author: Vookhies, J.

text:
    Risers & Ashley v. H. R. McLean.
    Plaintiffs appealed to correct an error which his attorney had made in omitting an item of plaintiffs’ account “ in writing up the judgment.” The Supreme Court corrected the error, but at plaintiffs’ costs.
    from the District Court of Jackson, Bichardson, J.

      Dejrese & Thompson, for plaintiffs and appellants.

       It does not appear from the record that the application to amend the judgment was resisted in the Supreme Court.

   Vookhies, J.

The plaintiffs and appellants complain of an error committed to their prejudice in the judgment rendered by the District Court. The error of which they complain is the omission of an item of one hundred and ninety-six dollars and thirty-nine cents of their claim. The evidence shows, that this error was committed by the plaintiffs’ attorney in writing up the judgment. The correctness of this item is satisfactorily proved. We think the plaintiffs are entitled to the relief which they claim at our hands, but as the error in the judgment is the result of their own act or negligence, equity demands that they should bear the burden of the costs of this appeal.

It is therefore ordered and decreed, that the judgment of the District Court be amended, by adding thereto said sum of one hundred and ninety-six dollars and thirty-nine cents, with legal interest from judicial demand; and so amended, that said judgment be affirmed at the appellants’ costs.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    E. Arendell v. A. D. Arendell, et al.
    At the time of their marriage, in Alabama, the spouses intended to fix their matrimonial domicil in Mississippi, which they accordingly did do. The right of the husband to slaves owned by his wife at the time of the marriage, must be determined, by the laws of Mississippi and not of Alabama.
    from the District Court of the parish of Morehouse, Richardson, J.

      Robertson & Boatner, Todd & I. N. S. Richardson, for plaintiff.

      McGuire & Ray, for defendants and appellants.
   Buchanan, J.

The plaintiff was married to the defendant, Arendell, in Green county, Alabama, in the year 1843, and removed with her husband, immediately after the marriage, to Mississippi, where they resided until 1845, when they removed to Louisiana. At the time of the marriage, plaintiff owned certain slaves, which, or their increase, she claims as her property in this suit; and the question is, whether the law of Alabama, or of Mississippi, is to govern the right of property in said slaves. It is admitted in argument that according to the common law in force in Alabama, the slaves of the wife would become the property of the husband, by the effect of the marriage; while by the Mississippi Statute of 1839, commonly called the Woman’s Law, (Hutchinson’s Miss. Code, page 497) they would remain the separate property of the wife.

The petition alleges that plaintiff intermarried with A. B. Arendell “ with the avowed intention of herself and husband, expressed before and at the time of said marriage, of making their permanent residence in the State of Mississippi, which said intention was carried into effect in a few days, by her said husband and herself actually removing to the State of Mississippi.”

The District Judge charged the jury, who tried the case, as follows: “It may, as it often does, occur, that the husband has no residence, or having one, it is the intention of the parties previous, and at the time of the marriage, to fix the matrimonial domicil in some other State. Cases of this kind are governed by the well recognized principle of law, that the laws of the intended domicil of the husband are to govern the rights of the parties. In such cases, the jury should be well satisfied, that the parties at the time of the marriage, intended to fix their matrimonial domicil elsewhere, and that that intention was actually carried into effect.” We have no doubt of the soundness of this charge. The leading case in Louisiana upon the point is Ford v. Ford, 2d N. S. 574, and the doctrine was settled upon a review of all the cases in Hayden v. Nutt, 4th Annual, 66. See also Story’s Conflict of Laws, Section 199.

The weight of evidence is, we think, on the side of a establishment of the husband in Mississippi previous to his marriage; and the fact of the expressed intention of the parties to select Mississippi for their place of residence, is also proved. As to the fact of the actual removal of the parties to Mississippi, there is no contradiction in the evidence.

Several bills of exceptions were taken to rulings of the Oourt on points of evidence.

We think the Oourt did not err in rejecting the deposition of Mrs. Sanders. It was taken in a suit to which her husband was no party, it is true. But that very circumstance, while it probably removes the disqualification of the witness on the score of relationship, is a conclusive ground against its reception in this suit. Eor her husband, against whom the testimony is now offered, had no opportunity to cross-examine the witness.

The interest of Barham was such as to disqualify him; and he should not have been received as a witness for defendant. Barham, as the Sheriff of the parish of Morehouse, had sequestered the negroes under a writ sued out by plaintiff, in a suit against her husband. Subsequently the husband bonded the property sequestered; and made use of his possession, to sell the negroes to the defendant, Sanders, pending the suit in which the writ of sequestration had been issued. The consideration of the sale to Sanders, was in part, notes of the purchaser; which notes were transferred to Barham, and are held by him. If the present suit, which is brought to annul the sale of the slaves to Sanders, be decided in favor of plaintiffs, it is plain that the consideration of the notes of Sanders, held by Barham, will have failed. As to Barham’s notice of the consideration of the notes, it is abundantly proved by the official connection which he has had with these different law suits, no less than by the intimate •knowledge which he swears he has had of the affairs of the Arendells ever since their marriage. We think that the interest of this witness was an interest not in the question alone, but in the event of the suit.

The appellant complains of the allowance of five hundred dollars damages, by the jury, in accordance with the prayer of the petition. But we are not disposed to interfere with this portion of the verdict. The conduct of the defendant, Sanders, in this transaction, appears in a very unfavorable light. Intimately acquainted with these parties and their circumstances before and since their marriage, he seems to have assisted Arendell, a confirmed drunkard, in stripping his old and infirm wife of the last remains of her property; and to have appropriated to himself the spoils, under the semblance of a conveyance from Arendell. The result is proved to have been, that plaintiff is reduced to a state of complete destitution,, and depends upon the charity of her neighbors for subsistence.

The verdict and judgment are defective in not assigning a date to the commencement of the wages of the slaves, and must be amended in that particular.

It is therefore adjudged and decreed, that the judgment of the District Court be amended, by fixing the date of commencement of the hire of the slaves at the 19th February, 1853; and as so amended, that it be affirmed, with costs.


text:
    M. Pilcher v. M. Prewitt.
    A vendor who warrants the title “ against himself, his heirs and assigns, but only such as he now holds under the said Baron de Bastrop, and intermediate vendors, forever,” is bound by a limited warranty only.
    A buyer cannot withhold payment until security be given, when the source from which he apprehends eviction has been excluded by the terms of the warranty.
    O. O. 24TT, 2585.
    PPEAL from the District Court of Morehouse, Richardson, J.
    Xi. Parsons & Newton, for plaintiff and appellant,
    cited: C. 0. 2481, Larille y. Rightor, 17 L. R. 303 ; Estele y. Holmes, 3 R. 134; 5 An. 667, 683.
    Hunton, for defendant:
    The Court will see the distinction between this, and those cases cited by plaintiff in his brief. In the case 17 L. 303, there the vendor sells “all his land back (of where he resides,) without setting forth any metes and hounds. The case 8 R. 134, don’t applyto this case, for, it cannot be said in this case, that defendant was aware of any danger of eviction, and so of the case 5th An. 667. The case 8 La. 114, cannot apply, for here it is certain, that defendant will have to acquire title from the United States, or suffer eviction, whereas in the other case, it was not certain that there was any danger of eviction, and in that case the Court said that “ though the United States exercised dominion over a vast tract of land, yet some small tracts may be owned by individuals.” Nor have the cases cited in 3d L. 490, and 16 L. 501, any application to this. In those cases “although the General Government refused to confirm, yet the parties may have had a good title, &c.”
    If the plaintiff, when he sold to defendant, had been in a situation to acquire a pre-emption right, it might have altered the case, but the testimony of Me Fee and Oraxten, page 5, Record, says, the plaintiff never resided on the land, but that defendant made the settlement himself. See 3 An. 203 ; 4 An. 519.
    The Court is also respectfully referred to 3 An. 326 ; 5 An. 314; C. C. Arts. 1887, 1960.
   Buchanan, J.

Suit on a note given for the second instalment of the price of land sold by plaintiff to defendant. The defendant pleads that the consideration of the note has failed, the title to the land purchased being in the government of the United States, which is about surveying the same; that in order to be maintained in the possession of said land, defendant will have to acquire title from the government, or else suffer himself to be evicted therefrom ; that plaintiff’s title to the land, if he had any, which is denied, was not such as would enable him or defendant to avail themselves of the Act of Congress of 1851, for the completion of the title thereto. Defendant claims in recon-vention that the first instalment of the price, which he has already paid, be refunded to him.

