text:
    Thomas W. Chinn, for the use of, &c., v. Pierre Blanchard.
    Possession is a fact and not a right; and although resort may be had to the title to show the extent of the possession, the fact of possession itself must be ascertained without regard to the nature of the title under which the parties claim.
    Damages may be allowed in a possessory action for a tortuous possession.
    APPEAL from the District Court of West Baton Rouge, Burle, J. W. B.

      Robertson, for plaintiff.

      T. G. Morgan, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a possessory action, in which the plaintiff also claims damages. Both parties claim to possess under metes and bounds, according to the calls of written titles. Each show a previous actual possession of a part of their respective tracts. But the portion over which their possessions lap is woodland, and has never been in the actual possession of either. There was judgment in favor of the plaintiff for the' possession, and one hundred dollars damages. The defendant has appealed.

The defendant’s counsel argues, that as the land, the possession of which is in controversy, has never been in the actual possession of either party, resort must be had by both to their titles to show the extent of their civil possession ; and that, as those titles are introduced and relied upon by them, the party showing the superior title must be maintained in possession. The defendant possesses under a patent from the United States, a title superior in dignity to that of the plaintiff.

The position assumed by the defendant’s counsel cannot be maintained. We have often held that possession is a fact and not a right; and that although resort may be had to the title to show the extent of the possession, the fact of possession itself, when it is at issue, must be ascertained without regard to the nature of the title under which the parties possess.

The only question before the district judge in this case was, which of the two parties had shown the most conclusive and frequent acts of possession during the year which preceded the institution of the suit. This is a question of fact, resting on the testimony of witnesses known to him and examined in his presence. Their evidence authorizes the conclusion to which he came; and We cannot interfere with the judgment.

It is urged, that in a possessory action, the question of possession is alone to be inquired into, and that no damages can be allowed under it. The counsel has not favored us with any authority in support of this position, and we are unable to perceive why, under our liberal system of practice, damages sustained in consequence of the tortuous possession of the defendant in ' a possessory action should not be recoverable under it. The damages claimed in this case do not appear excessive.

The judgment is therefore affirmed, with costs.


source: Caselaw Access Project

author: Siimui, J.

license: Public Domain

text:
    John Dooley v. Patrick Delaney.
    Where a purchaser acquires property which is divided by the boundary line between two adjoining parishes, and registers his purchase in one of the parishes only, the part lying in the other parish is liable to seizure by a creditor; especially if it is not proved he had notice of the sale.
    APPEAL from the .District Court of Terrebonne, Burk, J.

      Shields, for plaintiff.

      Beatty and Hall, for defendants.
   The judgment of the court was pronounced by

Siimui, J.

Delaney obtained a judgment against Jeremiah Dooley, and had it recorded in the parish of Terrebonne, in 184G. Subsequently, he caused a tract of land in the parish of Terrebonne to be seized under fieri facias; and thereupon, John Dooley, who alleges himself to be the owner of the land, brought this suit, and obtained an injunction. There was judgment perpetuating the injunction, and the defendant has appealed. It appears, that in 1845, John Dooley bought of Jeremiah Dooley, by notarial act, a tract of land, of which that seized forms a part. Of the tract thus purchased, a part lies in the parish of St. Mary, and a part (being that in controversy) lies in the parish of Terrebonne, a bayou dividing the two parishes. The purchaser had his deed of purchase recorded in St. Mary, but not in Terrebonne. We think it clear that the registry in St. Mary did not relieve the plaintiff from the necessity of recording in Terrebonne, so far as the part of the tract there situate is concerned. Under the act of 1810, the sale is inoperative against Delaney. See act of 1810, sec. 7. Moreau’s Digest, vol. 1, p. 286.

It is not improper to observe, that there are no equitable circumstances proved against Delaney, which would deprive him of the position of a creditor acting bona ficle, and without notice.

