text:
    Martin, Administrator, v. Dupre.
    Where a succession is not in debt, the tutrix of the minor heirs may receive the proceeds of a probate sale of its effects, or authorize any other person to receive them for her; and a payment made by a purchaser to a person so authorized, will release him.
    APPEAL from the District Court of St. Landry, Boyce, J.

      Marlin, appellant, pro se, Linton appeared on the samo side. Lewis and Stvayze, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

At the request of the parties interested, a probate sale of the effects composing the succession of Laurent Dupré fds took place, and the bidders were notified that the purchase money was to be paid to £. Perrodin, at his store in the town of Opelousas. The defendant purchased a large number of cattle, and paid the price to Perrodin, at the time and place designated. The plaintiff has since caused himself to be appointed administrator of the succession of Laurent Dupré, and now claims from- the defendant the price of adjudication, on the ground that Perrodin had no legal capacity to receive it, and has failed to account for it to the heirs. The case was submitted to a jury, who gave a verdict in favor of the defendant, and the plaintiff having failed to set it aside, judgment was rendered against him, and he appealed.

The succession was not in debt. Perrodin had married one of the heirs, and the others were all minors represented by their mother and natural tutrix. As the validity of the sale, and of the proceedings under which it took place, are not contested, we must presume that they wero provoked and carried on by the tu-trix and widow, who had power to administer the estate, with the assent of Perrodin. The latter stated in his testimony that, he considered himself the administrator of the succession ; but there is no proof that he was, and his evidence explains the meaning attached by him to that word, tie had the assent of the tutrix to receive the proceeds of the probate sale ; and as he received them, he offered to pay them over to her, but she told him to keep them, and either to invest them for their joint benefit, or to use them in his affairs. He accordingly kept them; invested $¡4,500 in the name of the tutrix and his own; and paid her interest at the rate of ten per cent per annum on the balance in his hands, till he failed. He further kept an account with her, and advanced-her funds when she called for them. If this witness had considered himself an administrator under the authority of court, he could not have acted thus. He could not have invested the funds in real estate, nor paid any portion of them to the tutrix, without an authorization to do so. He would not have paid her ten per cent interest, for the use of money which it was'his duty not to use. By administrator, he meant that he was the general agent of the tutrix; and this fact is placed beyond all doubt by the testimony of P. Dupré.

The succession not being in debt, the tutrix could, as already stated, administer it, and receive the proceeds of the sale, or authorise any other person to receive them for her. The jury came to the conclusion that Perrodin had authority to that effect, and we are satisfied that their verdict meets the law, as well as the equity, of the case. Judgment affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Goodbear v. Gary, Executor.
    Where a succession is small, and much in debt, it is the duty of the executor to provoke a sale of the property as soon as the inventory is made; and where, in such a case, more than a year is suffered to elapse before a sale is made, any expense occasioned by the delay, will be charged to the executor personally.
    APPEAL from the Court of Probates of Lafayett, Olivier, J.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the present, executor of JSlienne Lefévre the sum of $150, for work and labor done, and sendees rendered, by him and his wife to the deceased in his life time, ami also three dollars per day for three hundred and seventy-three days, during which time he had charge of the house and cattle of the deceased, with the assent of the executor then in charge of tho succession. The defendant-pleaded the general it>...i:e, and prayed for judgment in reconvention against the plaintiff for §290 84, being tire amount of his purchases at the sale of the succession. The Court of Probates gavo judgment in favor of the plaintiff, for $429 75, with interest, and a privilege for a part of the sum. From that judgment the defendant has appealed. Supposing the court below to have allowed (lie claim of $150, and to have deducted from the amount considered due to the plaintiff his indebtedness to Uio succession, the allowance for services as guardian must have been $570 59 ; and his counsel now calls uppn ns to increase that sum to $746, which he says his witnesses have proved to be due.

We are of opinion that the claim of the plaintiff, as guardian, is not a proper charge against the succession; and that, if he is entitled to any compensation, he must claim it from the executor who employed Mm. As a general rule, the the care of succession property devolves upon the legal representative of the succession; and whenever he employs third persons to assist him in the administration, he does so at his risk. When the property is large, and situated in different parishes, or when it requires a constant and particular kind of care, as is the case with vessels afloat, the court seized with the succession may allow a reasonable sum for the purpose of paying the persons employed by him in such cases. The legislature has never fixed what the compensation should be, but certain rates have become customary and usual, and are allowed upon proof of the services and of the circumstances which make the allowance proper. That proof is wanting in this case. The succession was of little value ; the property composing it, appears to have all been in the same place ; and it was sold for $3 619 only. There was a large amount of debts to pay, and it was therefore the ditty of the executor to provoke the sale as soon as the inventory was made. The fact that more than a year elapsed before it tool> place, has not been justified, and the exponses occasioned by that delay cannot be charged to the succession.

Crow, Pori&r and W. L. Brent, for the plaintiff, Mouton and Simon, foi’ the appellant.

The plaintiff lived, with his wife, at the house of the deceased, and was authorized by the executor to continue to occupy it till the sale. He worked at his trade there, for his own private emolument. Any tenant to whom the house might have been rented, would have taken care of it as he did ; and the cattle and horses, for tending which he claims $1119, were sold at the probate sale for $140.

The plaintiff owes the succession $290 84. Upon this we will allow him a credit of $150, because the evidence upon which that claim rests was admitted without opposition in the court below. For the difference there must be judgment in reconvention against him.

It is therefore ordered that, the judgment be reversed; and that there be judgment in reconvention against the plaintiff for the sum of $140 84, with costs in both courts.


author: SniDEM., J.

text:
    Duval v. Ardrey et al.
    Where a debtor, in insolvent circumstances, executes to a third person a lease for a term of years of all his property, consisting of a plantation, slaves and moveables, on the condition of his paying certain debts of the lessor, and allowing him out of its revenues a certain amount for the support of his family, &c., the effect of the lease being to charge the appropriation which the law would make of the property, and to impede the legal recourse of the creditors of the lessor upon it, any creditor, not a party to it, may require that it bo annulled so far as he is affected by it.
    APPEAL from the District Court of Rapides, King, J.

      Edelin, for the plaintiff. Hyams, Elgee, Dunbar, Brent and Ogden, for the appellant.
   The judgment of the court was pronounced by

SniDEM., J.

In January, 1841, Adelia M. Duval and her husband recovered judgment against L. F. Ardrey, who was her tutor, for $1235 85, with interest, and with a legal mortgage on the lands and slaves of Ardrey, dating from the year 1838. The action now brought is an action to set aside, as made in fraud of her rights, a lease executed on the 8th March, 1841, by Ardrey and his wife to Ardrey's brother-in-law, Brashear, ofa tract of land alleged in the lease to be cultivated by Ardrey and wife as a cotton plantation, with all the slaves established thereon, without however any special description of them, and all the cattle, horses, carts, and all the moveables on said plantation of every nature .and kind whatsoever.

This lease was for the term of five years. The lessee was to have, during the whole period, the use and possession of the property leased, and the sole use and enjoyment of all the crops and revenues, as if he were sole owner. On his part, the lessee bound himself personally to pay certain debts enumerated in the lease, some due by Arclrey, some by Ardrey and his wife; and also bound himself to pay out of the crops of the plantation, in a certain designated order, certain debts due by the lessor; and that if, after paying the enumerated debts, there should remain any surplus of funds in the lessee’s hands, he should apply the same, pro rata, to the extinction of all the remaining debts which the lessors may then owe; and that if the debts should be paid before the term stipulated, then the lessee should re-deliver the property to the lessors.

The lease also contains a reservation of an annual allowance out of the crops to Ardrey and wife of $1500, and provides that they should have the exclusive use of the dwelling house on the plantation, with its out-houses and appurtenances, gardens, carriages and carriage horses, and certain house-servants. They were also to be supplied with such provisions as might be deemed necessary for the support of a family.

This lease was executed with the knowledge and approbation of a portion of the preferred creditors; and, on the day of its execution, a portion of these creditors whose claims the lessee had thus obligated himself personally to pay, and to whom he had also given his guaranty on notes of the lessors, gave him a counter-letter, “ promising toholdhimharmless from his liabilities so as aforesaid, in the event that the lease already executed should be annulled by any of the said Ardrey’s creditors on the ground of fraud, and that after the matter should be tried in a court of the last resort.”

A portion of these preferred creditors have intervened, and resist the plain-tilf’s claim for relief. The lessors, in their answer, express their willingness that the lease should be set aside. The lessee at first íiied a general denial, but subsequently, by an amended answer, he sets forth that a portion of the property had been taken from him by executions against the lessors, so as to render the property unfit for tho uses and purposes for which it was originally leased to him, and prays that, if tho plaintiff should succeed in his suit, the entire lease should be annulled as to him. The intervenors allege in the pleadings collusion between the plaintiff, Ardrey, and Brashear, in instituting the suit for the purpose of obtaining the cancellation of the lease, and depriving them of the benefit of its provisions. This allegation is negatived by the plaintiff’s answer to interrogatories, propounded by the intervenors. Therewas judgment in the court below, decreeing that the lease be set aside and annulled, so far as relates to the plaintiff'. The defendant, Brashear, has appealed.

The evidence satisfactorily establishes the following facts: That, at the date of the execution of the lease, Ardrey owed a large amount of debts, many of which existed in the form of judgments; that his wife also was a judgment debtor; and that Ardrey was deeply insolvent. That the intervenors were aware of the condition of his affairs, and that a portion of them advised the execution of the lease, and established the order of payment mentioned in the lease; that the lease comprehends all the property of Ardrey ; that a portion of the slaves and moveables belonged to Ardrey. That the plantation had been cultivated by Ardrey and wife ; that the plantation, and a considerable portion of the slaves, were her paraphernal property; but that the plantation had been much improved during the marriage by clearing the lands, by expenditures «pon the buildings, and by the purchase of valuable machinery. These expenditures appear to have been made with community funds; and the improvement of the land, by clearing, &c., was the result of the common labor and industry ; that the lessee was a preferred creditor of Ardrey, his surety in certain obligations, and his brother-in-law.

