benefit of his creditors, of whom Van Bibber-was one, and to show that in that capacity he had come into possession of property sufficient to cover Van Bibber’s claim, after satisfying certain preferred creditors, and retained the same in satisfaction of Van Bibber’s claim. That claim, it is alleged in the answer, was held by Van Bibber for the benefit of Campbell, and its being so held was, as he alleges, the occasion and subject of the garnishment.

It was, perhaps, a sufficient reason for the refusal of leave to file this answer, which is loose and uncertain in its averments, that it attempted to blend the affairs of Dupree’s succession with the administration of a trust fund held by Kyle in an entirely different capacity. But we find an additional reason for not disturbing the ruling of the district judge in the antecedent proceedings in this cause. The proposed amendment presents new and complicated issues. It was not offered until the April term, 1852, two days before trial. The cause had been put at issue in May, 1848. The prolix answer, then filed, and the interrogatories then propounded to the plaintiff, authorize the inference, that if the matters set up in the amended answer were true, they were then within his knowledge. In view of this long silence and laches, to reverse the judgment-now, and remand the cause to enable the defendant to amend, would be a very dangerous precedent. It will also be observed, that the judgment of the district judge does not preclude the defendant’s recourse against Kyle, as trustee of Stringfellow's creditors.

The testimony of the witness Cox, in answer to one of the interrogatories propounded by the defendant, was properly excluded on the ground of irrelevancy to the issue. It was also objectionable on the ground of its being secondary evidence.

The testimony of an attorney at law in Alabama, examined under commission, was properly excluded on the ground of his having omitted to answer a cross-interrogatory. If this testimony, however, had been admitted, it would not, in our opinion, have authorized a different judgment. The professional opinion which the witness gives is entitled to little weight, from the loose manner in which he treats the subject.

What we have said as to the testimony of Cox, and the amended answer, disposes of the question as to the rejection of Yarborough’s testimony.

The proposition, that we have a right to disregard the Alabama judgment, because the proceedings in garnishment would be irregular, if tested by our own laws, is utterly inadmissible. The defendant appears, from the record, to have been personally cited. We are bound to presume that the subsequent proceedings and judgment were regular, and in conformity to the laws and practice of Alabama.

It is said that the record exhibits an entry which shows that the judgment had been satisfied, and, consequently, that the subsequent judgment against the garnishee was erroneous. The facts pertinent to this point are as follows: On the execution docket in the office of the County Court of Coosa county, Alabama, -which is stated by a witness to be one of the records of that court, in the case of Kyle, administrator, v. Campbell, there is the following entry: “Received, the amount of this case, principal and interest, by order of Wm. J. Campbell, on Henry Van Bibber, for the amount of the judgment, interest and costs, March, 18th, 1839, which discharges defendants. (Signed,) W. S. Kyle.”

It appears that garnishee process issued against Van Bibber, in January, 1839, and was served upon him in February, 1839. In January,' 1840, there was judgment nisi against him upon default, and he was notified to appear on the ensuing July term, and show cause why final judgment should not be entered. Service of notice of the judgment nisi, and to appear, was served upon him in May, 1840, and, at the July term, 1840, final judgment was entered. If the entry on the execution docket was an obstacle to the rendition of judgment against the garnishee, it seems to us that the matter was one from which the defendant should have sought relief by writ of error. If, however, as is asserted by the defendant’s counsel, this matter was one which a court of chancery in Alabama could have taken cogniszance of, in support of which point we have not been favored with authority, it seems to us clear, that a court of chancery would not have disturbed the judgment if the showing made in this cause by the plaintiff’s answers to interrogatories, put to him by the defendant, were made before such a court. These answers show, that on the 18th of March, 1839, Campbell gave Kyle a written order upon Van Bibber, in which he says: “ You will please pay over to W. J. Kyle, the sum of eight hundred and sixty-nine dollars and forty-six cents, being the amount settled upon between me and the said Kyle, in the case of the execution in which you are garnished: and oblige, &ethat the plaintiff exhibited this order to Van Bibber, who verbally accepted it, and said he would pay it; that upon Van Bibber asking him whether he should go to court to assent to the garnishment, he told him that it was unnecessary, for that judgment would be entered against him for the amount of his‘ indebtedness, whether he went or not, unless it was previously paid by settling the order, and that it would only be an additional expense to attend court, but that he might go or not as he chose, that judgment would be rendered against him. From the whole tenor of these answers, which are full — bear the appearance of truthfulness — and satisfied the jury; it is obvious that the plaintiff did not intend to relinquish his proceedings against the garnishee; that Van Bibber, did not understand them as being relinquished; that the judgment against the garnishee was fairly obtained, and did no more than determine judicially a liability which the defendant clearly assumed to the plaintiff. We understand that in Alabama it is requisite to relief in chancery, by opening a judgment, that the complainant should show that the judgment is unjust. It is unnecessary, therefore, to inquire what other requisites there are, to obtain relief in equity in Alabama, against a judgment rendered there in a court of common law. See the case of Crafts v. Dogh, 8 Alabama Rep. 767.

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


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    George W. Copley v. Bonner et al.
    When the sheriff finds the judgment too vague and uncertain to enable him to execute a writ of possession, he cannot have recourse to the examination of witnesses. As was held in the case of Williams v. Kelso, 7 L. R. 408, that would be a new trial of the case before the sheriff.
    When one sues for the possession of real property, in order to obtain a writ of sequestration, he must allege that he has been evicted, through violence, or that he has reason to apprehend that the defendant will make use of his possession to dilapidate or to waste the fruits of the property. C. P. 275.
    In possessory actions, when possession is claimed under title, and the calls of the title are not natural, or at least visible and fixed, a survey of the land is of great assistance to a proper determination of the extent of the possession.
    APPEAL from the District Court of the Parish of Morehouse, Sharp, J.

      Morrison, for plaintiff.

      Baker, for defendant.
   By the court:

Rost, J.

This is a possessory action. The defendants severed in their defence, and separate verdicts were rendered against them. They have both appealed from the judgment rendered on the verdicts.

The judgment is, that the plaintiff be quieted in the possession of his property as claimed.

The appellants contend, that as it does not describe the property, the only legal mode to render it certain is by reference to the pleadings, and that as the description in the petition is extremely vague and uncertain, the judgment cannot be executed, and the case should be remanded. They rely in support of that position, on the cases of Williams v. Kelso, 7 L. R. 408, and 3 Mart., N. S. p. 7.

The description in the petition is ns follows : “All that certain piece or parcel of land lying north and west of said road descending the Bayou Bartholomew, commencing at and where the road now leaves the bayou, just below the camp ground, and running down said road to where it strikes the Bayou Bartholomew below, about three-fourths of a mile, more or less, so as to include the small improvements made by Wm. P. Theobald and John Perkins, and to include all the land in the bend of the bayou north and west of said road, together with that under fence and now in cultivation by A. I). Peck, in corn ; together with all the possession and right of possession of the defendant, in the case of George W. Coply v. A. D. Peck, of all that tract of land lying west of said road, in the bend of the bayou, cultivated and uncultivated, improved and unimproved.”