It is therefore decreed, that thó judgment of the district court be reversed; that the injunction be dissolved; that the said defendant, Delaney, have leave to proceed to execute the judgment by said Delaney obtained against said Jeremiah Dooley, by seizing and selling, to satisfy the same with costs, so much of the tract of land described in the deed of sale, whereof a copy is of record in this cause, by said Jeremiah Dooley to John Dooley, as lies in the parish of Terrebonne ; and it is further decreed, that the said Delaney do recover from the said John Dooley and C. C. Wallis, his surety, in solido, the sum of four hundred and fifty dollars, for interest and damages, and costs of this suit in both pourts.


author: Eustis, C. J.

text:
    State of Louisiana v. Louis Bordelon et al.
    The act of March 21st, 1850, making an appropriation for the Louisiana Legion, is not in contravention with the 93d article of the Constitution of the State, and the money should he paid by the treasurer, without any further appropriation by the Legislature.
    A mandamus is the proper remedy fur enforcing the performance of acts on the part of a public officer strictly ministerial, and in which there is no discretion vested in them.
    APPEAL from the First District Court of New Orleans, Larue, J. This case arose from an application for a mandamus against the auditor of public accounts and the State treasurer, upon the relation of the major-general of the Louisiana militia.
    The judgment of the district court was as follows :
    “The relator alleges, that he is bylaw entitled to receive from the State trea'surer, the sum of two thousand five hundred dollars, but that Louis Bordelon, Auditor of Public Accounts, refuses to deliver to him the warrant upon the State treasurer for the said sum, without which warrant it cannot be legally paid. A motion to show cause why a mandamus should not issue to the auditor and treasurer, was granted. And the cause shown by both is the same, to wit: ‘ that there is no law specially appropriating the amount of money for which a warrant has been demanded in this case, and that without a specific appropriation no money can be drawn from the treasury, under the 93d article of the Constitution.’
    “ The only question, then, in this case is, whether any appropriation has been made by law of the sum for which the warrant is claimed, in conformity with the Constitution of the State.
    “The article of the Constitution declares that ‘no money shall be drawn from the treasury but in pursuance of specific appropriation of money be made for a longer term than two years.’ The same rule, with the exception of the word specific, was contained in the former Constitution, (art. 6, sec. 5.) "Why this word was inserted does not appear from the proceedings of the convention, for the article was reported and adopted W’ithout debate; (Debates in Convention, 823 ;) but as it was evidently designed to change what formerly existed, full force and effect must be given to it.
    “ The law under which the applicant in this case claims the warrant from the auditor, is entitled ‘ an act making appropriations for the support and maintenance of the Louisiana Legion, and the volunteer uniformed companies now organized, and which may be hereafter organized in the city of New Orleans,’ and was approved March 21st, 1850 ; and it enacts, ‘ that the treasurer of the State pay upon the warrant of the auditor of public accounts, out of any moneys in the treasury not otherwise appropriated, to the major-general of the first division of the Louisiana militia, and, in his absence, to the brigadier-general of the Louisiana legion, and, in the absence of both the above named, to the brigadier-general of the first brigade Louisiana militia, the yearly sum of two thousand five hundred dollars, for the support and maintenance of the Louisiana legion, and of the other volunteer companies uniformed, now organized in the city of New Orleans, or which may be hereafter organized, and be attached to any present military organization, and not otherwise provided for by law.’ The act further proceeds to direct the mode in which this money shall be distributed.

      “ It is contended, that this is not a specific appropriation," nor, indeed, any appropriation at all. The first thing that impresses itself upon the mind is, that the General Assembly intended the act to be an appropriation act. This is evident from its title. Has the Legislature, in the body of the law, failed to accomplish its intention ? AVhat is the meaning of the word appropriate ? It is to allot, assign, set apart, apply, anything to the use of a particular person or thing, or for a particular purpose. This may be done without using the word appropriate itself. And this act certainly does assign, allot, and set apart a certain portion of the public moneys not otherwise appropriated, and directs the said portion to be paid to particular persons, for a given purpose. There are no formal words required to bp used in an appropriation bill. The Constitution has not undertaken to direct what technical language shall be employed ; this has been wisely and safely left to the legislative power, and they seem to have used their right in this instance in such a manner as to leave no doubt to what they meant to do, or of what they did. The language of this act must, therefore, be regarded as fully sufficient to constitute an appropriation. -
    “Is the appropriation specific in the intent of the Constitution 1 It is specific in the amount to be paid — two thousand five hundred dollars a year. It is specific in the person to whom it is to be paid — one or the other of the named officers, as the case may be. It is specific as to the time when the money is to be paid in each year, during two years. It is specific as to the purpose for which it shall be used — the maintenance of the legion and certain other volunteer companies. It is specific as to the money out of which the same shall be paid — any moneys in the treasury not otherwise appropriated. In what other respect an appropriation could be constitutionally required to be specific, has not been suggested by counsel, nor does it occur to the court. In the only sense, then, in which the words of the Constitution can have any meaning, so as to distinguish a specific appropriation from any other appropriation, the present act seems to be as specific as it can be possibly made.
    “ It is therefore ordered, adjudged and decreed, that the rule be made absolute,‘j and that a peremptory mandamus issue, as prayed for.”