The evidence shows, that plaintiff sold defendant, on the 31st July, 1850, “all his right, title, interest, claim or demands in and to the following named and described property, to-wit: a tract of land lying on both sides of the road leading from Point Pleasant to (Bastrop) Merouge, on which Jacob SProup once lived, containing five hundred and six arpents, more or less, situated in the parish of Morehouse, and part of grant of land known as the Baron de Bastrop grant of land; a regular chain of title to which has passed from the said Ba/i'on de Bastrop to the said Mason Pilcher, and the same tract on which said Prewitt now resides and cultivates.” Then follows a particular description of the metes and bounds of the land. The deed proceeds as follows: “ and the said Mason Pilcher will warrant and defend the right and title of said land against himself, his heirs and assigns, but only such as he now holds under the said Baron de Bastrop, and intermediate vendors, forever.”

This is clearly a limited warranty. O. 0. 2479. The defendant has admitted by his signature of the deed, the truth of the enunciation contained therein, that a regular chain of titles had passed from the Baron de Bastrop to the plaintiff. The price stipulated is about two dollars an acre, for cultivated land ; and for that price the parties have understood and agreed, the one to convey, and the other to acquire, such title as the Baron de Bastrop and his assigns, had conveyed to the plaintiff. The conveyances under which plaintiff held, have not been impugned by the defendant, and he has, therefore, not any claim against plaintiff under the warranty expressed in the deed. As against the United States, the deed excludes a warranty. But the defendant insists on his right to a restitution of the price of sale, under the provisions of Article 2481 of the Code. That Article is not applicable under the filets proved in this case. Th e defendant has not been evicted from the land. On the contrary, bis pleadings admit that he is now in possession; and it is proved by two witnesses, introduced by himself, that he has been in possession since 1845 or 1846. The defendant has given in evidence a decision rendered in the Supreme Court of the United States at the December term, 1850, in the suit of The United States v. The Cities of Philadelphia and New Orleans, adverse to the Bastrop grant; and we have considered the question whether the defendant might not, under the prayer of general relief in his answer, be allowed to withhold payment to plaintiff, until security was given, in conformity to Article 2535 of the Civil Code. But a careful examination of the Record has brought us to the conclusion that he is within the exception contained in the second clause of that Article, and consequently is not entitled to withhold payment.

It appears from the documentary and parol evidence adduced, that plaintiff' sued defendant for this land in a petitory action, in November, 1849. To, that action the defendant pleaded, in the same month, two exceptions: the-first, that plaintiff was without interest in the subject matter, by reason of having made a cession of his property in the United States Court in Louisiana,, under the Bankrupt Act; the second, that the description of the land claimed, in the petition, was vague and indefinite: This petitory action was compromised and settled in July, 1850, by the sale of plaintiff’s title to defendant in, part consideration of which the note now sued upon, was given; at which time, the petitory action was dismissed. The suit of the United States against certain holders of land under Bastrop's title, was then pending in the Supreme, Court of the United States, and it is fair to presume, was known to both the-parties. Such knowledge is the most natural and probable reason for the limitation of warranty by plaintiff to his own acts, and those of his assigns. In the. winter following this sale, the Supreme Courtof the United States rendered its decision upon the Bastrop title, reversing the judgment of the Circuit Court in Louisiana. Had the final judgment been otherwise, defendant would have obtained a title good against the United States for an exceedingly low price.. He assumed the risk of the decision by the terms of his deed, and cannot be listened to, in complaining that he has played a losing game. Besides, justice compels us to say, that the evidence by no means justifies the assumption that defendant will ever be evicted by the United States. At the same session, of' Congress during which the decision of the Supreme Court of the United States was rendered, an Act of Congress was passed for the relief of actual settlers who had acquired title under the Bastrop grant; and providing for a confirmation to them in some cases, and a right of preemption in others. It is altogether probable that the defendant will be found in one of the categories of this Act of Congress. At the date of pleading herein, he was still in time to have made his proof before the Register and Receiver under that Act. At all events, the plaintiff did not pretend to sell defendant the title of the United States; but a title adverse to that of the United States.

Judgment of the District Court reversed, and judgment for plaintiff against defendant for five hundred dollars, with interest at the rate of eight per cent, per annum, from 31st Juty, 1850, until paid, and costs in both Courts.


text:
    N. C. Dosson v. Bieller.
    The chapter of the Code regulating the revocatory action is not applicable to cases of simulation, and in those cases creditors may seize, notwithstanding the apparent transfer; and if enjoined, may plead and show the simulation on the trial of the injunction.
    from the District Court of Franklin, Barry, J.

      Mayo, for plaintiff and appellant.

      Ramage, for intervenor.

      Ray, and Stacy & Sparrow, for defendant.
   Buchanan, J.

Plaintiff enjoins a seizure of a plantation and slaves in execution of a judgment against her husband, on the ground that she is separated of property from her said husband, and is owner of the property seized, in her separate right, by virtue of purchases by her made in her own name.

The petitioner further denies the right of the testamentary executor of Bieller to enforce the judgment of Ford v. Dosson.

It is needless to examine this last ground of complaint, for, unless plaintiff establishes her claim to the property seized, she is incompetent to contest the regularity of the seizure. And if she establish her claim, it is immaterial, whether the seizure was made by a person duly authorized to prosecute the execution of the judgment against her husband, or not.

The first question of law that presents itself for decision, is, whether the plaintiff in execution had the right to make the seizure before obtaining judgment in a revocatory action against the plaintiff, who has a recorded title to the property seized. Upon this point of practice we have had many occasions to express our assent to the doctrine of our predecessors, as laid down in the opinion of Chief Justice Eustis in the case of Erwin v. Bank of Kentucky, in 5 An., 4: “The chapter of the Code regulating the revocatory action is not applicable to cases of simulation, and in those cases creditors may seize notwithstanding the apparent transfer; and if enjoined, may plead and show the simulation on the trial of the injunction.” See also the case of Emsuiler v. Burham, 6 An., 717, where it was held, that fraud may always he proved in support of the allegations of simulation by those interested to establish the simulation. The District Judge did not err in refusing the application of plaintiff to strike out from defendant’s answer the allegations of fraud.

Upon the merits the evidence is very voluminous, and has established to our entire satisfaction, the defence of fraudulent simulation set up against the claim of plaintiff. It appears evident that the plaintiff’s husband has been for many years occupied in attempts to screen his property from the operation of a judgment obtained against him for a large amount, in the year 1841, upon a promissory note given by him as far back as the year 1835. The injunction sued out by plaintiff has stayed the execution of that judgment for six years and a half, and we think that the prayer of defendant, in his answer to the appeal, should be granted, by awarding twenty instead of ten per cent, upon the amount of the judgment enjoined as damages, under the Acts of 1831 and 1833.

H. Frellsen & Co. intervened in this suit on the 30th May, 1849, asserting themselves to be creditors of plaintiff, who had given them a mortgage upon the plantation and slaves seized, as security for her debt to them; alleging consequent interest in themselves that said property should be decreed to belong to their debtor; and praying leave to oppose the sale of the same under defendant’s execution, until the claim of said intervenors against the plaintiff should be fully satisfied; and that said mortgage be recognized as valid and binding upon the property.

Pending this suit, two other suits were instituted, one by II. Frellsen & Co., and one by Marcus B. Desha, by executory process, in another court, against the plaintiff herein, Narcissa C. Dosson, under which the property mentioned in the petition herein, was seized, and on the 5th January, 1850, was adjudicated by the Sheriff to one William A. Andrew, who, on the 19th November, 1850, also intervened herein, claiming the property under the said Sheriff’s sale.

The defendants have pleaded to both these interventions of Frellsen <& Co., and of Andrew, that they were founded upon simulated and fraudulent transactions, and were a part of the scheme of the plaintiff’s husband to screen and cover his property from the pursuit of his bona fide creditors.

It is unnecessary for ,us to examine into the merits of this issue, because the claims of the intervenors, who claim through plaintiff, depend essentially upon the establishment of plaintiff’s title to the property seized, and are concluded by our judgment adverse to the plaintiff’s pretensions. Besides, it need scarcely to be remarked, that the proceedings, via executiva, instituted in another court, pending the present litigation, could have no effect to divest or change the title to the property seized under the execution enjoined, to the prejudice of the defendant in injunction.

