author:
Merrick, O. J.
      Cole, J.,
     Yooeiiies, J. Land, J., Merrick, C. J.,

text:
    Emile Sainet v. Widow Duchamp et al.

      J. conveyed to 2? a house and lot for the sum of $5,500, which the purchaser obliged himself to pay to the seller in one year from the date of the contract, with the express agreement, howover, that the purchaser, his heirs or assigns, should have the right to prolong the payment of the sum of $5,500, indefinitely and at their will, on paying the vendor or his heirs or assigns, interest annually in advance, at the rate of seven per cent, per annum — Held: That such a contract is not a contract of sale, but one of “ rent of lands,” rente fonciére ou bail a rente.

    from the Third District Court of New Orleans, J.

      U. H. Taylor, for plaintiff and appellant. G. LeGardeur and Julien Seghers, for defendants.
   Merrick, O. J.

The facts of this case are correctly stated in plaintiff’s brief, as follows, viz :

“ In 1832, the father of the plaintiff sold to Mr. Bernard Duchamp, a house and lot, for the sum of $5,500, with the stipulation that the purchaser, his heirs or assigns, should have the right to prolong the payment of the price, indefinitely and at their will, on paying the vendor, his heirs or assigns, interest in advance, at the rate of seven per cent, per annum. The following is the clause referred to :

‘ La présente vente est faite pour et moyennant la somme de cinq mille cinq cents piastres que l’acquéreur s’oblige de payer au vendeur dans un an a partir de ce jour, ét-ant expressément convenu entre les parties que l’acquéreur aura le droit de prolonger indéfiniment et á sa volonté, lui, ses héritiers ou ayans-cause le remboursement de la dite somme de cinq mille cinq cents piastres, en payant au vendeur ou á ses héritiers ou ayans-cause, et annuellement, les intéréts de la dite somme sur le pied de sept pour cent par an payable d’avance en la demeure du vendeur ou de ses héritiers dans l’étendue de cette paroisse, le tout ainsi que l’acquéreur s’oblige.’

' *• This property afterwards passed into the possession and ownership of Mrs. <Delphiné Ezémie Macarty, by act of sale from Charles' Claiborne, -(who acquired by mesne conveyances from Mr. Bernard Duchamp,) before Carlile Pollock, dated ■7th April, 1836. In the act of sale to Ezémie Macarty, is the following clause : ■í The balance of said price of $5,500, is to be paid in the obligation which the present purchaser hereby takes to assume, as she hereby does assume, the before recited mortgage in favor of Emile Sainet, and to pay unto the latter, his heirs .or assigns, to the acquittance of the present seller and all other preceding vendors, ■the full amount of said debt of $5,500 in capital and interest, annually in advance, -in conformity to the tenor and true intent and meaning ’of the before recited act of mortgage, in favor of said Emile Sainet, on the 10th of February, 1832.’

“ The present plaintiff became the owner of this claim by purchase at probate sale of his father’s estate.

“ Bernard Duchamp died in 1832, soon after the purchase, leaving a large estate, exceeding the sum of $20,000 over and above his debts.

'■ “ The interest not having been paid in advance for the year 1857, according to the terms of the agreement, this suit is brought to recover the price both against the widow and heirs of Bernard Duchamp and Ezémie Macarty, who assumed the obligation of Duchamp, and bound herself to execute the same.”

It is conceded by counsel on both sides, that the contract is either one of rent of lands or annuity, and if the contract were to be construed as simply a sale, the rights of the plaintiff under it, would be the same as in the case of an annuity.

The case, therefore, as presented by counsel, involves only a comparison of the definitions and provisions of the Code of 1825, in reference to the two species of contract.

If it be the rente fonder e, a tract of land, or other immovable, has been conveyed by one party to the other, to be held by the latter as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits which the other party binds himself to pay. C. C. 2750.

Now, the contract under consideration, has but one of the qualities called for by the definition, viz, the conveyance of a tract of land. It is wanting in this essential particular, viz : There is no reservation of an annual rent of a certain sum of money or fruits, which the other party has bound himself to pay. There is no obligation on the part of the vendee, to pay the rent which the other party could inforce by an action. He had the right to prolong the payment of the price indefinitely by paying the seven per cent, interest annually in advance. The creditor, therefore, had no action (distinct from his demand to inforce payment of the capital) to recover the annual interest upon the price of the sale, for the moment the interest was not paid in advance, the condition upon which the capital was to be exigible, had happened, and the debt (and seven per cent, interest, which it seems could not be recovored separately,) was demandable. 10 Mart. 116.

N ow, the contract of rent (where it exists) is a real contract, and follows the property. The holder of the property, and not the one who acquired it under the contract, if he has sold it, is responsible for the rent. O. 0.2758. And this rent charge being inherent in the property, burthened with it, is itself susceptible of being mortgaged, except when gratuitously established. 0. O. 2763.

; Now, in the case before us, what right did the vendor acquire by the sale which he could mortgage ? He could not demand the rent by suit, for it was entirely optional with the debtor, whether he would pay it in advance or not. There was, therefore, no right, in the language of the Code, “ inherent'to the property,” which could be mortgaged. The contract of rent charge, therefore, did not exist.

The contract of annuity, la rente constituée, is defined by the Code, to be a, contract by which one party delivers to another, a sum of money, and agrees not to reclaim it so long as the receiver pays the rent agreed upon. Art. 2764.

Now, the contract sued upon, is precisely the contract above defined, except in the single particular, that it has been brought about by the sale of land. The sum of money delivered, has been produced by the sale of a tract of land. This appears to us in no manner material, for the land is supposed to be converted into money in all sales of the same, and the notes given for the price circulate as commercial paper before maturity, without reference to the original consideration. We can see, therefore, no objection to the manner in which the capital was raised, which formed the rente constituée. Trop. vente, No. 647 ; 5 Martin, 312. Nor can it any manner prejudice the contract, because it is accompanied by a mortgage and the vendor’s privilege. For a mortgage may be given to secure the fulfilment of any obligation whatever. C. C. 3258. And on the nonpayment of the interest in advance, after the expiration of one year, the price was demandable, and, therefore, secured by the vendor’s privilege.

No prescription could run, for the plaintiff had no cause of action until the breach of the condition.

.The demand in warranty is well founded against those parties who have promised to fulfil the obligations of the original vendee. C. P. 379 ; Keane v. Goldsmith, Haber & Co., 12 An. 560.

It is, therefore, ordered, 'adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and now proceeding to pronounce such judgment as ought to have been rendered by the District Court: It is ordered, adjudged and decreed, that the plaintiff do have and recover of the said widow and heirs of Bernard Duchamp, deceased, the sum of five thousand, five hundred dollars, with seven per cent, interest thereon per annum, from the 10th day of February, 1857, until paid, the one-half of said sum and interest to be paid by said Widow Rosalie Pedesclaux (Duchamp) ; and one-sixth part thereof to be paid by each of said heirs of Bernard Duchamp, viz, one-sixth of said debt and interest, by said Caroline Durel, one-sixth by Clarissa Duchamp, and one-sixth by Adéle Duchamp, the same being their virile portions of said debt and interest. And it is further ordered, that the plaintiff recover judgment against Delphine Euginée Macarty, for the same debt of five thousand five hundred dollars, with seven per cent, interest thereon, from said 10th day of February, 1857, until paid, upon the stipulation pour aut.rue, the plaintiff being entitled only to one satisfaction of said debt and interest; and in the event said debt and interest, or costs, or any part thereof, shall be paid by said widow and heirs of Duchamp, to the plaintiff: it is ordered, that they have judgment, and are hereby authorized to issue execution for the same amount on their demand in warranty-against said Macarty. And it is further ordered, that said Macarty do have judgment for said @5,500, and interest thereon, at the rate of seven per cent, per annum, from said 10th day of February, 1857, until paid over, against said Adelaide Blondeau and Henriette Blondeau, each for their virile share of the same. And it is further ordered, that the plaintiff recover of the defendants his costs in both courts, and that the defendants in warranty pay the costs incidental to the demand in warranty respectively. .•_

Cole, J.,

dissenting. In 1832, the father of the plaintiff sold to Bernard Duchamp a house and lot for the sum of $5,500, with the stipulation that the purchaser, his heirs or assigns, should have the right to prolong the payment of the price indefinitely and at their will, on paying the vendor, his heirs or assigns, interest in advance, at the rate of seven per cent, per annum. The following is the clause referred to :

“ La présente vente est faite pour et moyennant la somme de cinq mille cinq cents piastres, que l’acquéreur s’oblige de payer au vendeur dans un an a partir de ce jour, étant expressément convenu entre les parties que l’acquéreur aura le droit de prolonger indéfiniment et á sa volonté, lui, ses héritiers ou ayans cause, le remboursement de la dite somme de cinq mille cinq cents piastres, en payant au vendeur ou a ses héritiers ou ayans-cause, et annuellement, les intéréts de la dite somme sur le pied de sept pour cent par an, payable d’avance, en la demeure du vendeur ou de ses héritiers dans l’étendue de cotte paroisse, le tout ainsi que l’acquéreur s’oblige.”

In 1836, Charles Claiborne, who had acquired the property by mesne conveyances, from the succession of Duchamp, sold it to Ezémie Macarty, herein called in warranty by defendants, for the price of §7,800, in deduction of which she paid cash §2,300, and for the balance entered into the following engagement, to-wit: “ The balance of said price, to-wit, §5,500, is to be paid in the obligation which the present purchaser takes, to assume, as she hereby does, the reversion of the before recited mortgage in favor of Emile Sainet, and to pay unto the latter, his heirs or assigns, to the acquittance of Cla borne and the heirs of Duchamp, the full amount of the said mortgage in capital and interest, according to the tenor and true intent and meaning of said act of mortgage from the late Bernard Duchamp in favor of the late Emile ¡Sainet, of the 10th of February. 1832.”