      D. Augustin, for the relator.

      Isaac Johnson, Attorney General, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The relator alleges that he is by law entitled to receive from the State treasurer the sum of two thousand five hundred dollars ; but that Louis Bordelon, Auditor of Public Accounts, refuses to deliver to him the warrant upon the State treasurer for the said sum, without which warrant it cannot be legally paid. A rule to show cause why a mandamus should not issue to the auditor and treasurer was granted, and the cause shown by both is the same, to wit: “that there is no law specially appropriating the amount of money for which a warrant has been demanded in this case, and that without a specific appropriation no money can be drawn from the treasury, under the 93d article of the Constitution.

The only question, then, in this case is, whether any specific appropriation has been made by law of the sum for which the warrant is claimed, in conformity with the Constitution of the State.

The judge of the First District Court of New Orleans, in which these proceedings were instituted, after a careful examination of the question submitted, made the rule absolute, and directed a peremptory mandamus to be issued as prayed for.

The attorney general, representing the auditor and treasurer, appealed from this decision.

We concur with the district judge in the view he has taken of the statute under which the relator claims. We consider the mandamus as enforcing the performance of an act on the part of public officers strictly ministerial, in which there is no discretion on their part ministerial or otherwise, and that it is the proper remedy for a case of this kind. The United States on the relation of Stokes v. Amos Kendall, Postmaster General. 12 Peters, 524.

We do not find the statute under consideration to be in conflict with the sections of the act of 1847, to establish and regulate the treasury department, cited in argument by the attorney general.

The judgment of the district court is therefore affirmed.


author: Rost, J.

text:
    Abraham Hager v. John Nolan.
    If aman professes to be a competent kettle setter and undertakes a work of that description, he is bound to bring to the execution of it the requisite skill; but he is entiled to fair play, and his work should not be strained before it is thoroughly dry.
    from the District Court of West Baton Rouge. Penn, J. G. S.

      Lacey, for plaintiff.

      S. P. Greves, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant employed the plaintiff to put up two sets of sugar kettles for him, and, after the work was done, paid him $500. The plaintiff now claims $374, the balance alleged to be due him for the- value of the work. The defendant refuses to pay, on the ground that the plaintiff had insured, that the kettles would last three years, but that the work, on trial, proved so defective that he was put at much expense in repairs after the first year, and at the end of the second, was compelled to have the kettles taken down and re-set. He also alleges loss in consequence of the leakage of the work, and prays for damages in reconvention.

The case is before us on the appeal of the defendant from a judgment rendered against him, on the vei'dict of a jury, for the sum claimed.

There is no doubt, that if a man gives himself out as a kettle setter, and undertakes a work of such vital importance to the sugar planter, he is bound to bring to the execution of it the requisite skill and experience. But he must have fair play; no unusual amount of labor should be required of him, and his work should not be strained before it is thoroughly dryed.

It seems that, although the work in this case appeared well done, and the defendant frequently expressed his satisfaction of it, it did not stand fire, the arches settled, the cross timbers burned, and the kettles leaked badly. Witnesses testify, that this was owing to the kettles having been used before the masonry was dry, and also to frequent stoppages in grinding. These reasons are not very satisfactory. But there are other facts in the record, which probably had greater influence on the minds of the jury.

The defendant had employed another kettle setter, who disappointed him. He waited until the grinding season before he employed the plaintiff, and then made him work week-days, Sundays, and at night. The jury were justified in coming to the conclusion, that the defects of the work were attributable to the haste with which they had been put up, and to the unreasonable amount of labor which the plaintiff had been made to perform. We do not know that this was the ground upon which the jury decided; but it is enough that it may have been, to induce us to sustain the verdict.