It is, therefore, adjudged and decreed, that the judgment of the District Court dissolving the injunction herein issued, and dismissing the interventions of JT Frellsen & Co. and of William A. Andrew, be affirmed; that the judgment in favor of the defendants and against the principals and sureties in the injunction bond be amended; that the defendant Thomas C. Bieller, dative testamentary executor of the estates of Joseph and Jacob Bieller, recover of Narcissa C. Dosson, T. A. Sheppard, J. H. Lovelace, C. W. LeGrand, Josiah Prickett, N. L. Hower, D. Y.. Grayson, Chandler Lems and Samuel G. Cloud, principal and sureties in the injunction bond, in solido, two thousand six hundred and ninety-four dollars; that plaintiff,pay costs of suit in both courts; ahd that the Sheriff proceed to sell the property seized.


author: Merrick, C. J.

text:
    D. W. Murphy v. Executor of W. Cook.
    S. R. M., by a conveyance executed in Alabama, in consideration of tbe sum of $600, the receipt of which was acknowledged, bargained, sold and delivered to W. 0. certain negroes, “ under the further agreement and condition that, after the death of the said W. 0., the said negroes should revert to D. W. M. and his heirs.; but should the said D. W. M. die before the said W. C., then and in that event the said TF. 0. shall and may appoint and nominate any other person he may think proper to take charge of and control the raising and employment of the said children above mentioned, and should the said W. C. desire it, at his death, and it should become practicable, their freedom shall be obtained.” Melé:

    1st. The instrument under our laws contains a substitution. 0. 0., 1507.
    2d. Even at common law so complicated a limitation of personal chattels could not be maintained. Notwithstanding the limitation, the absolute title to the slaves vested in W. 0.
    from the District Court of Morehouse, Richardson, J.

      McGuire & Ray, for plaintiff and appellant.

      Robertson & Todd, for de_ fendant.
   Merrick, C. J.

This controversy arises out of the following instrument, viz:

“ Know all men by these presents, that I, Sarah Murphy, of the State of Alabama and county of Clark, for and in consideration of the sum of six hundred dollars, the receipt whereof is hereby acknowledged, hath, and by these presents do bargain, sell and deliver to William, Cook, of the county and State aforesaid, a certain negro woman named Cotia, and her two children, James and John, under the further agreement and condition that, after the death of the said William Cook, the said negroes shall revert to Duncan W. Murphy and his heirs; hut should the said Duncan W. Murphy die before the said William Cook, then and in that event the said Cook shall and m iy appoint and nominate any other person he may think proper to take charge of and control the raising and employment of the said children above mentioned; and should the said Cook desire it at his death, and it should become practicable, their freedom shall be obtained. “ This tenth day of January, 1848.

Signed : S. R. Murphy.”

“ I, Duncan W. Murphy, and I, Sarah Murphy, subject to the agreement above, do hereby release all our right, title and interest in the above mentioned negroes. Done and executed at the same time with the above.

Signed: D. W. Murphy,

P. B. Carter,

S. R. Murphy.”

“ The within is a correct and true duplicate of the bill of sale in the possession of William Cook, January 10th, 1848.

Attest: D. W. Murphy.”

The slaves having been delivered to Cook, were brought in the early part of the year 1849 to Louisiana. Cook died in possession of the negroes, and the present suit was brought by Duncan W. Murphy under said instrument, and also in right of his wife, a daughter of Sarah R. Murphy, to recover of the executors of Wm, Cook the said slaves.

Duncan W. Murphy having died after the institution of the suit, his widow, as guardian to his minor children, prosecutes it on their behalf.

The instrument on which the plaintiff relies seems to contain a substitution, and would, if executed'here, be invalid, under Article No. 1507 of the Civil Code.

As the plaintiff seeks to recover, in virtue of the laws of Alabama, it is incumbent on him to show clearly that the instrument is valid by the laws of that State. Not having been referred to any decision of the courts of that State, we are obliged to decide the case upon such common law authorities as are at hand-

At common law, wards of inheritance were not necessary (as counsel suppose) in order to transfer the absolute property in goods and chattels. No particular form of words was required; delivery alone perfected the sale. Real estate, under the feudal system, required wards of inheritance in order to convey the fee, because it was presumed that a grant was made on account of the person or personal abilities of the grantee. This being the indusement, the donee’s estate in land extended only to his own person, and subsisted no longer than his own life, unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. 2 Black. Com., 108. Anciently, by the common law, there could be no future property to take place in expectancy created in personal goods and chattels. And now, where an estate tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over is permitted on such a limitation. 2 Black. Com., 398.

Story says: “ In regard to estates in terms of years and personal chattels, the manner of settling them is different; for in them no remainder can at law be limited. But they may be entailed at law by an executory devise or by deed of trust in equity as effectually as estates of inheritance, and with the same limitations as to perpetuity. However, the vesting in interest in a term for years, or in chattels in any person equivalent to a tenancy in tail, confers upon such person the absolute property in such term or chattels, and bars the issue, and all subsequent limitations, as effectually as a fine and recovery would do in cases of pure entails, or as an alienation would do in ease of conditional fees and estates pour autre vie. If, in case of a term of years or of chattels, the limitations over ace too remote, the whole property vests in the first taker. 2 Story’s Equity’ No. 990, p. 323. See also 2 Keat’s Commentaries, 352, and note b.

This last author says: “Chattels maybe limited overby way of remainder, after a life interest in them is created, though not after a gift of the absolute property.” 2 Kent., 352.

The instrument before us purports to be a sale of the property in question. The original plaintiff called it, in the certificate which he appended to it, “ the bill of sale.” The operative words used are, bargain, sell and deliver to William Cook, etc., a negro woman, etc. The price agreed upon and paid by Cook, was six hundred dollars.

We do not think, after this absolute transfer of the property, a remainder over could be limited, even had a trustee been interposed.

If we look at the character of the remainder attempted to be created after the absolute transfer of the property to William Cook, we find that after his death it was to revert to Duncan W. Murphy and his heirs; but if Duncan W. Murphy should die before said Cook, in that event said Cook shall and may appoint and nominate any other person he may think proper to take charge of and control the raising and employment of said children above mentioned. The contingency here spoken of, is the death of Duncan W. Murphy before Cook. If the happening of this contingency was not intended to leave William Cook the legal owner of the property, it was at least intended to confer on him the power of naming some one who should have such an interest in them as to controlthe employment of said slaves as well as their raising.

We also find the further contingency, that if it should become practicable, and Cool should desire it, the slaves were to become free; thus recognizing in Cook the further right of an owner to emancipate his slaves.

We do not think that at common law so complicated a limitation of personal chattels could be maintained, nor do we think that a court of equity would interpose to appoint a trustee in a case where the legal title had, for a price, and by bargain and sale, been transferred to another.

We have not cared to inquire into the motives of the parties to this instrument. Duncan W. Murphy, by bringing the suit, has treated it as a real conveyance. As the policy of our law is against instruments containing substitution, we think we may safely take the original plaintiff’s certificate as to the nature of this conveyance as the true one, and consider the property as having vested absolutely in William, Cook, the first taker, in virtue of his title as purchaser.

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


text:
    Hill, Administrator v. Levison & Traylor.
    In an action by one of several partners against the others, for a settlement of the partnership affairs, a judgment fixing the amount due by each partner to the concern, is a judgment in which the partners are respectively interested against each other, and if one appeals from the judgment, all the others must be made parties.
    from the District Court of Union, R. W. Richardson, J.

      MaGuvre & Ray, for plaintiff.

      Ludeling, for defendant and appellant.
   Buchanan, J.

The commercial firm of Levison, Traylor & Co., was composed of three partners: Abraham Levison, John Traylor and Samuel Traylor. Samuel Traylor having died, John Hill was appointed his administrator, and brought this suit against the two surviving partners for a settlement of the partnership, and for judgment against such partner or partners as may be indebted to the estate. The defendant, John Traylor, answers by joining in the prayer for a final liquidation and settlement of the partnership. The defendant, Abraham Levison, defends the action on sundry grounds; denies the right of the plaintiff to call upon him for an account; claims damages both from the plaintiff and from his co-defendant for their alleged interference in the affairs of the concern; and prays that the said John Hill, administrator, and John Traylor, be restrained from further intermeddling with respond ent, whilst settling the concern of Levison, Traylor & Co., according to law.

The Court made an interlocutory order, appointing Levison receiver, on his giving a certain bond; and in case of Levison's failure to give bond in a specific time, (twenty days,) appointing John Traylor receiver on his giving bond. Levison failed to give bond, and John Traylor having qualified, was appointed receiver. Auditors of account were next appointed, who made a voluminous report stating an account between the partners. The defendant, Levison, filed an opposition to the homologation of the account; and after hearing, judgment was rendered, “that the report of the auditors be homologated, so far as it settles the account of each partner with the firm — that there be judgment in favor of the administrator of Samuel Traylor, for the sum of three hundred and eighty-eight dollars and tvrenty-eight cents, with interest at five per cent. per annnm from this date until paid — and that there be judgment against Abraham Levison, for the sum of eleven thousand six hundred and one dollars and sixty-six cents, with interest at five per cent, per annum from date until paid — and that there be judgment in favor of John Traylor, for the sum of sixteen hundred and fifty dollars and thirty-seven cents, with interest at five per cent, per annum from this date until paid — the other matters in the report being beyond what was submitted to the auditors, are reserved for the future action of the Court — the costs to be paid out of the general fund.” From this judgment the defendant Levison appealed by motion, and filed an appeal bond, with security in favor of John Hill, administrator, alone.

