author: Rost,, J.

text:
    Thompson, Executor v. Mylne.
    A judgment which does not contain the reasons for which it was rendered, cannot have the force of res judicata.

    An intervenor cannot complain of want of notice of an order made in open court, between the original parties. An intervenor is presumed to be always in court, ready to plead-C. P. 391.
    Art. 1934 of the Civil Code does not apply to merchants’ accounts.
    The commercial law, as settled in the other States of the Union, is uniformly followed by the courts of this State, where no statutory provision prevents a resort to it.
    By the genera] commercial law, where the custom of the place and the practice of the parties is to strike a balance of their accounts at fixed periods, and to render the account, the balance, composed of principal and interest to date, is viewed as the capital of the creditor, on which he is entitled to charge interest from that date. Acquiescence in an account so rendered, though not per sc an agreement to it, is evidence from which it may be inferred that the party, who received it without objection, agreed to continue the same course of dealing, and to retain the balance on paying interest.
    By the custom of this State, it is understood between planters and their factors that the latter are to render accounts annually, after the sale of each crop, and, if the balance in favor of the factor is not paid, that interest is to be charged on such balance, at the rate agreed on, though made up of capital and interest.
    The laws regulating the rate of interest apply to commercial as well as ordinary transac_ tions, and conventional interest cannot ho changed in any case without a written agreement to pay it.
    A preparatory decree, prescribing the manner of proceeding deemed necessary by the court to arrive at a final decision, cannot have the force of res judicata. It remains under the control of the court, subject to its revision, until a final decision.
    from tire Fifth District Court of New Orleans, Buchanan, J.
    No counsel appeared for the plaintiff.

      Briggs and Chymes, for the apjtellant.

      Seghers, Simon and Morphy, for the intervenors.
   The judgment of the court (Eustis, C. J. not sitting, having been of counsel for plaintiff',) was pronounced by

Rost,, J.

Before the decision of the Supreme Court in the case of Thompson v. Mylne, in 2 Rob. 349, the defendant had filed two accounts, showing the situation of George B. Milligan with the firm of A. (& J. Dennistoun & Co., and with the Bellechasse plantation. After the case was remanded, the intervenors, who appear from that time to have superseded the plaintiff in the management of it, filed an opposition on a great variety of grounds, among which are the following: 1. The intervenors oppose all items in the accounts foreign to the concerns of the partnership, the same not being within the jurisdiction of the District Court. 2. They oppose the charge of $4,462 35, for Milligan's third of the cost of 708 shares of Union Bank stock, secured on the plantation, on the ground that it was the private property of the defendant, who held it in his name, and borrowed money on it on his own account. 3. They oppose the manner in which interest is calculated in the whole account no. S, as it imports interest on interest, contrary to all legal principles, and in violation of art. 1934 C. C. They asked, at the samo time, that the defendant might be ordered to file, in place of the accounts opposed, other detailed accounts, showiug every transaction, every receipt and disbursement by and between the - parties, reserving to themselves all legal objections to the same and to eveiy part thereof, when they shall have been filed.

The court, without going into details, or giving - any reasons, ordered that a$ the exceptions be sustained, except that in relation to the charge of the price of the bank stock, which was reserved to be investigated by the auditors about to be appointed. The court then ordered “that auditors be appointed, and that-all matters of account be referred to them, with instructions to examine and investigate the same, and to report to the court 1he balance, if any, which may be due by the estate of Milligan, on the price of bis third part of thejBellcchasse plantation and slaves, conformably to the judgment of the Supreme Court, jmd the present judgment.”

Auditors were accordingly appointed. The defendant produced before] them the new account he was ordered to file in court, and they made a report thereon, in conformity with the directions of the court.

The intervenors having taken a rule upon the defendant to show cause’why the report should not be homologated, he opposed tho homologation on the following grounds: 1. That the auditors have rejected all the charges in the account which are personal to the late G. B. Milligan, and foreign to tho partnership. 2. Thatthey have rejected the charge for the cost of Union Bank stock. 3. That they have neglected to observe the mode of stating the accounts and of calculating interest, pursued by him, and by the firm of A. Sf J. Dennisiountl i Co.

The intervenors contend that two at least of these three grounds of opposition have been already decided in their favor, by tho decree appointing the auditors; that this decree has not been appealed from, and that the delays for rappealing having expired, it forms res judicata. There is a fatal objection to the finality and binding force of this alleged judgment. It does not contain the reasons upon which it was rendered. If it was valid in form we could view it in no other light than as a preparatory decree, directing the auditors how to proceed in the adjustment of the accounts. The record contains ample evidence that it was so considered by the parties, by the auditors, and by the judge. Viewing’ it in that light, it is necessarily before us on the appeal from the judgment of homologation.

In relation to the first ground of opposition, it was held by the Supreme Court that the accounts concerning the partnership were within the jurisdiction of the District Court, but that all private claims against Milligan should be settled and liquidated before the Court of Probates. The jurisdiction of that tribunal having since merged in that of the District Court, and the evidence of the private, as well as of the partnership, debts being before us, we will proceed to adjudicate upon the whole, as far as the state of the case will permit us to do so.

The Bellechasse plantation was first acquired by Dennistoun &f Co., who sold one-third interest in it to Milligan. ' The accounts in the record show that the price of this third has stood ever since on the books of the firm as a debt duo to-it, and that the subsequent transfers of the property have not changed the original relation between the firm’ and Milligan. By the articles of partnership this firm was appointed factors of the plantation. It has acted in that capacity, ever since, made all the necessary advances, and kept all the partnership accounts. In these accounts of the plantation, no items were charged or credited which did not appertain to the joint concern. But, besides those accounts, the partners Rad private accounts with their factors, and Milligan, who lived on the plantati°n> was in the habit of drawing upon them for all the small items of his private expenditure. In making up tho yearly accounts, one-third of the nett proceeds of the crop was placed by the factors to the credit of Milligan; out of this third and of his salary as manager, tho amount of his private account was first deducted, and the balance was credited to him on the price he had agreed to pay for his interest in the plantation.

Such appears to have been the course of dealing between tho parties up to the death of Milligan. It was made known to Alexander Dennistoun, who so far from complaing, sanctioned it, requesting merely the firm 1o keep Milligan’s private account down as closely as possible. The very sum of $2,575 59, duo by Milligan for his proportion of loss in a cotton speculation, which is specially objected to by the intervenors, appears to have been paid out of the proceeds of crops, with the assent of Dennisloun. Neither he, nor the defendant, have over objected to these appropriations, and they do not object to them now. The intervenors have no right to raise the objection for them. Bludworth v. Jacobs, 2 An. 24. Dunbar v. Bullard, 2 An. 821.

It is alleged that this course of dealing, and die acquiescence of Dennistoun in it, are only proved by documents which, although found in the record, are not properly in evidence. The record shows that, on motion of counsel for the defendant, the plaintiff was ordered to produce and file in court, four days after the date of the order, all the papers and accounts which wore inventoried in Milligan’s succession, under the description of “A bundle of papers, containing Bellechasse accounts, and marked letter C.” These papers were accordingly produced by the plaintiff, who, at the time of filing them, made oath of their identity.

The intervenors complain that this order was obtained ex parte, and granted in the dark, without any notice to them. Those complaints appeal’ to us unfounded. No law requires personal notice to be given to intervenors in such cases. The application was made and the order granted in the usual form, and in open court, where intervenors are always presumed to be ready to plead. C. P. 391. The order bears date the 16th February, 1846, the véry day on which the decree ordering the appointment of auditors was rendered. The minutes show that, on the next day, the counsel of the intervenors was present at the opening of the court, and appointed one of the auditors; the reading of the minutes must have informed him of the order granted the day before. He was bound to know, and, we have no doubt, did know, tho contents; of the minutes. Several days elapsed after this before the accounts were filed, and fifteen months were wasted in litigation before the rendition of tho judgment appealed from. The intervenors had notice of the order and of the documents after they were filed, and suffered them to be received as evidence, without alleging either collusion or fraud against tho other parties to the suit, or raising any other objection. They now contend that there is no evidence of the identity of those papers and accounts with those which were found by the judge in making the inventoiy; that they do not appear to have been paraphed and numbered as the law requires, and should not be considered as evidence. The defendant cannot bo prejudiced by the omissions of the magistrate who made the inventory. It was ■ stipulated in the contract of partnership between Milligan and the linn of Dennistoun Sf Co., that annual accounts should be rendered to Milligan by liis factors. His inventory makes mention of a bundle of accounts and letters found in his succession, and his executor, being ordered to produce those accounts and letters, has filed in court such accounts as the factors were bound to render, and letters of Mr. Dennistoun and of the firm explaining some of those accounts. The warrantors were aware that the documents inventoried had not been paraphed by the judge, and that the inventory made no mention of their number. They might perhaps have opposed on those grounds their introduction as evidence, and required prooí of their identity beyond the oath of the plaintiff; or, after the papers were filed, they might themselves have controverted that identity and attempted to disprove it by the books of Dennistoun ¿y Co., by the witnesses to the inventory,,or by-other persons present when it was taken. But as this has not beon dono, we must hold the return made by the executor to be prima facie true, and give effect to the evidence filed by him.

We stated at the beginning of this opinion that, on the first trial of the causo in the_ District Court, the defendant offered in evidence the account of Milligan With the Bellechase plantation, taken from the books of A. ¿y J. Dennistoun Co. This account contains the following entry :

“One-third cost of seven hundred and eight shares of Union Bank stock, bought on account of plantation and owners, $4,4G2 50.”

The judge of the District Court considered that the word otoners must have reference to Mylne and Milligan, and gave this, as his own reason, for deciding that Milligan was one-third owner of the plantation. On appeal, this decision was affirmed.