The interest not having' been paid in advance for the year 1857, according to the terms of the contract, this suit is brought against the widow and heirs of Duchamp and Ezémie Macarty, to recover from them the whole amount of the capital above mentioned, to-wit, §5.500.

The principal question is, the nature of the contract declared on : is it a contract of rent ” (rente fonciere), or a “ contract of annuity ” (rente constituée) ?

The first description of rent did not exist in the Code of 1808, and is derived mainly from Pothier’s Contrat de Bail á Rente Fonciere. Code of 1808, p. 408, Art. 33, chap. 3 ; Pothier, Contrat de Bail á Rente, cap. 1, secs. 1 to 5.

The learned jurists of the Louisiana bar who were commissioned in 1822, for the purpose of proposing additions and amendments to the Civil Code of 1808, say, at page 92 of their report:

The contract of rent (rente fonciere), which is now pretty common among us, has not found a place in the Code, (that of 1808). We have thought it necessary to supply this omission, and to include under a single title both rents and annuities.”

They accordingly proposed the adoption ol the whole title of “ Rents and Annuities,” which was, on their suggestion, incorporated in the Code of 1825, as' may be seen from Article 2749 to 2771 inclusive.

The essential characteristics of the contract of rente fonciere," ór rent of lands, are, that one of the parties conveys and cedes to the other, in perpetuity, a tract of land, or any other immovable property, and stipulates that the latter shall hold it as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits, which the other party binds himself to pay him. C. C., Arts. 2750, 2751.

The act passed in 1832, between Emile Sainet and Bernard Duchamp, contains these essential provisions of the contract of rent of lands, and although bearing the name of a sale, is therefore a contract of “ rent of land.”

The law of this contract is, that the property remains perpetually subject to the rent, into whatsoever hands it may pass, and the person alienating it is only answerable for the arrears which became due while he was in the possession. 0. 0., Arts. 2751, 2758.

As the properly which was transferred by the act of 1832 to Duchamp is not in the possession of any of the parties now sued, the action ought to have been instituted against the present possessors of the same, as the present defendants are only answerable for the arrears of rent which became due while they were in possession, and there is no allegation that they did not fulfill their obligations in this respect. 0. C. 2758.

Plaintiff relies on the case of Mayor v. Duplessis, 5 M. p. 309. This is not applicable, for it was decided in the year 1818, previous to the new Code of 1825, which has modified and added to the law analogous to the action at bar.

It is objected, that the contract under consideration has but one of the qualities called for by the definition of Article 2750 of the Civil Code, to-wit, the conveyance of a tract of land Such does not appear to be the case. Article 2750 declares, “ that the contract of rent for lands is a contract by which one of the parties conveys and cedes to the other a tract of land, or any other immovable property, and stipulates that the latter shall hold it as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits, which the other party binds himself to pay him.”

This Article reserves to the obligee “ an annual rent of a certain sum of money.”

If, then, a certain interest upon the estimated value of the property conveyed be specified, it is as much a payment of rent, as if a particular amount were specified as rent. And indeed, as a general rule, the rents of houses and other property represent the interest of the capital invested in such houses or property.

Besides, Article 2750 is not the sole one that treats of the contract of rent, and other Articles must be examined to comprehend fully the subject.

Art. 2752 declares, “ that a contract made, bearing the name of asale, in which the seller does not stipulate the payment of the price, but a capital bearing interest forever, is a contract of rent.”

The sale now under consideration appears to be embraced in this Article, for the property is valued at a certain price, which represents the capital, and it bears interest forever.

It is also objected, that there is no obligation on the part of the vendee to pay the rent, which the other party could enforce by an action distinct from his demand to enforce payment of the capital.

It is true, that the vendor in this contract has the right of demanding the capital as well as the interest, in default of payment of the interest, and that the interest is payable in advance; but the parties, by thus changing the features of their contract, on immaterial points, from those of the contract of rent in the Civil Code, have not destroyed the material characteristics of the contract of rent which are impressed upon their act.

Besides, the vendor would have the privilege of waiving the right of demanding the capital, and might sue for the interest alone.

The cla.'use iu the sale malting the capital due at once, in the event the interest V be not paid, is made for the benefit of the vendor, and may be waived by him. (

The essential parts of the contract of rent are, that one party cedes to the other ^ in perpetuity a tract of land, or any other immovable property, and agrees that the latter shall hold it as owner, but reserving to the former an annual rent. The Civil Code does not make it essential that the rent should not be made payable in advance, nor that, in default of payment of the rent, the capital should not be exigible at once, as well as any rent that might be due at the commencement of the suit. C. 0. 2750, 2751.

Art. 2762 declares that, “ the rentor has for the payment- of his rent a right of mortgage on the property, commencing from the date ol the contract, but he cannot have it seized and sold, unless there be at least one entire year’s rent due.”

The last clause is a mere provision of the law, which governs in the absence of any modification by the contracting parties; it is not a prohibition, and like any other right, may be dispensed with by the lessee, in whose favor it was enacted.

It is also objected, that the rent charge being inherent in the property bur-theued with it, is itself susceptible of being mortgaged, C. C. 2763, and as the rent was payable in advance, there is nothing to mortgage.

The right of mortgage given by this Article is for the benefit of the vendor, and if he thinks proper to mould his contract so that it cannot be enforced, there is nothing in the law to prevent him from so doing.

It is also said, that this is a contract of annuity. Such does not appear to be the case, for the contract of annuity is that by which one party delivers to another a sum of money, and agrees not to reclaim, it so long as the receiver pays the rent agreed upon. C. C. 2764.

In the present case, neither money nor notes were given. By the sale, a house and lot were sold for a certain sum, which was not payable as long as the vendee ■would pay a certain interest in advance. 0. 0. 2752.

The essential distinction between the contract of annuity and that of rent is, that in the former a sum of money is delivered, in the latter a tract of land or any other immovable property is conveyed. 0. 0. 2764, 2750.

In the present case, the vendor ceded the land, and the vendee was, in a certain event, to pay in money the price of the land. The vendor did not deliver any money upon which he was to receive interest, and the vendee agreed to pay interest, not upon money, but upon land.

The argument, that the laud ceded was in reality money, because it represented a certain value in money, would, if it were valid, prevent a contract of rent from ever being made, for the value of the property is specified in the contract of rent, or if there has been no valuation, the rent is considered as fixed at the rate of six per cent, on the value. 0. 0. 2760, 2761.

I am also of opinion, tlia-t in the sale by Claiborne to Ezémie Macarty, she did not render herself personally responsible in such a manner, that if she alienated the property, she would still be liable for the mortgage, but only bound herself whilst in possession of the property to fulfill the obligations incumbent upon her, under the law of the contract of rent of land,” for in the act of sale it is expressly specified, that she assumes the reversion of the mortgage, and agrees to pay the same “ according to the tenor and true intent and meaning of said act of mortgage from the late Bernard Duchamp in favor of the late Emile Sainet, of the 10th of February, 1832.”

Her intention was, therefore,- to submit herself to the same obligations as to the mortgage, as Duchamp was under to Sainet; and as Diichamp was only bound for the same in the event of not paying the rent, and only whilst he was in possession of the property, except for the arrears which became due while he was in the possession, so in lilre manner is she subject to similar obligations. 0. 0. 2758 ; 1 An., Succession of Canoiige.

Julian Seghers, on a re-hearing, argued as follows :

It is to be remarked, that in the Code of 1825, the contract of rente fonciére was made on purpose to be in conformity with the usages of Louisiana, and differs from the doctrine of Pothier by the introduction of Articles 2752 and 2759, which make it a contract sui generis, peculiar to our laws and usages, and not exactly in accordance with the old French law, which existed anterior to the French revolution.

The intention of the parties to this sale is also shown by the declaration therein, that the “ reversion of this mortgage had been assumed by the several purchasers under the said Bernard Duchamp down to the present seller.”

In the sale from Ezémie Macarty to the widow, Blondeau, the latter also assumed the same obligations to assume and to pay the said mortgage to the acquittance of the present seller and all other preceding parties that the former assumed and promised to pay in her purchase from Claiborne. An examination of the various acts of sale shows clearly that she did not subject herself to any other personal obligation than that of paying the mortgage, in the event she did not pay the rent whilst the property was in her possession.

The contract under consideration cannot be considered a sale, for it is essential to a sale that there should be a fixed price. But if this price may never be exi-gible, then it is the same as if there were no price. In this case, as long as the interest was paid in advance, the five thousand five hundred dollars were not de-mandable. It seems to me, that the nature of a sale requires that the price should become due at some period of time, however remote. But in this case, the price may never become due, if the interest be punctually paid.

Besides, if a contract of- this nature could be considered a sale, it could act with much hardship upon parties. A buys a house for ten thousand dollars, which are not to be paid as loug as seven per cent, interest upon that sum is paid every year in advance. lie keeps the house and has the use of it for one year, then sells it to B. The latter pays the interest in advance annually, for thirty years, and then, when the property has decayed, and is comparatively worthless, he refuses to pay the annual interest.

It would be very hard, at the expiration of thirty years, to make A liable for the whole price of the house, when he had enjoyed it but for one year, and when he might never be able to get back the money from B, who might bo insolvent.

In the present case, Ezémie Macarty bought this property on the 7th of April, 1836, and sold it on the 29th November, 1837, and this suit was brought on the 20th April, 1857.

When, therefore, the nature of the contract under consideration and the intentions of the parties are weighed, it appears to me that this contract can with more propriety be declared one of rent, than either a sale or annuity.

The judgment of the District Court was for defendants, reserving to the plaintiff his right against the present possessors of the property.

I am of opinion, the judgment ought to be affirmed.

Buchanan, J., concurs in this opinion.

Same Case — On a Re-hearing.

An annuity or rente constitute exists only when a sum of money is delivered ; but where real estate is conveyed, and, by express agreement, the price is converted into a capital bearing interest forever, as in this case, then the contract is, to all intents and purposes, a contract of rent (rente fonciere), and the debtor not liable for the rent that becomes due after he has alienated the property.