Whether there was moral fraud, on the part of the two parties to this lease, and of the creditors for whose debts a provision by preference was thus made, is a question discussed with much warmth by counsel, but which it is unnecessary for us to consider. Ardrey had mismanaged his affairs, and it may well be that the lessee and the preferred creditors sincerely believed that, through the more skilful and industrious management of the lessee, they might increase the revenues of the estate, and thus ultimately satisfy all the creditors, and rescue Brashear from^he embarrassment in which he had been involved for his friend and connection. But however this may be, such considerations do not relieve the case from the legal fraud which surrounds it. The stipulations of the lease are such, as to change, the appropriation which the law would make of the debtor’s property. Preferences are given, and a irrovision is made for the maintenance of the debtor, neither of which are sanctioned by law, nor would have resulted, if, instead of this arrangement, the debtor had made a eessio bonorum. Instead of a judicial application of the property by sale to the payment of debts, which it was the duty of the insolvent to have obtained by a cession, it is locked up in the hands of a trustee chosen by'the lessors for a long term of years, and its revenues only, after heavy deductions in favor of the lessors, devoted to the creditors. All this is done by a debtor deeply insolvent, with a manifest knowledge of such insolvency on the part of the lessee, himself a preferred creditor, and of the intervenors, preferred creditors, and to the evident detriment of the plaintiff, whose legal recourse against the property was embarrassed by this temporary transfer, and his rights in the common pledge impaired.

It is said that some of the creditors for whom provision was thus made, held, independently of the stipulations of the lease, rights upon portions of the property superior to those of the plaintiff. But to this we. answer that, those rights bore only upon certain portions of the leased property, and the preferences created by the lease are upon the revenues of the entire fund; that moreover the lease seeks to throw a net over the properly-, and to abstract it from the direct pursuit of the creditor. It cannot therefore be for an instant contended, that the plaintiff was not injured.

It is said by the intervenors that, so far as the paraphernal properly of the wife is concerned, she was not the plaintiff’s debtor, and could therefore dispose of it as she thought proper. But it will be observed that, though the land was the property of the wife, it had been much improved during the marriage by the common industry and expenditures, and she was, pro tanto, the debtor of the community. It does not appear that she has other property, and it is manifest that the exercise of the rights of the plaintiff, a creditor of the community, as against her estate, so far as it may, on investigation, prove a debtor of the community, is embarrassed by the disposition which she has thus made of it. The entire revenues and control of her estate she has sought to place in the lessee’s hands, for the benefit of preferred creditors, without any settlement of the community, to which, on investigation, there is reason to suppose, she would be found to he indebted.

The plaintiff, though named as abonofieiary in the loase, is not satisfied with the rank assigned to her, and has not chosen to accept of its benefit. She has a right to insist that it bo annulled, so far as it affects her interests, and such is the judgment of the court below. Judgment affirmed.


author: Eustis, C. J.

text:
    The Agricultural Bank of Mississippi v. Alexander, Tutrix.
    Where a document offered in evidence on llie trial below was withdrawn by the counsel of the party who offered it, and in whoso favor judgment was rendered, and never returned, in consequence of which it could not be transcribed into the record, nor procured under a certiorari, tho judgment must be reversed, and the ease remanded for a new trial.
    APPEAL from the Court of Probates of Concordia, Dunlap, J.

      T. P. Farrar, for the plaintiffs. Stacy and Sparrow, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

In this case the attorney for the plaintiffs withdrew from the files of the lower court, the act of incorporation of the bank, and gave his receipt for it. This document formed part of the evidence adduced on the trial of the cause, and the defendant is entitled to the benefit of it. On this right he insists, and we find that ho is deprived of it by the act of the plaintiffs’ attorney, without any fault or laches on his part. This document may or may not be material, but, as the caso stands, wc are bound to believe that, if it were not material, it would have formed no part of the evidenco in the case. From the lapse of time during which this defect could have been supplied, we are bound to consider the appellees in default, and must give the appellant an opportunity of terminating his case, which can only bo done by remanding the cause for a new tridl. The judgment is therefore reversed, and a new trial ordered ; the ap-pellees paying the costs of this appeal.


text:
    The City Bank of New Orleans v. Johnson.
    Where prescription is pleaded in the Supreme Court, the parly against whom il is sal up may require the case to be remanded, for a trial on tho issue thus made.
    APPEAL from tho District Court of Natchitoches, Campbell, J.

   The judgment of tho court was pronounced by

Eustis, C. J.

Tho defendant and appellant, drawer of a promissory note, has pleaded in this court the proscription of five years, on an appeal taken from a judgment against him. J3y articlo 3427 of the Civil Codo, prescription may be pleaded on the appeal.

The appellant made an application to filo his pica, on a motion for a new trial in the court below. The appolleo has requested that, in tho event of the plea being received, the case be remanded for a new trial. This he has a right to require.

Sherburne and J. B. Smith, for the plaintiffs. P. A, Morsa and Roysdon, for the appellant.

The judgment is therefore reversed, and the case remanded for a new trial; the appellee paying the costs of this appeal.


text:
    Walker et al. v. Copley.
    It is only where a party resides in the parish in which the action is instituted, that ho can he required to answer interrogatories on facts and articles in open court. O. P.352. Stat. 10 February, 1843.
    APPEAL from the District Court of Madison, Curry, J.

      Thomas, for the plaintiffs. ' Copley, appellant, fro sc,

   The judgment of the court was pronounced by

Eustis, C. J.

This is an action instituted against the defendant, at the time an attorney at law, for one half of a tract of land and $5,000 as damages, founded on a charge that, the defendant was employed by tlio plaintiffs and others, for the purpose of removing two floats, as they are called, from the land on which they were located, so that the plaintiffs might enter it, for which the plaintiffs concede the defendant was to have one-half of the land ; but they allege that the defendant, after having secured tlio removal of the floats, in violation of his agreement and in fraud of their rights, entered the whole in his own name, which he retains, and refuses to convey any portion of it to tile plaintiffs. Interrogatories were propounded to the defendant, thereby affording him an opportunity of vindicating his conduct; but the petition prayed that they might be answered in open court, on a day to be fixed by the court.

The defendant not appearing, judgment by default was taken against him, and the last day of the court, the 2d of May, was fixed for answering the interrogatories. On that day, when the cause was taken up for confirming tlio judgment by default, on taking the interrogatories for confessed which had not been answered, an answer by attorneys was filed. The trial proceeded, and the interrogatories being unanswered, they were taken for confessed, and judgment was rendered against the defendant for tho-land and rent, notwithstanding an affidavit for a continuance, grounded on the absence of the defendant, and his having had no notice of the day fixed by the court for the answering of the interrogatories, propounded to be answered in open court. The defendant has appealed, and asks the cause to be remanded, for the purpose of enabling him to explaiu his conduct and make his defence.

It is alleged in the petition that the defendant resides in the parish of Oua-chita. The suit is brought in the parish of Madison, where the land is situated. A party is only bound to answer interrogatories in open court, when he resides in the parish where the court is held. Code of Praet. art. 352. Tho act of 10th Feb., 1843, p. 14, provides for the mode in which the answers of the party must be taken, in the event of his residing in another parish.

The court erred in taking the interrogatories for confessed ; and the judgment is therefore reversed, and the cause remanded for anew trial, the appellees paying the the costs of this appeal.


author: Edstis, C. J.

text:
    McGuire v. Bosworth et al.
    Where one, not a party to a promissory note, puts his name on its back, it will be presumed that he intended to bind himself as a surety for its payment.
    APPEAL from the District Court of Carroll, Curry, J.
   The judgment of ' the court was pronounced by

Edstis, C. J.

In this case there was judgment for the plaintiff against Bos-worth, and for his co-defendants against the plaintiff. The plaintiff has appealed. Davis and Benton wrote their names on the back of the instrument sued on. It is a promise of F. Bosworth to pay to the plaintiff, or order, the sum of $1458 74, in twelve months from date, with interest at ten per cent per annum until paid, with a privilege of the maker to renew the obligation for twelve months from its maturity. It is not endorsed by the plaintiff. The defence is that, the defendants were surprised into the endorsement which they made by the acts of the plaintiff, which induced them to believe that the payee would have endorsed it over to them, and they thus preserve their recourse against him. The evidence is far from being satisfactory to us. "We are bound to receive with caution the understandings of parties, as they are termed, when supported by the testimony of a single witness, and directly at variance with what may be considered as a reasonable probability.

The witness, Eli Harris, says: “ He was present when the note sued on was executed; says the plaintiff and the defendants, Bosworth, Davis and Benton, were present at the same time." It was distinctly understood between the parties that Benton and Davis put their names on the note as endoi-sers ; that all they were asked to do by Bosworth was, to endorse for him; that there was a conversation between the paities, and that he understood from the parties that the note was given for a debt, which, by said Bosworth, was due to if. Par-goud, and in settlement of said debt. That he, witness, understood that the plaintiff was settling the matter with Bosworth, as attorney at law for H. Par-goud.”

If the understanding of these parties have effect as testified to, it woftld make McGuire, an attorney collecting money for his client, endorse the note of the debtor, and procure the subsequent endorsement of the appellants — and for whose benefit 1 that of his own client. And the defendants were surprised, they allege, that such a state of things was not brought about, which makes him the surety of Bosworth and for the advantage of Pargoud, to whom it was understood the debt on which the note was given was due. There must be a great mistake in respect to this mattex-.

Assuming that the obligation was a promissory note, as contended by the counsel for the defendants, but to which we cannot assent without further inquiry, we consider that it is settled by the uniform jurisprudence of this State that, when a person, not a party to a note, puts his name on the back of it, he is presumed to bind himself as surety. In this case, so far from their being anything to weaken this presumption, the evidence adduced rather fortifies it in our minds.