If this entry, found in the books of the common factors of tho parties, is sufficient to prove the interest of Milligan in the plantation, it must a fortiori prove his interest in the stock. It has been urged that-this account cannot make proof in favor of the defendant, by reason of his interest in the firm who kept it. Milligan was apprized of the existence of that interest when he made the contract which has given rise to this controversy, and the will by which he entrusted the settlement of his estate to the plaintiff in this suit. In selecting the firm as his factors, and the plaintiff as his executor, he intended to invest them with the rights of factor and executors ; and so long as no fraud is alleged or shown, it is proper not to lose sight of that intention, and to give these parties the bene* fit of the character for truth and integrity upon which the confidence of Milligan reposed.

But it is shown, moreover, that the account containing the charge for the price of Union Bank stock, was rendered to Milligan with a memorandum, stating that it had been put in the name of Milligan for tho salce of convenience, but belonged, in truth, to the owners of the plantation. A letter of Alexander Dennistoun corroborating this item of the account was also found in his possession; it is not shown that he ever repudiated the purchase, and no reasonable doubt can exist, that it was made on joint account. Milligan could not have been president of the Union Bank, if he.had not been a stockholder of that institution.

The stock having no market value when the plantation was sold to Benjamin and Packwood, and standing at the time in the name of tire defendant, it was not necessary to include it in the sale, and the transfer of it by the defendant on the books of the bank does not affect the right of the firm to charge the cost of it as it has done.

The last ground of opposition relates to the mode of stating the accounts, and of calculating interest. At the end of eveiy year, a balance of accounts and a balance of interest was struck, and earned together to the new account, thus calculating capital and interest, and charging interest upon the whole. This ¿rode of stating the accounts, was rejected by the auditors as being in violation'of art-1934 of the Civil Code, and the question now submitted to us is, whether that article is applicable to merchant’s accounts.

The commercial law, as settled in the other States of this Union, has been uniformly followed by the courts of Louisiana, when no statutory provision has prevented a resort to it. Under that law it is well settled that, when it is the custom of a place and the practice of the parties to strike a balance at fixed periods, .and to render the account, it brings it to the case of a fresh agreement, at the beginning of each period, to lepd the sum then due; though acquiescence in the account rendered is not considered per se an agreement to it, it is evidence from which it may be inferred that the party who receives the accpunt without objection, thereby agreed to continue the course of dealing and to retain the balance in his hands, rather than to pay it; the balance due is viewed as the capital ■ of the creditor, which he loaves in the debtor’s hands, on paying interest. The rule is that where regular merchant’s accounts are settled from time to time, interest on interest is allowed. Bainbridge & Co. v. Willeox, 1 Baldwin, 536, and authorities there cited.

In.'France, where a-disposition of law veiy similar to art. 1934 of our Code •exists,.it is not considered as applying to merchant’s accounts. “Les comptoscourants pe.uvent étre arrétés des époques aussi rapprochóes qu’il plait aux parties. Chaquefois I’intoret s’y liquido, et fait partie du soldé transporté azi nouveau ;compte ouvert. II so trouve ainsi converté en capital pour le compte suivant. Láa'égle .du Droit Civil qui ne- permet de capitaliser les interets qu’au bout.d’une année, -est .dans ..ce cas sans .application. Vincens, 2, 158. Peu importe que le-compte soit elabli entre deux,commerfants, on etre un commerjant et un simple ;particulier.” Dalloz, ,vol..40, ,221.

In adjudicating upon commercial.transactions much-uncertainty often arises in consequence of the non-adoption of the commercial Code, prepared by the framers of our CivibCode. It is safe to presume, however, that, in framing the Civil Code, they intended to leave our commercial jurisprudence as it was before, in harmony with that of other commercial nations. The -application of art. 1934 to a case like this is inconsistent with that presumption, and we concua with the courts and jurisconsults of France that it is not applicable.

It is well understood, between planters and their factors, that-the latter are to render accounts annually after the sale of each crop, and if the'balances existing pi their favor are not paid, interest is to be charged upon them at the rate agreed upon, although they may be made up of capital and interest. The fact that this course of dealing is universal and never questioned so long as the relation of principal and factor continues, shows the popular interpretation of the commercial law on this point; but the rights of the factors in this case, to make annual rests in their accounts, does not depend upon usage ; it results from an expresa stipulation in the contract of partnership. In the accounts rendered to Milligan under that stipulation interest was charged in the manner objected to; his agreeing to continue the same course of dealing after receiving them, was a tacit consent to their correctness so far as they could be ratified.

Considering that art. 1934 of the Civil Code is not applicable to merchant’s accounts, A. Sf J. Dennistoun Sf Co. were authorized, under the contract of partnership, to charge interest at the rate of six per cent per annum on the entire balance of every annual account, rendered by them; but the laws regulating the rate of interest are applicable to commercial as well as to ordinary transactions, and they could not charge interest at the rate of eight per cent per annum 'on-Üie cost of'the bank stock, .without an agreement, in writing of Milligan'te pay it. The bank stock account never having been paid, the intervenors are entitled to a reduction of two per-cent on the rate of interest charged. With this amendmenfthe charges far interest are not illegal.

The defendant has asked that the -case be remanded for-a final adjustment of the accounts by the court from which the present appeal is -taken. There can be no objection to this course. He farther asks that, for the balance which mq-y be found under that final adjustment, the firm of Dennistoun 8¡-Co. may be decreed to -.be a -creditor of .the partnership. . ..

When this case was before'the Supreme Court it was stated .in ¡the (opinion ¡that, the balance which may remain due onithe price of Milligan’s share in the •premises in partnership could not be considered as a partnership debt, to he satisfied by preference out of the partnership property; .that his vendors, as -such, .cannot-pretendto set up their claim as being a debt of the firm, to be. paid out of ¡the partnership assets; but in itbe decretal part, the right in question is .not specifically and finally adjudged. After affirming the decree of -the District (Court, which was a final decree upon the title, and which title was-thus finally adjudged, the-decree proceeds'to remand (the (cause for further proceedings in ¡the partition df the partnership-property and in the-settlement and liquidation of‘the-partnership concerns, and of the crops which the-defendant is -bound'to account for as negoiiorum gestor, for the purpose iof liquidating ¡the -balance, .if .any,-that ¡may be-due to the defendant, .according to .the legal principles, recognized in.this (opinion, reserving to said defendant his right to prosecute .his.claim for suchibalance 'before,the Probate .Courtin due.course of law.

This is not (to be considered.as afina! decree upon-those rights of the parties mot specifically adjudicated and closed by the decree itself. It is a preparatory •decree, prescribing the manner of proceeding deemed necessary by the court to ¡arrive at;a final decision, and necessarily under its .control .until that decision is-made. Res judicata dicitur quee finem controversiarum pronunciatione judiéis accipit, quod vel condemnatione vel absolutione eontingit. L. 1, ff. De Re Judie.uThe thing adjudged does not exist before the judge has definitively pronounced •on the contestation submitted to his decision, before he has admitted or rejected the claim, contemned or absolved the defendant.”

These requisites have not been fulfilled in this case. The defendant has not been condemned by the decree of the court. Further proceedings were .necessary to constitute res judicata, and the opinion of the court stands only as the enunciation of the legal principles which it considered applicable to the. case,, and. remains as such under the control of the court, and subject to their revision Perkins v. Fourniquet, 6 Howard, 208. Sibbald v. United States, 11 Peters, 491. Clay v. His Creditors, 9 Mart. 521. Kittredge v. Breaud, 2 Rob. 40. 4 Rob. 79.

These views are not in contradiction with those expressed in the cases of the. Succession of Durnford, 1 An. 92, and Kellam v. Rippey, 3 An. p. 202.

In the first of these cases the former decree of the Supreme Court reversed the judgment of the .Court of Probates, and remanded the case with directions to the judge below to give McDonough a credit on his account for the sum of $18,000, and to close the account according to law. The Succession of Durnford was thus finally condemned to pay that sum, and the court could not review a matter finally determined by the decree.

Jn the other case, Kellani, the plaintiff, had be.en finally condemned to pay the defendant for his improvements, and the case having only boon remanded for the purpose of ascertaining tlioir value, this was tha only question before the court on the second appeal.

Wo ai'e satisfied that the question whether the debt due by Milligan is or is not a partnership debt, is .still open, and as we cannot now finally pass upon tho case, it must be referred to the District Court in which the succession is opened, to bo decided in the classification of the debts.

It is, therefore, ordered that the judgment in this case be reversed, and the case remanded to the District Court for further proceedings, in conformity with the views expressed in the foregoing opinion; the intervenors and appellees paying tho costs of this appeal.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Thompson, Executor v. Mylne.
    Whore a caso has been finally decided on its merits by the Supreme Court, and the politest still pending relates merely to tho execution of tho judgment, it is too late to intervene therein. C. P. 389, 394.
    from the Fifth District Court of New Orleans, Buchanan, J,
    and for the intervenor and Dennistoun.

      Simon and Morphy, for the widow and hems of Prquhart, intervenors and appellees.
    No counsel appeared for the other parties.
   The judgment of the

court (Euslis, C. J. not sitting, having been of counsel for plaintiff,) was pronounced by

Rost, J.

In this case, as decided by the late Supreme Court, between the original parties and tho heirs of Prquhart, intervenors, it was held that the succession of Milligan was the owner of the one undivided third part of the Bellechasso plantation and slaves, and the right of the executor to- demand a partition of that property and of the crops made upon it, before and sinco the death of the testator, was fully recognized. 11 Rob. 349. The case was remanded for further proceedings in tho partition and in the settlement and liquidation of the partnership’s concerns, and of the crops which the defendant was bound to account for, as negoiiormn gestor; and also for tho purpose of liquidating the balance, if any, that may bo due to the defendant, according to the legal principles recognized in the opinion of the court.