But it is contended, that the contract under consideration has but one of the qualities called for by the definition, viz: the conveyance of a tract of land ; and that it is wanting in this essential particular, viz : there is no reservation of the annual rent of a certain sum of money, which the other party has bound himself to pay.

In my humble opinion, this statement is clearly erroneous, and in open contradiction with the very wording of the original act, which reads as follows :

. “ La présente vente ost faite pour et moyennant la somme de ***; étant ex-pressément convenu entre les parties que l’acquéreur aura le droit de prolonger indéfiniment et a sa volonté, lui, ses héritiers et ayans-cause, le remboursement, en payant au vendeur ou á ses héritiers ou ayans-cause, annuellement, les intéréts de la dite somme, sur le pied de sept pour cent par an, payable d’avance *** ; le tout ainsi quel’acquéreur s’oblige. (To all which stipulations the purchaser binds himself.)

' Of course, it is very plain to me, that all the reasoning based upon the want of obligation on the part of the vendee, falls to the ground.

Besides, Article 2750 is not the sole one that treats of the contract of rent, and other Articles must be examined to comprehend fully this object.

Article 2752 declares that a contract made bearing the name of a sale, in which the seller does not stipulate the payment of the price, but a capital bearing interest forever, is a contract of rent.

The sale now under consideration appears to be embraced in this Article, for the property is valued at a certain price, which represents the capital, and it bears interest forever.

It is also objected, that there is no obligation on the part of the vendee to pay the rent, which the other party could enforce by an action distinct from his demand to enforce payment of the capital.

' It is true, answers Mr. Justice Cole, that the vendor in the contract has the right of demanding the capital as well as the interest, in default of payment of the interest, and that the interest is payable in advance; but the parties, by thus changing the features of their contract, on immaterial points, from those of the contract of rent in the Civil Code, have not destroyed the material characteristics of the contract of rent -which are impressed upon this act.

Besides, the vendor would have the privilege of waiving the right of demanding the capital, and might sue for the interest alone.

The clause in the sale making the capital due at once in the event the interest be not paid, is made for the benefit of the vendor, and may be waived by him.

The essential parts of the contract of rent are, that one party cedes to the other in perpetuity a tract of land, or any other immovable property, and agrees that the latter shall hold it as owner, but reserving to the former an annual rent. The Civil Code does not make it essential that the rent should not be made payable in advance, nor that in default of payment of the rent, the capital should not be exigible at once, as well as any rent that might be due at the commencement of the suit. 0. 0. 2750, 2751.

It has been finally objected, that the rent charge being inherent in the property burthencd with it, is itself susceptible of being mortgaged, C. C. 2763, and as the rent was payable in advance, there is nothing to mortgage.

The right of mortgage given by .this Article is for the benefit of the vendor, arid if he thinks proper to mould his contract so that it cannot be enforced, there is nothing in the law to prevent him from so doing.

In conclusion, I beg leave to quote a few passages from a very old book, viz : “ Dictionnaire de Droit et do Pratique, par Olaude-Joseph De Ferriere. Paris, 1754.” Both this author and Pothier agree with the Civil Code of 1825 ; but our Code differs from their doctrine by the introduction of Articles 2752 and 2759, which add some new features to the rente fonciere.

Ferriere, speaking of the bail d rente, says : “ c.’est un contrat par lequel le pro-priétaire d’une maison ou d’un heritage se démet et se dessaisit entierement a per-pétuité de toute sa propriété, et la transfers en la personne du preneur, pour en jouir, eomme il fesait, moyennant une certaine pension payable par chaqué année, soit on argent, ou en grain, ou autres espfeces.”

“ Cette rente est appellée fondero, parce qu’elle est düe pour raison du fonds, et en tient lieu au bailleur; k la difference de la rente constituée, qui est simplement constituée á prix d’argcnt.”

“ Cette rente de bail d’héritage est plus réelle que personnelle, parceque c’est une charge qui est imposée sur la chose; ensorte qu’elle suit le possesseur, ce qui fait que la chose ne peut étre transferee qu’á la charge de cette rente. De ce méme principe il s’en suit que le preneur n’est tenu de payer cette rente que taut qu’il est détenteur de l’héritage.”

The principal changes introduced by our Code are, first, that the rent charge which by the old French law was perpetual, is now essentially redeemable, Art. 2759 ; and 2dly, that a contract made bearing the name of a sale may be now, nevertheless, a contract of rent. “ O’est un contrat fait sous le nom de vonte, dans lequel un prix est mentionné, mats Von n'exige point le paiement de ce prix ; au contraire, on en fait un capital portant intérét a perpétuité. O’est done un bail a rente d’aprés le Code, et non pas un contrat de rente constituée. La cour doit faire attention que notre Code est plus clair et plus explicite que les ancien-nes coutumes fran9aises, commentées par Pothier et Ferrífera L’article 2752 est positif.”

Yooeiiies, J.

In our former opinion given in this case, we held that the contract under consideration was au annuity, whilst the minority of the court treated it as a rent of land, — rente fonciére ou bail a rente.

This was a sale of real estate made for the sum of ¡j?5500, payable one year after date, it being stipulated that the vendee had the right, at his option, to postpone the payment of this sum indefinitely, upon accounting for the interest at the rate of seven per cent, yearly in advance.

There was no delivery of a sum of money by the creditor to the debtor; nor any stipulation not to reclaim it, so long as the receiver paid the rent, consequently the contract in question is not one of annuity. O. C. 2764. Even had anote been delivered by the vendee to the vendor, the result would not have been different in this respect. But, at all events, no note was produced; and, in fact, none was ever given.

Under the Articles 2750, 2751, 2752 and 2759 of the Civil Code, the contract was one of rent, — rente fonciére. There was an immovable property conveyed; and it was stipulated that the trasferree should hold as owner; that a certain quantity of fruits should be paid annually, and that the conveyance was made in perpetuity. It is true that it was agreed that the price should be paid in one year, but at the same time the parties agreed that the vendee had the right to decline forever paying this amount, on condition of paying interest in advance, thereby establishing a capital bearing interest forever.

The Code says : “ A contract of sale, in which it is stipulated that the price shall be paid at a future time, but that it bears interest from the day of sale, is not a contract of rent. On the contrary, a contract made, bearing the name of a sale, in which the seller does not stipulate the payment of the price, but a capital bearing interest forever, is a contract of rent.” 0. 0. 2752.

The stipulation to pay the principal, in case the interest remained unpaid, is merely a mode adopted by the parties to redeem the rent charge; for, says the Code: “ The rent charge, although stipulated to be perpetual, is essentially redeemable ; but the seller may determine the terms of the redemption, and stipulate that it shall not take place until after a certain time, which can never exceed thirty years.” C. C. 2759.

The objection raised, under the provisions of Articles 2762 and 2763 of the Civil Code, that in the case at bar, the rent charge would not be susceptible of mortgage, or liable to seizure and sale, because the interest was required to be paid in advance, involves a confusion of ideas and a petition of principle. It is the rent charge, which is an immovable, that is susceptible of mortgage, and not the revenues accruing annually. C. C. 2763. In the second place, although it be true that the rontor cannot have the property seized and sold, unless there be due at least one entire year’s rent, it does not follow that he is bound to wait for the expiration of the year to do so, if the yearly rent falls due in advance. It is no answer to say that the plaintiff could not seize the property in question for the payment of the yearly rent, because the owner of the land might put an end to the contract of rent, — rente fonciére, by paying the capital. The right of redemption is not incompatible with the existence of the rent charge ; on the contrary, the Code says this contract, “ although stipulated to be perpetual, is essentially redeemable.” C. C. 2759. 8 L. 286, Clark’s heirs v. Christ’s Church.

It is suggested that there is, on the part of the vendee, no legal obligation to pay interest to the vendor, because its payment being left at the will of the obligor, the condition is potestative, and therefore null and void under Art. 2029 C. 0.

The plaintiff in his petition, however, does not take this view of the case; he prays that the stipulated interest be allowed by the court. In this respect, he has given a correct interpretation to the contract; it is proper to state that it was not the payment of interest, that was left at the will or option of the vendee, but the indefinite postponement of the payment of the capital on condition of paying in advance the yearly interest. The contract states express that it is agreed between the parties : que l’acquéreur aura le droit, de prolonger, indé-íiniment et a sa volonté, lui, ses liéritiers ou ayans-cause, le remboursement de la dite somme de $5500, en payant au vendeur, ou á ses héritiers, ou ayans-cause, annuellement, les intéréts de la dite somme sur le pied de sept pour cent payable d’avance.” In the absence of any stipulation to pay interest, the property being productive of fruits, the vendor would be entitled to legal interest; but the parties have stipulated a rate of interest, and such is their own interpretation of it in the pleadings.

It is out of the question to hold the contract to be an annuity, and at the same time raise the objection to its being a rente fonciére, that there is no legal obligation to pay the interest. If the objection be well founded, it is fatal as much to the one as to the other. The truth is that there is but one alternative; it is either a rent charge or an ordinary contract of sale. In either hypothesis, the doctrine held by this court, in its former opinion, is evidently erroneous.

After a thorough investigation of this case, we have come to the conclusion to reverse our former opinion, in order to adopt the views developed in the dissenting opinion of Mr. Justice Cole.

It is, therefore, ordered and decreed, that our former judgment be avoided and annulled, and that the judgment of the District Court be affirmed, with costs.

Land, J.,

dissenting. The ancestor of the plaintiff, sold to Bernard Duchamp a house and lot for the price of $5500, which the purchaser obligated himself to pay to the vendor, at the end of one year from the date of the sale. And it was agreed between the parties, that the purchaser should have 'the right to prolong the payment of the price indefinitely and at his will, on paying to the vendor interest in advance at the rate of seven per cent, per annum. This stipulation was made to extend to the heirs and assigns of the party. Without this stipulation the contract would be a pure and simple sale, at the price of $5500, payable at the end of the year. The difficulties o-f the case, therefore, spring out of the stipulation as to the payment of interest, which has been made a part of the contract.