The judgment appealed from is therefore reversed, and judgment is rendered in favor of the plaintiff for the sum of $1453 74, with interest at ten per cent per annum until paid, from January 1st, 1842, against ■Thomas V. Davis, and Warren M. Benton, in solido, with costs in both courts.

Me Guire, appellant, pro se. Browder, Stacy and Sparrow, for the defendants.


author: Etjstis, C. J. Slibebb, J.

text:
    Stockton v. Briscoe.
    One in possession of land purchased at a succession sale, whose title has been duly registered, cannot be affected hythe fact thatthe sale to the deceased, made sons seing privé, by a party then in possession, was never registered. Per Curium: The object of the registry laws is to make apparent the ownership of property, and whenever such ownership appears on the public records, by proper titles, that object is attained; notice is thereby given, and no person can be deceived.
    APPEAL from the District Court of Madison, Willson, J. Stockton, pro se, cited Civil Code, art. 2417. Slat. 20th March, 1827, s. 5 (B. & C.’s Dig. 603). 2 Robinson, 75-8. 3 Rob. 078. Brassac v. Ducros, 4 Rob. 335. 3 Rob. 161. 1 Grenier, Hypoth. p. 100.

      Steele and Frost, on the same side.

      Dunlap and Snyder, for the appellant,
    cited 5 Mart. N. S. 147, 423, 696. 6‘ Ibid. N. S. 431, 796. 7 Ibid. N. S. 579. 7 La. 553. 2 Rob. 72.
   The judgment of the court was pronounced by

Etjstis, C. J.

Th>. plaintiff claims to be the owner of an undivided half of a tract of land, in the parish of Madison, described in the petition, by virtue of a sheriff’s sale made of the property of John S. Gooch, on the 23d day of October, 1841, by virtue of an execution issued on a judgment rendered in a suit of the plaintiff against John S. Gooch, instituted in the court of the ninth judicial district. The suit was commenced by attachment against Gooch, an absentee, who appeared and pleaded; and at the sheriffs sale the plaintiff became the purchaser of the land in question.

The defendant, who was the co-proprietor of Gooch, being the owner of the other half of the tract of land, under a title which is undisputed, is the defendant in possession; and to the petition of the plaintiff answers that, he is the owner of the land claimed in the petition. He derives his title from the succession of Charles Johnson, under a probate sale of the effects of his succession, made on the 20th of June, 1840. Charles Johnson purchased Gooch’s interest in the land, by an act under private signature from Gooch himself, dated the 1st of March, 1836. There is no question made as to Gooch’s possession, which was complete, in the person of his co-proprietor, until Johnson’s purchase, in March, 1836, since which time the possession of Johnson and of the defendant has been public and uninterrupted. Gooch never resided in Louisiana. The sous seing privé from Gooch to Johnson, never was recorded.

The plaintiff bases his right to attach, and hold under the sheriff’s sale, the property in question, on the non-recording of this instrument, under several decisions of the late Supreme Court. Brassac v. Ducros, 4 Rob. 339, is the most recent case, and by far the most favorable to his view of the subject, of those cited by him.

The distinction between those cases and this, is obvious. In this case the property is not in the possession of the party under an unrecorded title, but m that of a bond fide purchaser at a judicial sale, whose title stands upon the public records. Briscoe's title is recorded, and was recorded before the institution of the suit by the plaintiff under which he purchased, which was commenced in Dec. 1840. It may be conceded that, under the decisions cited, the sous seing jprivc had no effect between the parties, adversely to creditors; but they gave it effect. They permitted Johnson publicly to hold the property, without interruption, until his death, under the act under private signature, and thus, by their own act, gave it effect. At the public sale of the effects of his succession it was adjudicated to the defendant, who paid for it. The plaintiff might, or not, have taken advantage of the non-recording when the property belonged to the party, who may be considered in default in not recording his title; but to permit him to disturb a bond fide purchaser, who holds under a recorded title, would be pushing the registry laws beyond their policy and intendment. The object of these laws is, to make apparent the ownership of property, and whenever the ownership appears on the public records by proper titles, that object is attained; notice is thereby given, and no person can be deceived as to who is the owner. There is neither reason, nor sound policy in the contrary interpretation. We determine this case on this point alone, without reference to the doctrine supposed to be established by the decisions cited. We have not the opportunity at present to examine them with that care, which would enable us to come to any conclusion as to their extent and operation, as rules on this important subject. It having been admitted that, Briscoe purchased at a judicial sale of the properly of the succession of Johnson, we assume that it was regularly made, and that in relation to it omnia rit& acta esse.

The judgment is reversed, and judgment rendered for the defendant, with costs in both courts.

Slibebb, J.

dissenting.

The question involved in this case is one of great public interest, and it is a source of very sincere regret to me that, in consequence of the approaching close of the term, and my restricted opportunities of investigation, I have not been able to examine it as thoroughly as its importance deserves. Dissenting from the opinion of the majority of the bench, it is proper that I should give, however succinctly, the reasons of my opinion.

The case is put by the defendant’s counsel on the ground of possession, by the vendee Johnson, and by Briscoe claiming under him, before the levy of the plaintiff’s attachment. It is put by the majority of the court mainly on the ground that, though the act under private signature from Gooch to Johnson was never registered, yet the adjudication from Johnson’s succession to Briscoe was registered anterior to the attachment, by virtue of which, and a recorded sheriff’s sale thereunder, Stockton now claims to hold. I will proceed to consider the defendant’s case on both grounds, first observing, in order to simplify and disembarrass the question that, it is not shown by the record, nor even pretended by the defendant, that Stockton, prior to the levy of his attachment, had actual notice, or knowledge of the sale from Gooch to Johnson, and that the title of Gooch, as derived jointly with the defendant from Sims, is acknowledged by the answer.

The effect of a sale of land by act under private signature, is regulated by article 2417 of the Civil Code, which is in these words : “ The sale of any immovable or slaves, made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered in the office of a notary, and the actual delivery of the things sold took place. But this defect of registering shall not be pleaded between the parties who shall have contracted in such act, their heirs, or assigns, who are as effectually barred by a sale made under private signature, as if it were by an authentic act.”

Before considering the force of this provision, it is proper to notice a discrepancy between article 2417, which is found under the general title of Sale, and under the particular- head of “ The nature and form of the contract of Sale,” and article 2242, contained in the title of conventional obligations, which is in these words: “ Sales, or exchanges, of real property or slaves, by instruments made under private signature, are valid against Iona fide purchasers and creditors, only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the thing sold or exchanged.” Article 2242, gives such a sale effect from the date of registry, or from the actual delivery, while article 2417 requires both.

If article 2242 conflicts with article 2417, so far as the latter requires both registry and actual delivery, the former must give way; for article 1771 declares that “ certain contracts are regulated by rules, which are established in the parts of the Code which treat of those contracts;” and article 2413, with which the title of Sale commences, declares that, “ in all cases, -where no special provision is made under the present title, the contract of sale is subjected to the general rules established under the title of Conventional Obligations.”

Considering then article 2417, as the article which defines the law on this subject, we find that its declaration is positive and unequivocal that, in case of sales of land by a private writing, notarial registry and actual delivery are both necessary, against creditors and third persons in general. If any thing be necessary to elucidate language so plain and unequivocal as the legislature has here used, it may be found in the pre-existing legislation on the same subject matter. The Code of 1808, in treating of acts under private signature, has the following provisions : “Acts under private signature, expressing a sale or exchange of im-moveables or slaves, must be acknowledged and registered in the office of a notary public, six days from their date, if they be passed in the city of New Or leans, or within its liberties; and within ten days from their date, if they be passed without the city and its liberties, in any part of the territory. When acts under private signature, expressing a sale or exchange of immovable property or slaves, have not been registered within the above mentioned time, they shall have effect against third persons only from the time of their being registered ; but the want, or delay, of registering cannot be pleaded by any one of the contracting parties, their heirs, or assigns.” Code of 1808, p. 306, art. 228. Again, under the head of “The nature and form of the contract of Sale,” is the following: “The sale of any immovable or slaves, made under private signature, shall have effect to the prejudice of persons not parties to it, only from the day the said sale was registered in the office of a notary. Nevertheless, if that registering is duly made, to wit, within six days from the date of the act for sales made in the parish of New Orlekns, and within ten' days from said date for sales made in the other parishes of this territory, the sale so registered shall have effect against third p ersons, and will bar them even, from the date of the act under private signature; but this defect of registering shall not be pleaded between the parties who shall have contracted in said act, their heirs or assigns, who are as effectually bound by a sale made under private signature as if it was by .an authentic act.” Code of 1808, p. 344, art, 3.

It will bo observed that there are two material changes in the legislation on the subject. The present Code introduces the expression “ creditors," and adds the further requisite of actual delivery. On an examination of the cases decided by the former Supreme Court, arising under the Code of 1808, it will be found that, they gave great weight to the execution of the contract by the parties, by the delivery of possession, and its open and unequivocal enjoyment by the vendee. See 6 Mart. N. S. 431. 7 Ib. N. S. 580. 4 Ib. N. S. 278. 5 Ib. N. S. 425. 2 N. S. 171. In the case of De Flechier v. Degruys, 5 Mart. N. S. 425, Judge Matthews, referring .to the cases in 2 and 4 N. S. expressly says: “ I)i both these cases it is seen that the validity of the deeds under'private signature, was mainly supported in consequence of the real delivery of the thing sold to the purchaser, and his actual possession under the private act of sale.” I cannot suppose that learned bench would have so decided in a case arising under our present Code, when registry and actual delivery are both expressly required.