After tho property had been sold, under a decree of court rendered in execution of the judgment, and after the parties had made some progress in the settlement of tho accounts, Alexander Dennistoun intervened, alleging that he was the real purchaser of tho plantation and slaves, when it was acquired from Mih laudon and others, on tho 11th January, 1822 ; that ho had continued to be the solo owner, up to the present timo; and that his exclusive right of ownership has been judicially recognized by tho courts of this State; that on the 16th March, 1828, the firm of Dennistoun Sf Co., oí New Orleans, who managed the plantation for him, entered into a partnership with the late George B. Milligan, for tho purpose of securing his attention to tho place, and that a provision was made therein for his future acquisition of one-third interest in the property y’that this agreement was not signed by the intervenor, nor did he ever give to the firm of Dennistoun <§* Co., or to any of its members, any power to convey the land or any interest therein; that the intervenor, residing abroad, and being incapable of exercising any direct control over the plantation, made a nominal transfer thereof to Wm. C. Mylne, on the 3,0th day of August, 1836; but that the said sale passed no real interest to the purchaser, who was a mere trustee for tho purposes of administration, or for the sale and disposal of the property as the case may be.

The intervenor further alleging the death of Milligan, his indebtedness to him and to the firm of Dennistpun Sf Co., and also the decree of the Supreme Court already referred to, prayed that all the parties to the original suit plight be cited, and that he might be decreed to be the owner of the plantation in its entirety, and of the price which represents the third of it, until payment by the heirs of Milligan of the batanee due him.

To this petition the heirs of Urquhart, intervenors in the original suit, excepted, on the ground that Alexander Dennistoun has no right to intervene in this suit, at its present stage, it having been finally decided on its merits by the Supreme Court, and the contest still pending merely turning on the execution of the judgment. The eourt below sustained die exceptions, and the intervenor has appealed from the judgment dismissing his petition. We cannot interfere with this judgment. The obj'ect of the intervention is to contest the title of Milligan's succession: the question of title has been finally determined, and we concur iu the view taken by the District Court that, after a final judgment, it is top late to intervene. C. P. 389, 394.

The counsel for the intervenor contend that the judgment heretofore rendered has not the authority of the thing adjudged against him, and that so far as he is concerned, the matte? is still open to investigation. If this were so, his remedy would be by a separate action. But it appears to us that, admitting that the sale made to the defendant passed no real interest to him, and that he was a mere trustee for the purposes of administering, preserving, and selling the property, he was also a trustee to stand in judgment, and the final decrees rendered against him fare binding upon the intervenor. Judgment affirmed.


author: Kino, J.

text:
    Vogel v. Retaud et al.
    An appeal will be dismissed where the matter really in dispute is under three hundred dollars, though damages are claimed to a larger amount, whore the claim for damages is evidently flotations. Such a claim can give no jurisdiction to the court.
    from the Second District Court of New Orleans, Kennedy, J.

      Biron, for the appellant.

      J. M. Wolfe, Collens and Pecquet, for the defendants.
   The judgment of the court was pronounced by

Kino, J.

The plaintiff alleges that under an execution directed against the properly of her husband, the defendant, Rétaud, caused her separate effects to be seized. She avers the value of the property levied upon to be $100, and prays that it be restored to her, and that the defendants be condemned to pay her $250 as damages fpr the wrongful seizure.

The plaintiff’s allegations in relation to damages are as follows: “The said Rétaud and Mouney, have caused, by the illegal, arbitrary and vexatious seizure of the property of your petitioner, a real, vindictive, and exemplary damage of two hundred and fifty dollars,, having, without authority or right, seized and taken uway -the 'above described property from the possession of your petitioner, and deprived her at .the same ;tkno of the use of her property to her damage and prejudice.”

. No circumstances of aggravation are stated, and thus the only basis laid for vindictive damages is the illegal taking. This claim for heavy damages in proportion to the value of the effects seized, unsupported by proof, is evidently a fictitious demand, which can give no jurisdiction to this court The only amount which can be considered as involved in the suit is $100, the alleged value of the effects seized. This case cannot lie distinguished from that of Orillion v. Slack, 17 La. p. 103. See also 16 La. 183. 3 Rob. 143. 1 An. 311.

Appeal dismissed»


text:
    Monget, Tutor v. Walker et al.
    ín an action by an under-tutor to remove a tutor, the accounts of the latter may be investigated for the purpose of proving his mal-administration; but an under-tutor has no authority to require a rendition of accounts by the tutor. After the dismissal of a tutor .the right to call for an account belongs exclusively to the new tutor.
    A judgment in an action instituted by an under-tutor against a tutor praying for his removal and for an account ¿of the tutorship, may be annulled so far as to it compels the tutor to account to the under-tutor, and he left in force so far as it decrees the removal of the tutor.
    A tutor owes his wards in .all cases the funds which he receives belonging to them, with legal interest, and he can only shield himself from that responsibility by investing those funds, in their name, under a judgment of the court, rcnderedj¿on the advice of a family meeting.
    Where a tutor permits notes belonging to the estate of the minor to he barred by proscription, without showing any attempt to collect thorn, or offering evidence to prove that -they could not he collected, he will be liable to the minor for their amount.
    from the District Court of East Baton Rouge, Burk, J.

      Lacey, for tire plaintiff.

      Elam, for the appellant, Walker.

   The of the court was pronounced by

Rost, J.

In 1835, Parmley A. Walker was appointed tutor of the minor children of the late Alexander Wood and Rebecca Woodruff. The properly of the minors was sold on long credits, and the tutor received the proceeds of the sale. In 1845, the under-tutor instituted an action to deprive him of the tutorship, on various grounds alleged in the petition. There was also a prayer that he render an account of his administration. In answer to this petition the tutor consented to relinquish the tutorship. He further averred that he had invested' the funds of the minors as they came to his hands, on what was deemed, at the time of the investments, ample security. That, in consequence of the monetary crisis of 1837, some of those securities had become unavailable, but that owing to the conventional interest he had received, the assets in his hands exceeded by more than $4,000 the legal claim of the minors against him, and were more than sufficient to satisfy it. The notes and judgments described in his- account were brought into court, and ho asked that the account be approved, that the notes and obligations therein described be received in full satisfaction of the sum due by him to the minors, and that ho bo discharged from all further responsibility as tutor,' tod his bond cancelled. In the absence of the plaintiff’s counsel, the tutol1' in1 person had the case fixed, and tried it ex parte.

The judgment rendered was in these words:

“ Finding the account of the tutor to be correct, and the assets offered by him sufficient to meet his liability, it is ordered that the account be approved and allowed, and that the notes, obligations and cash, the cash being fifty dollars, depot-sited in court by the defendant, be received in full of all claims against him as tutor. It is further ordered that he be discharged from further duties, responsibilities or liabilities as tutor, that his bond be cancelled and annulled, and that the legal mortgage resting upon his property be released.”

The present plaintiff was subsequently appointed tutor, and, a large portion of the notes and accounts surrendered by Walker having proved valueless, he submitted the matter to a family meeting, and, on their advice and recommendation, returned to Walker such of the claims given by him in payment as were deemed unavailable, and instituted this action to annul the judgment of the Court of Probates, so far as it received those notes and accounts in payment of Walker's indebtedness to the minors; to compel him to render a new account; and to reinstate the legal mortgage raised by said judgment.

The answer of the defendant is that, Hie account rendered by him was duly homologated; that he has been legally discharged by a judgment acquiesced in by the plaintiff, who has no longer any right to question its correctness; that more than one year- elapsed between the rendition of that judgment and the institution of the present action, which is, therefore, barred by prescription.

The judgment in the first instance was, “ that the judgment of tire Probate Court be avoided and set aside, so far as it discharges Walker from all liabilities as tutor, and receive the notes and judgments sot forth in his account in payment of his indebtedness to the minors; that the plaintiff recover of P. A. Walker, the sum of $5,958 18, with legal interest; that all the property belonging to Walker, from the day of his appointment as tutor, be decreed to be subject to the minors’ mortgage and privilege, and that certain property described in the petition, and shown to belong to Walker, be seized and sold to satisfy this judgment.” The amount of the judgment was reduced by remittiturs entered, and by other credits, to $3,589 67. The defendant, Walker, then took a devolutive appeal.

One of the grounds urged against the validity of the judgment of the Probate Court is that, it was rendered ex parte, because provoked by the under-tutor, who might well institute proceedings to deprive Walker of the tutorsliip but has no authority to appear in behalf of the minors, so far as the suit involved a rendition of accounts by the tutor.

We hold this objection to be fatal. The under-tutor is without capacity to represent the minors in such a case; after the dismissal of the tutor, the right to call for an account belongs exclusively to the now tutor appointed. McGehee v. Dupuy, 7 Rob. 231. In an action to deprive the tutor of the tutorship, the under-tutor may undoubtedly investigate his accounts for the purpose of proving his maladministration; but, on that issue, no judgment accepting the accounts can be rendered.

The under-tutor being disqualified by law from appearing in the suit, so far as it involved the rendition of the tutor’s accounts, the discharge of the tutor, the cancelling of the bond, and the raising of the general mortgage, were unauthorized by law, and the nullity of the judgment may be demanded at any time. •(J. P. art. 606, 612.

It is urged fliat the judgment cannot be annulled in part; and that, if it is entirely annulled,' Walker is still tutor, and the plaintiff has no capacity to appear for the minors. The' nullity being placed by the court upon the want of authority of the under-tutor to represent the minors, there is no reason Why the judgment should not remain valid, so far as the authority existed. But if, on' other grounds, the entire judgment was null, the nullity would not avail the defendant.

Walker was not deprived of the tutorship by the judgment of the court against his own consent. He resigned the trust voluntarily, de'alt afterwards with the* plaintiff as tutor, and has taken no exception to his capicity to sue'. It is now too late to do so.

That the Probate Court could not receive in payment of Walker's indebtedness to the minors, notes and judgments which formed no part of their assets when! he was appointed, is too clear for argument, These investments were' made upon his own responsibility, and it would be strange indeed if he could thus be permitted to speculate upon events, retaining the profits, if any Were' made, and throwing upon his Wards the losses attending his private transactions. The tutor owes his Watds in all cases the funds Which he receives belonging to them with legal interest, and he can only shield himself from that responsibility by investing those funds, in their name, under a judgment ofthe court, rendered on the advice* of a family meeting.