This description appears to us vague and indefinite. The designation of the starting point where the road leaves the bayou, as well as the location and extent of the improvements of Theobald and Perkins, are undoubtedly so. How is the sheriff to ascertain from the copy of the judgment and of the petition, which are alone to guide him in executing the writ of possession, that the road and the improvements he may find, are the same which existed when the petition was filed? He could not ascertain this without the declaration of both parties to the suit, or in default of it, without examining witnesses, which, as the court held in the case of Williams v. Kelso, would be a new trial of the case before the sheriff.

Believing that the judgment cannot be executed, we are of opinion that the case must be remanded for further proceedings.

Writs of injunction and of sequestration were issued in this case. We are of opinion that the plaintiff did not make out a case for a sequestration. He does not allege that he has been evicted through violence, or that he has reason to apprehend that the defendants will make use of their possession to dilapidate or to waste the fruits of the property. C. P. 275. We deem it proper to state that in possessory actions, where possession is claimed under title, and the calls of the title are not natural, or at least visible and fixed boundaries, a survey of the land is of great assistance to a proper determination of the extent of the possession.

It is ordered, that the judgment in this case be reversed. It is further ordered, that the sequestration sued out in this case be set aside and avoided. It is further ordered, that the case be remanded for further proceedings, the plaintiff paying the costs of this appeal and of the sequestration.


author: Slidell, J.

text:
    William Long v. Martin, Curator, and Paxton.
    The question being whether the defendant was a bond fide purchaser, the fact that he employed counsel, and that the records were examined, and that he did not take a notarial act of sale, which, in the usual course of business, is accompanied by a mortgage certificate, (C. C. 3328,) but that he took a private act of sale, is a circumstance calculated to excite suspicion.
    APPEAL from the District Court of the Parish of Claiborne. This case was tried by a jury before Jones, J.

      'Garrett, for plaintiff.

      Lawson and Scott, for defendant.
   By the court:

Slidell, J.

After a cai’eful perusal of the evidence in this cause, we are not satisfied with the verdict and judgment below, and think the justice of the case will be more clearly ascertained, by subjecting it to further examination. We think there is reason to believe, that on further investigation, a larger amount, than was awarded by the jury, will be found due to the plaintiff from the succession of Bell. We are also of opinion, that the question whether Paxton was a bond fide purchaser without notice, should be further investigated. With regard, at least, to a portion of the property, the jury seems to have overlooked the fact, as we understand the evidence, that it was comprehended in a mortgage given by Long, acting for the firm of Bell and Long, in the year 1836, which mortgage appears to have been duly recorded in the mortgage office. The books of that office were in existence when Bell, in his individual name, sold the land and slaves to Paxton, although they have since been destroyed-It appears that Paxton consulted counsel about Bell’s title, and the parish records were examined. It is a circumstance calculated to throw doubt over the transaction, that after this examination, the saje was not made by notarial act, which would, in the usual course of business, have been accompanied by a mortgage certificate, (Civil Code, 3328,) but by an act under private signature. We point to this circumstance, among others, as one of the considerations which have induced us to remand the cause. We also remark that the district judge, in refusing a new trial, expresses his dissatisfaction with the verdict. There is an obscurity in the case as now presented, arising, perhaps, in some degree, from the destruction of the parish records, which prevents us from coming to a satisfactory conclusion, and which, on a new trial, the parties will have an opportunity of clearing up.

Judgment reversed, and cause remanded; appellees to pay costs of appeal.


text:
    Moses Madden v. William W. Farmer.
    This suit was brought upon two notes. The defence was prescription. The only evidence of an interruption of prescription, was the testimony of plaintiff's' attorney, in whose hands the notes were placed before maturity. A bill of exceptions was taken to the testimony. Per Curiam: Attorneys at law are not agents, and the rule which admits the testimony of agents in favor of their principals, in cases like this, should not be extended to them. If it was, this case would not come within the spirit and reason of the rule. There was no absolute necessity for resorting to this evidence, as the same facts might have been proved by an appeal to the conscience of the defendant.
    The court will not recognize the principle, that the testimony of an attorney in behalf of his client, makes full proof of the fact sworn to, particularly in cases where the attorney would be personally responsible, if the action was not sustained.
    That evidence has always been held, as being oí an inferior kind.
    APPEAL from the District Court of the Parish of Ouachita, Copley, J.

      McGuire and Ray, for plaintiff.

      Richardson, for defendant.
   By the court:

Rost, J.

This suit is based upon two promissory notes, amounting together to upwards of $700, besides interest. The notes matured in 1839 and 1840, and the defence is prescription. The only evidence of an interruption of prescription, or of a new promise to pay after prescription accrued, is that of the attorney of the plaintiff, in whose hands the notes have been placed for collection, before their maturity. The defendant objected to this testimony, on the ground, that as the witness had received the notes for collection before their maturity, and had permitted them to become prescribed in his hands, he was liable to the plaintiff, and that the object and effect of his testimony was to relieve him from that responsibility. The objection was overruled, and the testimony admitted. The defendant took a bill of exceptions.

We incline to the opinion, that the objection was well taken, and should have been sustained; attorneys at law are not agents, and the rule which admits the testimony of agents in favor of their principals, in cases like this, should not be extended to them. If it was, this case would not come within the spirit and reason of the rule. There was no absolute necessity for resorting to this evidence, as the same facts might have been proved by an appeal to the conscience of the defendant, which the attorney himself admits, might have been safely resorted to.

If the evidence was admissible, it would be insufficient per se to sustain the judgment appealed from. However disposed we may be to believe the testimony in this instance, we could not recognize the principle, that the testimony of an attorney in behalf of his client, makes full proof of the fact sworn to, particularly in cases where the attorney would be personally responsible if the action was not sustained. That evidence has always been held, as being of an inferior kind, and painful experience has taught us >the cause of the discredit into which it has fallen.

Being under the impression that the statement of the witness in this case is correct, we will not close the case against his client.

It is ordered, that the judgment in this case be reversed, and that there be judgment against the plaintiff as of nonsuit, with costs in both courts.


author: Preston; J.

text:
    A. C. Boardman et al. v. Sarah Glenn et al.
    From necessity, the agent of a vendee is a competent witness to prove the contract of sale, and the price.
    The proceeding by sequestration is a harsh remedy, and when sued out without sufficient cause, the party whose property is tallen should have adequate redress.
    APPEAL from the District Court of the Parish of Catahoula, Barry, J.

      Curry, for plaintiffs.

      Taliaferro, for defendants.

      Decided in 1851.

   By the court:

Preston; J.

The plaintiffs sue the defendants for a large amount of damages for sequestering their steamboat Pascagoula, whilst engaged in a very profitable business. They allege, that she was detained by the sheriff about, a month, during which time they lost their business, and incurred great expense.

The defendants allege, that the sequestration was taken out for a lawful cause; that Roberts, the master of the boat, against the will and remonstrances of the keeper of a wood-yard for the defendant, Sarah Glenn, took a large quantity of pine wood from the yard, for which the boat was liable to seizure, under the act of the Legislature, approved the 15th day of March, 1842. They claimed, by reconvention, the value of the wood,-and damages for the trespass.