In one of the cases cited, and which arose under the old Code, the court referred to the new Code, as sanctioning by positive enactment, the rule which they recognised that, possession cured the neglect of registry. But the court misread the language of article 2417, supposing the expression to be “ or actual delivery.” It it will be found that, in some of our sister States, where the registry system has been adopted, possession by the vendee, who has not recorded his title, has been considered constructive notice against a subsequent purchaser ; an opinion, however, which has been doubted,, as breaking in upon the policy of the registry acts. But, under our Code, I conceive that we are positively forbidden to regard possession by the vendee as, per se, constructive notice of divestiture of title from the grantor by private act unregistered, because the legislature has positively required registration as well as possession. A contrary interpretation would be utterly at variance with this double requisition. These provisions of our written law are an inovation upon the ancient principles of jurisprudence, by which delivery perfected the sale against third persons — traditionibus, non pactis, dominio, transferunter — and Brough such a rule may have accorded with the simplicity of an earlier age, it may well have been considered that public and recorded evidence was necessary for a more advanced state of society; for it is obvious that, mere tradition and possession are not inconsistent with title in the party making the tradition; the party receiving it may hold as lessee, or as agent, &c.; and to remove this uncertainly as to third persons, and to give publicity to the real agreement of the parties, the requisite of public registry was added to that of delivery. In the very case before us, the possession of Briscoe was not inconsistent with title in Gooch, for Briscoe was the co-purchaser with Gooch in the notarial act of purchase from Sims, under which both plaintiff and defendant alike claim. What would be the effect of constructive notice founded upon other circumstances besides actual delivery, it would be foreign to the present case to inquire, no such circumstances having been proved.

Considering then that an unregistered act under private signature, although accompanied by actual delivery and possession, cannot have effect, against a creditor buying in good faith and without notice, upon the property so sold, I now pass to a brief consideration of the effect of registry of the probate sale to Briscoe by the succession of Johnson, which is the ground upon which the decision of the court is based.

Johnson, under whom Briscoe claims, was guilty of laches in not registering his title from Gooch. This laches attached to Briscoe, who claims through him. Has it been, cured by the registry of the adjudication to him 1 It is said, in the opinion of the court, that Briscoe's title was thus spread on the public records, nd gave legal notice to Stockton that the title was in him. Taking this registry, in its strongest sense, it does not show a divestiture of Gooch's title, but of Johnson's. Whence Johnson derived title, that record would not show; for it is not proved that the deed to Briscoe contained a recital of the origin of Johnson's title. It would exhibit an adverse title derived from some source, and existing at the date of the attachment; but would not be inconsistent with an un-divested title in Gooch. This however is not the most satisfactory light in which to regard this matter, for, if Stockton be considered as legally bound to take notice of the registry of the deed from Johnson's succession to Briscoe, it might perhaps be said that this was sufficient to put him on inquiry, and affect the good faith of his proceedings. But, in my opinion, a party, purchaser, or seizing creditor, having no actual notice, is not to be considered as affected with legal notice, of such a registry. The public records are open to his investigation ; brrt, in my opinion, he is not bound to search them indiscriminately, and inspect every act there registered, to ascertain if some person, other than his debtor or vendor, has alienated the land which he desires to seize or purchase. He is bound, I conceive, to search in his debtor’s name, and no further. A contrary doctrine would involve us in results which would make the offices of registry a trap, and their examination impracticable. By the act of 1810, (which is regarded as still in force, 11 La. 345 — 3. Rob. 163 — Bullard & Curry’s Digest, p. 595), requiring notarial acts concerning immovable property to be recorded in the office of the parish judge of the parish where the immovable properly is situated, it is made the duty of the parish judge to give certificates of non-alienation, and the like duty is imposed on the register at New Orleans. Acts of 1827 and 1828, B. & C.’s Dig. 604, 605. If such a search is to cover all the records of the office, in a.populous parish, as for example, 'Jefferson, or New Orleans, the labor of weeks would not accomplish one certificate.

The effect of the registry of the probate sale to Briscoe was, in my opinion, only to bar future purchasers and creditors claiming under Johnson's succession, and could not affect bond fide vendees, or seizing creditors, of Gooch.

I have not found in the digest of the decisions of other courts in this country, so far as I have been able to examine them, a single case which would sustain the title of Briscoe, upon the ground that the registry of the sale by Johnson's succession supplied the neglect of the registry of the sale to Johnson by Gooch. But I have found a case which is directly in point in the plaintiff’s favor, (and even goes beyond it,) so far as I can judge from the digested note, the case itself not being before me. It is this: A gave a deed for a lot of land to B which was never registered, and B conveyed the same to C by deed which was registered ; after which B gave up to A the deed he had received from him, and it was thereupon destroyed. A then conveyed to D, who knew of the fraudulent cancellation of A’s first deed, and the latter conveyed to E, a purchaser for a valuable consideration, without notice of the fraud. Held, that E was entitled to hold against C. Knox v. Silloway, 1 Fairf. 201.

In .conclusion, I would observe that I do not consider that, either under article 2417, or the uniform and well settled jurisprudence of this State, any distinction is made between an attaching or seizing creditor, and a purchaser. The Code covers both expressly, and the uniform current of decisions for many years has been that, where the debtor may sell, a creditor may attach.

It is obvious that there may be individual hardship in the interpretation, which, in my opinion, is to be given to our laws concerning registry; but considerations of the general good dictated these stringent innovations upon the ancient jurisprudence, and, even if they be unwise, they must be carried out, however harshly they may operate in particular cases. It is with regret that I feel myself bound, according to my interpretation of our registry laws, to dissent from the decree of the court sustaining the defendant’s title. All the natui'al equity of the case is clearly in his favor.

For the above reasons, I think the judgment of the court below should be affirmed.


text:
    Adle v. Metoyer.
    A plea of payment will not preclude the defendant from subsequently pleading any act of the plaintiff, by which the debt may have been extinguished. Per Cwiam: Courts of the first instance have full power to sanction such amendments of the pleadings, as they may deem conducive to the better administration of justice. The only positive rule they are bound to follow, is that contained in art. 420 of the Code of Practice.
    Where a purchaser delivers to his vendor in payment of the price of the property bought, a note signed by himself and a third person binding themselves in sólido, the contract between the vendor and such third person, is one of suretyship; nor will its character be changed by the fact that, after the note had been protested for Non-payment, the latter executed a mortgage on his property, to secure its payment with interest. C. C. 3006, 3014. Per Cwiam: The recognition of a debt must always be understood as relating to a primordial title; and if the recognition admits that the party making it is obliged further, or otherwise, than that title imports, by producing the title, and disclosing the error, he will be relieved.
    Any agreement to give time to the principal debtor, by which the creditor precludes himself from the right of suing him, to the prejudice of the other parties to the contract, whether with or without consideration, will discharge the surety who has not assented to it. Itis notneces-sary that the assent of the surety should be express; but the facts from which it may be implied must be such as to exclude every other hypothesis.
    Where the holder of anote had notice, at the time of its transfer to him, that it was an accommodation note, subscribed by the maker for the exclusive benefit of the payee, the maker must be regarded as the surety of the latter.
    APPEAL from the District Court of Natchitoches, Greneaux J.

      Tuomey, for the plaintiff.
    Art. 3014 of the Civil Code declares that where the surety is bound in solido with the debtor, the effects of his engagement are to be regulated by the principles established for debtors in solido. Art. 3032 applies only to ordinary sureties. A question similar to that presented by this case arose in the case of Aston v. Morgan, 2 Mart. 354, and the courtheld that the party was bound as a principal, and in solido. In Dussuau et al. v. Riliaux, 9 Mart. 321, which was a suit against a surety on an appeal bond, the court held that, where the surety bound himself jointly and severally, the plaintiff could exercise all his rights against all the debtors, until the money was actually made. See also Etsberger v. Menard, 11 Mart., 436. Where defendant bound himself jointly and severally, held that, he bound himself as a principal, and could not avail himself of exceptions, which the law grants to sureties alone. Williams v. Brent, 7 Mart. N. S. 205, is a strong case. It was a suit against a party who had signed a note in solido, though he did so for the benefit of one of his co-obligors, and the court recognized the doctrine that, though as to the obligee, the parties were bound in solido, yet, as between themselves, they were sureties. It results from the reasoning of the court in this, and the other cases cited that, though as between the obligors themselves, the relations of principal and surety may exist, yet, as regards the creditors, they are simple debtors in solido, and must be treated as such. In a subsequent part of the opinion in the same case, the court (Porter, J.) say: “ This is an action against one of several debtors, bound in sólido, or jointly and severally ; and in regard to persons so bound, it is a well settled principle in our jurisprudence that, judgment against one is no bar to recovery against another; that nothing but actual satisfaction from one of the debtors, will prevent judgment and execution against the person legally bound with him." Ibid. p. 210. In the late case of Smith, Administrator v. Scott et al., 3 Robinson 259, it was expressly declared by the court that, the effect of the engagement of a surety, who bound himself in sólido, was “to be regulated by the same principles which are by law established for debtors in solido.” And it was accordingly ruled that the affidavit made by Scott, the principal debtor, could not enure to the benefit of his co-defendant.
    It is settled law that the surety in solido cannotclaim the benefit of discussion. Civil Code, art. 3014. Pothier, Oblig. 408. And it seems to be well settled by the whole current of authorities that, the surety in sólido is not entitled to avail himself of the exceptions and defences which are allowed by law to ordinary sureties. The French authorities throw but very little light upon the true meaning of art. 3032 of our Code, for the French law on the subject is that, the simple prolongation of the term granted to the principal debtor, does not discharge the surety. Code Napoleon, art. 2039. See Touller, vol. 6, no. 728, et seq., and no. 734, where he says that when the affair for which the debt was contracted concerns only one of the co-obligors, the effect will be such as we contend for. Duranton also says that, the obligations of sureties in solido are regulated by the law in relation to co-debtors in solido; they are to be considered as debtors insólido, and nothing else. Vol, 18, nos. 331, 332. Pothier, (Evan’s ed. 1808, pp. 147 and 165, nos. 264 and 282, vol. 1) shows clearly that, if a debt, contracted by several in solido, concern one only, yet, to the creditor, they are all principal debtors; and our own Code states that, as solidarity must be expressly contracted, its remission must also be express.
    The act of the 29th May, 1837, by which J. B. L. Metoyer mortgaged his property for the payment of the debt, was a new obligation, distinct and separate from the obligation arising from his signature to the notes previously executed ? The first was a personal obligation by notes; the second, made subsequently, after the protest of one of the notes, was a hypothecary obligation to secure the payment of the debt; and if the heir of J. B. L. Metoyer can escape from the personal liability arising from the suretyship, if such it be, on the notes, does it follow that the property subsequently mortgaged must be discharged, for the same reason, from its liability ? A man may give a mortgage on his property for the debt of another, and it will be good though the principal debt be rescinded by any plea personal to the principal debtor, as infancy or coverture. Civil Code, arts. 3263 et seq.