The plaintiff has the undoubted right to compelí Walker to account, and to' enforce against him any judgment he may obtain. Walker, after he'Ceased to be tutor, stood as any other debtor of the minors.

The defendant contends that if the judgment is otherwise Well founded in law,furlher deductions should have been made from it, and he states in his bl'ief the* items which should, in his opinion, have been allowed. We are unable to discover any error, in that respect, in the judgment. The evidences of debt were returned to Walker, as they had been received from him. Those of the notes returned to him, which originally formed part of the minors’ assets were properly charged to him after he had suffered them to be lost by prescription, without showing any attempt to collect them, or offering evidence to prove that they could not be collected.

William F. Tunard and S. IÍ. Shipley Were also made parties defendants, and the plaintiff asked that certain property acquired by them from Walker might be subjected to the legal mortgage of the minors, or these parties com-pelled to pay over to him the price thereof, if Walker had not already received it; but as there is no final judgment on these issues, and no appeal properly before us in relation to them, we cannot pass upon them.

It is, therefore, ordered that the judgment rendered in favor of the plaintiff, Parmley A. Walker, be affirmed, with costs.


author: Séídelí-, J.

text:
    Benton v. Roberts et al.
    The more joint ownership of real estate confers no authority upon either of the joint owners to bind the other by a note.
    The joint ownership of real estate docs not create a partnership as to such real estate. A special contract in writing is necessary for that purpose. O. C. 3807.

      To enable one of the members of a partnership formed for the cultivation of land held by them as joint owners, to bind the other by a noto made in the partnership name, an express authorization, or one clearly to bo implied from the coarse of business of the finio, ia necessary. In the absence of such express or implied authority it is incumbent on the payee to prove that the amount of the note inured to' the benefit of the partnership.
    Where one of the members of a partnership formed for the cultivation of land held by them as joint owners, the partnership not being shown to have been such as would convert the land into partnership property, and there being no express authority to either of the partners^ bind the other by a note in the partnership name, and none implied from tho course of tho partnership business, executes a note in the partnership name, with a third person as su ■ rety, and discounts it, and applies the proceeds to tho payment of anote given for the price of the landby which the joint purchasers bound themselves in dividuallyandmsoKdo, and the note is paid by the surety, tho latter can have no recourse againstthe partner who did not sign the note. The partner by whom tho note was made was hound individually to the party by wliom the note was discounted; the application of tho proceeds made the part}'who signed the note a creditor of his copartner for half tlio amount so paid, hut did not malte the party who discounted the note a creditor of the partner who did not sign it; and when the surety paid the note he became subrogated only to the rights of tho party by whom it was discounted.
    from tire District Court of Carroll, Selby, J.

      Short aud Parham, for tho appellant.

      Bemiss, Thomas and Snyder, for tho defendant.
   The» judgment of the court was pronounced by

Séídelí-, J.

James Roberts having issued an execution on a twelve months’ b’ond given by Benton, lie obtained an injunction upon the ground that Roberts was liable to him upon a noto of $1,800, signed in tho ñamo of A. O. &y J. Rob~ erts, with Benton as surety, in favor of the Lake Washington and Deer Creek Railroad and Banking Company. It is admitted in argument that Benton has paid1 the note; and the only question isas to the alleged obligation of James Roberts to reimburse to him.

At the date of this note, James and A: C¡ Roberts, wero i'h,a owners of a tract of land in Louisiana, which they had purchased of Elliott, and for which they had given him notes, signed by them individually, and by which they bound them-' selves, in solido, for the price. After their purchase they cultivated the land in partnership. No articles of partnership arc proved, and our information with regard to its terms is meagre. The note given to the bank, and upon which Benton seeks relief, as surety against James Roberts, is signed in the partnership name; hut the signature was made by A. C. Roberts. It was discounted by tho bank, which was a corporation chartered and established in Mississippi.

The only testimony going to show what application was made of the money thus obtained, is that of Elliott, who says that, at a date shortly subsequent to the date of the note, his vendees made him a payment of $1,500 in bank notes of that bank, on account of the first note held by him for the price of the land. The--witness does not particularize whether the money was handed to him by James Roberts, or by A. C. Roberts in his presence. But, however, this may be, it is not shown that James Roberts knew the origin of the money, or was aware of, or assented to, the execution of the note. Upon the point of knowledge and implied ratification, we would not be warranted by tho evidence in reversing the opinion of the district judge, who considered those facts as not proved.

There is no evidence that, by tho terms of the planting partnership, the making of a note by A. G. Roberts in the name of the firm, was authorized. The case, therefore, rests only upon such authority as may have arisen from the relations of the parties, or such legal consequences as might result from the application of the money.

It is too clear to- require discussion that the mere joint ownership existing between A. C. and James Roberts, conferred no authority upon A. C. Roberts to bind them both by the signature of the note in question. This mere joint ownership of real estate did not even create a partnership as to that real estate. For that purpose a special contract in writing is necessary. Civil Code, 2807.

Wa3 any authority to do so derived from the existence of the partnership for the cultivation of the land, which they formed after their purchase. To enable one such partner to bind the other in the form and with the legal liability of an instrument like this, an express authoriaation, or certainly, at least, one clearly to be implied from the course of business of the firm, would have been necessary. In the absence of such express or implied authority it would be incumbent on the payee to prove that the amount of the note had enured to the benefit of the partnership, thus enforcing a liability against the partnership rather by reason of the circumstances of the case than by force of the note itself. Ve have no evidence before us to satisfy any of those requisitions. On the contrary, the plaintiff assumes that the money was applied to pay a debt which was not the debt of the partnership, for it must bo remembered that the partnership formed for the cultivation of the land is not shown to have been such as would convert the' land into partnership property. It remained, as it originally was, the property of the favo purchasers, each holding an undivided moiety. The price was due by the proprietors individually.

It remains then to’ be considered whether any legal liability of James Roberts' to Benton, as surety on the note, has arisen from the fact .that A. C. Benton applied a portion of the proceeds of its discount to the payment of the Elliott debt, for which James Roberts was bound in solido. As A. C. Roberts had no authority to bind James Roberts by the note, A. C. Roberts was bound alone and individually to the bank; and the application which he made of the proceeds of the discount to the payment of the Elliott debt made A. C. Roberts a creditor' of James for one half of the amount so paid, but did not make the bank James’ creditor, and when Benton was afterwards sued by the bank and paid the note, he became as surety, subrogated to the bank’s rights, and to nothing, more.

It is proper to add that the defence of James Roberts is strengthened by what oecured after the dissolution of the planting partnership between him and A. C. Roberts. A paper is in evidence, signed by the plaintiff and A. C. Roberts, in which they agree that certain debts due by A. O. ¿j- J. Roberts shall be borne by the plainttff and A. C. Roberts equally. Among them is stated a debt to the Princeton Bank. It is proved that there was no bank at Princeton but the one-in whose favor the note in question was drawn, and a witness who appears to have been familiar with the affairs of the parties states that, he was not aware of any other debt to that bank than the one created by the note. This evidence-was excepted to, but was, we think, admissible under the pleadings.

Judgment affirmed.-


author: Enm, J.

text:
    Ledoux et al. v. Rucker.
    A sheriff -cannot’ recover under the stab -10 March, 18-15, -any compensation for the custody of ■slaves seized vnder an order of seizure and salo, when he never had the actual possession ■of tho slaves—never appointed a hooper to them, nor was ever subjected to any expense or trouble for their safe-keeping, or exercised any supervision over thorn.
    A PPEAL from tho District Court of West Feliciana, Lawson, J.

      Phillips and J. II. Collcns, for the appellants.

      Ratliff and Cowgill, for the sheriff.
   ’Tho judgment of the court was pronounced by

Enm, J.

Eighteen slaves woro soizod by tho sheriff of West Feliciana, under an order of seizure and sale obtained by A. Ledoux Sf Co., the execution .of which was suspended by an injunction for noarly four years. The sheriff took a rule on tho plaintiffs in that proceeding, to show cause why. they should not pay him S2,947 50, costs which he alleges have accrued in favor of himself and of his predecessor in office, for the safo-keeping of tho slaves while under seizure, being at the rate of twelve-aad-a-half cents per day for each slave. A judgment was rendered in favor of the plaintiff iu tile rule, and A. Ledoux 8f Co. have appealed.

The slaves appear to have been fcrou.ght temporarily into the parish of West Feliciana, where they were seized, and, immediately after the seizure was -effected, one of the defendants in execution was permitted to return them to his plantation, in an adjoining parish, where they have ever since remained under his caro. No keeper was appointed for their preservation, and neither the plaintiff nor his predecessor appear to have had the possession or custody of the slaves at any time, from the moment of the seizure to the date of the trial. The officers appear to have been subjected to neither trouble nor expense of any kind for .their safo-keeping, and exercised no supervision over them, the slaves having been removed to a different parish.

Tho testimony in the record shows what the services for keeping the slaves would have been worth, if the sheriff had taken them into actual custody, or appointed a keeper, neither of which was done. This case differs from that of Découx v. The Bank of Louisiana, recently decided, in which compensation was allowed to a sheriff for services actually performed in keeping slaves under seizure, under the act of 1845, ante p. . Soo Découx v. The Bank of Louisiana, 2 An. 157. The plaintiff has not, in our opinion, presented a case which entitles him to compensation.

The judgment of the District Court is therefore reversed, and a judgment rendered in favor of the defendants in the rule; the plaintiff paying .the costs of both courts.


author: Ifiíio, J.

text:
    Barcus v. Farrar.
    "Where one of the parties to a contract of exchange, by which one tract of land is exchanged for another, is evicted from the land received by him, the tract given by him in exchange represents the price, and its value, and not that of the land from which he was evicted, must determine the amount of damages. C. C. 2482, 2633, 2637.

      t PPEAL from the District Court of West Feliciana, Stirling, J.
    Phillipst _lL for the plaintiff.

      Ratliff and Cowgill, for the appellant.
   Tho judgment of Sho court was pronounced by

Ifiíio, J.