The appellee moves to dismiss the appeal on the ground of want of proper parties; John Traylor, not being joined in the appeal bond, although having a greater interest than any other person in the maintenance of the judgment appealed from.

This motion appears well taken, and must prevail. See Armstrong v. Creditors, 8 Ann., and the cases there cited.

The judgment professes to settle the accounts of each of the three partners with the firm. It determines that the partnership is indebted to the estate of Samuel Traylor $388 28-100, and to John Traylor $1650 37-100 — and that Abraham Levison is indebted to the partnership $11,601 66.

This judgment against Levison is evidently as much a judgment in favor of John Traylor as in favor of Samuel Traylor's estate, perhaps more so, in the proportion that 1650 bears to 388. John Traylor is therefore as much, if not more, interested in maintaining the judgment; which cannot be divided for the purpose of being re-examined in this Court, but must be considered, if at all, as a whole. The pleadings are not in a shape that will admit of this being done.

Appeal dismissed, with costs.

Re-hearing refused.


text:
    S. Buie et al. v. R. Doyal, administrator.
    The principal may maintain an action for slaves on a title made to the agent for the principal, without proving the authority of the agent to buy. The suit is a ratification of the purchase, and stands in the place of an original mandate in due form. C. O. 2979.
    The registry laws are intended for the protection of bona fide subsequent purchasers and creditors of the vendor, and a defendant who occupies neither of those positions towards the vendor, can not, in an action on the title, object to its not having been registered.
    C. 0. 8465.
    from the District Court of Franklin, Barry, J.

      McGuire & Bay, for plaintiff.

      Mayo & Hendry, for defendant and appellant.
   Buchanan, J.

Petitory action for slaves. Defence: that the title of the slaves is in the succession of which the defendant is the representative; and also prescription.

The plaintiffs are the widow and children of one John Boyal, and produce as evidence of their title the following document:

“ Received of Isaac Boyal for John Boyal, the sum of eleven hundred dollars in full for the purchase of two negroes, both slaves for life, Albert, a man aged about 28 years, and Amelia, his wife, a woman aged about 19 or 20 years. The right a.nd title to said negroes I warrant and defend forever, and furthermore, I warrant the said negroes to be sound both in body and mind to the best of my knowledge and belief, as witness, my hand and seal this 14th day of April 1834.

$1100. (Signed) SETH WOODROOF.

(Signed) O. S. Knight,

John Holben.”

The defendant objects to the introduction of this document in evidence on two grounds : 1st, because written proof should have been first offered, of the authority of Isaac Boyal, to make a purchase of slaves for John Boyal; and 2d, because the receipt does not appear to have been placed of record.

As to the first objection, it may be remarked, that the plaintiffs, who are the legal representatives of John Boyal, are claiming the benefit of a contract made by Isaac, in the name of their ancestor; and are hereby ratifying and adopting his act. Such a ratification stands in the place and stead of an original mandate in due form. C. C. 2979.

Woodroof, the signer of the receipt in question, has been examined for plaintiff, and proves that the slaves were sold by him in Natchez, at the time the receipt bears date, to Isaac Boyal, professing to act for John Boyal; and that the receipt, or bill of sale, was drawn in this form by the request of Isaac.

There being no allegation nor proof of fraud or error, it does not lie in the mouth of defendant, claiming title through Isaac, who is dead, to question the authority of the latter to buy these slaves for his brother.

Secondly. The want of registry is no objection to the introduction of this paper between the present parties. The registry laws are intended for the protection of bona fide subsequent purchasers and creditors of the vendor. The present defendant occupies neither of those positions towards Woodroof in this issue.

The defendant has offered proof of declarations of John Boyal, recognizing title in his brother Isaac, to three slaves. This was objected to, as tending to establish a title to slaves by parol, contrary to the express provisions of law. We think the Judge erred in receiving this evidence under the circumstances. As we have already observed, there is none of those matters in the pleadings, such as fraud or error, which form a basis for parol evidence, in order to arrive at the true nature of a transaction, in cases where such evidence is otherwise inadmissible.

There remains the question of prescription. As the defendant is without title to the slaves claimed, the only prescription applicable, is that of fifteen years. O. 0. 3405. It is proved that Letitia Boyal possessed the slaves, and paid taxes on them, from the year 1835 to May 1845, when John Boyal died — say ten years. Several of the children and heirs of John Boyal were minors at the time of his death, and have not yet attained the age of majority. Of course, prescription ceased running in favor of Letitia Boyal, from the moment of her son, John Boyal’s death. The plea must therefore be overruled; and the judgment of the District Court is affirmed, with costs.

Application for re-hearing refused.


text:
    McCall v. White.
    A father in the State of Mississippi, in consideration of natural lore and affection executed a deed to a slave in favor of his daughter, a married woman. The deed contained the following clause u To have and to hold the said negro to her [the daughter] and heirs and assigns forever, preserv ing to myself, however, and it is hereby expressly understood, as a part and parcel of the present that the said negro shall be and remain with me and subject to my control during the term Of my natural life, without subjecting myself, my heirs, &c., on account of services or hire of the said slave.” The daughter died. The father and his son-in-law removed to Louisiana and lived together, until the death of the father, some years after. The son-in-law then, sold the slave which had been conveyed to his wife, and her children set up their claim, as heirs of their mother against the purchaser. Held: At the instant of the execution of the deed the title and possession in the slave vested in the daughter, whose husband, in virtue of such transfer of the title and possession to his wife during marriage, became the owner of the slave, subject to the loan for service to the father during his natural life, and after the death of his wife and his father-in-law, the husband had a right to sell the slave.
    from the District Court of Caddo, Land, J.
    Looney, for plaintiff and appellant:
    Fee simple must be vested in some person. If in the wife, upon the execution of the act, it could not be in the husband until actual possession. The wife died leaving plaintiff heir of her body in 1836. The husband could do no act either as husband or as administrator until 1846, in order to vest title in him.
    Then in whom was the title vested in fee simple from the death of the wife in 1836, until the possession of the husband personally in 1846 ? It cannot have been in the husband without possession or even a right of possession. It then must have fallen to the heirs of the wife at her death by regular descent, according to the law of Mississippi. See Hutchinson’s Miss. Code 623, 624.

      Grain & Nutt, for defendant:
    The husband had an absolute power over any personal estate or interest accruing to the wife by gift, devise or otherwise. Bacon’s Abridgment (Baron & Eemme D.) And after her death his right was not only to administer but to enjoy exclusively the personal effects of the deceased wife Jure marito, 2 Blackstone’s Com. 516. Mr. Justice Spenser, in the case of Whitaker v. Whitaker, 6 Johnson 118, says “that there is not an authority to be met with contradicting these well and clearly established principles.” These principles have been recognized in Mississippi — 1 Howard. 558, Lowery v. Hits-ion, 3 Howard 349, and 4 Howard 214 — and in every common law State, where the question has been discussed.
    If it were true, as the plaintiffs contend, that the interest of their mother its the slaves was merely a chose in action, and would have survived to her in case her husband had died first, it would not avail the plaintiffs. The right of survivorship in ehoses in action which have not been reduced into possession by the husband, is personal to the wife and cannot be invoked in this case, 2 Kent 136, 411, 412, notes and authorities cited.
    In Knight v. LeaLe, 2 Dev. & Battle, N. 0., it was held that “ that the huS' band Jure maritali has such a dominion over the vested legal interest of a wife in a chattel, real or personal, of which a particular estate is outstanding,, that he can sell such interest.” See also Merriwether v. Booker, 4 Littel 25.6,, in which it was ruled that the husband could sell any vested reversionary interest, and in Pinlcerd v. Smith, 1 Lit. Select Oases, that a vested remainder in slaves accruing to the wife during coverture vests in the husband as mush as a right in possession. See also Badev. Alexander, 1 Wash. 30. JaeJcsonv. Sublett, 16 Munroe 467. The husband by survivorship was entitled to the negroes to the exclusion of the children, even if they had been the separate-property of the wife.
   Buchanan, J.

Plaintiffs claim two undivided sixth portions in ten slaves as heirs of their mother, deceased.

Defendant sets up his title to the slaves by purchase from Thomas MeGall, the father of plaintiffs. And he pleads that the said Thomas MeGall became the owner of said slaves, by virtue of a deed of gift from Isaac Souneeval to the wife of said Thomas MeGall, on the 18th day of June, 1885.

The evidence shows that Thomas MeGall and Ga/roline Souneeval were married in Franklin county, Mississippi, in the year 1816. They lived together as man and wife in the same county until 1886, when Mrs. MeGall died.