      Sherburne and J. B. Smith, for the appellant.
    The engagements of cautions solidaires are assimilated by art. 3014 of the Civil Code to those of debtors in solido; but their rights as sureties are preserved, though their liabilities are made co-extensive with those of debtors in solido. Bousquet, (Diet, des Obligations) in his annotations on art. 2037 of the Code Nap. (Civil Code, art. 3030) says: “ Tant qu, á la question de savoir si l’art. 2037 s’applique á la caution soli-daire, eomme á la caution simple, elle a été aíñrmativement résolue par plusieurs cours royales, et par la Cour de Cassation qui a décidé que lorsqu’il est constant qu’une administration publique, celle des Douanes, créanciére pour des droits d’un contribuable, a suspendu pendant longtemps les poursuites qu’elle avait dirigées contre Iui, et a laissé ainsi la fortune de-son débiteur se dissiper sans faire un acte conservatoire, cette administration ne pent plus agir utilement contre la caution de son débiteur quoique la caution fut solidaire.” L’art. 2037, recoit ici son application. Voyez en outre un arret de la Cour de Cassation 29 Mai, 1838. (17 Aofit, 1836, Dalloz, 36-1 421). He farther says, “Verbo Cautionnement: La décharge du cautionnement a lieu pour la caution solidaire comme pour la caution ordinaire, lorsque le créancier s’est mis par son fait dans l’impossibilité de subroger la caution & ses droits, priviléges et hypothéques.” Pothier holds the same doctrine, Obligations, no. 557,. In the case of Hereford v. Chase, 1 Robinson 213, this court held that the defendant, being an accommodation endorser, was nothing else but the principal debtor’s surety, and as such was discharged, the creditor having rendered it impossible for him to transfer his rights of privilege to him. See Manuel de Droit Franjáis, art. 2037.
    The defendant is discharged by the prolongation of time granted to the principal debtor, Civ. Code, art. 3032. 5 Rob. 250.
   The judgment of the court was pronounced by

Rost, J.

The first questions to which our attention is called in this case, are presented by a bill of exceptions, taken by the plaintiff’s counsel to the opinion of the court admitting an amended answer to be filed. The grounds upon which it rests are: first, that the amendment changed the issue; secondly, that the plea of payment contained in the original answer, precluded any other-defence.

We think with the judge of the first instance that the issue was not changed, and the arbitrary rule of practice contended for by the plaintiff’s counsel, is not recognized by this court. A plea of payment may be a waiver of the general issue, but it does not preclude the defendant from pleading any act of the plaintiff by which the debt may have been extinguished. Courts of the first instance have full power to sanction such amendments in the pleadings as they may deem conducive to the better administration of justice. Debuys et al v. Mollere, 2 Mart. N. S. p. 625. The only positive rule they are bound to follow, is that contained in art. 420 of the Code of Practice. The defence set up in the amended answer put at issue the real merits of this case, and the court, in allowing it to be filed, so far from violating any law or settled rule of practice, exei-cised, with commendable sagacity, the discretion with which it is vested. Those exceptions were properly overruled.

It is material to a proper understanding of this case that the facts it discloses should be stated in the order of their dates. On the 16th of February, 1837, Auguste Metoyer, a free man of color, purchased from the plaintiff a tract of land and fifteen slaves, for the price of $50,000, and gave him in payment three notes to his order, signed by himself and Jean Baptiste Louis Metoyer, in solido, these notes being each for one third of the amount, and payable respectively on the first of May, 1837, on the 31st of March, 1838, and 31st March, 1839. The first note was protested for non-payment, on the 4th of May, 1837. An order of seizure was obtained by the plaintiff, and, on the 29th of the same month of May, the makers of the note appeared before a notary public, and, after reciting in a deed the fact, terms, and conditions of the purchase, bound themselves to pay interest on the price at the rate of ten per cent per annum, and mortgaged separately their property to secure the payment of their notes, of the interest, and of the costs incurred by the protest and by the seizure. The note given for the second instalment was protested for non-payment, on the 3d of April, 1838. On the 31st of May of the same year, the plaintiff became owner, by a notarial transfer and subrogation from Charles Noyret, of a note of $8784 60, signed by Auguste Metoyer and Augustin Metoyer in solido, and of another note, made by Jean Baptiste Louis Metoyer to the order of Auguste Metoyer, and by him endorsed, for the sum of $7320 50, to the knowledge of the plaintiff at the time of the transfer. This last note had been made by Jean Baptiste Louis Metoyer for the accommodation of Auguste Metoyer, who had received the value thereof in slaves. Two days before the transfer these notes had been secured by a mortgage given by Auguste, and Jean Baptiste Louis Metoyer, to Charles Noyret, on the plantation purchased from the plaintiff, and on all the other property mortgaged by them to the said plaintiff on the 29th day of May, 1837, as already stated. The plaintiff was one of the subscribing witnesses to this act of mortgage-

On the 4th of June. 1838, the plaintiff applied to the court for an order of seizure against all the property mortgaged to him by Auguste, and Jean Baptiste Lotds Metoyer, to satisfy the above mentioned five notes and interest, less the sum of seven hundred dollars paid him on account. The order was granted against Auguste Metoyer, but withheld so far as the other defendant was concerned, until a partition could be effected between him and his mother, who owned the property mortgaged in common with him. Auguste Metoyer enjoined the seizure. The petition in the injunction suit was served on the plaintiff, on the 14th of September, 1S38; on the 30th of that month Jean Baptiste Louis Metoyer died, after a continued illness of one month.

At the ensuing November term of the court, the plaintiff moved to dissolve the injunction with twenty per cent damages. The motion was opposed by the defendant, and the case stood over to the April term, 1839. At that term the injunction was dissolved by consent without damages, the petition was dismissed, and a new suit filed against Auguste Metoyer, in which a consent decree was entered in favor of the plaintiff. For divers valuable considerations, it gave a delay of from one to five years for the payment of the debt and interest, on the express condition that if any of the instalments were not punctually paid at maturity, the whole amount of the judgment should, ipso facto, become due and demandable. The first instalment was a sum of $20,000, to be paid on the 1st of May, 1839. The defendant failed to make payment on the day fixed, and forfeited thereby his right to the delays stipulated in the judgment. On the 11th of May, however, he paid the plaintiff, through Augusta Metoyer, $10,000; and the plaintiff agreed with him in writing that, if he paid the balance of the instalment and interest thereon within sixty days from that date, he, the defendant, should be entitled, for the other instalments, to the delays granted by he judgment, as if no forfeiture had taken place. This balance was paid, and, under a second written agreement, no further claim was made upon the defendant, till after the second instalment became due. On the 6th of May, 1840, after the second instalment had matured, execution issued against the defendant. He applied for, and obtained a second injunction, which, on motion of the plaintiff was dissolved, with damages, on the 28th day of April, 1842. Several executions were subsequently issued, and, after exhausting all the property of Auguste Metoyer, there remained due by him a large balance, for the recovery of which this action has been instituted against the present defendant, who is the only son and heir of Jean Baptiste Louis Metoyer.

The defendant resists the claim on the ground that, his ancestor was the surety of Auguste Metoyer; that an extension of time was granted by the plaintiff to the original debtoi', without his consent or that of his father; and that he is thereby discharged, under the provision of article 3032 of the Civil Code. Judgment was rendered in favor of the plaintiff in the first instance, and the defendant appealed.

The appellee contends that the judgment ought to be affirmed for this:

1st. That the liability of the defendant’s ancestor is not that of a surety, but of a co-debtor in solido, and that he cannot avail himself of the defences which the law allows to ordinary sureties.

2d. That, if his liability was originally that of a surety, after the execution of the notes and the protest of one of them, he acknowledged the debt, gave a mortgage to secure the payment of it, and thereby contracted a new obligation.

3d. That if the defendant’s ancestor is to be held as a surety, he expressly gave his assent to the indulgences and delays, granted by the plaintiff to Auguste Metoyer.

After the repeated decisions of the late Supreme Court, and of this on the questions presented by the two first points, we consider'those questions as no longer open for argument. The rule is undoubted that, although the contract of suretyship, or any other, may be modified by private agreement, and made to assume various forms, when, in point of fact, the contract is one of surety between the original parties, the law holds them to the principles of that contract. Andrews and others v. The State Treasurer, 4 La. 406. McDonogh v. Relf and Zacharie, 19 La. 100. Hereford v. Chase, 1 Rob. 212. If the suretyship exceeds the debt, or is contracted on more onerous conditions, it must be reduced to'the conditions of the principal obligation. Civil Code, arts. 3006, 3014. 2 Pardessus, Droit Commercial, no. 385. The relations of the original parties to bills or notes may be changed by parole evidence. Chitty on Bills, 81.