On the trial, the defendants objected to the testimony of Roberts, on the ground that he was liable to the plaintiffs for the damages that might be assessed against them for his trespass. Greenleaf’s Ev. vol. 1, article —. They were plaintiffs in the reconvention for damages, and did’ not, by evidence, show any trespass by Roberts, which was essential to attack his competency. He believed, at least, that he took the wood in pursuance of a contract, and that there was only a dispute about the price, and we think that was the true state of the facts. He is not a party to this suit, and is not interested in it, as being liable for the price of the wood. Perhaps his interest is, that the defendants should, by their reconvention, recover its full value from the plaintiffs, as they have done, so that by payment he may be exonerated. From necessity, he is a competent witness for the plaintiffs, as to the contract for the wood, and the price. 2 Greenleaf, sec. 416. Nicholson v. Palton, 13 L. R. 216.

The proceeding by sequestration is a harsh remedy, and when sued out without sufficient cause, the party whose property is taken should have an adequate redress. We are unable to say, from the evidence in this case, that the jury assessed the damages too high.

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


author: Preston, J.

text:
    Jacob Smith v. Mary Tabor et al.
    An antichresis, to be binding upon the property pledged, must be reduced to writing in accordance with article 3143 of the Civil Code.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Hodge, for plaintiff.

      Land, for defendants.

      This case was decided in 1851, in New Orleans, by consent.

   By the court:

Preston, J.

At a sale of property belonging to the estate of James Tabor, in San Augustine county, in the State of Texas, Mary Tabor, one of the heirs, became the purchaser of three slaves, for four hundred and sixty dollars, on a credit of twelve months. She was unable to give the security required as the condition of the sale. The plaintiff, with two other persons, gave the bond for the price of the slaves, which was satisfactory, and the sale was passed to her.

She was then living with the plaintiff, and hired one of the slaves to him to pay two-thirds of the price, being heir of one-third herself.

Shortly afterwards she quit the house of the plaintiff and married John A. Willis, who is made a defendant with her. Willis, with some friends, went to the house of the plaintiff and took forcible and violent possession of the slave, and sold her to one Nicholson.

When the bond became due, the plaintiff paid it. He sues for the amount, makes Nicholson a party, and claims that the slave should be restored to him, and that he might retain her until her hire, at $120 a year, should indemnify him for the amout paid by him for Mary Tabor for the price of the slave. He also alleges, that she and her husband were insolvent at the time of the sale to Nicholson, and that the latter fraudulently purchased the slave to deprive him of his debt.

The case was submitted to a jury, who found a verdict for the plaintiff for the amount of his claim against Mary Tabor and her husband Willis, but exonerated the succession of Nicholson, (who died during the pendency of the suit,) also the slave Polly, from the claim.

The evidence does not establish the insolvency of Willis and wife at the time of the sale to Nicholson, nor a fraudulent purchase of the slave by him from them; and in exonerating his succession from liability, the verdict and judgment are correct.

The agreement of Mary Tabor to hire the slave until the debt due by her to the plaintiff was paid, amounts to an antichresis, and to be binding on the property, should have been reduced to writing. Code, art. 3143. .

The defendants, on this ground, objected to evidence of the contract. It was admitted by the court to prove a contract of hire, but the court and jury appear, by their verdict and judgment, to have disregarded it as proving a pledge of the slave and her hire until payment of her price; and we think with them, it should have had no binding effect upon the property.

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


text:
    T. R. Wolfe v. T. M. Gilmer, and James B. Gilmer v. T. R. Wolfe. L. R. Grigsby, Administrator, v. J. B. Lee et al., Intervenors.
    When persons, married elsewhere, acquire property after they come to reside here, it belongs to the community of acquets; but not that which the husband purchases before he becomes a resident of Louisiana.
    When the contract of partnership does not determine the share of each partner in the profits or losses, each one shall he entitled to an equal share of the profits, and must contribute equally to the losses.
    from the District Court of the Parish of Caddo, Bullard, J.

      Gilbert and Landrum, for plaintiff.

      Spofford and Crain, for defendant.

      Lawson, for intervenors.

      This case was decided in 1851.

   By the court :

Preston, J.

This case is novel in its circumstances, and somewhat complicated, on account of the number of parties. The looseness of the transactions between the original parties, the fact that fictitious parties have appeared from the beginning of the business until now, that the litigation is approaching its termination, and that original parties, both nominal and real, are dead, may render it impossible to know exactly the rights of the litigants.

But as far as the facts are disclosed by the record, or perhaps ever can be, we think the district court has come to correct conclusions, and meted out substantial justice to all the parties. If, however, any injustice has been done to the appellant, of one thing we are certain, that it has resulted from the fact of his keeping his property in the names of other persons, we fear for illegal purposes ; a practice the more to be reprobated, because it is so common.

In 1834, Busfirod Jenkins, then residing in Kentucky, purchased Anderson’s Island, near Shreveport, and commenced its improvement as a cotton estate. For that purpose he purchased a number of negroes, particularly a lot of twenty-two, from William Oldham, for ten thousand dollars.

In 1836, he brought his family to Louisiana, and became a resident of the State. We may therefore dispose at once of a claim strenuously urged by the counsel of his widow, based upon the assumption, that the land and slaves thus acquired, belonged to the community of acquets which existed between her and her deceased husband. When persons, married elsewhere, acquire property after they come to reside here, it belongs to the community of acquets, but not that which the husband purchases before he becomes a resident of Louisiana.

There is nothing in the case of Cole’s Widow v. His Executor, adverse to this principle. 7 M. R. 41. In that case the husband voluntarily separated from his wife, and established his residence in Louisiana. The true ground of the decision was, that his residence was her residence, and that he might have required her to come to reside in Louisiana, if he had chosen. In this case, the husband did not come to reside in Louisiana, much less his wife, until after his acquisition of the land and slaves erroneously claimed as belonging to the community, in opposition to the fair interpretation of the 2370th article of the Code.

Bushrod Jenkins cultivated the plantation with some success for ten year’s, increased his property and credit, and became the owner of a joint interest in the town of Shreveport. It was believed by the neighborhood, that he was the sole owner of the plantation and slaves, and other property. The titles to the plantation and slaves, and Shreveport property, were all in his name alone; all transactions growing out of the ownership, wex-e performed by him as owner. In those transactions he contracted numerous debts, and to a large amount, on the credit of the property, because none of his creditors knew that he was not the sole owner-.

And yet a paper is produced on this trial, dated at Lexington, Kentucky, in 1835, signed by Jenkins, declaring that he owned the plantation and thirty slaves, in, partnership with Lewis K. Grigsby. The day after its date, it was assigned to Lewis Grigsby, of that State, the father-in-law of Jenkins, and father of Lewis K. Grigsby.

We believe that Grigsby, the son, was a partner in the plantation and slaves, from its establishment, and never ceased to be, notwithstanding the assignment.

The instrument shows that he was a partner. He tx-aded in slaves before 1834, and had means. Jenkins had but little means, and as has been stated, purchased 22 of the slaves from William Oldham, who was trading in partnership with Grigsby, in slaves. It seems probable that these slaves belonged to the partnership of Oldham and Grigsby, were put into the partnership with Jenkins, and settled for by Grigsby with his partner Oldham.

It is proved that Grigsby failed in 1834. He had a motive, therefore, for conducting the partnership in the name of Jenkins alone, and no doubt took the acknowledgment to which we have referred as a counteidettex-.