There were born several children of this marriage, of whom the plaintiffs were two. During this marriage, to wit, the 18th June, 1835, Isaac Rounci-val, father of Mrs. MeGall, made a writing under seal, acknowledged before a Justice of the Peace, of Franklin county, and recorded, by which he gave, granted and sold to his said daughter, in consideration of natural love and affection, a certain negro woman named Many, about twenty-four years of age, “ to have and to hold the said negro unto her and heirs and assigns forever, preserving to myself, however, and it is hereby expressly understood, as a part and parcel of this present, that the said negro shall be and remain with me, and subject to my control, during the term of my natural life, without subjecting myself, my heirs, &c., on account of services or hire of the said negro.”

In the following year, 1836, Mrs. MeGall died, and her surviving husband, with his family, immediately thereafter, moved into Louisiana, where they have resided ever since. Mr. Isaac Souneeval, the father of Mrs. MeGall, also moved into Louisiana, with his slaves, (those claimed in this suit included,) and lived with his son-in-law and grandchildren until his death, which took place in 1846.

The slaves claimed herein are Mary, who is mentioned in the above recited deed of gift, and her increase, being nine children, ranging from 21 to 3 years of age.

The deed signed by Souneeval, under which both parties claim, having been made in Mississippi, where all the parties lived, must have effect according to the law of Mississippi.

The counsel for defendant argues, that this deed creates what in the common law of Mississippi is called a life estate in the grantor, with a remainder over to Mrs. MeGall; and that as slaves are chattel property in Mississippi, and this estate in remainder was a vested right in Mrs. MeGall from the moment of the grant, the remainder in the slave inured at once to the benefit, and became the property of Mrs. Me Gall's husband, under the general principles of the common law. To this the counsel of plaintiffs reply, that the right of Mrs. MeGall in the slave Mary, under the deed was a chose in action, and that marriage is only a qualified gift to the husband of the wife’s choses in action. viz: on the conditon that he reduce them to possession during the continuance of the marriage, or if he survive his wife, that he administer on her effects, (Marcenaro v. Bertoli, 2 An. 981.): neither of which has been done in this case.

We have been much assisted in the investigation of the law in this case- by the learned opinion of our brother of the District Bench. Still, as the case arises under a system of laws with which we are not very familial', we cannot express our opinion upon it except with hesitancy.

We recognize the principle contended for by the plaintiffs’ counsel, that at common law the husband has, by virtue of the marriage, only a qualified right to the dioses in action of his wife, and that as a general rule this principle extends also to reversionary interests in things personal.

But we understand the principle to apply only to those cases in which the wife has not been vested with the legal ownership and possession at anjr time during the marriage: as where the legal title to personal property, to which the wife may be entitled by distribution, has remained in the executors and administrators after the death of the testator or intestate; or where the personal property has been conveyed directly to one for life, and remainder over to the wife. In this last case we suppose (in some of the States at least,) that the person taking the life estate would be decreed by the Court to act as trustee, in order to protect such remainder; for in a personal chattel the absolute conveyance of a life estate would, we think, so far vest the legal title and possession in the first taker, as to make him the proper person to protect such residuary interest of any other party, as might lawfully be limited by the vendor or donor.

An examination of the instrument in this case, however, leads us to think that by its execution, eo instanti, the title and possession in said slave Mary, vested in Mrs. Caroline Me Gall, the mother of the plaintiffs ; that the husband by virtue of such transfer of the title and possession to his wife during the marriage became the owner of said slave, subject to the loan for service to Isaae Sounceval during his natural life.

The words used in the instrument are: “ In consideration of the natural love and affection I have for my daughter, Caroline McCall, wife of Thomas McCall, I have given, granted and sold and by these presents do give, grant and sell unto her, the said Caroline, a certain negro woman named Ma/ry, &c., to have and to hold the said negro unto her and heirs and assigns forever, preserving” &c.

This deed having been executed under seal, by the law of Mississippi operated as an absolute bar and estoppel to Isaac Sounceval, and to all persons claiming through him, to controvert or gainsay anything contained in it, and precludes them from saying that all the consequences which flow from a sale, and particularly the transfer of property and possession, was not a consequence of said act.

We think, therefore, that the sale of the negress clearly resulted from the instrument, notwithstanding the reservation of the services and hire of the slave to Isaac Sounceval, and that Thomas McCall was authorized, at least after the death of his wife, and the termination of the lease or loan for service, to take possession of the slave Mary, and her increase, as owner, and convey them to whomsoever he pleased.

We think that had Isaac Sounceval abused his right as bailee or lessee of the slave, (even during the life-time of Caroline Me Call), that Thomas McCall could have caused the lease to be declared at an end.

So, if any third party had killed said slave or removed her beyond the jurisdiction of the Courts, Thomas McCall could, as the legal owner, have brought his action to recover damages for such injury.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, with costs.


author: Spojtokd, J.

text:
    M. Hinson v. R. M. Hinson ; R. M. Hinson v. M. Hinson.—Consolidated Cases.
    The statute of Alabama concerning frauds and fraudulent conveyances, (Clays’ Ala. Dig. p. 254, s. 2,) was intended to protect creditors of, and purchasers from, tlie party in possession. As to them only, a loan or conveyance with the reservation of the use, is to be taken as fraudulent and the absolute property to be with the possession.
    The title of one who holds a slave under a loan, and who is liable to deliver it up when called for, is precarious, and insufficient to form the basis of a plea of prescription.
    from the District Court of Morehouse, Barry, J.

      Robertson, Boatner, and Todd, for M. Hinson, appellant.

      McGuire & Ray, for R. M. Hinson.

   Spojtokd, J.

Whether the original action be regarded as possessory or petitory, we do not think any useful purpose can be subserved by discussing the exceptions to the cross action which was consolidated with it.

It is enough that the necessary parties are now before the court; that both have furnished all the available evidence of their respective titles, and that the question, which shall prevail, can probably be as well determined now as by remanding the cause. It is especially desirable to terminate litigation in a case of this kind, which involves a heavy outlay of costs, and presents the disagreeable spectacle of a family dissension.

Martha F. Hinson is the sister of Robert M. Hinson; both reside in the parish of Morehouse, and are the children of Robert Hinson, of Lowndes county, Alabama, who died since this litigation commenced.

Both parties set up a title to the slave Ghat or Charity, derived from their father in his lifetime.

The only written evidence produced by the plaintiff, Martha Hinson, is an act sous seing privé of the following tenor :

“ October 22, 1846.

“ Know all men by these presents, that I, John Hinson, doth loan a negro girl by the name of Ohat, to iny daughter, Martha Beard, that is to remain in her hands until I call for; and if I call not, the said girl and increase to remain to my daughter’s heirs. (Signed) John Hinson.”

This act is dated just before the removal of Martha Hinson, with her husband, Beard, to Louisiana. But she had possession of the negro before this date, and indeed for the greater part of the time since 1842.

Her counsel contend that the act of October 22d, 1846, was a recognitive act, which acknowledged a previous donation. We draw quite the opposite conclusion from this instrument. It was given to her on the eve of her removal to Louisiana, and was probably intended to guard against any inference being drawn from her continual possession, that she had an absolute title.

But it is contended that the property vested in Martha Hinson, by reason of her three years’ possession in Alabama, and we are referred to the statute of that State concerning frauds and fraudulent conveyances, in support of the position. Clays’ Ala. Dig. p. 254, s. 2.

But that statute was evidently designed only to protect creditors of, and purchasers from, the party in possession ; as to them only, a lo anor a conveyance, with the reservation of the use, is to be taken as fraudulent, and the absolute, property to be with the possession.

This case is not complicated by any consideration of the rights of creditors or purchasers, and we do not find that a title vested in the plaintiff by the laws of Alabama.

She cannot have acquired the slave by prescription in Louisiana, for, holding under the precarious title we have recited, she did not possess as owner.

The plaintiff’s sale to Boss, with the faculty of redemption, of which she after-wards availed herself, left matters where' they stood before ; one who possesses property without a title, cannot acquire title by selling the property and buying it back.

Martha Hinson, then, has failed to establish her title to the slave.

Robert M. Hinson claims under a deed from John Hinson, of the following tenor:

“State oe Alabama, Lowndes County.

“ Know all men by these presents, that John Hinson, of said county and State, for and in consideration of the sum of seven hundred dollars to me in hand paid, I have granted, bargained, sold, and by these presents do hereby grant, bargain and sell, unto my son, Robert M. Hinson, a certain negro girl, named Ghat or Charity, aged about eighteen years, of dark complexion, now in the possession of Martha Beard, of the parish of Morehouse, to have and to hold unto the said Robert M. Hinson, all my right, title and interest thereto, his heirs and assigns, to his and their own proper use, benefit and behoof, forever, in fee simple.