The judgment is affirmed, with costs.


author: Slidell, J.

text:
    Reese and Seger v. Steamer Mary Foley et al.
    Where a boat pushes out into the river, with another in tow, in the crowded port of New Orleans, across the track usually pursued by ascending vessels, a due degree of caution would dictate that her officers should assure themselves there was no boat ascending which might endanger their vessel; and if she be damaged by collision without such precaution, no damages will be awarded.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J. The judgment of the district court was in favor of the plaintiff for the cost of repairing the damages suffered by the collision of the steamer Ben Adams with /the Mary Foley.

      Schmidt, for plaintiffs.

      WalTcer and Griffith, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The owners of the steamboat Ben Adams claim from the owners of the steamboat Mary^ Foley compensation for damages occasioned by a collision, alleged by the plaintiffs to have been caused by the negligence of those in charge of the latter vessel, and without any fault on the part of the plaintiffs.

The Mary Foley was going up the river, and appeal's to have been pursuing the course usually taken at that point by ascending vessels, that is to say, she was running along the line of vessels moored along the upper wharves of the Second Municipality, at a little distance from them; but such as does not appear to us, under the evidence, to hye been unusual or unsafe. This course is usually adopted for two reasons, namely : to keep out of the current, which is rapid further out, and to avoid descending boats. The Ben Adams had been moored in a space a few hundred feet wide at the upper part of the Second Municipality, between a tier of vessels below and a tier of flatboats above, both tiers projecting some distance into the river. She was working out into the river with a barge in tow, and came into collision with the Mary Foley, as the latter was passing. Upon a careful consideration of the evidence, we have all come to the conclusion, that the collision must be attributed, in part at least, to the negligence of those in charge of the Ben Adams. It was about the time in the morning when the steam packets from the city are starting. Ascending steamboats usually pass near the shipping. They may be seasonably descried at a distance from the place where the Ben Adams cast off her moorings, although not so easily, or rather not so fully, seen as they near or come abreast of the tier of shipping already spoken of. The steam also of the ascending boat may be heard at some distance. A due caution on the part of the officers of a vessel about to emerge from behind the shipping and cross the track of ascending steamers, would seem to dictate that they should first assure themselves that no boat was ascending which might intercept their vessel. We feel persuaded that a little diligence, thus directed, and which was quite practicable, would have prevented the occurrence of this collision. See Myers v. Perry, 1st Ann. 374. Carlisle v. Holton, 3d Ann. 48. Murphy v. Diamond, 3d Ann. 442.

¡s therefore decreed, that the judgment of the district court be reversed, and that there be judgment in favor of the defendants; the plaintiffs paying costs in both courts.


text:
    George W. Sargent v. H. H. Slatter.
    The action to recover the price given for a slave which had died of a redhibitory vice, is not barred by one year’s prescription where the defendant was absent from the State during the greater portion of the year.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for plaintiff.

      Moise and Randolph, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the return of the price of a slave sold to him by the defendant, on the ground that the slave died of an incurable disease, existing before and at the time of the sale. He also claims damages.

The defendant filed a general denial and a plea of prescription. There was judgment against him, and he appealed.

This action was commenced more than one year after the date of the sale. But it is proved that during the greater part of the time which elapsed before it was brought the defendant was absent from tbe State. The plea of prescription cannot therefore prevail.

It is true, we have repeatedly held, that the conjectural opinion of physicians as to the duration of diseases of slaves, founded on a post mortem examination, was not, by itself, full proof of the fact; but in this case, the opinion of the physician is corroborated by the testimony of the person in whose family the slave was reared; and the physician who examined her for the plaintiff at the time of the purchase, states that he did so with great care, because she was said to be diseased. His examination lasted about ten minutes, and he came to the conclusion she was healthy. But the evidence in the record satisfies us that he was in error.

It is urged that four months elapsed after [the purchase before the plaintiff called in a physician. But the slave was employed as a house servant. She was never exposed to the weather; and although she may have been in declining health, there is no evidence that she required medical attendance before the time when a physician was called in.