The defendant, Mary Ann Farrar, convoyed a lot of ground in tho town of Bayou Sara, with the buildings thereon, of which she declared ’herself in the act to be the owner, to the plaintiff Barcus, in exchange for a tract of land of one hundred and sevonty-four acres. From the evidence it appears that, at tho date of the exchange, the lot was under seizure, in virtue of a fieri facias, the execution of which had been suspended by an injunction obtained by the present defendant. The injunction was dissolved, and Mrs. Farrar held to have no claim to the lot. The sheriff consequently jiroceeded -with his writ, and adjudicated the lot, operating an eviction of the plaintiff.

This action has been instituted by the plaintiff to recover back the land which he gave in exchange, or its value, which is alleged to be $800, and the rent of the 'property from which ho has been evicted, from the date of the eviction. The defendant denies, in her answer, .that she was the owner of the lot at the date of tho exchange, or that by the terms of the exchange she was bound to warrant th© title. A decree was rendered against her in th.e court below for §5800, and the rent of the lot from/ the time of eviction, with the light of satisfying the judgment by reconveying tho tract of land received by her in exchange, free from .encumbrances created after she required it; and she has appealed.

Tho disclaimer now made by tho defendant of ownprship of the lot of which slio declared herself in tho act to be the owner, if proved, could certainly be no ground for resisting the plaintiff’s claim. The only question which really arises is presented in bills of exception, taken on the trio! below by the defendant to the opinion of tho court receiving testimony to show the value of the tract of land given by the plaintiff in exchange, as tho measure of damag.es. The defendant contended that the value of the lot from which the plaintiff was evicted was the ¡correct test of the injury he had sustained: The district judge held otherwise. and, in,our opinion, be did not err. There was no limitation in tho clause of warranty. It is full and .complete.

The plaintiff had by law tile choice, to sue either for damages, or for the land which he gave in exchange. C. C. ar,t. 2,63.3- He claimed in the alternative tho land, or, if it could not bo restored, its value as damages. In contracts of exchange the parties are considered in the double light of vendors and vendees, and thoiv obligations aro governed by the rules which apply to the contract of sale. C. C. 2637. In a sale tho purchaser who is evicted is entitled to the restitution of the price. C. C. 2482. The tract of land given by the plaintiff in exchange represents tho price, the amount .of which, in njoney, can only be determined by ascertaining the value of the property given. Duranton, Exchange, nos. 543, 545. The value of the property from which tho plaintiff was evicted is no criterion by which to determine the amount of damages sustained, that not being the price which he paid. Judgment affirmed.


author: Siidell, J.

text:
    The Union Bank of Louisiana v. Jones.
    The testimony of a witness received and taken in writing on the trial of a case between the same parties for tlie same cause of action, where the witness lias died since the former tidal, will be open to all objections which might be taken if the witness were personally present; and where, on the first trial, the witness wa3 objected to on the ground that, **being the drawer of the note sued on he was incompetent to testify for the indorser jn a «contest between the latter and the holder,” and the objection was overruled, the party by ■Whom ho was offered cannot require that bis testimony should bo received in-the second case on tlie ground that tho objection made did cot point specifically to the true canso of objection that-tbo defendant was tlie accommodation endorser of tho witness, otherwise it would have hoen cured by a release, which the subsequent death of tho witness has rendered impossible.
    Decision iu Union Bank v. Morgan, 2 An. 418, as to the sufficiency of a presentment of a note for payment, affirmed.
    A case will not be remanded, thou3h material evidence was received below which was inadmissible, where, from the circumstances-of the case the only effect of remanding it -weuld be to delay the plaintiff, -without promoting'the ends of justice.
    from tlie District Court of St. Tammany, Penn, J.

      Hcdsey, for the appellants.

      J. R. Jones, pro se.

   Tho judgment of the court (Rustís, C. J. not sitting, being a stockholder jn the bank,) was pronounced by

Siidell, J.

The first point to bo considered Í3 tho admissibility of tho testimony of Mintcr, tho drawer of tho noto, of which.Jbj¡.es was tho accommodation endorser. Since tho trial of the former suit upon .-the same cause of -action, Minter died, and the dofondaat offered, in the present suit, his testimony, as a witness for tho defendant, taken in-writing at the former trial. To the admission of this testimony the plaintiffs objected, upon tho ground that it was given by a person having, at the timo lie gave it, an interest iu tho event of tho suit, against the plaintiffs. The court permitted tho testimony to be road to tho jury, and the plaintiffs took a bill of exceptions.

The testimony of a deceased witness thus offered, is said by an author of great respectability, to bo open to all tho objections which might bo taken if tho witness was personally present. Soe Greenloaf on Evidence, § 163. In Wright v. Tatham, 1 Adolphus & Ellis, 24, Tindal, C. J., in considering the character and degree of such eyidcnco and for cwhat purposes it can be produced, observes, that it is direct and immodiato ovidonco in tlie cause, for the same purpose and to the same extent as if the witness had been alive and sworn, and had given the same evidence in the witness box in the second cause. A very stroug illustration of the rule, as laid down by Greeuleaf, is presented in the case of Crary v. Sprague, 12 Wendell, 44. It was there held that a plaintiff, on tho second trial of a cause, cannot give proof of tho testimony of a deceased witness, who, on the former trial, was called by the defendant, and on his cross-examination gave evidence beneficial to tho plaintiff, where the defendant showed that such witness, at the time of testifying," was interested in the event of the cause on tlie side of -the plaintiff. It had been urged in argument that the defendant, by introducing the witness on tho ormor trial, had declared his competency and credibility, and thereby precluded himself from questioning either. In answering the position the court remarked that this was undoubtedly true, so far as that trial was concerned, but no further; citing 1 Phil. Evid. 213.

"When tho former action was on trial, and JMBnler was offered, the plaintiffs .objected to his testimony upon tho ground, “that said witness, being the drawer of the note iu question, -was incompetent to testify for title indorser, in a contest between the latter and the holder of tjie noto,” which objection tho court overruled, and admitted the witness. It is now urged by tlie defendant that the objection did not point specifically to the true and tenable ground of objection, to wit, that Jones was Minter’s accommodation endorser; that if tho specific objection had been presented, tho dofaqdant would have cured it by a release, which now, by the death of tho witness, has become impossible. But if the implied declaration of a witness’ competency upon a former trial would not, as we havo just seen, preclude tho enquiry on a second trial, a fortiori a positivo resistanca to the competency of the witness upon mistaken or vaguely stated grounds’ ought not to work such an effect. Moreover the fact that tho defendant has once had the benefit of the testimony of mi interested witness, seems a vary unsatisfactory reason why it should be repeated. The object of evidence is the discovery of truth, and tho reason why an interested witness is excluded is the fear that he would disguise rind pervert ibo truth to promote his own advantage, and so lead the court or jury to a wrong conclusion. Such witnesses are excluded, not because they may net at metimos state the tiutli, but because in geneial it would be unsafe to rely upon ¡heir testimony. It is true that, if tho specific objection had been made, and had been sustained by the court, tho defendant might have executed a release in Mhiter’s favor. But to make this argument effectual we should be obliged to presumo that the defendant would have chosen to run the risk of that sacrifico bolero the testimony was hoard and ascertained. Besides the defendant was bound to know the law. Pie, therefore, knew that Mintcr had an interest in favor of his success; and instead of removing it by a release before putting the witness on the stand, took the chance of benefit from that feeling of interest in the witness’ mind, which, as was said by a learned judge, will, in spite of tho utmost efforts of the most conscientious man, so often warp his memory, as to prevent him giving nu accurate account of a transaction. Of course we make these remarks as matters of legal argument and principle, without intending in any wise to reflect upon tho motives of the party in this particular case, or tho character of tho deceased.

We are of opinion, therefore, that tho objection to the competency of Minter was still open.

With regard to his incompetoncy we refer to what we said in the case between the same parties, 2 An. 345.

We consider the certificate of the notary as satisfactorily proving that notice of protest was seasonably given to the endorser. Although the notary does not expressly state on what day he delivered tho notice to the defendant’s wife, yet, as he states the fact of such delivery as a thing already dono, and his certificate bears date on the 27th October, it follows that the notice was not given at a later date. Consequently it was seasonable.

A witness was offered by tho defendant to show that the notary was careless in completing his records on tho day of protest or giving notice, and mentions two instances, neither of which include tho record in question. Even if this testimony was admissible, it certainly could not destroy or impair the official record op this particular transaction. But, in our opinion, the objection was well taken, that the defendant should be limited to testimony of facts immediately relating to the record in question. p

Upon this question of presentment for payment, this case is not distinguishable from that of tiro Union Bank v. Morgan, 2 Annual, 418.

Under ordinary circumstances we usually remand a cause when material evidence offered by the defendant has been received by the court below, and we dissent as to its admissibility. This is done upon the consideration that the party may have had other evidence to support his defence which ho thought it was unnecessary to offer, evidence to tho like effect, being already accepted by the court. But, in this present, caso, the defendant was warned by the previous decision (2 An. 346,) that Miniar was an incompetent witness; that his testimony, even if unobjected to, was not entitled to the same confidence as the testimony of a disinterested witness ; and that, in itself, it was defective with regard to tho matters plosded in defence. Wo must conclude that this defendant has produced at: the second trial all tlie testimony which could be brought to bear upon the de-” fence, and to remand tho cause would only delay the plaintiff, without conducing to tlio ends of justice.

It is, therefore, decreed that the judgment be reversed, and that the plaintiffs recover of the defendant the sum of 51*290, with interest thereon at the rate of seven per cent per annum, from the 29th day of October, 1*842, until paid, and costs in both courts.


author: Si/deli., .1.

text:
    Succession of George.
    !¡he curator of a vacant successsion cannot claim that the succession be completely adminis- ■ tered before surrendering possession to the heirs, nor require security from the heirs for amounts due to the creditors before delivering possession to them, but he may require tho previous homologation of his accounts,-and the allowance of all credits to which lie is entitled for commissions and disbursements iu the administration, and the homologation of a statement of the debts due by the succession, where the heirs or legatees are not domiciled in this State and arc not citizens of any State in the Union, for the purpose of ascertaining the amount of the tax duo to the State under sec. 4 of the stat. of 26 March, 1842>-which amount he is bound to retain from the heirs and pay to the State, under the penalty of his personal responsibility.
    A PPEAL from the District Court of St. Tammany,. Penn, .1.