Notwithstanding the assessment, we do not believe his father ever had any interest in the property. It was a px-ivate writing, and there is no proof that it was ever delivered to the father. He never took possession of the property, or exercised any control over it. It is not shown that he ever paid anything for the assignment, and his heirs, he being dead, claim nothing under it, or ever heard of it. It is true, a suit to which we shall advert, was commenced in the United States Court in his name, for a settlement with Jenkins, but it was commenced, conducted and terminated, entirely by Grigsby, the son. It is true, that after Jenkins' death, a power of attorney was given by his father to one Freman, by which the latter sold the undivided half of the plantation and slaves to Wolfe. But Grigsby, the son, has had that sale declared fictitious by judgment.

For these x-easons, and evidence in the rbcoi'd not adverted to, we do not believe that Grigsby, the father, or Wolfe, his vendee, ever had any interest in the property, and that though the one, and the curator of the othex-, are nominal parties to this litigation, that they have no interest in it. The real parties to the suit, and owners of the property, are Lewis K. Grigsby, and his sister, Mrs. Jenkins, and her minor children; and we shall not complicate tho case by refex-ence to any others.

Jenkins and Grigsby established the plantation with slaves, in the name of Bushrod Jenkins, commencing in 1834, and wox’ked it in partnership until 1845. A suit was then instituted in the United States court by Grigsby against Jenkins for the partition of the property, and settlement of the partnership. But it was compromised, and the partnership extended indefinitely, by a notarial agreement, made on the 25th of November-, 1845.

Jenkins was mux'dered in 1846, and the partnership first extended, dissolved by his death. Thomas M. Gilmore was appointed his administrator, and has administered his estate for several years. The property in Shreveport has been divided in kind between Grigsby and Jenkins' estate. The plantation and slaves have been sold, by consent of all parties. Half the proceeds have been delivered to Gilmore for administration; the other half Remains in the hands of the sheriff, subject to distribution in this suit. The widow of Jenkins claims half of the whole, individually. We have disposed of that claim. She claims half the estate, as tutrix of her minor children, and Grigsby claims the other half. The creditors claim to be paid out of the whole estate, and in this Mrs. Jenkins supports them. But Grigsby insists, that they are to be paid out of the part of Jenkins alone. Th*e just settlement of the rights of all the parties, grows principally out of the proper construction of the agreement and compromise between Jenkins and Grigsby, dated the 25th of November, 1845.

It establishes: 1. That Jenkins and Grigsby had owned in joint partnership a plantation and slaves, in the parish of Caddo. 2. That a suit had been instituted hy Grigsby, for a partition of the partnership property, and whatever balance might be found due to him. 3. Jenkins acknowledges that Grigsby is the owner of an undivided half of the plantation and slaves which are described, and conveys him a title. 4. It is disclosed, and Jenkins acknowledges, that Grigsby is the owner of one undivided half of his interest in the town of Shreveport. 5. It is provided that the plantation and slaves shall be kept together, and worked in partnership, for the mutual expenses of the joint owners, the expenses of the plantation to be paid out of the proceeds of the crops. 6. ‘Jenkins is authorized to sell the lots in Shreveport, provided the proceeds, shall be applied to the payment of the debts, which are particularly enumerated in the agreement. 7. They are declared to be the debts of Jenkins, but are to be paid out of the partnership property, or the revenues arising from the same. 8. The debts are then enumerated, and it is again stated, that they are debts previously owing by Jenkins, but to be paid out of the revenues and proceeds of the property.

This agreement indicates, that the name of Jenkins, as connected with the debts, is used, as it had been from the establishment of the plantation, to represent the partnership. 2. That the enumerated debts were partnership debts. And 3, to be paid out of the revenues, and in default thereof, the proceeds of the sales of the partnership property. And, as it is impossible to believe that Grigsby would consent that his revenues should be used, or his property sold to pay debts he did not owe, we are forced to conclude, that they were debts due by him as a partner. And then the exemption contained in these words: “ without making Lewis Grigsby personally bound for the same in any manner whatsoever,” applies appropriately, as it does literally, to Lewis Grigsby, the father, in Kentucky, whose name the parties were using fictitiously in a partnership, in which he had no interest whatsoever.

This then is a*partnership, to be settled, like any other, between Grigsby and his sister, representing her minor children.

The agreement, of which we have extracted the substance, shows sufficiently that they were equal partners in the plantation, slaves and property in Shreveport. No stock account or books being furnished, and neither party pretending to have made, or that the other received advances, their equality of interest in the partnership, and in its losses and profits, is easily presumed. Code, art. 2836. The agreement fixes likewise, with reasonable certainty, the partnership debts to be paid out of the partnership property ;• and the creditors having become parties to the liquidation, they must be paid before the surplus is definitely divided.

There are some discrepancies between the amounts of the debts, as stated in the agreement, and the amounts established by the creditors. The statements in the agreement were merely descriptive of what debts were to be paid, and not intended or reasonably expected to be precisely accurate. The discrepancy is so great as to the claims of Kohn, Daron 8f Co. and J. J. Jackson, that we would be disposed to yield relief, but for the conviction, as repeated so often, that they were debts of a partnership carried on in the name of Bushrod Jenkins, of which Lends K. Grigsby was the secret partner. There is no reason to believe that Jenkins intended to deceive, in stating the debts of the partnership of which he had been the manager. Thus the discrepancy in the case of Kohn, Daron 8f Co., which is much the largest, grew out of the accumulation of interest, that moth of estates, as may be seen at page 682 of 5 Ann. The judgment against him, mentioned in the agreement, did not bear interest, and he probably thought himself exonerated from interest.

There is still less reason for objecting to the debt of Burne and Burnside, because evidenced by a bill of exchange, while it is stated in the agreement to be a note, or the debt of Dick and Hill, because proved by a note, whilst the agreement describes it by a bill of exchange. Neither of the parties were subjecting themselves by the agreement to the debts of the other, but both were fixing what were partnership debts, to be paid out of the partnership property, and without which Jenkins would not have made titles to Giigsby, entered into the compromise, or continued the partnership, but have compelled the partner to establish rights with the same exactitude which the latter now requires.

The same observations apply to the claim of Stinson. And under the circumstances, the debt of Lee is sufficiently proved. It was acknowledged in the agreement as a small balance of account, but sued for by virtue of a note for two hundred dollars, bearing ten per cent interest. The attorney who brought the suit was well acquainted with Jenkins ; says that it was a note on Bushrod Jenkins, and that it had been lost or mislaid. The advertisement of its loss was admitted. No question was made as to the signature, or we have reason to believe, it would have been more expressly proved by Mr. Lawson, the attorney, so well acquainted with Jenkins.

As the record showed that Gilmer, the administrator, had eight thousand dollars in his hands, proceeding from the revenues of the property, there is no reasonable objection to the decree of the court, directing its appropriation to the debts specified in the agreement, though neither party appears to have specially demanded it. If he has now, or should hereafter have, other funds of the partnership, a like distribution may be made, with which the present does not interfere. The costs of a large record like the present, should not be thrown on the appellees, for unsubstantial reasons. *

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


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    Sterling Baldree v. F. J. Davenport. A. M. Coleman, Intervenor.
    When an intervenor stands in the position of a plaintiff, in a petitory action, he will he hound to establish, by satisfactory evidence, a title to the property which he claims.
    APPEAL from the District Court of the Parish of Morehouse, Copley, J.

      McGuire and Ray, for plaintiff.