The difference between the sale, and the agreement to pay interest, is very radical. The sale is absolute, and conveys the title unconditionally, and binds the vendee to pay the price. The agreement to pay interest does not affect the title conveyed to the vendee, nor does it affect his absolute obligation to pay the price— but granted to him a right to postpone the payment of the price, on the condition of the payment of interest in advance — which right he could exercise, or not, at his ou>h will or pleasure, under the express stipulations of the agreement.

The agreement to pay interest was, therefore, contracted on a potestative condition, and gave to the vendor no right of action for its recovery, and was in itself void. C. 0. 2029.

Pother says : “ It is of the essence of agreements, which consist in promising something, that they should produce an obligation in the party mailing the promise to discharge it; hence it follows, that nothing can be more contradictory to such an obligation than an entire liberty in the party making the promise to perform it, or not, as he may please. An agreement giving such entire liberty would be absolutely void for want of obligation. If, therefore, I agree with you to give you something, in case I please, such an agreement is absolutely void.” Pothier on Obligations, sec. VII. No. 47.

Article 2019 of the Civil Code, is in these words :

“ The potestative condition is that which makes the execution of the agreement depend on an event, which it is in the power of the one or the other of the contracting parties to bring about, or to hinder And Article 2029 declares that every obligation is null that has been contracted on a potestative condition on the part of him who binds himself.”

Now, on what event was the postponement of the payment of the price made to depend ? It was on the payment of interest in advance by the vendee, and this payment of interest was, under the express terms of the agreement, at his entire will and pleasure, (a sa volenté). Such an obligation or agreement is not only declared by Pothier, but by our Civil Code, to be absolutely void.

Can it then be said that the vendor had a right of action for the recovery of the interest? Can a void obligation be made the foundation of an action, and become the basis of a judgment of a court of law, or can a party be bound by an obligation, which the law declares void ?

The agreement to postpone the payment of the price, being contracted on a potestative condition and consequently void, created no legal obligation to pay the interest, nor gave any right of action for its recovery. C. 0. 1750, 1753. To constitute the contract of rent, it is essential that the rentee should legally bind himself to pay the interest, or rent. Article 2750 of the Code, declares that the contract of rent for lands, is a contract by which one of the parties conveys and cedes to another a tract of land, or other immovable property, and stipulates that the latter shall hold it as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits, which the other party binds himself to pay to him.

If, therefore, the contract in this case is one of rent, we have before us a rentee in possession of the land conveyed, who has contracted no legal obligation to pay the rent, and against whom no action lies for its recovery.

Again. As a consequence of a contract of rent, the rentor has a right of mart- gage on the property conveyed, for the payment of his rent, and the rent itself is susceptible of being mortgaged by him. C. 0. 2762, 2763.

Now, if the obligation to pay interest in the contract before the court, is void, as a principal obligation, how can the accessory right of mortgage attach to it, or the rent stipulated to be paid by it, be susceptible of mortgage ?

The contract, therefore, viewed as one of rent, is wanting in an essential requisite, to-wit: a legal obligation on the part of the rentee to pay the rent, and a right of action, as a consequence on the part of the rentor. In the absence of these essential requisites, the contract cannot be interpreted or construed to be one of rent, and as such enforced.

It is to be observed that the purchaser did not even bind himself to pay the interest, but that it was agreed between the parties, that he should have the right to do so if he pleased, and thereby postpone the payment of the price. It is, therefore, difficult to affirm as a legal proposition, that the non-payment of interest would be a violation of his contract.

Whether the contract is one of annuity or sale, with a privilege granted to the vendee of postponing at his pleasure the payment of the price by the payment of interest in advance, it is unnecessary now to consider, as the agreement has been considered in argument as an annuity or rent charge. In my opinion, it is not one of rent, and therefore see no reason to reverse the judgment of the court heretofore pronounced, and to declare the contract one of rent, and not a contract of annuity.

Merrick, C. J.,

dissenting. In addition to what is said by Mr. Justice Land, and was formerly said by a majority of the court, there is another view which may be taken of this case. If the suit presents a case of rente fonciére, then the vendee incurred no personal obligation to pay the interest upon the $5,500, the price of the sale, independent of his possession of the property, but the obligittion to pay the interest was impressed upon the thing itself, and the vendor retained in its place a right upon the thing, a jus in re. Now, when we look at the contract, we shall find, that the vendee personally assumed the price of the sale. The language is :

“ The present sale is made for and in consideration of $5,500, which the purchaser binds himself to pay to the vendor in one year from this date, it being exr pressly agreed between the parties, that the purchaser shall have the right of prolonging indefinitely at his will, to him, his heirs or assigns, the reimbursement of the said sum of $5,500, by paying to the vendor, his heirs or assigns, and annually, interest at the rate of seven per cent, per annum, payable in advance, at the domicil of the vendor, or his heirs, any where in the parish ; for all which the purchaser hereby binds himself.”

Now, who bound himself to pay the price? The answer of the contract is, the vendee in person. When did he bind himself to pay the price ?

The contract says, in one year, or at farthest, whenever after that period, the interest shall not be paid in advance.

Then here, is unquestionally a personal obligation binding upon the vendor to pay the price of the property. He does not undertake to bind the land. Nothing is reserved out of the land. There is no partial dismemberment of the property, but the whole, the dominium, passes to the vendee. Hence, the vendor has retained no real right in the property, which he can sell or mortgage. All that he has is the personal obligation of the vendee to pay, (as he has promised,.) and á mortgage and vendor’s privilege to secure the payment of the price.

- A comparison of the contract under consideration, with each and all of the Articles of the Code on the subject of the rente fonciere, has failed to enable me to discover the essentials required for such contract.

Pothier says, that “ it is of the essence of the rente fonciere, that the vendor (bailleur) shall reserve in the property a right of annual and perpetual rent, if the contract is in perpetuity ; or for the time it ought to continue, if it is only made for a certain time."

In another place, he says : “ As in the contract of -sale, the price must be certain and determinate. So in the contract of reut charge, the rent which the vendor (bailleur) reserves in the property, must be certain and determinate. It is for this reason, that if it is said by the contract that such a piece of land is charged with a rent without saying for how much ; or if it is said that the property is charged with the same rent as it was formerly charged, and formerly it had not been charged with any rent; it is evident that there would be no contract of rent charge, in the one case or the other, and the contract would produce neither an alienation of the property, nor any obligation of the parties.”

“ The differences” (between rent charge and sale) “ are first, in this, in the contract of sale, the price can consist only in a certain sum of money, otherwise it would not be a sale, but some other contract, as we have seen in the contract of sale. On the contrary, it is not important that the rent should be of a sum of money. It may be a certain quantity of fruits or provisions. For example, so many quarters of wheat; so many puncheons of wine; so many pounds of butter,” &c.

“ The rent charge can also consist in a proportion of the fruits ; as the charge of giving to the lessor (bailleur) every sixth sheaf of wheat which shall be harvested, or so many gallons of wine for each puncheon which shall be secured. This kind of rent is called champart; it is a peculiar kind of rent of which we shall not treat in this place.”

A second difference is, that in the contract of sale the price consists in a single sum of money which is due, (or contracted for,) as a whole, at the instant of the contract, when even by the agreement of the parties, the payment has been deferred and divided into several terms. On the contrary, in the rent charge, the rent only takes its rise and is due by portions corresponding with the time which has elapsed from the possession of the tenant or his successors.”

“ In fine, the third difference, which is the main one, is that in the contract of sale, the price is the debt of the person and not of the estate which is sold, On the contrary, in the contract of rent charge, the rent which the landlord (bailleur) retains, is a charge in rem (charge réelle), which is imposed upon the estate, subject to the rent, and which is due principally by the estate, although the tenant and his successors may be also, by reason of the estate which they possess, personal debtors of the arrearages.” Pothier, Bail a Rent, Art. 2, sec. 1.

- As the definitions and distinctions of Pothier are principally adopted by our Oode, the explanations of this author show clearly what is intended by the Code in reference to the rente fonciere.

Again: Suppose the first or second year after this contract was entered into, that the property had been subject to a crevasse or some other calamity by which the value had been reduced to one-third, could the vendee have refused to pay the interest in advance, and then have escaped the payment of the price, which he had bound himself to pay, and have turned the vendor over to the depreciated estate for the price ? Suppose the vendee had divided the estate and made sale to several persons, and they had failed to pay the rent, would the vendor have been driven to several real actions against each sub-vendee ?

It seems to me, as explained in the former opinion of the court, that the ven-dee assumed a personal obligation, and that the annuity was formed from the price due in money for the sale of a tract of land.

I cannot forbear quoting another passage from Pothier, which explains the object of retaining the mortgage, as in this case. He says:

The rente fonciere is also a real charge very different from a mortgage with which an estate is encumbered, upon which an annuity established in consideration of money, or by gift or legacy, has been assigned. This mortgage is only an accessory obligation on the property, the better to assure the personal obligation of him who has constituted the annuity, or who has been charged with it by the testament. On the contrary, the charge of the rente fonciere with which the estate is charged, is a,principal obligation of the estate; it is the estate which is the principal debtor, rather than the person of the tenant, who is bound for the rent only, because he possesses the property, and because the charge of the property is of such a nature that the property can only be relieved of the rent by the act and agency of the possessor, who must pay the arrearages for the property.” Ib., chap. 2, sec. 3, No. 19.

Turning again to the contract, we And, as we said at the outset, the personal obligation of the vendee ; but where do we And any words equivalent to the reservation of rent? Or any stipulation that the property should pay any rent? Where are any words equivalent to a dismemberment of property or the reservation of any of the jura in re to the vendor ? What property then did he retain in the thing which he could sell or mortgage?