The original contract between the plaintiff and the defendant’s ancestor was in reality one of suretyship, and the mortgage given by the latter, after the protest of the first note, did not change its character. We concur with the late Supreme Court in the case of McDonogh v. Relf and Zacharie, already cited, and adopt with them the doctrine of Pothier, “ that the recognition of a debt is always to be understood as relating to a primordial title; and that, if the recognition admits that the party making it is obliged further, or otherwise that the primordial title imports, by producing the title, or showing the error, he will be relieved.” Pothier, Obligations, No. 744. The mortgage given by the defendant’s ancestor was a new contract of real suretyship, so far as the note endorsed by Augustin Metoyer was concerned. It created no new personal obligation on him.

We have already stated that the term granted by the contract to the original debtor, Auguste Metoyer, was twice prolonged by the plaintiff; and the decision of this case turns upon the question, whether those prolongations took place with the consent of the defendant’s ancestor. It is well settled that there is no obligation of active diligence on the part of the holder to sue the principal debtor, or any other party to the bill or note. He may be passive, and forbear to sue as long as he pleases; but he must not so agree to give time to the principal debtor as to preclude himself from suing him, and suspend his remedy against him to the prejudice of the other parties to the contract. Huie v. Bailey, 16 La. 213. Frazier et al. v. Dick et al., 5 Rob. 250. It was further held in those cases, under the recent English authorities, that to make any agreement for indulgence obligatory, it must be for an adequate consideration; but in the case of Mouton v. Noble et al., lately determined in the eastern district, ante p. 192, we overruled that part of the decisions, and returned to the old opinion that, under the dispositions of our Code and the general principles of the civil law from which they, are derived, any agreement to give time to the principal debtor, with or without consideration, discharges the surety who does not assent to it.

It was correctly held in the case last cited from 5 Rob. that, the express assent of the surety is not necessary to bind him. Assent to contracts, which the law does not require to' be made in writing, may be, and is, implied, when it is manifested by actions, by silence, or by inaction, in cases in which they can from circumstances be supposed to mean an assent; but the facts and circumstances from which alone assent may be implied, must be such as to exclude every other hypothesis. The express assent of Jean Baptiste Louis Metoyer to the particular stays and delays given by the plaintiff to Auguste Metoyer, is not shown; and we are called upon to determine, whether the facts and circumstances exhibited by the record exclude any other hypothesis but that of assent on his part. One single witness testifies to that part of the case. He says that j in May, or Junp, 1837, or 1838, or thereabouts, he saw Jean Baptiste Louis Metoyer twice on this business, and was requested by him to intercede with the plaintiff to grant him time; that owing to the solicitations of the witness, the plaintiff gave Auguste Metoyer time for several years; that the agreement granting five year’s was entered into at the joint solicitation of Auguste, and Jean Baptiste Louis Metoyer; that when the order of seizure was obtained, Jean Baptiste Louis Metoyer talked to witness about it, and it was then that he solicited witness to obtain time for him from the plaintiff. • The agreement alluded to by the witness, took place in January, during the pendency of the injunction suit.

This is all the evidence of the alleged assent, under which the plaintiff claims the affirmance of a judgment now amounting to upwards of $30,000 dollars. The testimony of this witness is vague and uncertain, and induces us to believe that he had no distinct recollection of dates or facts. Auguste Metoyer positively swears that the prospective agreement of which he speaks, never took place, and the other facts of the case go far to show the truth of that declaration. The order of seizure, of which that witness speaks, was obtained on the 4th of June, 1838; it was enjoined, and the service of the petition was made upon the plaintiff, on the 14th of September following. Jean Baptiste Louis Metoyer had then been sick for two weeks, and died a few days afterwards. The witness was not seen at his house during his illness. Five or six weeks after the death of Jean Baptiste Louis Metoyer, at the November term of the court, the plaintiff prosecuting his action with unabated vigor, filed a motion to dissolve tlie injunction, with twenty per cent damages. This motion was resisted by Auguste Metoyer, and the case continued. Towards the close of the April term in 1839, the consent decree, granting time to the defendant, was entered. These facts negative the existence of any prospective agreement to which Jean Baptiste Louis Metoyer could have been a party ; but if such an agreement was proved by legal and sufficient evidence, the case of the plaintiff would not be made out. The first instalment due under the consent decree, was not paid on the day fixed, and the defendant’s right to the delays granted was forfeited thereby. Eleven days after the maturity the plaintiff received a part of the in-stalment, and agreed that, if the balance of it was paid within sixty days of that date, the consent decree should remain valid notwithstanding the forfeiture. That payment was made, and the defendant had the benefit of the prolongation of the term till the maturity of the next instalment.

Surely it cannot be contended that Jean Baptiste Louis Metoyer foresaw this new arrangement, and assented to it. He had been dead nearly a year before the occurrence of the facts which gave rise to it; and the defendant in the present suit was the only person who could at that time have assented to it. It is not pretended that he did, and we are bound to hold him discharged from his ancestor’s liability.

Jean Baptiste Louis Metoyer was the maker of the note of $7320 50, transferred to the plaintiff by Noyret; but it is proved that, at the time of the transfer, the plaintiff had notice that it was an accommodation note, subscribed for the exclusive benefit of Auguste Metoyer. It is therefore in the same situation as the others.

For the reasons assigned it is ordered that the judgment be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    Adle v. Anty and Husband.
    Plaintiff instituted an hypothecary action against a married woman, joining her husband in the suit. A judgment by default, taken against both defendants, having been set aside, the wife alone filed an answer. No steps were taken to have her authorized to appear in court. Held, that her appearance being unauthorized, the judgment must be reversed. C. C. 123.
    from the District Court of Natchitoches, Campbell, J.

      Tuomey for the plaintiff.
    In an action against a married woman it is sufficient if the husband and wife be cited. No special order authorizing her to defend the action is necessary, unless the husband be interdicted, or absent, or refuse to assist her. Code of Pract., arts. 118,123, 126,129.

      Sherburne and J. B. Smith, for the appellants.

      .Bousquet (Diet, des Obligations) in his annotations on art. 215 of the Code Napoleon, says : “ Quoique les poursuites soient dirigées, tant contre le mari que contre la femme, il ne s’en suit pas que cette derniére puisse ester dans les jugements rendus sur ces poursuites, sans une autorisation particuliére et expresse de son mari, lorsque celui-ci fait défaut, et qu’elle seule. comparait. L’autorisation incite du mari figurant dans un jugement avec sa femme, ne doit s’entendre que du cas oú le mari comparaít, oú il est partie agissante ” 18 Nov. 1828, Cass. Montpel-her. Sirey, 29, 1, 240. Ib. 8, 1, 526. Ib. 7, 2, 790. lb. 14, 2, 211. Ib. 28, 1, 208. Ib. 29, 1, 240. Ib. 11, 1,344. See also Pothier, Puissance du Mari, p. 134 § 3, nos. 56, 57 and 59. Rogron, arts. 215 (note) and 218 (note), ail of which authorities go to establish that, in cases like the present, an order of court is necessary before the wife acquires the legitimam standi in judicio per-sonam. Arts. 123,126andl29 ofourCode, are taken verbatim from the arts. 215, 218 and 222, of the Code Napoleon. This court recognised the principle contended for, in the case of Chaisson et al. v. Duplantier. 10 La. 570.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff instituted an hypothecary action against the defendant, a married woman, and joined her husband in the suit. The defendants having failed to appear, a judgment by default was entered against them. Subsequently the judgment by default was set aside, and Melite Anty alone filed an answer to the merits. Upon that issue the plaintiff went to trial without taking the necessary steps to have the wife authorized to contest the suit, and judgment was rendered in his favor. From this judgment the wife, assisted by her husband, has appealed, and prays that it may be reversed, on the ground that she was not authorised to appear in court. Art., 123 of the Civil Code provides that, the wife cannot appear in court without the authority of her husband. The separate answer of the defendant in this case was an unauthorized appearance in 'court, and the judgment must be reversed. Under circumstances nearly similar, the late Supreme Court remanded the case of Keys and others v. Nettles, 12 La. p. 381, for further proceedings; and we are of opinion that the ends of justice will be best answered, by making a similar disposition of the present case.

The judgment is therefore reversed, and this case remanded for further proceedings, the plaintiff and appellee paying the costs of this appeal.


author: Kj3stg, J.

text:
    The Grand Gulf Railroad and Banking Company v. Stanbrough.
    Where the maker of a note promises on its face to pay its amount “ without plea or offset,” he cannot refuse payment on the ground of failure of consideration to the knowledge of the holder, though ^entitled by the laws of the State where the note was executed to set up against subsequent holders any defence which'he might have opposed to the original payee.
    APPEAL from the District Court of Madison, Curry, J.

      T. P., and F. H. Farrar, for the plaintiffs. Stacy, for the appellant.
   The judgment of the court was pronounced by

Kj3stg, J.

Stanbrough, one of the defendants in this case, has appealed from a judgment|rendered against him for $9,075, the amount of a promissory note, executed) byjhimself andfhis co-obligors in the State of Mississippi, and transferred by endorsementto the plaintiffs. The defence setup by the appellant is, that the consideration of the note was a tract of land and several slaves, the title to which’his vendor contracted to vest in him within twelve months after the date of the no.te, but that this stipulation had not been fulfilled, in conse-Trance of which the defendant has been disquieted in his possession, and is in Tánger of eviction from a suit actually pending against him. He contends that, by the law of Mississippi, where the obligation was executed, he can avail him-se^ defences against the subsequent holders of the note, which he could have opposed to the original payee ; that the plaintiffs became the owner of the noto after its maturity, with full notice of the consideration for which it had been given, and of the failure of that consideration; and finally that, the plaintiffs forfeited and lost their corporate capacity, and can no longer stand in judgment.

The note upon which the action is, founded is in the following words:

$9,075 00. “ Port Gibson, Miss., March 1st, 1838.