      Richardson and Newton, for defendant.

      Parsons and Sharp, for intervenor.
    It was an estate commencing in presentí, intended to be occupied in futuro, and upon the delivery of the deed, the whole estate passed at once from the grantor to the grantee, 2 Blackstone, 166, 167. 5 Humphrey’s (Tenn.) Reports, 411.| 7 R. R. 481. 12 R. R. 660.
    In the ante-nuptial contract between Ruth Baldree and her husband, the power to make such disposition of her property, was expressly reserved, and the deed of gift being made in accordance therewith, is good. 2 Story’s Eq. sec. 1388, 1390, and authorities there cited. 2 Roper on Husband and Wife, ch. 16, sec. 2, p. 102. Youngblood v. Flagg, 11 L. R. 341.
    The court below erred, in admitting, on the trial, the deed purporting to be from Ruth Baldree to Elizabeth Ruth Kelly, for the slaves in controversy, which had been previously donated to Eliza Waters and her children, for the reasons set forth in intervenor’s bills of exception. The signature of Moses Waring, one of the subscribing witnesses to the deed, was not sufficiently proven, nor that of the other witness; and, even had one, or both these signatures been established, without proving the signature of the donor, the deed was inadmissible. Dismukes et al. v. Musgrove, 7 N. S. 63. 7 M. R. 209. 9 L.R. 521. 2 Ann. 217. 11 L. R.251. 3 R.R. 206. C. C. 2241.
    As to its effect, the deed having been made in the State of Alabama, if such a deed was made at all, which is denied, was void, for the want of record, and could confer no title. Clay’s Digest, p. 255. 2 sec. Statute of Frauds, 2 Ala. Reports, 684, 648. Moreover, it was made by a married woman, without the consent and authorization of her husband, and is, therefore, void. C. C. art. 1467. The only power reserved to her in her marriage settlement, to dispose of her separate estate, had been previously exercised and exhausted when she executed the deed to Eliza Waters and her children. The life estate reserved to her therein, was, at furthest, all that she could dispose of.
    The deed of gift to Eliza Waters, and her issue, divested Ruth Baldree of the fee of the property conveyed ; and, of course, the power to make a subsequent disposition, even if the former had not been declared irrevocable. The deed to Elizabeth R. Kelly, is, therefore, an absolute nullity, and even if it had been properly proven, could confer no greater right than the grantor had, at the time of making it, which was but a life estate, the ownership of the slaves having already been vested in the first-named grantees, Eliza Waters and her children. Jarman on Wills, 11, 13, ne. 1 Ala. Reports, 52. 13 Ala. Reports, 731. Summerlin, Adm’r., v. Gibson et als. 15 Ala. Reports, 411. 1 Domat lib. 27, tit. 2, sec. 1. C. C. art. 1454, 9. Porter’s Ala. Reports, 649. Grahamv. Lambert, 5 Humphrey, 595.
    There can be no doubt but that the girl, Mary, was purchased with funds arising from the sale of Austin, who was one of the slaves mentioned in the deed of gift, to Eliza Waters and children; in fact, the decree of the chancery court at Hayneville, clearly recognizes ,this fact; and, if so, she forms as much a part of the trust estate, created by this deed, as any of the negroes named in it. Law Library 39, p. 131. 4 Kent, 306, and notes. 1 Johnson’s ch. R. 450. 3 Howard’s Supt. C. R. 405.
    The deed of gift to Eliza Waters and her children, made in pursuance of the marriage settlement, and in accordance with the power reserved, therein, perfected the settlement of the property previously made on Eliza Waters and her issue, after the death of the donor, and is valid. 2 Kent, 164, 170, 174. 2 Leigh 183. This power to dispose of her separate estate, was expressly reserved by Ruth Baldree, in the instrument creating it, and the disposition made, was in accordance therewith. The deed is therefore good. 1 John’s ch. R. 450. 2 Wharton, 11. 10 Serg. and Rawie, 447. The law respecting marriage settlements in South Carolina, is understood to be essentially the same as in Pennsylvania, Virginia, North Carolina, and Kentucky. 4 Dallas, 304, 307.
    The deed created a particular estate for life in Ruth Baldree, and a vested remainder in Eliza Waters and her issue, who held the fee, and to whom a legal and equitable seizin was given. 4 Kent, 201. 2 Blackstone, 164. Williams v. Caslon, Strobharts’ South Carolina Reports, 130. 7 Iredell, N. C. Reports, 123.
    It was not a contingent interest; depended on no uncertain event, and Eliza Waters and her issue had a right to the immediate possession and enjoyment of the property conveyed, upon the death of Ruth Baldree, when the precedent estate ceased. 2 Blackstone, 168. 1 Strobhart South Carolina Reports, 442. 1 Branch, 64. 5 Alabama Reports, 5, 7, 8; and 1 Richardson’s South Carolina, 161,170. 11 John’s cas. 91. 6'Peters, 68. 5 Mass. 535
    This interest, then, being vested and determined, when the particular estate was created, the grantor, Ruth Baldree, holding a life estate, was without the power to make any subsequent disposition of the property, to Elizabeth Ruth Kelly, or any one else. 2 Blackstone, 166. 15 Ala. Rep. 406. 2 Ala. Rep. 648. 4 lb. 158.
    Such a deed is similar in its nature to a donation inter vivos, and when once perfected by delivery, the fee of the property conveyed vested absolutely in Eliza Waters and her issue, and the grantor could not then revoke it, even if it was not, by its terms, irrevocable. 1 Strobhart,’s South Carolina Reports, 48. McCutchen v. McCutchen, 9 Porter’s Alabama Reports, 649. 2 Root, 383. 4 Watts and Serg. 221.
    It may be urged that the property conveyed was never actually delivered to the grantee. This was not necessary, and could not be done during the life of Ruth Baldree, who had reserved to herself a life estate in it. A delivery of the deed was sufficient. 12 Alabama Reports, 29. 9 Alabama Reports, 144. 4 Alabama Reports, 158. 5 New Hampshire Reports, 71. 2 Root, 26. 15 Wend, 656.
    It may be said that if intervenor’s title to the slave, Will, is good, he being mentioned in the deed of gift, that he has shown no right to Mary and her children, who comprise the balance of the negroes in controversy. It is true that none of these last are named in the deed, but it is alleged that Mary was purchased with funds belonging to the trust estate, to wit, the proceeds of the sale of Austin, who was named in the deed ; and, although Allen W. Coleman, who purchased Mary for Mrs. Baldree, took the deed in his own name, it was expressly stipulated that Ruth Baldree was to have a life estate in her, and that the girl was for her use.
    It is a doctrine well established, both by reason and by the decisions of the courts of other States, that when property conveyed by a deed of trust, (as this was,) is sold, the proceeds of that property should be applied as provided in the deed. 9 Porter’s Alabama Reports, 547.
    In the purchase of Mary, A. W. Coleman acted merely as trustee, and property bought with trust funds, belongs to the cestui que trust, who was Eliza Waters and her children. 10 Alabama Reports, 400, 460, 151. 4 Porter’s Alabama Reports, 27.
    Having, as we think, shown that Francis P. Coleman is clearly entitled to the property, intervenor prays that the judgment of the district couit be reversed, and that he be decreed to be the owner, and that he have judgment also for the hire of the same as prayed for in his original petition, with costs in both courts.
   By the court:

Slidell, J.