I see no reason to doubt the correctness of the former decree, and as the ven-dee bound himself personally and expressly, and as the term for the payment of the price has recently terminated by the condition, I think the former decree ought to remain undisturbed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Heirs of Marie J. Deslondes v. The City of New Orleans.
    Tbe formal probate of a will cannot be disregarded by parties claiming as heirs of the testator, but never in possession, and they cannot institute a petitory action without seeking to annul such probate.
    ■When heirs-at-law have once acquiesced in a will, by accepting some bequest under it, neither they, nor those claiming under them as heirs, are at liberty afterwards, to contest its provisions or assert its nullity.
    PPEAL from the Third District Oourt of New Orleans, Duvigneaud, J.

      f\_ Henry St. Paul, Miles Taylor, II. II. Taylor, Thomas H. Lewis, and G. Le-Gardeur, for plaintiffs and appellants. J. J. Michel, Randall Hunt, and Louis Janin, for defendant.
   Merrick, C. J.

This suit is brought to recover of the defendant, “ all the batture now in its possession and unsold, lying in front of faubourg St. Mary, and between New Leveee street and the river, and between Common street and the line dividing the batture in front of faubourg Delord, from the batture in front of faubourg St. Mary, and all the batture lying in front of Delta and Front streets, to the water’s edge.”

Counsel inform us, that the questions which they present to our consideration under the plaintiffs’ title, involve property to the amount of several millions of dollars. In the examination of the case, they have exhibited a research and learning worthy of the magnitude of the interest at stake.

As we shall dispose of this case upon a single point, it is not our intention to follow the counsel through the numerous questions which they have illustrated and exhausted.

Both parties claim through Marie J. Delondes, who died in 1792. The plain, tiffs claim as her heirs-at-law. The defendants, through a donation made by her in her marriage contract with Bertrand Gravier, her husband, and a will made in his favor, as sole and universal heir and legatee, and admitted to probate under the Spanish law, 21st November, 1792. The plaintiffs object that the marriage contract was not recorded as was required, by the laws then in force, and oppose the will on various grounds.

The will which, if valid, covers the case independent of the marriage contract» was not signed by the testatrix, or read to her, and the following note preceded the signatures of the witnesses and notary receiving the same, viz :

After writing out this will, it could not be read to the party authorizing the same, in consequence of her being deprived of consciousness,” (or a temporary suspension of the faculties or senses,) “ but the witnesses were present at the declaration she made of her will, of the nomination of an executor, heir, and all the rest contained in this instrument of writing. In testimony,” &c.

The Alcalde, to whom the instituted heir applied for probate of the will, was assisted as required, by a jurisconsult, called the Assessor of this Intendency, and, before hearing the witnesses, he referred the matter to the Governor of the province, the highest judicial officer thereof, who ordered the witnesses to be heard.

■After the testimony was received, and the case taken under advisement, the Al-calde assisted as above mentioned, decreed the will to be valid, and ordered it to be kept and executed.

Bertrand Gravier went into possession under the will, and he and his vendees have held possession ever since. By the will, two thousand dollars were given to the children of James Deslondes, a brother; one thousand dollars were given to George Deslondes, another brother of the testatrix; and the like sum to the children of her brother-in-law Ainie. The plaintiffs claim through them as heirs.

We have no reason to doubt the correctness of the conclusion of the Supreme Court of the United States, in regard to the decree of the Alcalde. In the case of Fouvergne, one of the present plaintiffs against the defendant, the Supreme Court of the United States said, in reference to the allegations of the bill in ■ chancery impugning the will of Marie J. Deslondes, as a legal instrument, as fob lows :

■“ That question, in our opinion, is closed by the decree of the Alcalde* That •decree declares the will to be valid and subsisting, and directs its execution,. We are obliged to treat the decree as the judicial act of a court of competent juris? diction. In fact, it was the only judicial authority in the province of Louisiana, except that exercised by the Governor. This decree remains' in, MI force, never* having been impeached, except in this collateral way.” 18, Hosy,

. The objection which was fatal to plaintiffs’ action in the Supreme Court of the United States, has not been avoided by the farm in which, the Resent action has been brought. The formal probate of a will cannot be- disregarded by parties claiming as heirs of the testatrix, but never in possession, and they cannot instL • tute a petitory action without seeking to annul such probate. Haydel v. Roussel, 1 An. 38 ; see authorities cited in Delespare v. Warner, ante 413.

But waving this objection, we think the proof adduced by the defendant, sufficient to show a ratification of the will. The receipt of George Deslond.es has been produced for the $1,000 bequeathed him by his sister, and the dealings and intimate relations of the ancestors of the plaintiffs with Bertrand Gravier and his heirs, leaves no reasonable doubt that the other legacies were also paid, and that the heirs-at-law acquiesced in the will. The defendants, after a lapse of more than sixty years, cannot be expected or required to produce positive proof of the facts on which they rely, to show such ratification. But as possession has followed defendant’s title for this long period, the presumption arising from the dealings and intimate relations of the parties in its favor, are sufficient.

Wo, therefore, concur with the learned Judge of the District Court, in relation to the facts of the case, and are of the opinion that the judgment of the lower -court ought to be affirmed.

Judgment affirmed.


author: Cole, J. Misreick, C. _ J.,

text:
    Southern Bank v. Wood & Champlin.
    All assignment of a vessel on tho high seas in trust for tho payment of particular creditors, hy prefer-encc, made in another State, under whose laws it is valid between the parties, all of whom reside in that State, will protect such vessels when they arrive in a port in this State from attachment here, at the suit of a creditor of tho assignor, whose debt was payable in the State where the assignment was made.
    The validity of the assignment, must be determined by tho laws of the State where it is made.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      Waples & Eustis, for plaintiff and appellant. Clarke & Bayne, for defendants.
   Cole, J.

On the 6th of March, 1857, in the State of New York, the defendants, Wood & Champlin, copartners and residents of the city of New York, executed an Act in which they represented they were indebted to “ sundry persons in sundry considerable sums of money,” and being unable to pay the same in full, were desirous of making a fair and equitable distribution of their property and their effects, among their creditors, wherefore, for the sum of one dollar to them in hand paid, they sold, assigned and transferred to Van Blascom & Hayes, of the city of New York, in trust for certain purposes, all their property. The objects of this trust were:

1st. The sale of the property.

2d. The payment with the proceeds thereof of certain preferred creditors of the partnership.

3d. If sufficient remained, then payment was to be made of the remaining co-partnership debts of the assignors.

4th. Afterwards, if the funds permitted, the individual creditors of the assigning partners were to be paid.

Schedules were annexed to the act, which described the property and gave the names of the preferred creditors.

On tlie 9th of March, 1857, bills of sale were made to the present intervenors of the bark or vessel, the “ Mary & Susan,” and of the ship “ Chicora.”

In the schedule annexed to the assignment, the bark and ship were also mentioned.

At the time of the assignment and sale of the bark and ship aforesaid, the said vessels were on their way from France to New Orleans.

Upon the arrival of the bark “Mary & Susan,” at New Orleans, W. J. Dewey took possession of her, as agent of the intervenors, in accordance with instructions previously received. The ship. “ Ohicora” arrived at New Orleans about one month after the bark, aad Deiuey gave notice to the captain to give him possession of her, according to instructions received from the assignees to take possession for them of the vessels and of all property belonging to Wood & Champ-lin.

Upon the arrival of the vessels, they were attached by the plaintiff, the Southern Bank, to satisfy the claims held by them against the assignors, Wood & Ckamplin. The attachment of the bark was subsequent to the possession taken of her by the agent, Dewey, and that of the ship was anterior thereto, she having been attached before her arrival.

Van Blascom cB Hayes, the assignees, intervened in the suit, and claimed the vessels, in virtue of the assignment and sales aforesaid.

There were also other interventions, but the only contest now is as to the rights of the intervenors and those of the Southern Bank.

There was judgment for the intervenors, and plaintiff has appealed.

It is admitted that the deed of assignment, and the bills of sale of the bark and ship, were executed as they purport, and acknowledged and recorded as they purport; that the assignees, Ckamplin & Wood, were at the time of the assignment, indebted as stated in the schedule annexed to the assignment, which contains the names of the preferred creditors. It is also admitted that the common law prevails in New York.

The counsel for plaintiff; in his brief, admitting that the assignment was executed in New York prior to the attachment, and is in the usual form of such instruments made in the common law States, where voluntary assignments for the benefit of preferred creditors are not prohibited, present the question involved in this suit to the court, as follows : Will an attachment by a Louisiana creditor bo defeated by an assignment of vessels at sea, legal under the laws of New York, fraudulent and void under the laws of Louisiana, by reason of preferences given to certain creditors ?

In order to determine the rights of the parties in this case, it must first be settled whether the assignment aud sales transferred at once the title of the vessels to the assignees.

The law seems to be clear upon this point.

Abbot, in his work on Shipping, says : “ It has been observed that the property of a ship is now always evidenced by written documents. And these documents not only furnish the owner with proof of his property, but also enable him to dispose of it when the ship is at sea, or in a foreign port.

“ When a ship is abroad, a perfect transfer of the property may, at the common law, be made by assignment of the grand bill of sale, and delivery of that and the other documents relating to the ship, as the delivery of the key of a warehouse to the buyer of goods contained therein, is held to change the property of the goods, according to the rule of the civil law; such delivery in each case being not merely a symbol, but the mode of enabling the buyer to take actual possession, as soon as circumstances will permit. Abbott on Shipping, pp. 35, 37, § 28, 30.

In the present case, the assignors did not, by keeping possession of the vessels, cast a shade of simulation about the assignment; on the contrary, the agent of the assignees took possession of one of the vessels upon her arrival at her destined port of New Orleans, and would also have done the same with the other, if he had not been prevented by the attachment.

The title to the vessels passed to the assignees by the assigment confirmed by the sales, and the good faith of the parties was manifested by the action of the assignees in trying to get possession ef the vessels.

A party ought not to be incapacitated from selling or transferring Ms property, because it is upon the sea, and he cannot give actual delivery. If he were, he might go to protest with immense amounts invested in ships at sea.