Ten months after date we, Jesse Stanbrough, principal, and James Graham and Stephen Douglass, as securities, promise jointly and severally to pay Jos. H. Moore & Co., or order, without plea or offset, nine thousand and seventy-five dollars, for value received, payable at the Grand Gulf Railroad Bank.”

The defendant has, by the terms of his contract, absolutely waived the right to resist the payment of his obligation at its maturity, and cannot now be permitted to oppose the defences which he has set up against the recovery of the plaintiffs. It is not, however, improper to observe, that he has wholly failed to show that the plaintiffs were, at the time of receiving the note, aware of its origin, or of the alleged failure of consideration. On the contrary, the testimony of his own witnesses prove conclusively that, it was discounted by the bank in the ordinary course of business, long before its maturity, and, as far as a negative can be established, without notice of any objection whatever to its payment.

The record furnishes us with no proof that the plaintiffs have lost their corporate capacity, and are no longer capable of proceeding judicially against their creditors. Judgment affirmed.


text:
    Wright v. Chambliss et al.
    THE judgment rendered in this case, which was brought up from the District Court of Carroll, merely affirmed the principle established by the decision in Cammack v. Watson, ante p. 132.

      Browder and O. N. Ogden, for the appellant. J. N. T. Richardson, for the defendant.


author: King, J.

text:
    Foster v. Ferguson, Tutor.
    Where a husband dies rich and without children, leaving his wife in necessitous circumstances, she may claim one-fourth of all the property left by him in this State, independently of her right, as surviving spouse, to any portion of the property left by him in another State,
    APPEAL by the defendant from a judgment of the Court of Probates of Concordia, McWhorter, J.
   The judgment of the court was pronounced by

King, J.

This action was instituted by the plaintiff against the tutor of her late husband, for the recovery of her marital portion, alleging that the deceased died rich, leaving her in necessitous circumstances. It appears from the evidence that the plaintiif intermarried, in 1843, with M. D. L. Foster, a citizen of Louisiana, who was, at that time, as well as at the date of his death, a minor, whose property was under the administration of his tutor, the defendant in this suit. The marriage was contracted in the State of Mississippi, but with the view of making this State the residence of the parties. About a year after the marriage, the husband died in this State, leaving a succession, estimated, as is shown by the inventories, at more than $20,000, consisting, in part, of an undivided interest in a tract of land, situated in Mississippi, yielding an annual rent of about $80, and several slaves, also in that State. The remainder of his property is in Louisiana. The plaintiff brought nothing into marriage, and owns no separate property.

Rowly, Frost and Sanders, for the plaintiff. Stacy and Sparrow, for the appellant.

, It is shown that, by the laws of Mississippi, slaves are personal property; that the surviving wife, when there has been no issue of the marriage, as is the case in the present instance, and no satisfactory provision made for her by will, is entitled, as dower, to the usufruct during her natural life of one half of the real estate of the husband, to which she has not relinquished that right, and to one half of the moveables in full property, after the payment of the debts. The defendant alleges that the property, to which the plaintiff has acquired a vested right under these provisions of the laws of Mississippi, is ample for her support, according to her condition in life. The annual rents of one half of the lands in Mississippi, to which she is entitled as dower, amount to about $40 ; and she will receive, as defendant alleges, in full properly, three grown slaves, two that are quite young, and an undivided half of a third, also quite young.

The only witness interrogated touching the sufficiency of this property for the plaintiff’s support, declares that the slaves, which it is alleged she is entitled to in Mississippi, would produce annually about $150, which would be inadequate to her support in the social condition in which her husband left her". That the plaintiff's father is now insolvent, although until recently he possessed ample pecuniary means, and educated his children with reference to the position which he occupied in society. He thinks that $500 would be sufficient for her support. It thus appears that the property of the plaintiff, whatever her rights in the State of Mississippi may be, is inconsiderable, with respect to the fortune and condition of her late husband; that it is inadequate to her support; and that she has been left in the necessitous circumstances, which entitle her to the marital portion of one-fourth of the succession of her husband, in Louisi-' ana, in full property.

The court below decreed to the plaintiff one-fourth of the estimated value of the succession of the deceased, deducting the estimated value of the property to which she is entitled in Mississippi as dower. Of this judgment she complains, and we think that it is erroneous, For the reasons stated, it is ordered that the judgment of the lower court be avoided and reversed. It is further decreed that the plaintiff be entitled to and recover from the defendant William Ferguson, in his capacity of tutor, one-fourth of the succession which her husband, Marquis D. L. Foster, deceased, left at his death in this State, independent of the rights which she has acquired in the estate of her husband in the State of Mississippi. It is further ordered that the defendant pay the costs of both courts.


author: King.

text:
    Wilkinson v. Stanbrough.
    It is only when the husband is absent from the State, that a judge can authorize his Wife to’ make contracts. C. C. 129, 3522 § 3. Absence from the parish, is not enough.
    APPEAL from the District Court of Madison, Curry, J.
   The judgment of the court was pronounced by

King.

Sarah Hinkston, the original plaintiff in this cause, claimed from the defendant four fractional sections of land, described as lots nos. 11, 12, 13 and 14, in township no. 16, range 12 east, containing each one hundred and sixty superficial acres, more or less, alleging that she had acquired them, by purchase, from the United States, on the 4th day of June, 1833, under an act of Congress of T830. During the pendency of the action she died, and at the next ensuing term of the court, Wilkinson intervened in the suit, and caused himself to be substituted for the party plaintiff, upon exhibiting a sale from the original plaintiff to him of all her rights to the land in controversy. The defendant claims two of the sections by purchase from James Cable, on the 4th September, 1835, and the other two under a sale from James Douglass, of the 30th November, 1835. Both of his vendors have died since the dates of their sales to him, and their representatives are called in warranty. The cause was submitted to a jury who gave a verdict for the defendant, in conformity with which a judgment was rendered, from which the plaintiff has appealed. The plaintiff claims under a sale fiom Sarah Bray, wife of John Hinkston, executed on the 3d day of August, 1839, by which she conveyed to him the entire lot 12, and an undivided fifth of the lots 11, 13 and 14.

It is objected to this act that, it was executed without the authorization of John Hinkston, the husband of the vendor, and that the authorization to contract, granted by the judge, was illegally given. Sarah Hinkston applied by petition to the parish judge of Madison, for authority to sell all her rights to the land in controversy, representing that her husband was, as she believed, absent from the State, and did not intend to return. The judge, after hearing witnesses, gave the authority asked for, on the ground, stated in his order, that Hinkston was absent from the parish.

The provisions of the Code, in relation to the disabilities of married women, are clear and explicit. The wife, not separated from bed and board, can only alienate her property with the concurrence of her husband. If the husband refuses to empower the wife, she may cause him to be cited to appear before the judge, who may authorize her to act, after the husband has been heard, or has made default. Or, if the husband fie absent, the judge may, when satisfied of that fact, authorize the wife to make contracts. Civil Code, arts. 124,127, 129. The absence referred to in article 129, means absence from the State. Civil Code, art. 3522, § 3. In the present instance the judge based his decree upon the absence of the husband from, the parish — not horn the State. The husband was not cited, nor was he heard upon the application. The decree is illegal upon its face, and null. It was granted improvidently, and conferred upon the wife no power to alienatp the property, of which she claimed to be the owner.

The defendant has exhibited titles in himself to the land in controversy, derived, by mesne conveyances, from those who purchased from the government. Under these he has held possession in good faith, uninterruptedly, since 1835. Various objections to them have been urged, into which it is needless to inquire, as the plaintiff can only recover on showing the superiority of his own title, in which he has failed. A general judgment was rendered in the court below in favor of the defendant, whereas, in our opinion, there should have been a judgment of nonsuit only. In this respect the decree of the court must be corrected.

Amonett and H. W- Dunlap, for the appellant. J. Dunlap, Stacy and Sparrow, for the defendant.

It is therefore adjudged that the judgment of the District Court be annulled and reversed. It is further decreed that, there be judgment against the plaintiff as in case of nonsuit, the appellee paying the costs of this appeal, and the appellant those of the court below.


author: Slidell, J.

text:
    Reid v. Duncan.
    The law creates an obligation to pay interest, only where the debtor is pnt in default for the paymentof the principal; and in such acaseitruns onlyñ'óm the date of the default.
    An agreement to pay a higher rate of interest than the law allows, being in contravention of a prohibitory law, is void. C. C. 12. So an agreement to pay the highest rate of conventional interest upon asum composed of the principal loaned and rrsurious interest, is usurious. In such cases, the whole agreement as to interest is void, and none whatever can be allowed.
    Where by agreement between the maker and holder of a note, executed for the principal of a loan and for a certain amount of usurious interest added thereto, it was stipulated that the proceeds of property shipped to the latter should be applied to the payment of the note, the payment must be imputed pro rata to the principal and interest; and where the contract relative to the payment of interest is subsequently annulled as usurious, the creditor will be entitled to retain the amount imputed to the payment of the interest. Money paid in discharge of usurious interest cannot be reclaimed.
    APPEAL from the District Court of Caddo, Campbell, J.

      Roysdon, for the appellant,
    cited 3 Mart. N. S. 196. 3 La. 393. 6 La. 708-9. 4 Robinson, 493. 1 Yerger, 243,444. 71b. 545. 6 Wendell, 415. 2Maule&Sel-wyn, 632. Chitty on Bills, 9 Am. ed. pp. 109-10, and note 1; p, 111, note 3.

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

Slidell, J.

On the 8th June, 1840, Taylor & Ferguson, on the recommendation of Taylor to his partner, loaned to Reid the sum of $4,800, and took from him his note for the sum of $6,000, payable at New Orleans on the 1st June, 1841, to the order of Taylor Ferguson, thus charging Reid for the use of $4,800, for a period a little less than a year, $1,200, being over twenty-four per cent per annum. It also is .shown that the $4,800 was given to Reid in Illinois bank notes, which were then at about five per cent below specie value. With regard to this portion of the usurious transaction the plaintiff has not asked relief.