The intervenor stands in the position of plaintiff, in a petitory action, and is bound to establish, by satisfactory evidence, a title in his ward, for whom he claims.

As regards Davenport, who stands before us as a purchaser in good faith, we have no hesitation in saying, that the judgment ought not to be disturbed. For there is no sufficient evidence as to the slaves in his possession, that their alleged mother, Mary, was purchased with funds arising from the sale of Austin, one of the slaves mentioned in the deed of gift to Eliza Waters. The decree in chancery, upon which the intervenor relies, to show that essential fact, does not distinctly so adjudge, and was interlocutory in its nature. Moreover, the testimony is quite loose as to the maternity of the slaves; and, indeed, the record is so complicated, that it is not clear what evidence was offered against Davenport.

As to the defendant, Harriet Herbert, we have found greater difficulty in coming to a conclusion. But, after considering the facts of the case, which are extremely complicated, and endeavoring to apply to them a jurisprudence with which'we are not familiar, and upon which we must necessarily pronounce with great diffidence, we are unable to say that the intervenor has shown such title in his ward, as would justify us in changing the judgment rendered below, in any respect, except as to the slave named Will.

It is not improper to add, that the subject matter of this controversy was hitherto before a court of chancery, in Alabama, where the rights of the intervenor and Harriet Herbert, could have been considered by minds versed in the intricate doctrine of trusts, and marriage settlements, and safely adjudicated. But the intervenor abandoned that forum.

The slave Will, it seems, was mentioned in the marriage settlement, and as the minor appears to be one of the heirs of Mrs. Baldree, we have considered it equitable, under all the circumstances, to amend the judgment so as to leave his claim, as heir for the slave, open.

It'is therefore decreed, that the judgments from which the intervenor has appealed, be affirmed, reserving only to said Francis P. Coleman, minor, the right to enforce, by any future action, whatever rights he may have as to the slave Will, as heir of Ruth Baldree, the cost of the appeal to be paid by Harriet Herbert.


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    Sterling Baldree v. F. J. Davenport. A. M. Coleman Intervenor.
    A decree of the chancery court in Alabama, and a deed of compromise executed there, that would have the effect in that State of estopping a party from setting up title to certain property, will receive a like construction in the courts of Louisiana.
    A party who gives no appeal bond, cannot be heard as an appellant, without the consent of the appellee.
    APPEAL from the District Court of the Parish of Morehouse, Copley, J.

      Me Quire and Ray, for plaintiff.

      Newton, for defendant.

      Parsons and Sharp, for intervenor.

      Tbig case was decided in New Orleans.

   By the court:

Slidell, J.

We consider the judgment against Baldree as fully sustained by the evidence. He is estopped from setting up any title adverse to the defendants, by the decree of the chancery court in Alabama, and by the deed executed by him on the 18th of September, 1846, soon after he brought the slave to this State, in contempt of that decree. The decree of compromise is inartifieially drawn, but manifests a clear intention on his part to abandon all pretensions whatever to the slave. We do not doubt but that in Alabama, the decree of whose court he had grossly violated, and from whose jurisdiction he had unlawfully withdrawn the property, that deed, (aided, as it is, by the testimony of the subscribing witness, which has been received without objection) would be considered as a binding and conclusive compromise and quit claim, inuring to the benefit of Mrs. Baldree, and excluding him from any future pretensions against her, her trustee, heirs or assigns, or persons claiming under the trustee, Harriet Herbert. We see no reason why, under the circumstances of this case, a like effect should not be given to the deed in the courts of Louisiana against Baldree. See Frierson v. Erwin, 5 Ann. 530.

There was also judgment against the intervenor, Coleman, and he moved for an appeal. But he never gave any appeal bond, and cannot be heard as an appellant without the consent of the defendants. Davis v. Anty, 3 N. S. 142.

It is therefore decreed, that the judgment against Baldree be affirmed, and that he pay the costs of the appeal. It is further decreed that, as to the said Coleman, the appeal be is missed.


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    Oliver, Curator, v. Bry and Stephens.
    ma^ers one must be sued before the judge having jurisdiction over the place where lie lias his domicil. But in matters relative to warranty, the warrantor may be brought before the court having cognizance of the principal action in which the demand in warranty arises.
    One may be called in warranty in a personal action. C. 3?. 378, 379.
    APPEAL from the District Court of the Parish of Ouachita, Sharpe, J.

      This case was decided in 1851,

   By the court:

Preston, J.

This suit is instituted by the curator of the succession of Wm. T. Day, on a note due the 28th day of September, 1840, with ten per cent interest from maturity until paid.

Day and one Beasly purchased from McEnery a hotel in the town of Monroe. They gave him their two notes for $3333 33J each. The notes became the property of L. Millaudon of New Orleans.

Day having died, and a curator having been appointed to his succession, Millaudon applied, under articles 990, 991 and 992 of the Code of Practice, for the sale of Day's undivided half of the premises to meet the payment of the two notes. The property failed to produce the appraisement, when it was sold at twelve month’s credit, and the defendants became the purchasers for the note on which this suit is instituted.

Millaudon afterwards instituted suit on the original notes of Day and Beasly, against the latter, and sold his undivided half of the property, but not for enough to pay his half of the debt.

The defendants allege in defence, that the probate sale at which tbey purchased was made to pay the two notes of Day and Beasly, in the hands of Millaudon, with vendors privilege and mortgage on the property they purchased. This was admitted, and that the price they bid was to go to Millaudon. They alleged further, that they had purchased from Millaudon his rights to the price bid by them, and to the two notes it was destined to pay. They prayed that Millaudon might be made a party to the suit, and that they might be permitted to show these facts in defence.

He excepted, and it was admitted that he was a resident of New Orleans, and that he could not be sued on the supposed contract in the parish of Ouachita. The exception was sustained on the general ground, that in civil matters one must be sued before the judge having jurisdiction over the place where he has his domicil.

That is true; but in matters relative to warranty, the warrantor may be brought before the court having cognizance of the principal action in which the demand in warranty alises. Code of Practice, art. 165, No. 4.

Now, if Millaudon sold the notes of Day and Beasly to the defendants, and also the fund which was to be applied to their payment, as alleged, and to be taken for granted for the purpose of the exception, he contracted an obligation to warrant the defendants against a suit for that fund, for his benefit. And though the action is personal, might be called in warranty. Code of Practice, arts. 378, 379.

But the great difficulty is in extending these principles to suits which are incidental to the settlement of successions, as they might complicate and protract the settlement forever. We will overrule the exception, and allow a stay of execution until Millaudon establishes his right to the fund contradictorily with the defendants and other creditors of the succession, on the final tableau of distribution.

It is palpable, however, by the record, that Millaudon received from the defendants $1666 66 in April and June, 1841. If received in purchase of Day and Beasly’s notes, their defence is valid; if received in part payment of their own note, equity requires that it should be credited upon it, the note being substantially his property. In either hypothesis, the defendants must enjoy the benefit of those payments.

The defendants contend, that their note should not bear ten per cent interest from maturity, because that condition is not prescribed in the proces verbal of the sale of the property, which they purchased at twelve month’s credit. The order of the court of probates, for the sale of the property, prescribed that condition ; the property was sold to pay a debt bearing ten per cent interest, and they gave their note for the price, with ten per cent interest until paid, if not paid at maturity. The legal effect of the whole proceeding was to require the payment of that interest, and we have no reason to believe that they were in error, in point of fact, in expressly making their note to bear that conventional interest.