In Thuret et al. v. Jenkins et als., 7 M. p. 353, Judge Martin delivering the opinion of the court, said : “ In the present ease, the ship, the subject of the sale, was at sea, was a New I ork ship, and the vendors and vendee resident ia New York. If, therefore, according to the lex loci contractus, that of the domicil of both parties, the sale transfers the property without a delivery, it did so eo in-stanti, or not at all.”

The facts of this case are, then, that the law of New York permits a debtor to favor certain creditors by an assignment of his property in trust, as has been done in this case ; that the assignment and sale of the vessels upon the high seas at the time, were valid by the laws of New York, and by the same laws transferred at once the title of the ships to the assignees.

Under these circumstances, we are of opinion that the plaintiff had no right to attach the vessels as the property of the assignors.

It is true that the assignment and sale were for the benefit of third parties, the preferred creditors, and not for that of the assignees, but the former had acquired rights by the assignment and by the laws of New York where the assignment was made, they had the right to claim a performance of the purposes of the trust.

At the time of the assignment and sales, the State of Louisiana had neither jurisdiction over the parties to the deeds, nor over the vessels. The assignment and sales of the vessels were perfect, and vested title thereof in the assignees, in trust for the preferred creditors, before the vessels arrived within the jurisdiction of the State of Louisiana. Bernard v. Scott. 12 An. 490.

However desirous we may be to protect the claims of our own eitisens, we cannot disregard that comity which ought always to be exhibited to the laws of foreign States and to the contracts of their citizens under those laws, when they do not clash with our own. The assignment and sales of these vessels did not, and could not conflict with our laws, because the vessels and the parties to these deeds, were not within the dominion of the State, when they were executed and the transfer took place ; and the parties to the acts were citizens of New York, where such acts are lawful.

Besides, the indebtedness sued upon by the plaintifT in this case, consists of thirteen bills of exchange, drawn by Benjamin Bernard to his own order and by him endorsed, upon one of the defendants, Christopher Champlin, a resident of the city and .State of New York. Wood is alleged to have beeii Ms commercial partner and to be thus also liable. Twelve of these bills were accepted fey Champlin, and by him made payable at the Broadway Bank; one of them has ho acceptance endorsed upon it. The whole of them were protested for nonpayment at the city of New York.

The indebtedness further consists of three drafts drawn by said Bernard, by virtue of certain letters of credit, given by Champlin, by which he bound himself to honor and accept these three drafts. They were, however, protested in New York ; Champlin having' refused to accept the same.

The whole of said sixteen bills of exchange were drawn upon “ C. Champlin, Esq., 114 Front street, New York.”

It is clear, then, that in the contemplation of the parties to these bills of exchange, that they were to be paid in the city and State of New York, and, therefore, that the contract between the parties, was to be executed in the State of New York, and not in that of Louisiana. Plaintiff, in purchasing these drafts, could see by their face, that they were to be paid in New York, and knew, therefore, that their right of being paid, would materially depend upon the laws of New York. It is, therefore, with a bad grace that plaintiff asks us to disregard this assignment .and these sales, executed in New York according to its laws of property upon the high seas, in order to secure the payment of drafts, which, in the contemplation of the parties thereto, were to have been paid in the State of New York.

If contracts of this character could be disregarded by sister States, then there would be no safety in the most lawful transactions beyond the borders of the State where they were entered into.

Our laws do not allow a debtor to show a preference to his creditors, and any act passed in this State giving such preference, would clash with our laws, but a preference given by foreign creditors in their own country over our own citizens, does not conflict with our laws, because the act of preference takes place beyond their dominion.

If, indeed, the vessels had been at the port of New Orleans at the time of the assignment, then, as they would have been within our jurisdiction, the plaintiff would not have appealed in vain to the tribunals of Louisiana for protection, for then the citizens of New York could not expect to make property within our jurisdiction subject to the laws of New York, and in like manner plaintiff cannot expect to render property not subject to our jurisdiction at the time of its sale, to become subject to it by entering into our ports after the assignment and sales.

The case of Norris v. Mumford, 4 M., p. 12, is not adverse to this decision, for in that case, the sale took place in New York, but the cotton at the time of its sale was in New Orleans, and therefore the court properly decided that the sale did not vest the cotton in the purchasers, and was, therefore, subject to attachment by the creditors of the vendor.

In Thuret et al. v. Jenkins et al., 7 M. 353, this court held valid the sale in New York of a ship at sea.

The case of Beirne & Burnside v. Patton et al., is cited by plaintiff, but that differs in many features from the one at bar. For instance, the court said there was no legal evidence that the assignment was valid by the laws of Tennessee, where it was passed; and a part of the argument of the court is based upon the hypothesis that the property being personal, is to be governed by the laws of Louisiana, where it is situated. The assignment also was to have its effect, according to the contemplation of the parties in Louisiana, and the assignment did not purport to convey all the property of the assignors. In this case, there is evidence that the assignment is valid by the laws of New York, the vessels assigned were not, at the time of assignment, within the jurisdiction of any particular country, but upon the high seas. They were indeed on their way from Havre to New Orleans, but it was not in the contemplation of the parties, that the contract should be carried into effect in New Orleans, but at New York, where all the parties had their domicil. It is true, that the assignees directed their agent at New Orleans to assume possession for them of the vessels, but this was to effect the objects of the trust and to hold the vessels and cargoes at their port of destination, subject to the rights of the preferred creditors.

New York being the home port of the vessels and also the domicil of the parties, it was the place where, in contemplation of law, the assignment and sales were to be carried into effect. But the vessels were prevented from arriving there by the attachments. In this case also, it is not pretended that the property transferred, bears an unjust proportion to the debts of the preferred creditors; on the contrary, the assignors transferred the whole of their property, and all their partnership and individual creditors were to be paid, but in a certain rank-

The case of Tatum v. Wright, Williams & Co., 7 An. 358, has also been referred to.

Tatum had sold his cotton in Arkansas, to a purchaser, who paid the greatest part of the price in counterfeit bank notes ; the purchaser brought the cotton to New Orleans and defendants advanced on it. Tatum sued defendants for the value of the cotton. It was held, that he could not recover, notwithstanding the statute of Arkansas provides that the owner may recover the property out of which he has been swindled, from any subsequent holder, because Tatum, by putting his cotton in the possession of the purchaser, as owner, reposed confidence in him, gave him credit and enabled him to commit a fraud on the defendants, and the equity of the original owner is not equal to that of the defendants, who have parted with their money, on the faith of a state of things which the plaintiff himself was the cause of being created.

The case of Richardson et al. v. Leavitt et al., 1 An., p. 431, is somewhat similar in its features to that at bar, and the court held the assignment in New York to be valid. This decision was re-affirmed in the Merchants’ Bank of Baltimore v. The Bank of the United States, 2 An. 659.

We would not pretend to affirm, that the assignment and sales would be valid if the assignors, knowing the vessels to bo on their way to Now Orleans, executed the assignment and sales with the intention of defeating the claims of the Southern Bank. This cannot, however, be presumed in this case, because there is nothing to justify the presumption, but that the vessels were on their way to New Orleans ; whereas, against the presumption, there are the legality of the acts in New York, the actual indebtedness of the assignors to the creditors preferred, and a total abandonment of their property to their creditors. ‘

Even if, as it has been argued, the assignees were nothing more than trustees, yet they held the property assigned in trust for the benefit of certain persons. These persons had, by the assignment, therefore, acquired certain rights, and parties have the prerogative of enforcing rights, whether they be derived from assignments or sales. And even if the preferred creditors can only enforce their rights in a court of chancery, these rights are not thereby destroyed.

It has also been objected, that the transfer of a ship at sea requires its completion by delivery or taking possession. This does not appear to be the recognized doctrine. Abbott declares that a perfect transfer of the property may, at the common law, bo made by assignment of the grand bill of sale, and delivery of that and other documents relating to the ship. (See previous quotation from Abbott on Shipping ; also, Thuret v. Jenkins, 1 M. 353.)

Abbott also says, that such delivery transfers the property of a ship, the same as the delivery of the key of a warehouse to the buyer of goods contained therein is held to change the property of the goods, according to the rule of the civil law; “ such delivery, in such case, being not merely a symbol, but the mode of enabling the buyer to take actual possession, as soon as circumstances will permit.” He also declares (p. 35), that delivery of actual possession is only necessary when it is possible, as for instance, when the ship is in the country of its owner at the time of sale.

Abbott does not mean, that the taking of actual possession is necessary to transfer the property of a ship; for he had antecedently declared, that a perfect transfer of the property of a ship may be made by the assignment and delivery of the bill of sale and other documents relating to the ship. His signification is, that the bill of sale and other documents present such proof as authorizes the purchaser to take actual possession as soon as he can, and which will also justify him in a judicial tribunal in enforcing his right of possession.

It is true, if after the arrival of the ship at the home port, the purchaser does not take possession of her, this may be considered as a presumptive proof of simulation, but the taking possession does not perfect the title to a ship sold whilst upon the high seas ; it is only evidence that the transfer was real, and not simulated.

Before, then, the vessels arrived at New Orleans and were attached, a perfect title existed in the trustees for the benefit of the preferred creditors, so that no conflict of laws could arise between the laws of Louisiana and those of New York.

After a careful examination of this cause, we can see no sufficient reason to differ from the conclusion to which the District Judge arrived after an able and elaborate investigation.

Judgment affirmed, with costs.

Misreick, C. _ J.,

dissenting. The assignment to trustees was made on the 6th day of March, 1857, and transferred to the trustees all the rights they have’acquired. The subsequent transfers of the two ships, on the 11th day of March, did not change the previous title of the trustees. These two sales were intended only as a compliance with the Act of Congress of the United States.

Van Blascom Hayes paid nothing, in the eye of our law, for the ships; for two dollars cannot be viewed as a serious consideration for two ships estimated at $20,000. C. C. 2439.

The intervenors were, therefore, nothing more than trustees, and they had incurred obligations towards the New York preferred creditors which could only be enforced in a court of chancery.