“In testimony whereof, I have hereunto signed my name in presence of the undersigned witnesses, this, the 12th day of April, A. D., 1851.

“(Signed,) John Hinson.”

It is objected by the plaintiff, that this deed is void, because it was unaccompanied by a delivery of the property. The vendor gave the vendee a delivery order on his daughter, the plaintiff herself, to whom, by her own showing, he had loaned the slave subject to his call. She surely cannot be permitted to set up her own refusal to obey this order, as a reason for defeating the defendant’s title.

Again : it is objected that there was no real consideration for the sale. The plaintiff has pleaded no such defence to the suit of Robert Hinson, as to authorize her to inquire into the consideration.

Lastly: it is said that at the time of the execution of the deed, John Hin-son, was incapable of contracting, by reason of insanity.

This plea is not established to our satisfaction. It appears that in 1840, an accident befell him, which had the effect somewhat to impair his intellect. In 1849, an inquisitio de lunático inquirendo, was had before the Orphans’ Court of Lowndes county, with a view to test the question and to appoint a guardian for him, if it should be found necessary; but a jury of his neighbors found that he was capable of taking care of himself and his property, whereupon the proceedings were dismissed.

It is not shown that he became any worse after this investigation, up to the time the act in question was executed, and the presumption is, that he continued capable to transact business. There is also positive evidence to corroborate the presumption.

It is insisted, that the District Judge erred in rejecting an inventory of the effects of John Hinson, deceased, taken in the parish of Morehouse, which was offered in evidence by the plaintiff, and upon which the slave Charity figures. If it were admitted, it could not help her cause, for it shows that Robert M_ Hinson protested against the slave Charity being included in the inventory, claiming her as his own.

As we find the verdict of the jury to be in accordance with the law and evidence, it is ordered that the judgment of the District Court rendered in pursuance thereof, be affirmed, with costs.


text:
    B. B. Smith v. The Mayor and Trustees of Shreveport.
    There is a tacit obligation by the party to a suit who summons a witness, to pay his legal fees. But a witness cannot maintain an action for his fees against a party who did not summon him, merely because such party was cast.
    C. V. m, 551.
    from the District Court of Caddo, Spofford,, J.

      Powell & Hodge, for plaintiff and appellant.

      Halt & Crain and Sam. Ford, for defendant.
   Buchanan, J.

This is a suit instituted upon a number of Clerk’s certificates of compensation due to witnesses for attendance in court. Some of those certificates were made in favor of the plaintiff, and others in favor of persons of the name of Holmes and Hogue, of whom the plaintiff is assignee. The petitioner alleges that he and the other two persons named, were witnesses in certain suits to which the Mayor and Trustees of Shreveport were parties; that they were summoned in said suits at the instance of the Mayor and Trustees ; that the suits have been decided, and the defendants are liable to pay the costs of the same.

The answer is a general denial. The allegation that the defendants in this action caused the plaintiff to be summoned as a witness in the suits mentioned in his petition, is disproved by the evidence. But it is urged, that the present defendants, who were plaintiffs in the suits in which plaintiff was a witness, were cast in those suits; and therefore are liable to pay the attendance and mileage of all witnesses in those suits. This proposition might be admitted, and still this action not be maintainable. For the liability of the party cast in the suit, is a liability to pay the costs of the suit, and extends to the mileage and per diem of witnesses, as part of the taxed costs. 0. P. 472. But costs being incidental and accessory to the judgment, (12 Rob., 194; 17th La., 269 9 Rob., 17,) must be enforced in like manner as the judgment; that is to say, by writ of fi. fa., issued at the instance of the party who controls the judgment, or of the officers of court in cases provided by law. The mode here adopted, of engrafting one suit upon another, and of making the incidents of one judgment the fruitful parents of new judgments, seems opposed to correct legal principles, and in practice, would be ruinously onerous to suitors. We do not wish these remarks to be understood as restrictive of the recourse of persons situated like the plaintiff, against him who has summoned them into court as witnesses. As to such party litigant, there is a tacit obligation to pay the legal fees of those whom he has summoned. In fact the law presumes that he does pay them, for if he casts his adversary in the suit, he, and not the witness, gets a judgment for his costs. 0. P. 551.

The Mayor and Trustees of Shreveport never incurred any legal obligation towards these witnesses. There is no privity of contract between them. The plaintiff must look for his indemnity to the party at whose instance he was summoned, just as the latter would have looked to him for his damages, had the witness refused to answer questions propounded to him.

Judgment affirmed, with costs.


text:
    C. C. Shackleford v. G. W. Robinson.
    An action npon a judgment rendered out of the State is a personal action.
    The correct construction of Art. 8508 of the Civil Code is, that the long term (twenty years) under that Article, does not apply to the cases where the creditor and debtor are both absent from the State and residents of the same place out of this State.
    PPEAL from the District Court of Caddo, Land, J.
    XJL Young & Harper, for plaintiff.

      Winans, for defendant and appellant.
   Buchanan, J.

(Spofford, J., having been of counsel, recused himself.)

This case turns principally upon the prescription applicable to an action upon a judgment obtained in another State of the Union.

In the case of Surget v. Stanton, decided last spring in the Eastern District, we held that the action upon a judgment rendered out of the State, is a personal action. In the same case, we also held, that the correct construction of Article 3508 of the Civil Code is, that the long term (twenty years) under that Article, does not apply to the case where the creditor and the debtor are both absent from this State, and residents of the same place out of this State.

To apply the doctrine thus recognized, to the present case:

The judgment upon which this suit is based, was obtained by the Union Bank of Louisiana, a corporation chartered by this State, against the present defendant, then a resident of Mississippi, on the 8th November, 1841. The judgment was sold under a fi. fa. for costs, on the 5th October, 1846, and was adjudicated to the present plaintiff, who was and is a resident of Mississippi. Up to the date of this change of ownership of the judgment, the creditor was not an absentee. After that change, the creditor was an absentee. But what was the place of residence of the debtor ? When the judgment was rendered, he was a resident of Mississippi. When this suit was brought, he was a resident of Louisiana. At what time he migrated, the record does not inform us. But on the supposition which is the most favorable to the plaintiff, namely, that the defendant was already a resident of Louisiana when the plaintiff acquired his right in the judgment, there was a period of four years and eleven months, out of ten years, elapsed, at the time of such acquisition of right. Erom the 5th October, 1846, then, two days only counted for one of prescriptive term under Article 3508; the creditor being absent from the State, and the debtor a resident of the State. But the Act of 14th March, 1848, amendatory of the Civil Code, abolished the distinction between persons present and absent in regard to all prescriptions exceeding one year. This Act was in force in Caddo one month after its passage, say April 14th, 1848. The period of time between 5th October, 1846, and 14th April, 1848, being eighteen months, counted as nine months of prescriptive time, and added to the four years and eleven months already acquired, as above, would give a total of five years and eight months. Prom the 14th April, 1848, to the service of citation in this case, (14th March, 1853,) was four years and eleven months, which, added to five years and eight months, makes ten years and seven months, or seven months more than the complete term for prescription.

The judgment of the District Court is therefore reversed, and judgment is hereby rendered in favor of defendant and appellant, with costs in both courts.


author: Voorhies, J.

text:
    G. W. Foster v. C. L. & H. Levinson.
    "Where the answer sets up no plea of want or failure of consideration of the notes sued on, supported by the oath of defendant, as required by the Act of 1889, he is not entitled to a trial by jury.
    from the District Court of Claiborne, Drew, J.

      W. B. Egan, for plaintiff.
    Vaughn, for defendant and appellant.
   Voorhies, J.

This is an action on three promissory notes executed by Caroline Levinson, authorized and assisted by her husband, Henry Levinson, in favor of the plaintiff and appellee, alleged to have been given, together with another note, since paid, as the price of a certain lot of ground and improvements in the town of Homer, sold by the plaintiff to the defendant, on the 10th of January, 1853, by Act sous seing privé, duly recorded in October, 1853. The plaintiff also claims the vendors privilege on the property conveyed, which he prays may be sold to satisfy his demand.

The defendant avers that the obligation, which forms the consideration of the notes sued upon, is conditional. She denies the allegations contained in the plaintiff’s petition, and prays for a jury.

The defendant’s counsel has called our attention to two bills of exceptions taken by him to the ruling of the Judge a quo.

Under the issue presented by the pleadings, we do not think the Judge a quo erred in refusing to grant the defendant’s prayer for a trial by jury. The answers sets up no plea of want or failure of consideration of the notes, which form the basis of the action, supported by the oath of the defendant, as required by the Act of 1839.

We consider the objection contained in the other bill of exceptions, equally untenable. There is no issue presented by the petition and answer as to the execution or non-execution of the obligations stipulated in the contract of sale betwmen the parties, which formed the consideration of the notes sued upon. It was therefore immaterial, in order te entitle the plaintiff to recover, to prove a performance, and it seems to us, the defendant complains with bad grace of the admission of such proof.