The judgment of the district court is reversed ; and it is decreed, that the plaintiff recover, with costs, from the defendants three thousand three hundred and fifty dollars, with ten per cent interest from the 28th of September, 1840, until paid, but that the same be credited with $833 33h on the 29th of April, 1841, and the like sum of $833 33¿ on the 8th of June, 1841. Further, that the plaintiff have the privilege of vendor and right of a mortgage creditor on the property sold to the defendants, and described in the proces verbal of the sale of the estate of William T. Day, on the 28th of September, 1839, and for which the note sued upon was given, and that the said property be sold to satisfy this judgment. But it is further ordered, that execution be delayed until L. Millaudon establishes contradictorily with the defendants and the creditors of the estate of William T. Bay, on the final tableau of distribution, his right to the benefit of this judgment. The costs of this appeal to be borne by the appellees.


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    Thomas D. Waddil, Tutor, v. Elizabeth Thompson. William Shaw, Intervenor.
    This suit was brought by a father as tutor of his minor child, who was the veal plaintiff. Pending the appeal, the child died. The father suggested the death, and ashed to he made a party to the suit in his own right. Held: That there was evidence in the record that the father was the only heir at law, and therefore entitled to prosecute the appeal in his own right.
    APPEAL from the Districh Court of the Parish of Caddo,-, J.

      This case was decided in New Orleans by consent.

   By the court:

Rost, J.

This is a possessory action, in which the plaintiff, as tutor of his infant daughter, claimed from the defendant a slave, which he alleged had been in the possession of his late wife, as owner, during more than one year at tlie time of her death.

The defendant disclaimed any right to the slave, but William Shaw, the grandfather of the minor, intervened, alleging the possession to be in him, and that of his grand-daugliter to have been precarious, and insufficient to support the present action.

The case was tried before a jury, who found for the plaintiff, in the capacity in which he sued. And William Shaw has appealed from the judgment rendered on the verdict.

During the pendency of the appeal, the child, who was the real plaintiff in the suit, died, and her father, the nominal plaintiff, suggested her death in court, and applied for leave to become a party to the suit in his own right, and to prosecute the same to final judgment, on the ground that he is the sole heir of his deceased child, and entitled, as such, to her entire succession. A brief on the merits has been filed on his behalf.

The appellant admitted the death of the minor, but he has not appeared to give his consent to this change of parties; and if the record did not contain satisfactory evidence of the truth of the facts upon which the application is made, we would feel it our duty to remand the cause to try the issue of heir-ship. But it is in evidence, that Virginia Shaw, the wife of the plaintiff, was a young maiden, living in the house of her guardian, the intervenor, at the time of her marriage, in July, 1849, and that she died in October, 1850, leaving an only child, since deceased. Under that state of facts, there could be no testamentary heir, and the father was necessarily the only heir at law. He is, therefore, entitled to prosecute the appeal in his own right.

On the merits, the case turns upon questions of fact, and the verdict and judgment are fully sustained by the evidence. The mode in which the intervenor, Shaw, obtained possession of the slave after the death of his grand-daughter, would, alone, justify them. He made oath before a justice of the peace, that he believed that his grand-daughter had come to her death by the act of the slave in controversy, and caused a warrant to issue for her. His own overseer having been appointed special constable, executed the warrant and took her for safe keeping to the intervenor’s plantation, who then discontinued the prosecution, stating that he was sorry for what had been done, but refused to return the slave to the plaintiff.

It is therefore ordered, adjudged and decreed, that Thomas X>. Waddil be recognized as the legal representative .of the plaintiff, and that he be made a party to the appeal in his own right. It is further ordered and decreed, that the judgment of the court below be affirmed, with costs.


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    George W. Copley v. Hasson and Lazane.
    In this case the plaintiff claimed, under a sheriff’s adjudication of the property, by virtue of an order of seizure and sale via executiva; the defendants, under a tax collector's sale for taxes. Held; That the tax sale was null, because the property was not sold for the amount of the special mortgages existing upon it.
    That the hypothecary action was not necessary, because the defendants were not, at the time of the seizure, in the actual or even civil possession of the property, under the tax sale.
    That as between mortgagor and mortgagee, the property was clearly mortgaged by the proces verbal of sale.
    APPEAL from the District Court of the Parish of Jackson, -, J.

      This case was decided in New Orleans by consent.

   By the court:

Rost, J.

When this case was before the court, at the last term of this court at Monroe, we examined with great minuteness the respective pretensions of the parties to the property in controversy. We left open but three subjects for further examination by the district court, and for which the case was remanded.

The plaintiff claimed under a sheriff’s adjudication of the property, by virtue of an orderof seizure and sale via executiva ; the defendants, under a tax collector’s sale for taxes.

The order of seizure and sale was granted before the tax sale, but was not executed until afterwards. We left the question open to ascertain whether the plaintiff should not have proceeded against the defendants, as third possessors, by the hypothecary action, properly so called, and not against the mortgagor, alone.

The defendants having purchased at a tax sale, did not appear to have after-wards advertised, as required by the existing laws, in order to enable the owners to redeem, or the purchasers to perfect their title in default of redemption.

As the property had been sold, not for taxes upon it, but for a tax upon a tavern, and therefore there was no privilege upon the property, we doubted the validity of the sale, inasmuch as it did not sell for the amount of the special mortgages upon it.

No new light or evidence has been thrown upon these questions, except that the defendants had not actual possession, under the tax sale, when the order of seizure and sale was executed; nor hardly a civil possession, inasmuch as the tax sale had not been completed by the publications necessary to enable the owner to redeem.

We are of opinion that the tax sale was null, because the property was not sold for the amount of the special mortgages existing upon the property. And further, that the order of seizure and sale, under which the plaintiff’s claim was properly executed against the original mortgagors, and that the hypothecary action against the possessors was not necessary, because the defendants were not, at the time, in the actual or even civil possession of the property under the tax sale.

The argument of defendants against the order of seizure and sale, upon the supposition that the mortgage was not recorded in the mortgage office fails, because it appears at page 56 of this long record, that it was duly recorded in the mortgage office.

As between the mortgagor and mortgagee, the property was clearly mortgaged by the proces verbal of sale, and that was exhibited to the district judge, as he orders the mortgage property as specified in the proces verbal, to be seized and sold, as claimed in the petition, that is, for the payment of its price.

The district court appears to have made out a very just and equitable estimation of the improvements, as well as of the rents and profits of the property seized, for according to the evidence, if a writ of possession should be issued before the balance found in favor of the defendants shall be paid, it might be enjoined.

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


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    W. W. George, Curator, v. J. R. Roach, and J. R. Roach v. W. W. George, Curator.
    The equitable doctrine established in the case of Pepper v. Dunlap, 5 Ann. 200, that when a purchaser, who has received possession from his vendor, buys, afterwards, an outstanding' and superior title, and thus perfects and quiets the defective title, and the possession which he received from his vendor, the second purchase will inure to his vendor’s benefit, does not apply to a case in which the vendor never had, and gave no possession, and was aware of an outstanding title, and knew that he was selling what belonged to another.
    from the District Court of the Parish of Caddo, -, J.