Now, by the law of England and New York, as well as most countries, the transfer of a ship at sea can be made by writing, provided delivery be obtained as soon as convenient on the return of the ship. The transfer, therefore, requires its completion by delivery, or taking possession.

But at the time it was sought to perfect this contract by delivery the ships were within the jurisdiction of Louisiana, and in all matters not national subject to her laws.

By the laws of Louisiana, the deed of trust thus sought to be perfected is deemed in fraud of creditors. Moreover, as to one of the ships, it was in the custody of the law before the agents of intervenors attempted to take possession, and in the other the possession assumed within the limits of Louisiana has been disregarded, and the ship has been seized notwithstanding. Here' arises, them, a conflict of laws, and the question is, which shall prevail't Wifi our courts, which look with disfavor upon trusts, and regard all assignments; fw the benefit of preferred creditors as fraudulent, enforce, to the prejudice1 of their own citizens, am instrument which only became perfect by an act done within our own territory,, and, in one instance, after the property had been placed in the eustody ©f theiir officers ?

If the trustee had obtained possession prior to the ships- arriving in Louisiana, there would be reason to maintain his possession as bailee-. In. this case, however, the intervenors are compelled to ask the courts for assistance to obtain actual possession of property which they never had in their possession; out of Louisiana, and for which they paid no value, in order that they may sell and distribute the same to the citizens of other States, and to the exclusion of oisr own. I am not aware of any instance in which the comity of nations has been carried to this extreme. I would respect the rights of trustees which were absolutely perfect before the property arrived in Louisiana, but imperfect rights should not b© consummated within our territory to the detriment of our own citizens.

Land, J., concurs in this opinion.

Re-hearing refused.


author: Buchanan, J. Land, J.,

text:
    Paul G. Gleises v. McHatton—Same v. Romagosa.
    "Whore it appeared that a sale was made for cash but it is shown that no money was paid, and it was? understood between tlio parties that the property was conveyed in trust to theapparent vendee,.h© assuming to pay the debts due on tbe property, and it was agreed that when these debts were-paid the property was to be recoaveyed. Held: that such a sale was a mere simulation, and that creditors of the vendor seizing such property under execution, have a right to maintain tbe seizures by-showing the simulation.
    Held, also, that where there is a delivery of the property under such a contract, it is a contract of 1 pledge, and the party in whoso favor it is made, has no right to enjoin the sal© of the property under execution, but should proceed by way of third opposition to claim a priority of privilege upon the proceeds of the sale.
    from tbe Fourth District Court of New Orleans, Price, J.

      Durant <& Horner, for plaintiff and appellant. Mott & Fraser and C. Sose-litis, for defendants.
   Buchanan, J.

The sale of tbe 17th October, 1857, under which plaintiff claims, appears to be a simulation, as decided by the District Judge.

It professes to have been made for the consideration or price of $18,500 cash in hand, paid by the purchaser to the seller.

Now, it is proved and admitted that no money whatever was paid.

An obligation with a false cause or consideration can have no effect. C. C. 1887.

But Article 1894 says, that if the cause or consideration expressed in the contract does not exist, yet the contract is good, if the party can show the existence of a true and sufficient consideration.

What is the consideration that the party has shown in this instance ?

The assumption of a debt to Alexander Bonneval, secured by mortgage on tbe property mentioned in the sale under consideration, and other property, to-wit: a tract of land on the Bayou St. John, in this parish. To warrant him against the consequences of this assumption, plaintiff ostensibly became the purchaser at Sheriff’s sale of the land on the Bayou St. John, seized under Bonneval's mortgage which had been assigned to plaintiff for a nominal sum of eight thousand dollars; and at private sale of the Mississippi land and slaves, the sale now under consideration for a nominal price of fl8,500, the total amount of the Bonneval debt, as stated by plaintiff, including interest, costs, lawyer’s fees, &c., was $17,436 93.

The evidence shows that all this property was thus conveyed in trust for the payment of the indebtedness of Ducayet thus assigned, and with the understanding that it was to be reconvcyed when the debt should bo extinguished.

The contract was therefore under the consideration proven not a sale, but (granting that it was followed by delivery,) a pledge.

It was a simulated sale, that is to say, it had the appearance, but not the reality of a sale. And the defendants, as was said in Erwin v. The Bank of Kentucky, 5 An. p. 4, have a clear right to maintain their seizure, by showing that simulation. Considered as a pledge of the property, the plaintiff had no right to enjoin its sale under the executions of the defendants. He should, in strictness, have proceeded by way of third opposition, to claim a priority upon its proceeds. But it is not necessary to put the plaintiff out of court upon this technical ground, for we have'evidence in the record that enables us to dispose of his claim, considered as a third opposition of a pledgee. The evidence shows that the liabilities, to secure which the pledge was given, have been extinguished, or at least that they ought to be, funds having- been realised from sales of the pledged property, made by plaintiff, sufficient in amount to cover, and more than cover those liabilities.

1. Plaintiff sold to James Arthur Blanc, on the 27th January, 1858, a portion of the Bayou St. John property, for. $8,461 25

2. He sold to J. L. Tissot, on the 29th April, 1858, the remainder of the said property, for. 6,000 00

3. He sold to Charles M. Simpson, on the 6th February, 1858, the tract of land in Jackson Co. Miss., (Pascagoula,) for. 11,000 00

Total.$25,461 25

The Bonneval debt, assigned to plaintiff, we have seen, was. 17,436 93

Excess, after satisfying plaintiff,. $8,024 32

It is said by the witness Simms, that plaintiff had endorsed for Ducayet, to the extent of $8000. It is not shown that plaintiff has paid any of those endorsements ; on the contrary, it is proved by Hepp, that he refused to pay one of them, $4000, on the plea of usury. But even had plaintiff paid those endorsements, they were no part of the consideration of this sale or pledge, and consequently confer no privilege upon the pledged property. Indeed, the amount of that pledge could not, legally, exceed the amount mentioned in the Act, viz : $18,500. Lastly, supposing the endorsements paid, and they were covered by the pledge, plaintiff has sold for enough to reimburse himself in full. Plaintiff is therefore without any claim, either legal or equitable, upon the six slaves seized under the executions of the defendants.

As to the possession of plaintiff under the bond, said to have beeu given in Mississippi for the forthcoming of some slaves, it is irrelevant to this case. In the first place, neither in his petition against Me Hatton, nor in that against Roma- gusa, does plaintiff set up title to the slaves seized, under his forthcoming bond, nor is that bond so much as mentioned therein.

In the next place, there is no such bond, nor the record of any Mississippi suit in evidence, and the witness, Blocker, who testifies that there was such a suit and and such a bond, does not tell us the names of the negroes who were claimed by the present plaintiff in that suit. He says, “ Mr. Gleises afterwards gave bond for four of the slaves. Five slaves bail been seized, but only four were claimed by Gleises. Moses was left over there in Mississippi, and was not claimed by Gleises.”

This testimony was taken, like all the rest, in the two injunction suits, which were tried together. Now, in that against Mcl-Iatlon, it is alleged that two slaves named Sam and Octave, had been seized by defendant; and in that against Ro-mag-osa, it is alleged that defendant had caused to be seized four slaves, named Webb, Charles, Silas and Alfred; all of whom, being six in number, are claimed by plaintiff, by virtue of the conveyance from Ducayet, of the 17th October, 1857. There is nothing in the record to show, which of these negroes named, are the negroes bonded by Gleises in Mississippi. It is, therefore, needless to enquire what kind of title or right to the negroes, the Mississippi forthcoming bond may have vested in plaintiff, inasmuch as there is neither allegation nor proof, to support any claim upon that ground.

The judgment of the District Court is therefore affirmed, with costs.

Land, J.,

dissenting. The defendants, judgment creditors of Felix Ducayet, having caused certain slaves to be seized as his property, under executions issued on their judgments, the plaintiff en joined the sales on the ground that he was the legal owner and in possession at the time of the seizure.

The answers of defendants deny the ownership of plaintiff, and aver that his title is a simulation, accepted by him for the purpose of defeating the just pursuits of the creditors of Ducayet, and that his possession was for the same purpose, and commenced only on the day preceding the seizure under the executions.

The questions presented by the pleadings, and the one decided by the court below, is whether the title, under which plaintiff claims the slaves, is a simulation.

The facts on which the District Judge rendered judgment in favor of defendants, are thus stated by him :

“ Plaintiff claims certain slaves seized by the Sheriff of tlie parish under executions issuing in favor of defendants against F. Ducayet, which were about being sold to satisfy said executions when plaintiff enjoined the sale. The plaintiff claims under an act of sale from Ducayet and wife, of the date of 17th October, 1857, and the consideration of the sale is stated in said act to bo $18,500. Defendants aver this act of sale is simulated. The evidence shows that Ducayet being largely in debt to Bonneval, Schreiber <6 Co., mortgaged to them certain property situated on the Bayou St John, and seven slaves, (part of whom are the subject-matter of this suit,) and executed a deed of trust on certain property in Jackson County, Miss., to secure the said indebtedness. By an agreement between plaintiff and Bonneval, plaintiff assumed Bonneval’s position towards Duca-yet. Bonneval transferring to plaintiff all his securities, and plaintiff executing his obligations in favor of Bonneval for the amount of Ducayet's debts to Bonne-val, so that Ducayet became the debtor of plaintiff to this amount. Plaintiff had also endorsed notes for Ducayet to the amount of $8000, and in order to secure plaintiff on account of those two indebtedness, Ducayet made the sale of the ne-groes seized and the Jackson County property. The witness, Simms, speaks of this sale as a security and not as a veritable sale.”