It is objected that the defendant cannot be held liable as a married woman, unless it be shown that the contract enured to her benefit. Had this issue been presented by the pleadings, it would have been entitled to our consideration.

We do not consider the other grounds urged in the brief of the défendant’s counsel, applicable to the issues presented by the pleadings.

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


author: Lea, J.

text:
    H. Rhine & Brother v. T. Y. Logwood.
    "Where persons by their acts have continued to involve in obscurity and confusion, the nature and extent of their right, so as to render the ascertainment of them difficult and uncertain, it is but just that those rights should not be recognized as "existing in a form which may defeat the rights of creditors or other parties in interest.
    from the District Court of Caddo, Spofford, J.

      Grain & Nutt, for plaintiffs :
    The defendant had no right after bonding the property to say that it was not his own. After taking judicially his position as owner, his bond was a judicial confession of ownership, which could not be denied, by either himself or his sureties.
    Apart from this position, it is not shown that the property attached was not liable to attachment on account of Logwood having no interest in it. See 2 A. R. 243, 154; 1 R. R. 277; 8 R. R. 72, 428; 2 R/ R. 510; 7 R. R. 349; 18 L. R. 59.

      Land, curator ad hoc, for defendant and appellant.
   Lea, J.

The plaintiffs in this case, the holders of the written obligations of the defendant, who is a non-resident, commenced suit by the attachment of certain property, found within the limits of the State. The property attached was bonded by the defendant, and the only question for solution is whether the defendant had an attachable interest in the property. There is no dispute about the existence of the debt sued upon, but it is urged that the property does not belong to the defendant, and that the District Court was therefore without jurisdiction, the defendant being represented only by a curator ad hoc. No claim was set up by any intervening party. It is the case, (as was remarked in the reasons assigned by the District Judge,) of a single defendant, who having bonded the property seeks to avoid any judgment against himself, on the ground that he is without interest in the property attached. A defendant occupying such a position, assuming for the purpose of argument that the position is correct in law, should establish with reasonable certainty the absence of interest upon which he relies as a means of evading the jurisdiction of the Court. On this point the evidence leaves scarcely a doubt upon the mind that the defendant had an interest in the properly attached, though it is not conclusive as to the extent. The acts and words of the defendant as detailed by the plaintiff’s witnesses justify the conclusion that he was making use of his wife’s name merely as a screen to cover simulation. The burthen of proof, therefore, rests upon the defendant, who seeks to evade the payment of his acknowledged obligations ; and where persons by their acts, have contributed to involve in obscurity and confusion the nature and extent of their rights, so as to render their ascertainment difficult and uncertain, it is but just that those rights should not be recognized as existing in a form which may defeat the rights of creditors or other parties in interest. Applying this principle to the case at bar, we think the jurisdiction of the Court should be maintained and the attachment enforced.

It is ordered that the judgment appealed from, be affirmed with costs.


author: Sfofford, J.

text:
    In the Matter of the Tutorship of the Minor Heirs of Susannah Bruce.
    The appointment of the paternal uncle to the tutorship of the minor children of his deceased brother, can only be made after due notice, and upon the advice of a family meeting; nor can the appointment of a person standing in that relationship to minors, without such notice and advice, form the basis of the plea of res jud icata to an action brought to set it aside.
    from the District Court of Catahoula, Barry, J.

      Taliaferro, for plaintiff.

      O. Mayo and D. Evans, for defendant and appellant.
   Sfofford, J.

The plaintiff, alleging himself to he a maternal uncle of the minors, Robert J. W. Bruce and Mary Ann Bruce, seeks to set aside the appointment of the defendant, a paternal uncle, to the tutorship of the said minors

The grounds laid are, that the Clerk made the appointment the next day after the defendant’s application, without any notice whatever to the plaintiff, or any opportunity being afforded him to make opposition thereto, without any disclosure under oath by Ihe applicant of the names of (he relations of said minors, in the same degree, living in the State, who were well known to him, and of whom the present plaintiff is one, and without the convention and advice of a family meeting.

The defendant met this petition with a plea of res judicata, which was sustained in the court below and 1he suit dismissed. The decree which the petition attacks, is said to constitute the thing adjudged.

Eor the purposes of the trial of the exception in the form in which it is pleaded, the allegations of the petition are to he taken as true.

But they sweep away the foundation of the plea of res judicata; they deny that the plaintiff was a party to the proceedings which resulted in the former decree ; they seek to avoid that decree, on the very ground that the plaintiff had no notice, actual or constructive, of the defendant’s application for the tutorship, although the law made it the duty of the applicant to disclose his name tQ the Clerk, and of the Clerk to cite him to show cause why the applicant should not he appointed. “ If it he a relation not in the ascending line who claims the tutorship, the judge shall order the petitioner to declare, under oath, what are ’ the minors’ relations residing in the State who are in an equal or nearer degree than he is; and on such declaration he shall order that such relations he cited to show whether they have any cause for opposing the appointment prayed for.” C. P., 953.

The plea of res judicata should have been overruled, as nothing had been decided between these parties. C. C., 22, 65.

In remanding the cause, we remark that, if the allegations of the petition are found to be correct, the decree appointing the defendant tutor to the minors Bruce should be annulled, and a family meeting convoked to advise the Clerk, in conformity with Article 285 of the Civil Code.

Regulations established in the interest of minors should be faithfully observed. The appointment of tutors, in cases like the present; isa delicate duty, and is not entrusted to the arbitrary discretion of the Clerk, or to be given to the first claimant; but is to be made after due notice to the nearest relations, and upon the advice of a family meeting.

The law recognizes the interest of the plaintiff, under his allegations, to inquire into the regularity and propriety of the appointment in this case.

It is therefore ordered that the judgment of the District Court be reversed, the defendant’s exceptions overruled,-and the cause remanded for further proceedings according to law, the costs of this appeal to be borne by the defendant and appellee.


text:
    Vicksburg and Shreveport Railroad v. Parish of Caddo.
    The terms of the act “ relative to the duties and powers of the Police Juries of this State, and the constituted authorities of towns and cities,” approved April 29,1853, contemplate that the mandate ■ to be issued by the District Judge to enforce the collection of taxes, on the failure or refusal of the Police Jury to cause the tax to be collected, shall be directed to the Collector of Parish or Municipal Taxes; and where the Sheriff is such collector, the evidence should show the fact. The taxes to be collected under this act should be collected in the same manner as the parish and municipal taxes are collected, and a copy of the assessment, which forms the basis of the collections, should be delivered to him. The Sheriff has no power under the act to make the assess-
    PPEAL from the District Court of Caddo, Land, J.
    XL Crain SNutl and Ray, for Plaintiff and appellant.

      Iioige, for defendant.
   Lea, J.

In this case several issues have been embraced in the arguments o,f counsel, the solution of which are (in our opinion) not called for by the plead, ings.

The case has been correctly stated in the appellant’s brief. Under the provi, sionsof the act of the Legislature of 12th March, 1852, the parish of Caddo, hy an ordinance of the Police Jury, subscribed for $100,000 of the stock of the-Vieksburg, Shreveport and Texas Railroad Company, payable in five annual installments of $20,000 each, whieh subscription was duly ratified by the voters of the parish. The parish having failed to pay the first two installments, the plain, tiff instituted suit in the District Court to enforce the payment of the subscrip, tion, in accordance with the terms of the act of 1853, p. 234.

The prayer of the petition concludes as follows, viz: “ That, inasmuch as the-said Police Jury has failed to assess and collect the said tax, that judgment be-rendered ordering the Sheriff of the parish of Caddo to assess and collect the-said tax on the real estate of the parish of Caddo, under the provisions of the-said act of 1853, with his commissions.”

Under an arrangement made to that effect, the Police Jury passed an, ordi-. nance authorizing their President to confess a judgment in favor of' the plaintiff which was accordingly done

By the terms of the decree, the plaintiff was to recover of the- parish of Caddo, the sum of $100,000, payable $20,000 on the 1st January, 1855,with 5 percent, interest from the 1st of May, 1854, and $20,000 payable on the 1st of each, January following, until it was all paid, to bear interest at 5- per cent, after ma?-tui'ity. The judgment further provides, that the Police Jury shall assess an annual tax on the real estate of the parish for the payment of each installment, and cause the same-to he collected, which assessment was to he made by the assessor and collected by the collector elected by the Police Jury; and that the assessment should be made and the collector elected and qualified by taking bond with good security, on or before the June session of the Police Jury preceding the maturity of each installment; and that, if the Police Jury failed or refused to cause said assessment to be made, and a collector elected and qualified by them to collect said tax by the time required, that, in that case, an order should issue under thejudgment,directed to the Sheriff of the parish of Caddo, ordering him to assess the amount of the tax necessary to pay the installment next falling due, and interest, and to collect the same.