The rule is, that if the situation of a slave is such as to require medical attendance, and the master fails to procure it until the disease becomes incurable, he cannot, after the death of the slave, maintain an action against his vendor for the recovery of the price. But the evidence in this case shows that the slave was able to do house work, and that the plaintiff had no reason to believe that she was in a dangerous situation. It also shows him to be a humane master; and this fact has great weight with us.

It is alleged, that as the title of the plaintiff Was executed in the State of Maryland, and is not stamped, no action could be maintained there, and none can be maintained here. The evidence of the Maryland statute requiring a stamp, although in the record, was not offered in the court below, and we can take no notice of it. If we did, it appears to us, that the defendant’s own witnesses sufficiently prove the contract.

We are of opinion that the damages allowed are reasonable.

The judgment is therefore affirmed, with costs.


text:
    Littleburg Wright v. P. B. Rousselle.
    A creditor had caused certain property of his debtor to be seized on executory .process, the snle of which was enjoined, upon the ground of the want of proper notice of seizure and a defective advertisement. The injunction was dissolved by the district court, and an appeal taken to the Supreme Court. Pending the appeal, the creditor ordered the sheriff to return the process, and issued a new order of seizure and sale, which was also enjoined on account of the pendency "of the appeal on the first injunction. Held: That ns the only questions involved in the first injunction related to the regularity of the proceedings, the creditor might legally abandon those proceedings and issue new process, and that the appeal would still remain to determine the question of. damages.
    from the District Court of Terrebotine, Randall, J. John H.

      llsley, for plaintiff.

      J. C. ami A. Beatty, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal' is taken by the plaintiff from a judgment of the Court of the Fifth Judicial District, by which he and his surety on an injunction bond were condemned to pay damages on the dissolution of an injunction obtained by him, which was also decreed by the judgment. The litigation between these parties has given rise to three appeals to this court. The second is found reported in 5lh Ann. 12G.

In that case, the plaintiff complained that he was not properly notified of a seizure made of his land under certain executory proceedings, and that it was advertised for sale under a defective description ; and obtained an order of the court of the first instance, enjoining the sheriff and the seizing creditor from proceeding to make the sale of said land. This injunction was dissolved; but on the appeal, this court reversed the judgment of the court below, and remanded the case for further proceedings.

After this appeal was taken, and the bond of the appellant filed, the seizing creditor ordered the sheriff to return his writ of seizure and sale; which he did, and stated in his return that the proceedings tor the sale of the land were stopped by the injunction issued as before mentioned. He then caused to be issued an alias writ of seizure and sale, and the plaintiff applied to the court for a stay of those proceedings, and obtained an injunction, on the ground of the pendency of the appeal.

The only question which is presented for the decision of the court is, whether the plaintiff’s appeal was a legal impediment to the subsequent proceedings of the creditor by executory process. The matter at issue in the case in which the appeal was pending when the alias writ was issued, was as to the regularity of the proceedings under the executory process in the notice required to be given to the debtor, and the advertisement of the land seized. The injunction was against further proceedings, on the ground that the sale under them would be illegal and injurious to the debtor. The return of the writ terminated all action under the process then issued. But the statute, obliging courts to award damages on the dissolution of injunctions of executions, and the right of parties t0 their appeal, necessarily kept open for decision, the question as to the regularity of the proceedings by which the land was to be sold, inasmuch as the damages to be awarded against the principal and surety would be dependant on that decision.

We do not consider the appeal involving the mere regularity of the proceedings of seizure and sale as affecting any other remedies which the creditor had for the recovery of his debt. The security given on the appeal did not cover any part of the original debt; it was only for the debt created by wrongfully executing the proceedings of the creditor. We have examined all the authorities which the couusel for the plaintiff has submitted to us in an elaborate and well prepared written argument, but we do not find any decision which conflicts with the view wo have taken of the subject. On principle, we would be at a loss for any reason by which the right of the creditor to exercise any legal remedy for the recovery of his debt could be held to be suspended by an appeal on a matter purely incidental, and not inconsistent with the remedy which he seeks to enforce.