      Halsey, for the heirs, appellants.

      J. Tl. Jones, for the absent heir.

      Whitaker, for the curator.
   The judgment of the court was pronounced by

Si/deli., .1.

The estate of the deceased being vacant, a curator was appointed.Subsequently the lioirs, who ara not domiciled in this State, and who, with one exception perhaps, are subjects of a foreign country, applied by tlieir attornies in fact to be put into possession of the estate. The court rendered a decree recognizing them as heirs, ordering the curator to render his account contradictorily with said heirs, and, after payment of all the debts and legal charges established against said succession, to pay over and deliver to said heirs, in equal portions, the balance of tho funds and property belonging to the succession. Soon' afterwards the curator filed his account stating the names of several creditors, whose debts had been acknowledged. Among them- the State of Louisiana is-noticed as a creditor, in an amount unascertained, for the tax on successions established by the act of 1842. From this decree tho heirs have appealed. They contend that no authority is conferred on a curator to claim a complete administration before surrendering possession to the heirs; and that ho cannot interfere on behalf of tho creditors, and claim securit y from the heirs. They cite, in support of this position, the Code, arts. 1180, 1182; C. P. 1000, 1007; the case of Fisk’s Succession, 3 Ann. 705; and Graves v. Routh, ante p. Acts of' 1828, p. 156.

By tlie 4th section of the act of 26th March, 1842, it was enacted: “ That each and every person not domiciliated in this State, and not being a citizen of any State or Territory in the Union,-who shall be entitled whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased,whether such person shall have diod in this State or elsewhere, shall pay a tax of ten per cent on all sums, or on the value of all property, which he may actually receive liom said succession, or so much thereof as is situated in this State, after deducting debts clue by said succession. When tho said inheritance, donation, or legacy consists of specific property, and the same lias not keen sold,-the appraisement thereof in this inventory shall be considered as the value thereof. Every executor, curator, tutor, or administrator, having tho charge or administration of succession property belonging, in whole or in part, to a person residing out of this State, and not being a citizen of any other State or Tenitory, shall be bound to retain in his hands tho amount of the tax imposed by this act, and to pay over the same' to the State treasurer, if the succession be opened in the parish of Orleans or Jefferson, or to the sheriff, if the succession, be ojicned in¡ any other parish; in default whereof every such executor, curator, tutor or administrator, and his securities, shaH bo liable for the amount thereof.”

It is obvious that all tho provisions of our Codo and statutes relating to successions must be so construed, if possible, as to give them all effect. While it is our duty to enforce the rights of the heirs, it is equally so to protect the curator from personal loss in the administration of his trust, and the public treasury from the risk of an abstraction of that portion- of the fund to which it is entitled.

It is evident then that, so much of tho decree as directs tho previous rendition of an account, was correct. Tho curator had a right, as against the heirs, to tho recognition of all lawful credits in his favor, for his commissions, his disbursements in tho administration of his trust,,and" any payment of debts lawfully due by tho deceased. To this end the exhibition and homologation of an account was indispensable.

He had also a right to insist upon the exhibition and homologation of a statement of the debts due by the succession, for the purpose of ascertaining, the amount falling to the State under tho act of 1842, which amount, thus ascertain1-cd by him, was to bo withhold from tho heirs, and paid over by him to- the State, under the penalty of his personal responsibility. The heirs might, perhaps, have removed this difficulty, by tendering ton per cent according to the inventory, but they did not do so, and evidently it was not their interest to do so. On the otherl hand, tho curator was not entitled to withhold from tho heirs tho amounts duo to other creditors, who had not chosen, to exercise the right of exacting security,, which the law gives them.

The only error, therefore, in this portion of the decree is, in directing the curator to retain what may be due to creditors other than the State.

The attorney appointed to represent the absent heirs suggests that there is error in the decree, in omittiDg to include Margaret George, a sister of the deceased, as one of the heirs ; in giving the mother of the deceased only an equaj share with the brothers and sisters, instead of ono-fourth of tho succession, and in treating the husbands of two of tho sisters as hoirs. The decree is clearly erroneous in this rospect.

It is-therefore decreed that, tho judgment of tho court below bo reversed; and it is further decreed that, Ann George, the mother of Alexander George, deceased—Connolly George, the brother of the said deceased—Rose Ann George? wife of John Steen—Mary Ann George, wife of Thomas Coun—Nancy George? wife of James Gilmour—Margaret George, wife of William Miller—the said Rose Ann, Mary Ann, Nancy, and Margaret, being sisters of tho deceased, be recognized as the legal heirs of tho deceased, and be entitled to shore in and receive the succession of said, deceased after the proceedings hereby directed, in tho proportion of one-fourth to the said Ann George the mother, and one-fifth of throe-fourths to each of the said Connolly, Rose Ann, Mary Ann, Nancy and Margaret; that the account rendered by said curator be acted upon contradictorily With said’ heirs, and, after due notice conformably to law; and that after the payment of the lawful charges incurred in the administration of said estate, the reservation of the tax coming to the State, and the allowance to said curator of all lawful credits, the residue of said succession be delivered to and distributed among said heirs in the’proportion above adjudged, saving to the creditors of said deceased their right to intervene for the protection of their rights, before the final decree of homologation of said account; the costs of this appeal to be paid' by the estate.


text:
    Bird v. Pate, Administrator.
    After a plea of prescription by an administrator, in an action ag-ainst him for a debt duo by the succession, it is too late to urge that tho suit was prematurely brought, he never having refused to acknowledge the debt.
    Notes payable .Co the order of minors, not being transferable by endorsement or delivery so1 long as the minority lasts, are not subject to the proscription of five years.
    Where one who is under-tutor to a minor, borrows funds belonging to him, his responsibility, so far as he holds funds belonging to the minor, cannot be distinguished from that of tho tutor; nor can tho nature of that responsibility ho changed by the form in which he may choose to put the debt.
    ¿Jreditors cannot plead a prescription which would not have availed the' debtor if pi'e’aded by him.
    from the District Court of East Baton Rouge, Penn, J.

      Bennett, for the plaintiff.

      Ratliff and Cow gill, for the appeiiant.
   The

the court was pronounced by

Rost, J.

David Pate, being the under tutor of the plaintiff and of his sister1 Adelia Bird, borrowed from their tutor..threo different sums of money, and gave for them three promissory notes payable to the order of the minors; the last of those notes bears date the 26th January, 1843, and became due on tho 4th January, 1844. To secure the payment of these loans, Pate and his wife executed mortgages in favor of the minors before the parish judge acting as notary public, and certificates of that officer that such mortgages had been passed before him, stating the sums for which they were given, and containing a lull description of the property mortgaged, were inscribed in the office of tho recorder of mortgages. David Pate died, leaving the notes unpaid, and tho defendant was appointed administrator of his succession.

Jn 1846, Adelia was emancipated by marriage, and the plaintiff was also emancipated under the provisions of the act of 1829. A partition of the succession of their father having been made between them, the notes of Pale fell to the shave of tho plaintiff, who instated the present action upon them, in which lié prays for a judgment with privilege on the proceeds of the property mortgaged, which is admitted to have been sold. The defendant pleaded the want of registry of tho mortgage, and the prescription of five years. After the case had been tried on this issue,- and judgment rendered in favor of tho plaintiff, the defendant died, and the plaintiff himself was appointed administrator of the succession of David Pate. At this stage of tho proceedings, W. D. Balear, alleging liimseif to be a judgment creditor of David Pale, took a devolutive appeal.

It is admitted that the appellant is a mortgage creditor as alleged by him; and that his mortgage was inscribed on the 21st October, 1846. It is further admitted that the succession is insolvent, and that fee proceeds of the property mortgaged are not sufficient to satisfy the-two mortgages. Under these admissions, we consider the appeal as properly before us.

It has been urged in argument thattlie suit- was prematurely brought; the administrator never having refused to acknowledge the debt. The plea of prescription filed by him is a sufficient answer to that exception-

On the merits: The last note of Pate shows that fee plaintiff and his sister were both minors at its date, which is less than five years before the service of the citation in this caso. The two first notes being made payable to the order of the minors, were not transferrable by endorsement or delivery, as long as the minority lasted, and the time elapsed since their majority is not sufficient to sustain the plea of prescription. .Besides this, Pate was under-tutor of the- minors; and, so far as he held funds belonging to them, we cannot distinguish his responsibility from that of the tutor. The nature of his-responsibility cannot be changed by the form in which he may choose to put his indebtedness. It is urged that although Pate might not have pleaded this prescription, his creditor® may. ©editors can plead no prescription which wotdd not avail the debtor, if pleaded by himslf.

We are of opinion that the amount claimed by the plaintiff is still due, but that' fee action of the court ordering that amount to be paid by privilege was premature. The judgment should have been for the amount claimed, to be classed in the general settlement of the succession; and must, therefore, be reversed.

It is ordered that, the judgment in this case be reversed. It is further ordered that the plaintiff be recognized as the creditor of the succession of DavieE Pate, deceased, for the following sums; 1st. Two thousand five hundred and-, sixteen dollars, with interest at the rate of ten per cent per annum from the 7th January, 1841, till paid. 2d. Throe thousand eight hundred and thirty-two dollars and forty cents, wife interest at the rate of ten per cent per annum from fee-7th January, 1842, till paid. 3d. Three thousand five hundred dollars, with interest at the rate of ten per cent per annum from the 4th January, 1842, till paid. It is further ordered that, the rights of the plaintiff on the proceeds of.'the property alleged to have been mortgaged to him, be reserved, and that this judgment be classed in the general settlement of tho succession. It is furfeeB' ordered that, the succession of David Pate pay the costs in both courts-


author: Rost,. J.

text:
    Moore v. McKiernan.
    Si a partition-of land ordered to be made in kind the notary cannot dispense with the drawing of lots- without an express agreement in writing made by the parties and notified to him.
    from the District Court of Madison, J.