The parish failed to comply with the provisions of this judgment, and thereupon the plaintiff procured a mandate issued to the Sheriff of the parish of Cad-do, directing him to demand of the Police Jury the sum of $20,000, with 5 per cent, interest from May 1,1854, and costs, and if not paid that he should cause the said sum to be made by causing an assessment to be made of the lands in the parish of Caddo, and collecting from the owners of land an ad valorem tax to satisfy the said sum, with interest and costs. This mandate the Sheriff failed to execute, and the plaintiff proceeded, by a rule taken both upon the Sheriff and the Police Jury, to show cause why they should not proceed to the execution of the judgment, and why an assessor should not be appointed by the court, or an assessment be ordered to be made by the Sheriff, and a peremptory order issue to the Sheriff and the Police Jury to perform their duty in the premises.

. For answer to this rule, the Police Jury alleged that they had, by an ordinance of the 5th J une, 1854, adopted the assessment roll of landed property in the parish of Caddo for the year 1854 on which to estimate the said assessment, or the levy of 1 3-8 per cent, to pay the said sum of §20,000 ; and that at the same time the Police Jury appointed a collector to coll eet the same, requiring him to give bond, which he failed to do; that they have complied with the law in providing the means to pay the judgment by levying the said tax, and that the plaintiff has a full remedy on the levy and assessment already made.

The Sheriff, for answer to the rule, alleged that—

1st. He was the collector of no tax except the State tax.

2d. That it was the duty of the Parish Tax Collector to collect the railroad tax, and that he was not the Parish Tax Collector.

3d. The he had never been furnished with a tableau of taxes on the landed property of (he parish of Caddo by the Police Jury or by the Assessor of Taxes duly elected for that purpose.

4th. That the assessing of taxes is not a duty belonging to the Sheriff.

5th. That if any judgment has been rendered, ordering him to collect said tax, it is null and void, he not having been cited or made a party thereto. Upon a trial had the rule was dismissed, and the plaintiffs have appealed. This is substantially the state of the pleadings, as found in the record and set forth in the plaintiff’s brief.

The only questions presented by the pleadings have reference to the defence set up by the Sheriff. There is no issue made between the plaintiff and the Police Jury. Not only is thejudgment, which is the basis of the rule, a judgment by confession, but in the answer to the rule itself they contest nothing that is demanded by the plaintiff. We are unwilling, therefore, to travel out of the record for the purpose of considering the constitutional points urged in argument by the counsel for the Police Jury.

As respeets the Sheriff, the only issues presented, which it is important to examine are:

1st. Whether the Sheriff is the proper person to make the collection.

2d. Whether the Sheriff has been furnished with the proper basis for making an assessment, and if not, whether, he has the right to make such assessment.

The Act of 1853 does not provide for an assessment by the Sheriff. It says that the judgment creditor may obtain a mandate commanding the Sheriff, or other Tax Collector or Collectors of the parish or incorporated town or city in which his judgment may have been obtained,'to proceed forthwith to collect said taxes in the same manner as is prescribed by existing laws. But it is not pretended that “ the Sheriff or other Tax Collector ” has, by existing laws, the right to make the assessment which is the basis of taxation. But the Police Jury adopted the assessment roll of the State for the year 1854. Without assuming their right to do so, it is admitted that the Sheriff was not furnished with this assessment as the basis of his collections.

But we think that the terms of the act upon which, this proceeding is based, contemplated that the mandate should be directed to the Collector of parish or municipal taxes, to be collected in the same manner as the parish or municipal taxes are collected.

In the case at bar, the Sheriff denies that he is the Parish Tax Collector, and there is nothing in the evidence showing the contrary.

It is ordered, that the judgment of the District Court be affirmed, with costs.


text:
    C. J. Bradley v. W. E. Rapp.
    Where a Tax Collector’s bonl, given under the statutes of 1849, is so defective in form as to deprive it of an authentic character, it cannot be enforced by summary process, and a sale made under such process will not divest the title to the property.
    from the District Court of Franklin, Barry, J.'

      Garrett & Benton, for plaintiff and appellant.

      Morrison and M. A. Jones, for defendant.
   Buchanan, J.

Suit upon a note given by defendant for property purchased at probate sale. Defence: that the property sold already belonged to defendant by virtue of an adjudication made by the Sheriff under an execution upon a Tax Collector’s bond. The administrator contends that the Sheriff’s sale under execution was void for irregularity. This cause has been already before the Supreme Court, and was remanded in 1852, to make the parish of Franklin party. (Not reported.)

The objections made by plaintiff to the title under which defendant claims to have previously acquired the property, are as follows:

1. The Tax Collector’s bond was not made as the law directs, and consequently was not an act importing confession of judgment, upon which executory process could issue.

2. The bond was not recorded according to law, and consequently there was no mortgage.

3. A certified copy of the bond, and proof of demand of payment is not shown by the record to have been filed in the Clerk’s office of the District Court before issuing execution.

4. There was no notice to the administrator, before seizure under the execution upon the bond.'

The subject of the form and effect of Tax Collectors’ bonds, has been confused by the passage of three Aets of the Legislature within a short time of each other: two in 1847 (pages 108 and 173 of the Session Acts), and one in 1848, (page 85). By the first of those Acts, such bonds were directed to be executed before the Recorder of the parish and two subscribing witnesses, and were to operate as a mortgage from the time of their registry in a separate book, to be kept for that purpose by the Parish Recorder. By the subsequent Act of 1847, (page 173,) the Parish Recorders were authorized, in general terms, to take bond, with security, from Tax Collectors, the original of which bond to be retained by said Recorder, and a copy transmitted to the State Auditor or Treasurer. By the terms of this Act the bond operated as a legal mortgage, and required no registry whatever. Copley v. Dinkgrave, 6 An., 595. But the Act of 1848 revived, and even increased the formal requirements for the confection of such bonds. It now became necessary to have them executed before the Recorder and three members of the Police Jury, and to be authenticated by the attestation of two witnesses and the signature of the Parish Recorder, and also to be by him registered in a separate book, kept for that purpose; which bond, so registered, shall operate from the date of the registry as a mortgage, etc.

The bond of Augustus H. Bradley, now under consideration, being dated the 6th January, 1849, was under the empire of the last recited Act. It is not authenticated by the attestation of any witness, nor does it purport to have been executed before any person. We find, however, written below it, the approval of three members of the Police Jury, without any date; and, on the principle “ ut res magis valeat quam preat,” would infer that this approbation was con temporaneous with the bond; but such an inference cannot be predicated of the Parish Recorder’s written approval, which follows that of the Police Jury, and is dated February 12th, 1849, more than a month after the date of the bond. As to the registry of the boni, this appears to have been made in the ordinary parish record of mortgages, and not in a book separately kept for the registry of bonds.

Under the view that we have taken of this case, it becomes unnecessary to pass upon this question of registry.

The defects in the form of the bond are such as to deprive it of an authentic character, and to prevent the enforcement of it by that summary process which is alone attached to acts importing on their face full and entire proof. See Aets of 1847, page 109, sec. 5.

The view which we have taken of the first ground of objection, above, stated, renders it unnecessary to examine the others. We are of opinion that the sale in question did not divest the title of Bradley's succession to the lots in question.

It only remains to enquire, whether the defendant is entitled to deduct from his note now sued on, the price, fifty dollars, expressed in the Sheriff’s deed as having been paid by him for the three lots of ground, afterwards sold at probate sale, and again purchased by him. An examination of the record shows a curious discrepancy between the return of thofi. fa. on the bond, and the Sheriff’s deed to defendant. By the return of the writ, it would seem that the Sheriff seized the three lots in question; also nineteen head of cattle and sixty head of hogs; also a quarter section of land; also another quarter section of land; and that all the property so seized was adjudicated, in block, to William E. Rapp, as the last and highest bidder, for parish paper amounting to one hundred and twenty-four dollars. By this deed, the Sheriff declares that the three town lots in Wiunsborough were offered for sale, when William E. Rapp bid the sum of fifty dollars, and the same were adjudicated to him as the last and highest bidder; also that Rapp had complied with the terms of sale. The Sheriff’s return is in evidence before us, equally with the Sheriff’s deed, and it is not seen which of the two is to be taken in preference to the other, as testimonium ueritalis. We are compelled to regard the proof of the payment alleged, as defective, and to dismiss this branch of the case from further consideration.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that plaintiff, as administrator of the succession of Augustus H. Bradley, recover of William E. Rapp, three hundred and two dollars, with eight per cent, per annum interest from 22d March, 1852, and costs in both courts.