      This case was decided in New Orleans by consent.

   By the court:

Rost, J.

A lot of ground in the town of Shreveport was sold to Roach, at a probate sale, by George, Curator, and the vendee gave his notes for the price. Being sued upon them, he restricted the action, upon the ground that the succession of Sprague was without title, and claimed a rescisión of the sale. There was a judgment for the defendant in the court below, and the plaintiff has appealed.

It is proved that, at the date of the probate sale, the title was in a third person, from whom Roach subsequently purchased the same piece of ground. This hird person, and those under whom he held, had been in possession for many years. The succession of Sprague never had possession, npr had Roach, until he received it from his third person. It is clear, therefore, that there was a failure of the consideration of the note given by Roach.

But it is said that Roach, having purchased the title, is only entitled to be relieved from the payment of his notes up to the amount which he expended to acquire it.

• In the case of Pepper v. Dunlap, we recognized the highly equitable doctrine, that when a purchaser, who has received possession from his vendor, buys afterwards an outstanding and superior title, and thus perfects and quiets the defective title and the possession which he received from his vendor, the second purchase will inure to his vendor’s benefit, so that his liability as warrantor will be restricted to the amount so expended.

But the equity cannot be invoked in the present case; for the succession never had, and gave no possession, and it is shown by the curator’s official acts, that he was aware of his outstanding title, and knew that he was selling what belonged to another.

It is therefore ordered, adjudged and decreed, that the judgment of the court below he affirmed, with costs.


author: Post, J.

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    Copley and Newman v. Dinkgrave, Sheriff et al.
    The bond of a sheriff and State tax collector is not a bond for a sum of money, but a bond for the performance of official duties, and if the duties are not perforate d, each of the sureties is hound to the full amount for which they have obligated themselves.
    The 6th section of the Act of 1847, providing that in no case securities shall be liable .for each other, or beyond the amount for which each.one may have obligated himself in the bond, is very far from saying that they shall not, in every case, be bound for that amount. If the obligation of each surety is to be ascertained without regard to that of the others, they stand, so far as the State is concerned, as if only one of them had signed the bond, andin that case the party signing would be liable to the full amount of his obligation.
    When there is no separate book kept by the recorder of mortgages to record sheriff’s bonds, the recording the bond in the hook of mortgages will be sufficient notice, under the Act of 1847.
    The 46fch section of the Act to provide a revenue for the support of the government of the State, provides, that the bond of the collector of taxes shall operate as a legal mortgage on the lands and slaves of the collector. This act attaches the mortgage to the bond itself, and as it is silent as to the manner of recording that mortgage, the usual mode of inscription, in the book of mortgages, will be sufficient.
    The sureties upon the bond of a collector of taxes, cannot avail themselves of any fraud committed by him.
    There is nothing in the Act of 1847 suspending the operation of the penalty which it imposes on collectors of State taxes, who fail to account.
    The 63d section of the Act to provide a revenue for the support of the government of the State, ordains, that if any tax collector shall neglect or fail to pay into the treasury the amout due by him, and to obtain the treasurer’s receipt therefor, he shall forfeit the commission allowed to him by law.
    APPEAL from the District Court of the Parish of Ouachita, Barry, 3.

      Copley and Garrett, and Ludeling, for plaintiffs.
    Mathews, for defendants.
   By the court:

Post, J.

The plaintiffs were two of the securities of W. H. Coats> a former sheriff of the parish of Ouachita, on his bond as sheriff and State tax collector for the year 1846. The bond was given on the 16th of September, 1847. He failed to pay over, into the treasury, the entire amount of taxes for that year, and the auditor issued an execution against him and his securities for the balance unpaid. The plaintiffs have enjoined the sale of some of their property, seized by the sheriff, under that execution. The district attorney appeared in behalf of the State, and after hearing, the injunction was dissolved. The plaintiffs have appealed.

We are unable to discover any error in the judgment. This was not a bond for a sum of monej., os erroneously assumed in argument by counsel; it was a bond for the performance of official duties, and if the duties were not. performed each of the sureties was bound to the full amount for which they had obligated, themselves. The sheriff himself gave bond for the sum of $5119 16. Each of the sureties bound himself for the sum of $1716 38. The sheriff paid $2042 50 into the treasury, leaving a balance of $1370 94 unaccounted for on the taxes of 1846. Each of the sureties is bound, upon the bond, for that balance. The 6th section of the Act of 1847 providing, that in no case securities shall be liable for each other, or beyond the amount for which each one may have obligated himself in the bond, is very far from saying that they shall notin every case be bound for that amount. If, as alleged, the obligation of each surety is to be ascertained without regard to that of the others, they stand, so far as the State is concerned, as if only one of them had signed the bond; and in that case it would not be seriously contended, that the party signing would not be liable to the full amount of his obligation. The authorities cited from Pothier and Duranton relate to obligations for the payment of money, in which each surety binds himself to pay a fractional share of the principal obligation, and are inapplicable to official bonds, in which securities have bound themselves for specific sums.

2d. As there was no separate book kept by the recorder to record sheriffs’ bonds, we are of opinion that the recording of the bond in the book of mortgages would have been sufficient notice under the Act of 1847; but by the 46th section of the Act to provide a revenue for the support of the government of the State, which was subsequently passed, it is provided, that the bond of the collector of taxes shall operate as a legal mortgage on the lands and slaves of the collector. The provision of the former act was, that the recording of the bond in a separate book kept for that purpose, by the recorder, would give it the effect of a mortgage. The subsequent act attaches the mortgage to the bond itself, and as it is silent as to the manner of recording that mortgage, we hold the usual mode of inscription, in the book of mortgages, to be sufficient.

3d. It is in evidence that some movable property of Coats, valued at $1200, had been first seized; that he gave a forthcoming bond to deliver the property on the day of sale, which the sheriff accepted, on the advice of the district attorney. Coats failed to deliver the goods, and the bond was declared forfeited, but the auditor of public accounts refused to have anything to do with it, and ordered the sheriff to proceed on the execution in his hands. The plaintiffs contend that they are entitled to a credit for the value of the goods seized, which the bond represents.

That bond, whether regularly taken or not, was not a satisfaction of the debt. Thecollector, Coats, in failing to deliver the goods, committedfraud upon the State, and his securities can no more avail themselves of that fraud than he himself could. Their only remedy is to pay, and make the amount out of the forfeited bond, if they can.

Note — It is proper to state tliat the records from Monroe had been opened before they were received by me. Some of the records contained no judgments, and some of the judgments were unaccompanied by the records. This will account for my not naming either the court or counsel in some of the cases. it.

4th. There is nothing in the Act of 1847, suspending the operation of the penalty which it imposes on collectors of State taxes who fail to account. That penalty is therefore due in this case. The delays, fixed by law, for the return of ordinary executions, do not affect cases of this kind.

5th. The 63d section of the Act to provide a revenue, &c., ordains, that if any tax collector shall neglect or fail to pay into the treasury the amount due by him, and to obtain the treasurer’s receipt therefor, he shall forfeit the commission allowed to him by law. The commission on the sum collected in this case, has clearly been forfeited under this disposition of law, and the plaintiffs are not entitled to be credited with it.

The judgment is affirmed, with costs.