      Amonett, for the appellant.

      H. W. Dunlap), for the defendant.
   The of the court was pronounced by

Rost,. J.

The plaintiff has appealed from a judgment setting aside a partition made by the notary appointed, by the court for feat purpose. The property 3ividecl'is a tract of land, of which the plaintiff owns one undivided fourth and ithe defendant the remaining three-fourths.

The grounds of the opposition to tire homologation of the partition, which pre•vailed in the court below and on which the appellee relies, are as follows: 3 st. 'The notary should have divided the land in four equal parts as-to value, and set apart the share of each party, so thatithc three lots of tho defendant should adjoin one another. 2d. The testimony shows that lot no. 4 is equal to one-fourth of ttho'value of the -whole tract, and the defendant insists that the notary should have assigned that lot to the plaintiff. 3d. The partition as made has injured the value of the three lots assigned to the defendant, at least five dollars per acre.

1st. Tho land was divided in four lots of equal dimensions, and having an equal portion of front on the Mississippi river, in strict conformity with the.order of survey granted by the judge on tho application of the plaintiff, and-without opposition from the defendant. Under that order, the surveyor had nothing to do -with tire value «of the lots. The intention of the parties was that tire, survey-made should be taken as the basis of the partition, and that tire value.-should be ;ascertainod by the experts. This was done in presence of ithe agents of both parties and without any opposition from them. Under the facts of the case, the notary could not have acted otherwise than he did.

2d. Without an express agreement of the parties, made in writing and notified to the notary, authorizing that officer not to draw lots, ho could not dispense with .that formality; and if it be true ¿hat the partition made .has injured the value qF the three lots assigned to the defendant, it is a risk which he took when he consented to a partition in kind, without making proper reservations.

The partition is legal and binding, and no reason has been or can be given for setting it aside.

It is therefore ordered that the judgment in this case be reversed. It is further ordered that the partition made between the plaintiff and defend•nnt, before Malcolm Wallace, a notaiy public, on the 29th March, 1848, be homologated and made the judgment of the court. It is further ordered that the defendant pay the costs of this appeal; those of the court bolo.w to be paid as provided by tho act of partition.


text:
    Pike at al. v. Monget, Tutor.
    ’Art. 3258 of the 'Civil Code, which provides that a mortgage exists,without "being recorded, in favor of minors on the property of their tutor, is an exceptionXo the rule laid down in art. 3314, that mortgages shall only be allowed to prejudice third persons when they have been properly recorded.

      Soná Jtde purchasers, without notice, wlio have paid the price, are not affected by secret equities existing between those under whom they hold and tliird persons, nor by their mis. representations and frauds.
    Where a tutor sells a lot of ground belonging to .him individually, on which a legal mortgage existed in favor of his pupil, taking a noto payable to himself individually for the price» and, without any legal transfer of the note to his pupil, sues on it as tutor, and recovers a judgment as such with a special mortgage on the property, and receives from a purchaser of the property afcasale subsequently made by the‘sheriff, tho amount of a note given for the price, the tacit mortgage in favor of the minor will ho thereby annulled; and the purchases» holding under a judgment and judicial sale clothed with all the forms and solemnities of ¿aw, will not be allowed to be prejudiced by .the misrepresentations of the tutor. Per Cu-
      . riarn: Third persons acquiring rights in good faith, under such a judgment, -have nothing to look to beyond the judgment and proceeding.'; under it. if the minor be injured by the .misrepresentations of the tutor, the remedy is against him, and tho surety on his bond.
    from tho District Court of East Baton Rouge, Nicholls, J.

      Bruno! and Elam, for tho appellants.

      Lacey, for the defendant.
   The ¡of -the court (King, J. absent,) was pronounced by

Rost, J.

This is a sequel to tho case of Monget, tutor, v. Walker, lately .determined, ante p. 244.

The plaintiffs, being in .possession .of a town lot acquired from Walker, while ho was tutor, the defendant proceeded against them by the hypothecary action, after the judgment obtained in the former suit had become executory. The plaintiffs enjoined tho proceeding!?. George A. Pike, who owns a portion of the lot, thou intervened, and the proceeding was changed by the pleadings from the via executivei to the vid .ordinaria. The judgment of tho District Court recognized the mortgage, and ordered .that, in default of payment of .the sum duo the minors by the plaintiffs in injunction, tho portion of the Jot claimed be sold to satisfy it. J't further ordered Jhat a separate appraisement be made before the sale of the land, and of the improvements thereon not subject to the mortgage. From this judgment the plaintiffs have appealed.

Many of .the points made by tho plaintiffs having been determined in tho case of Monget, tutor, v. Walker, it is only necessary to notice the following: 1st,, That the minors’ mortgage, jiot having been recorded, .did not affect the land seized at the time it was purchased by tho plaintiffs in injunction. 2d. That this Jot originally belonged to P. A. Walker and Alexander II. Jonas, and has be7 .come the property of tho plaintiffs in injunction under a regular chain of conveyances; that, in tho sale of the eastern half of the lot aüd improvements by WaL ker, Aims, and Frederick Kent, who were then the owners of it, to Rees Fitzpatrick, Walker, as tutor of the minors, sued upon two of the notes given by Fitzpatrick for the price, and obtained a judgment, in his capacity as tutor, with special mortgage on the property; that tho said property was subsequently sold jat sheriff’s sale, on tho 4th of November, 1843, and purchased by D. D. Avery., who paid the purchase money; that Avery afterwards sold to William S. Pika for $600, $200 cash, and the residue in two notes of $200 each, and that the present tutor has received payment of the said two notes.

It is contended that the judgment and judicial sale in the suit of Walker, tuJor, against Fitzpatrick, and thp receipt by the present tutor of the $40# from Pike, had the effect of annulling the original tacit mortgage existing in favor of ¡tiie minors, from tho timo of Walker’s purchase in 1838.

1. A mortgage exists without being recorded, in favor of minors on the property of their tutor. C. C. 3298. This positive disposition of law is an exception to .the rule laid down in art. 3314, that mortgages shall only be allowed to prejudice third persons when they have boon properly recorded. Roche’s Heirs v. Grosillière, 13 La. 246. Lessassier v. Dashiel, 14 La. 468. 17 La. 194. Cleveland, tutrix, v. Sprowl, 12 Rob. 174.

2. The second ground is one of much greater difficulty. If tho notes on which tlie suit was brought had previously been .lawfully transferred to the minors, we would have no hesitation in saying that the defendants would be protected by tho judgment and judicial sale, and that the properly woold hav.o passed to them freo from tho legal mortgage; but it is admitted that, at the timo of tho rendition and .execution of the judgment, the notes belonged in reality to Walker, and the prpbarrassiijg question is thus presented, whether the misrepresentations of the ■trator are to .prejudice the minors, iu whose name he falsly pretended to act, or the bona fide purchasers of property tinder a judgment and ¡judicial sale clothed with all the forms and solemnities of law. ■

That honest purchasers without notice, who have paid the purchase money; are not affected by secret equities existing between those under whom they holds or by their misrepresentations and frauds, is a fundamental rule of our system of jurisprudence, and we believe of every other. Against a party thus situated, courts of Equity, where die common law -prevails, never .give a remedy. “Courts of Equity will not take the least step imaginable against an innocen^ purchaser in such a predicament, and will, on the other hand, allow him to take every advantage which the law gives him, for there is nothing which can attach itself upon his conscience, in such a ca?e, in favor of an p_dverse claim.” Story’s Equity Jurisprudence, no. 1503.

If the present case should form an exception to that rule, the exception must rest upon the law made for the protection of minors. After an anxious and mature consideration of those laws, the conclusion is forced upon us that they have exclusive reference to contracts and rights of property. No peculiar formality is prescribed in relation to actions instituted by tutors for ,tfre recovery of money. The tutor administers by himself alone, and his capacity to appear in court, in such cases, is unqualified and absolute. Civil Code, 344. Third per? sons acquiring in good faith rights under the judgment which ho obtains, have nothing to look to beyond the judgments themselves and the proceedings under them.

If jthe paiijors are injured by the false representations of the tutor, their remedy is against him and the surety on the bond which he has given for his administration. Wo are of opinion that the judgment should have been in fiwor of the plaintiffs in injunction.

It Í3, therefore, ordered that, the judgment in this case be reversed, and that there be judgment in favor of the plaintiffs in injunction, and against the defendant, with eosts in both courts.


author: Host, J.

text:
    Bradford v. Cook, Tutor.
    There can be no ratification where there is no title.
    One who had boen a probate judge cannot, after lie has ceased to hold the office, authenticate a sale made by him when in office.
    Parol evidence is inadmissible to prove a title to real estate.
    The receipt by the tutor of a portion of the price of land belonging to minors, can never he construed into a ratification of a sale, to their prejudice.
    Parol evidence, inadmissible to prove a title to real estate, cannot be received to prove the nature of the possession of-a party, in order to establish that, as a possessor in good faith, he was not liable for rent, and entitled to recover the value of his improvements. Where questions of title arise in actions for damages the proof required is the same as in petitory actiq-qs.
    from the District Court of East Baton Houge, Burk, J.

      Lacey and

      Muse, for the appellant.
    A. M. Dunn, for the defendant.
   The judgment ¿of the couít (King, absent,) was pronounced by

Host, J.