Iu addition to these facts, it may be stated, that the property conveyed by Ducayet to the plaintiff consisted of two tracts or parcels of land situated in Jackson County, State of Mississippi, and seven slaves, also in said county and State, the place of domicil of Ducayet. That the slaves were left by plaintiff in the possession of Ducayet, and that four of them were attached by the creditors of the latter in the State of Mississippi, and that the plaintiff upon a claim of ownership, under his title from Ducayet, was permitted under the laws of that State to bond them. That he removed the slaves from the State of Mississippi to this city, where they were seized by the Sheriff, under the execution of Romagosa, as the property of Ducayet. And that the two slaves seized under the execution of McHatton, had been removed from the State, of Mississippi only a few days before by Ducayet, but that they were, as the other four slaves, in the possession of the plaintiff at the time of the seizure..

The consideration of the contract between plaintiff and Ducayet, which they put into the form of a contract of sale, was, first, an indebtedness of Ducayet to Gleises, and secondly, the liability of Gleises as the accommodation endorser of Ducayet.

The District Judge came to the conclusion upon the evidence that there was a real contract between the parties, — but that as the real contract was one of mortgage or suretyship, that the apparent contract of sale was therefore a simulation.

To form a real contract of sale, it is not essential that the consideration should be paid in money, — the indebtment of the vendor to the vendee, will constitute, in the sale of a slave, a legal and sufficient consideration. Weld v. Peters, 1 An. p. 432. In that case, the consideration of the sale was very similar to the consideration shown by the evidence in this case. Iu the case cited, the vendee had possession of the slave from the date of the sale, and the court held that the conveyance to him could not be treated by a judgment creditor of the vendor as null, and that a direct action was necessary to avoid the contract.

In the case before the court, the possession of the jfiaintiff, under his act of sale, commenced only a day or two prior to the seizures of defendants, and then in consequence of the pursuit of Ducayet’s creditors in the State of Mississippi.

The plaintiff, however, brings himself within the well settled rule which requires creditors to institute the revocatory action to set aside contracts having a real existence, but which have been made in fraud of their rights, — he has a title absolute on its face, translative of property, was in possession at the time of the seizure, and has shown that his title was based upon considerations which passed between Ducayet and himself.

Whilst the evidence shows that the conveyance to the plaintiff was in fraud of Ducayet’s creditors, it also shows a real contract between the parties in the form of a sale, and possession by the plaintiff. Under these circumstances the law requires the creditors to resort to the revocatory action. Kirkland v. New Orleans Gas Light Co., 1 An. 299. Weld v. Peters, ib. 432. 2 An. 913

It is, therefore, my opinion, that the judgment should bo reversed.

Merrick, C. J., concurred in this opinion.


author: Merrick, O. J.

text:
    John Coleman v. Mary E. Haight et al.
    The failure of a lessor to maintain premises lea.-eel in a tcnantablc condition dissolves the lease, although such lessor he not at fault.
    PPEAL from the Third District Court of New Orleans, Davigneaud, J.

      Cottens & Woolriige, for plaintiff. /. Q. Bradford and P. II. O’Neal, for defendants and appellants. J. S. Whittaker, for intervenor.
   Merrick, O. J.

This is an action for the recovery of rent. On the 27th of January, 1857, the plaintiff leased to the defendant certain premises, from 18th of February to the 31st of October, 1857, at sixty dollars per month, payable monthly, with J. G. Goodall as security.

In the month of March following, it became necessary to take down a wall of the house leased for the purpose of constructing a large building on the adjoining property, called the Seaman’s Home, and about the middle of the month the premises were abandoned by the defendant as uninhabitable. This suit is brought to recover of the defendant the rent of the whole term.

The District Judge was of the opinion that there was no fault on the part of the plaintiff; that the pulling down of the party wall was no act of his; that the proprietor of the adjoining lot had an undoubted right to pull down the wall held in common in order to secure the building he was about to erect, and that neither the owner of the house, the wall of which was to be pulled down, nor his tenants could raise any complaint, and he cites Arts. 677 and 678 of the Civil Code in support for his conclusions.

It appears to us that the learned Judge of the court a quo has fallen into an error in supposing that the lessor when not in fault is exempt from the obligation to maintain the thing leased in a tenantable condition. This obligation is to guarantee to the lessee the enjoyment, ut conductors refrui liceat. In the language of the Code, he is bound by the very nature of the contract to maintain the thing in a condition such as to serve the use for which it is hired, and to cause the lessee to be in peaceable possession during the continuance of the lease, (C. C. 2662) and this guaranty extends to vices and defects which prevent the thing from being used even if it appear that the lessor knew nothing of their existence, (0. C. 2665), and the lease may be annulled, or the rent diminished, even if the thing be partially destroyed or taken for public utility. O. C. 2667. So too, “ if without the fault of the lessor, the thing ceases to be fit for the purposes for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls shall intercept the light of a house leased, the lessee may, according to circumstances, obtain the annullment of the lease, but has no claim for indemnity.” C. 0. 2669. So too, in regard to repairs; the whole rent is to be remitted if the repairs have been of such a nature as to oblige the tenant to leave the house, or the room, or to take another house, while that which he had leased was repairing. 0. C. 2670.

In this case, it has been proven by one witness that the defendant consented to the pulling down of the wall, but we cannot think, in the absence of testimony to that effect, that the tenant intended to make the lessor a donation of the rent during the building of the new wall, or to do anything more than release him from his obligation of lessor.

The house became untenantable; the work drove away defendant’s boarders, ■destroyed her furniture, and compelled her to obtain another house.

Three witnesses testify that plaintiff told defendant to occupy the back building until she could suit herself, or do better, and after she left he took possession of the property, and subsequently leased the same to a tenant under a protest that he did it for the benefit of the defendant, and to hold her responsible for the residue of the rent.

The rent for the month of February appears to have been paid, and the proof shows that subsequently the defendant was more injured than benefited by the short occupancy of the premises with her furniture.

The intervenor has not appealed from the judgment, which takes no notice of his demand.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the plaintiff’s demand and in favor of defendants, with costs of both courts.


text:
    State of Louisiana, on the relation of Mrs. M. E. Boissac, v. A. Petit, Recorder of the Parish of Iberville.
    On the removal of a tutor from one parish to another, the Judge of the new domicil of tho tutor is the one having jurisdiction over the affairs of tho minor.
    from the Sixth District Court of East Baton Rouge, Beale, J.

      E. Phillips, for plaintiff. Zenon Labauve, for defendant and appellant.
   Merrick, O. J.

“ On the 2d day of March, 1857, Mrs. Boissac, the plaintiff, assisted by her husband, T. M. Boissac, sold to E. L. Sigur, a plantation and slaves, situated in the parish of Iberville, and in the act of sale there was inserted the following clause: ‘ And here it is distinctly understood by the parties to this act, that as there exists a tacit mortgage on all the property of the present ven-dress in favor of her minor children, issue of her marriage with her first husband, Robert Sewall, deceased, the full amount of which tacit mortgage is not known at present. It is therefore agreed between the parties, that the five notes herein described, shall remain deposited in the hands of the Recorder of the Parish of Iberville, until the full amount of said tacit mortgage be legally known, and when known, a sufficient number of said notes amongst those that will be the last due, shall remain in the hands of said Recorder, until said tacit mortgage be duly cancelled.’ ”

“ The plaintiff now claims the notes from the Recorder, upon the ground that the legal mortgage spoken of in the act of sale has been cancelled and released, and a special mortgage given in its stead. All the parties in interest have been made parties, and have appeared and filed their answers, to-wit: E. L. Sigur and J. J. B. Kirk, under-tutor to the minors.”

“ The answer of Sigur alleges that the proceedings had to give the special mortgage, and release the legal mortgage, were irregular and illegal from the commencement to the end, and that tho tacit and legal mortgage is still in force in favor of the minors.”

“ P. O. Hébert, tlic under-tutor, being unable to discharge his duties in consequence of the removal of the minors to another parish, resigned his office, and Mr. Kirk was appointed in his place.”

The removal of the tutrix was from the Parish of Iberville, in the Sixth Judicial District, to the Parish of Avoyelles, in the Thirteenth District. The resignation of the under-tutor was accepted and a new under-tutor appointed by the Judge of the Thirteenth Judicial District, the new domicil of the tutrix. Such proceedings were had in the Parish of Avoyelles and authorized the tutrix by a decree of the court to substitute a special mortgage in favor of her minor children in the place of the tacit mortgage. The special mortgage having been executed was also accepted and approved by a decree of the court, and the tacit mortgage cancelled.

E. L. Sigur has appealed.

He presents two questions for our consideration.

I. Whether the District Court for the Parish of Avoyelles had jurisdiction, and whether the proceedings are regular and legal and the tacit mortgage can-celled.

So far as the question of jurisdiction is concerned, we have to say, that the Judge of the Sixth Judicial District properly declined to receive the resignation of the former under-tutor. The Judge having jurisdiction over the domicil of the tutrix was the one having- jurisdiction over the affairs of the minors, for their domicil is attendant upon that of their tutrix. The proceedings were conducted before the right Judge, as has been heretofore determined by this court in several decisions. See State v. Bermudez, 14 L. R. 484: same v. Judge of Probates of New Orleans, 2 Rob. 418. Succession of R. Winn, 3 Rob. 303.

If there are any supposed irregularities in the proceedings of the family meeting and the decree of the court vitiating the same, it is the duty of the appellant to call them to our attention. As we find the District Court had jurisdiction, we shall presume that its proceedings were regular and obligatory, until wo hear some specific objection made against them.

II. “ Louis A. Marchand sold this plantation to the plaintiff the same day that he was appointed tutor to the minor Babin. Is not this property tacitly mortgaged in favor of said minor for an amount exceeding $2000, received afterwards by said tutor.”

This suit is not brought against the vendee to recover judgment for the price of the purchase, but to obtain notes not yet due amounting to $22,500, deposited with the Recorder, and to be delivered up on a certain condition, which has happened.

If this be a case in which the vendee could require the vender to give security under Art. 2535, 0. 0., we think he should at least be held to make his proof certain. As correctly observed by the District Judge, it is not shown that Mar-chand was appointed tutor before he passed the act of sale ; moreover, ho may have ample means to pay off his ward.

Judgment affirmed.

Land, J., absent.