The note was protested at maturity on the 4th June, 1841, having been previously endorsed by Taylor & Ferguson to Taylor Sf Duncan, a firm of which Taylor, of Taylor & Ferguson, was a partner, and who had knowledge of the usurious consideration. Reid, some months after, applied to Taylor & Duncan for time, promising that he would send them his crop of that year to be appropriated to the note, and also give a mortgage. Accordingly, on the 26th February, 1842, the parties executed, at New Orleans, a notarial act, in which, after reciting that Taylor Duncan are holders of the$6,000 note, and that the same was protested at maturity, they say, ,l that Taylor & Duncan have agreed to extend the time of payment of said note for the term of twelve months from and after the date of the act, on being paid interest at the rate of ten per cent per annum on the said sum of $6,000, from this day until final payment. Now, therefore, to secure the full and punctual payment of the said note, and interest, at the period aforesaid, the said A. G. Reid declared that he does, by these presents, specially mortgage and hypothecate unto the said Taylor 8f Duncan, the said Taylor being present and accepting in their behalf, the following described lands, slaves, &c., to wit.” The mortgaged property is then described, and the act proceeds as follows: “ The said A. G. Reid promises not to alienate, &c., and moreover binds himself, his heirs and assigns, to pay the above diseribed note, with the interest thereon as herein before stipulated, at the expiration of the said term of twelve months, it being well understood and agreed to, by and between the said parties, that the extension of credit shall not operate, or be considered, as a novation of the original debt.” It will be observed that the debt thus remained unchanged; and also that the mortgage, and the promise as . to interest, refer only to conventional interest that shall accrue after the date of the act.

When the time thus given expired, Reid failed to pay, and Duncan, as surviving partner of Taylm• & Duncan, and as the executor of his deceased partner, obtained an order of seizure and sale, asking, in his petition, that he be. paid from the proceeds of sale, the sum of $6,000, with interest from the 26th February, 1842, at the rate of ten per cent per annum. The present suit was brought by Reid, to enjoin the execution of the writ of seizure and sale. He alleges the usurious contract by which he had obligated himself to pay $1,200 for the use of the $4,800 as above stated; he also alleges that he has paid on the note $1060 18 in cotton, and prays relief accordingly. The defendant answers by a general denial, and also pleads that the proceeds of the cotton should be applied to certain advances made thereon to the defendant. The court below decreed as follows: “ That the injunction be sustained for the sum of $1,200, claimed as usury, to be credited on the note at its date; and for the further sum of $1060, to be credited on the said note, on the 21st April, 1842; and that the sheriff proceed with the sale to make the balance of the said debt, viz : the sum of $4,800, with interest at five per cent per annum, from June 24, 1841. to 26th Feb. 1842, and interest on the said sum from the last date, at ten per cent per annum, until paid, credit by said sum of $1060, 21st April, 1842, with such costs as were taxed in the order of seizure and sale.” The court rejected the defendant’s claim for advances, without prejudice, however, to the rights of suit therefor. From this judgment Reid has appealed; and the appellee, in his answer, also asks that the judgment be amended in his favor.

Our first inquiry is, did the court below err in declaring void so much of the note, to wit, $1,200, as was given for usurious interest from its date to maturity 1 There are two classes of interest known to our law, conventional and legal interest. Civil Code, art. 1930. The former flows from the convention of the parties; the latter is given by the law under certain circumstances, independent of the convention of the parties. In contracts stipulating conventional interest, it is due, without any demand, from the time stipulated for its commencement, until the principalis paid. Civil Code, art. 1931. In contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on whatever sum shall be found by the judgment to have been due at the time of the default. Civil Code, art. 1932. Thus it clearly appears, that the only case in which the law creates an obligation to pay interest is, when the debtor is put in default for the payment of the principal; and when he is so put in default, the interest, the right to which is created by the operation of law, runs only from the date of the defahlt.

Turning then to the consideration of conventional interest, that is, the obligation to pay interest which arises from this convention of the parties, we find that the law, from grave considerations of public policy, has laid down certain rules to regulate and restrain these agreements. The amount of conventional interest cannot exceed ten per cent. The same must be fixed in writing, and testimonial proof of it is not admitted in any case. Civil Code, art. 2895. The statute is prohibitory. Whatever is done in contravention of a prohibitory law is void, although the nullity be notformally directed. Civil Code, art. 12. The agreement then to pay this $1,200 of interest, being a violation of a prohibitory law is void, and as such we can give it no effect whatever. We cannot say that we will let the convention stand up to the highest limit permitted by the law, and disregard it for so much as it exceeds the legal limit. The convention is a whole, and tho nullity covers the whole.

Again: The contract for conventional interest derives its existence, not from the law, but from the agreement, and must be fixed in writing. Civil Code, art. 2895. The parties here made no convention for any lower rate; if we substitute a lower rate, we create a convention for the parties. But the law gives us no such authority. The only case in which the law creates an obligation to pay interest being, when the debtor is put in default for the payment of the principal, and then only from the date of the default. The convention then of the parties to pay the twenty-four per cent interest, from the date of the loan till the time when it was exigible, being void, and the law having made no provision for legal interest anterior to default, the sum of $1,200 stipulated by the parties is a sum for which no legal liability ever existed, and the payment of no part of which can be enforced.

Nor does the fact that Reid, after the maturity of this note, in the notarial act of mortgage, recognized the existence of the note and indebtedness for $6,000, stipulated for an extension of time, and gave a mortgage, affect his right to be relieved from the contract to pay usurious interest. The note was not novated by this agreement; the notarial act expressly declared that it was not novated. It was merely recognized as an existing contract and indebtedness, which the debtor secured by a mortgage, and upon which he promised to pay ten per cent interest from the date of the notarial act. The cases wherein payments were made, and the debtor was held to be thus estopped from getting back the usurious interest, or being relieved with regard to it, have no analogy to the present case. Here the original promise to pay the usurious interest still stood unchanged, and retained its original form and force. This case is a much stronger one against the creditor, than the case of Rosenda v. Zabriskie, (4 Robinson, 4-93,) where the original notes had been several times renewed.

But it is contended by the creditor that, he has a right to have imputed to this sum of $1,200 of interest, the proceeds, to wit, $1060 18, of certain cotton shipped by Reid to Taylor & Duncan, and which appears to have been sold on the 14th March, 1842; while, on the other hand, the plaintiff asks that, it be imputed to the $4,800. If this imputation can be made it is clear that, under the jurisprudence of the Supreme Court as established in several cases, and which we regard as now well settled, the debtor, Reid, cannot get back what has thus been paid. It is shown by the evidence that, it was agreed by the parties that Reid should ship his crop to Taylor 8f Duncan, to be appropriated to their note.” As the note was for a total sum of $6,000, and as the promise and understanding were that it should be appropriated to the whole note, and not upon any particular portion of it, we deem it equitable not to apply the payment to any particular portion or component part of the sum of $6,000, to the exclusion of the other, but pro rata to each to the $4,800 and the $1,200. This gives a credit upon the principal of $848 14.

We come now to the consideration of so much of the judgment of the court below, as allows interest at the rate of ten per cent per annum upon the debt, from 26th February, 1842. This interest of ten per cent is stipulated in the mortgage upon the whole note, $6,000; as a part of this note was usurious interest, it obviously follows that this new stipulation was usurious. The rate of ten per cent is a lawful rate ; but here it is the sum upon which it is stipulated, which makes it unlawful; $1,200 of the note being made up of usurious interest, it was in reality a stipulation compounding usurious interest. This case is not distinguishable from the case of Flood v. Shamburgh, 3 Mart. N. S. 634. There a note for $10,000, payable in one year, was given for a loan of $8,800. By a subsequent act of mortgage passed to secure the payment of this note, the borrower had stipulated to pay interest at ten per cent, if it was not regularly discharged at the end of the year.' The judge below was of opinion that ten per cent interest could be recovered on the sum really lent, from the date of the failure to comply with the original contract. The Supreme court reversed the decision.

But it is said that the party is, at least, entitled to maintain his order of seizure and sale, for the lawful rate of interest, from the date of the maturity and pror test of the note, upon the amount of the principal debt. There is strong reason to infer from the evidence in the record, and especially from Duncan’s own pleadings, that this interest, up to the date of the mortgage, had been paid or released. Be this as it may, it suffices to say that, this proceeding is by order of seizure and sale to sell the mortgaged property, and is based solely upon the notarial act. That act, by which alone the real estate seized was made liable, is entirely silent as to the legal interest which accrued by protest of the note. Not a word is said in the act of mortgage of any interest but the conventional interest, which it stipulates from the date of the notarial act itself; and such was the interpretation which the creditor has himself put upon the mortgage, for in his petition for an order of seizure and sale, he asks to be paid, out of the proceeds of the sale, the sum of $6,000, with interest thereon at the rate of ten per cent, from the 26th day of February, 1842, until final payment.

As to the claim of the defendant to have the proceeds of the sale of the cotton appropriated to his account, for sundry items alleged to have been advanced on the consignment, we concur with tire district judge, in considering it as established by the evidence that, the agreement of the parties was that those proceeds should be credited on the note; and, under this agreement, evidence was admisable to prove the proceeds of sale of the cotton shipped.

It is therefore decreed, that the judgment of (he court below be reversed; and it is further decreed that, the sheriff proceed with the sale of the mortgaged property, to make the sum of §3,951 86, with costs of .said seizure and sale; and it is further decreed that, the said defendant pay the costs of this suit. This decree not to prejudice the rights of said defendant, as to the account for supplies and advances in his answer pleaded, and a copy whereof is on file in this cause. And it is further decreed that, for the residue of the amount mentioned and directed to be collected in said order of seizure and sale, the injunction be perpetuated.