The plaintiff married the widow Atkins, whose children by her /former marriage are the defendants in this suit. Shortly after the death of hi£ r^vife, ho instituted proceedings iu the Court of Probates Tor the purposes: 1st, Of withdrawing from the succession his separate property and right's. 2d. Of settling the community which had existed between him and his late wife. 3d. Of milking a partition of the .property of the succession, among the heirs of both marriages. He alleged that he had expended $5,000 for the use of the community, and prayed that a final partition be made judicially of the several estates and interests; that the court direct the mode thereof; and that the tutor be condemned to abide the sentence therein to be rendered; that the petitioner, in his own right, have judgment for the amount of his claim against the community, that there be a settlement of -said community, and a partition of the succession between the children of the two marriages. The tutor, in behalf of the minors, denied the claim of Bradford, and united with him in his prayer for a finai settlement and partition of ,the succession. A judgment was rendered by the Court of Probates disallowing the claim of Bradford, on the ground that it was not sustained by legal evidence, settling the other questions at issue, and ordering .that the partition of the property should be made in land, if practicable. This decree was acquiesced in, and is now final.

A motion was subsequently made, by Bradford to have the decree referred to a notary, and he submitted and filed with his motion an account, which ho alleged the notary was to consider before forming the lots, it being for monies expended for the use of the community, and amounting to the sum of $2,018 74.

At this stage of the proceedings, two of the heirs of Bmeline Cook, viz : Mary Mathilda, at this time married to and aided by her husband Henry II. Haines, and Tdbitha Ann, aided by Adville Atkins, her husband, filed their oppositions to the demand of Bradford, for various reasons hereinafter mentioned. Subsequently, Clarissa B. Atkins, aided and .assisted by her husband, Ballard, made herself a party to said opposition. They averred, in then- opposition, that all matters in contestation between them and the plaintiff had been settled by a final judgment, and that his demand and account could not again be considered. They further averred that, if the decree of the Probate Court was not conclusive as to .those claims, they were not valid nor chargeable to the community. The opponents further averred that, subsequently to the rendition of the decree, the plaintiff had been in possession of a tract of land belonging to the community; that his pretended claim to it was fraudulent and unsupported by title. They prayed that the judgment of the Court of Probates might be enforced; the land divided in kind, and the plaintiff made to pay rent for its use and occupation, being a possessor in bad faith.

On this opposition, an ordor was granted for a stay of proceedings before the recorder, and the whole matter was returned by that officer to the District Court, for its decision. ■ The plaintiff then filed an answer to the opposition, averring that the exports appointed under the decree of the Court of Probates to decide whether the land was susceptible of division in kind, had reported that it was not, whereupon it had been sold by order of the probate judge, and he had become the purchaser, at a public judicial sale. He further averred that, after the adjudication, the heirs of Bmeline Cook, defendants in the suit, had acquiesced in, sanctioned, and ratified the proceedings by their legal representatives; that the claims sot forth in his account were legal and valid, and that no judgment had over passed upon them. He finally resisted tho pretensions of the defendants for tho rent of the land, and averred that he had purchased the same in good faith ancfpaid for it the' sum of §800 ^ that" he had put upon it improvements worth §2,500and, in case the sale was rescinded, he prayed that he might recover of the defendants thejsum of §800, with interest, and §2,500 for improvements.

TheJDistrict Court sustained tne plea-of res' judicata. It also considered that the formalities required by law had not been complied with in the pretended sale of the land,' and that if must be restored to the community, and enter into the partition tojbe affected by the "notary. It furtherheld that Bradford, being without title, must pay rent. The plaintiff has appealed from this judgment.

The plea of res judicata was correctly sustained. All matters of accounts between the plaintiff and the defendants were put at issue in the original suit, and thei’plamtiff askod a_final_settlement of the community. The accounts now filed by him' bear a date anterior to the'institution of that suit, and being for the samo object, must be held to havejformed part of the sum originally claimed by him. It is urged that the judgment relied on cannot sustain the plea of res judicata, because the Probate Court was without jurisdiction to render such a judgment^ Courts of Probates had jurisdiction to decide suits on claims for money which were brought against successions. C. P. 924, § 13. The argument that the thing adjudged does not exist, because no evidence was offered on the former-trial in support of the plaintiff’s claim, is, we apprehend, untenable after the rendition of a final judgment rejecting it. But, moreover, we have no moans off ascertaining what evidence was adduced before the Court of Probates, and we we Bound to presume that the judge decided correctly.

The next ground upon which the reversal of the judgment is asked is, tliErttlie title of the'plamtilf to the land in controversy should have been considered valid, andjthat the property should not have been restored to the community. In presenting this point to our consideration, the plaintiff’s counsel admits that the proceedings had in the Court of Probates for the sale of the land are full of gross irregularities, and cannot of themselves sustain title. They contend, however, that the defendants should have failed in" their opposition, because they have ratified the title of the plaintiff^ and also because they have failed to tender the purchasehuoney.

We concur with the ^defendant’s ■' counsel that the?© can be no ratification where there is no title, and that the plaintiff has utterly failed to show title to the land. On the trial of the cause, his counsel offered in evidence a writing purporting to be a certificate of adjudication of the land to him, but not signed* by the officer who made the sale, and, in connection therewith, the evidence of Charles Tessier, alleged to be that officer.. He also offered the testimony of other witnesses ibr the purpose as stated by him: 1st. Of showing the title of the plaintiff to the land in controversy and to authenticate the sale. 2d. Of showing the manner and circumstances under which the plaintiff came into possession of the land, and thereby establishing his right to recover the price paid, and also the value of the improvements. The defendants objected to the introduction off this testimony on the grounds, that Judge Tessier was then functus offcio', and could not authenticate a sale alleged to have been made by him when he was-judge of the Court of Probates; and farther that titles to land cannot be established by parol evidence. The court sustained the objection, and the plaintiff! took a bill of exceptions.

This evidence was clearly inadmissible to prove title, and no attempt having, been made to offer anyjxther^we must come to the conclusion that the land never ceased to'belong to the community, and that there was no foundation upotf which the alleged ratification could rest. But besides, the defendants were minors, and the receipt of a portion of the price of the land by their tutor, could never be construed into a ratification to their prejudice.

The argument that the defendants cannot maintain their opposition and obtain a recission because they have failed to allege and prove a tender of the purchaser money, takes for granted a fact which does not exist, the existence of a probate sale. Where there is no sale, the rule invoked is without application. The record shows that the plaintiff paid Judge Tessier $603, and that the judge, with this amount and other sums in his hands belonging to the minors, took upon himself to pay divers claims alleged to have been due by the succession and the ■heirs. This account is to be settled between the parties interested and the judge, and forms no part of the present litigation.

The plaintiff alleges that he is a ¡íossessor in good faith, not liable to pay rent, and entitled to recover the value of his improvements, and that the evidenco offered by him, if not legal to establish his title, should have been received to prove the nature of his possession. This is only alleging, in another form, that it should-have been admitted to prove his title, because unless there was a title, he could not prove his possession under it. It is well settled that when questions’ of title arise inactions of damages, the proof required is the samé as in petitory actions. Patterson v. Bloss, 4 La. 374.

The possessor in bad faith is he who possesses as master, but who assumes this quality when he vfhll knows that he has no title to the thing, or that his title is vioious and defective. C. C. 3415. The evidence in the record satisfies us that the plaintiff comes within this definition, and that he should not be permitted to-shelter himself under the alleged errors and negligence of his counsel. The sale for $603, of property appraised in the inventory at $9,400, would have been, if-if had taken place, an unjustifiable sacrifice. After the experts appointed had reported, without being sworn, that it was not for the interest of the minors to divide'this property in kind, a family meeting was convened to fix tire conditions of the sale, and, at the instigation of the plaintiff, recommended that the land should be sold for cash, giving as a reason that this was the only way in which the sums expended by him for the community could be refunded. At that time his claim against the community had been rejected by. the judgment of the court,, and the reason assigned by the family meeting did not exist. The proof that he was himself satisfied he had no claim, results from his present allegation that, as soon as the land had been adjudged to-'him for $60'3,.he paid that sum to the succession. He would not havo done so if he had been a creditor, as he now pretends to be. We are satisfied that he was properly charged with the rent. Tho tutor himself could not have made the improvements on tíre property, and charged the minors with them, without an authorization of the judge rendered on the advice of a family meeting. The plaintiff has not greater power. It is not necessary to enquire whether those improvements have enriched the minors, as the record contains no evidence on that subject. Judgment affirmed.■

       The notary to whom the decree was referred having: declined to act, the recorder of the parish was substituted for him.


author: Eustis. C. J.

text:
    Saunders et al., Commissioners &c. v. Smith, Administratrix.
    Under the statutes of M- and 26 March, 1842, and S'April, 1848,' providing for tho liquidation o? banking companies, a debtor to a bank was entitled to give in payment tbe obligations of the bank, without reference to the date at which he acquired them.
    from the District Court of East Feliciana, Stirling, J.

      Ellis, for the appellants.

      Merrick and Roselius, for the defendant.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis. C. J.

This suit is brought on a stock note subscribed by Caswell Smith, in favor of the cashier of the Clinton and Port Hudson Railroad Company, in February, 1840, payable eighteen months after date. Previous to the institution of this suit the defendant had tendered in payment, by way of compensation, a bond of said company, which was then.due, and ten per cent in gold and silver, which was received by the commissioners, but the bond was refused. The amount received was credited on the note. The district judge decreed the compensation to have taken place as pleaded in the defendant’s answer, and gave judgment, and the liquidator, who succeeded the plaintiffs in office, has appealed.

The legislature having, by its acts of 1842 and 1843, provided for the liquidation of the hanking corporations of the State, whose charters had been forfeited, though no forfeiture had been judicially decreed, established certain rules upon which the commissioners should proceed in effecting the liquidation. One was, that the debtors to a bank might give in payment the obligations of such bank, without reference to the date at which the debtor may have acquired the same. We concur with the late Supreme Court in the opinion that, the rules established under those acts were obligatory upon the officers appointed under them. 6 Rob., 398.

The commissioners for liquidating the affairs of those banks have acted uniformly in conformity with this rule. The subject is one of great difficulty, but we have been able to come to no other conclusion than that the judgment of the District Court is correct. The Bank of Maryland v. Ruff, 7 Gill & Johnson, 465. Judgment affirmed.