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


text:
    Benjamin F. Holden v. Joseph N. Tanner.
    Where one signs an instrument between other parties, in which it is stipulated surety is to be given, and the instrument is signed in the presence of persons who are styled witnesses, he will be considered as having signed as surety, not as a witness, although his name may not appear in the body of the instrument.
    Where a party signs, as surety, a lease, in which the lessee stipulates to take possession of the property at a certain time and to return it at the end of the lease in good order, and to execute his notes for the rent, the surety will be liable for the rent.
    Where the lessee abandons the premises, the lessor may rent the property to other tenants, and does not thereby cancel the lease, or impair his recourse upon the lessee. He is, however, equitably bound to credit the lessee for the amount he receives from the new tenants.
    from tbs Fifth District Court of New Orleans, Buchanan, J.

      C. Belcher, for plaintiff.

      J. C. and A. Beatty and R. D. Joicrdan, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Tanner is sued as the security of Jordan, iú a contract of lease of the following tenor: “Article of agreement entered into and concluded this day, between B. F. Holden of the first part, and W. R. Jordan of the second, &c., witnesseth, that the said B. F. Holden agrees to let or rent to the said W. R. Jordan the lower or basement part of the building now in contemplation of erection on the corner of Front and St. Louis streets, consisting of two rooms, with a separate or small room on the south end of each for a counting room, the corner or main room to be ceiled on each side, and to be finished with counter, shelves and drawers, suitable for a dry goods store, and to be made ready for use or occupany by or before the first of August ensuing; extraordinary circumstances, such as accidents by fire, stress of weather, unforseen disappointments in my lumber, &c., only excepted: the said Jordan being bound to receive said premises as soon as ready for use, and lo pay to B. F. Holden, or his assigns, from that date, at the rate of one thousand dollars per year, payable quarterly, or soy two hundred and fifty dollars at the end of each quarter or every three months from the time it is ready for occupancy, and for which he binds himself and his security in the sum of one thousand dollars as a penalty or a forfeiture in case of failure on his, Jordan's, part, to comply with the above requisitions; and also to return said property in the condition as received, natural wear and tear only excepted. He, Jordan, further agrees, that in case B. F. I-Iolden builds a cellar under the west room, that Holden shall retain the exclusive privilege of and right of ingress and egress to and from the same, as said Holden may wish. In witness whereof, we have hereunto affixed our respective signatures, this eighth day of April, in the year of our Lord one thousand eight hundred and forty-six. (Signed,) W. R. Jordan. J. N. Tanner. B. F. Holden. In presence of G. W. Hunter. Ií. S. Karr.”

It has been argued on the part of the defendant, that there is nothing in the written agreement ascertaining the capacity in which he signed. But this objection seems to us of no avail. It is true, the name of the surety is not mentioned in the body of the instrument, but it contemplates the giving of a surety ; those who sign as witnesses are described as such ; the two other parties who sign are principals, and it is plain-that'the third subscriber, Tanner, must have understood himself as signing as the contemplated surety.

It appears from the evidence that Jordan took possession as lessee in August, 1847, and continued to occupy until some time after the commencement of the third quarter, when he sold out his stock of goods and abandoned the premises without lawful cause. Sometime in the last quarter the lessor let out a portion of the premises to new tenants, and has given credit for the amount thus received. It does not appear that he rejected, or could have obtained any higher rent, or could have made a disposition of them more advantageous to the defaulting lessee. It is for the balance thus due by Jordan, under the lease, that the action is brought against the surety.

The district judge was of the opinion, and so the defendant has argued here, that Tanner did not bind himself as surety for the payment of the rent, but only for the performance of the stipulations to take possession on the first of August, and to return the property at the end of the term in as good order as received. This defence seems to us quite untenable. The expression “ to comply with the above requisition,” obviously comprehends the payment of rents, which was one of the antecedent stipulations on the part of the lessee.

It is said that the landlord lost his recourse against the surety by renting a portion of the premises to new tenants, after Jordan abandoned them. The contract between Jordan and Holden was a contract of lease; and Tanner, the surety, must be considered as having contemplated and submitted himself to the effect of the legal obligations which attach to such a contract. It is well settled, as part of the law of landlord and tenant, under our jurisprudence, that the lessee, who, without lawful cause, abandons tlje premises before the expiration of the lease, is at once bound for the rent of the whole term, and that the lessor does not destroy his recourse against the lessee by letting them to new tenants, being, however, equitably bound to make an allowance to the original lessee for what he ma.y thus collect. See Christy v. Casanave, 2 N. S. 450 ; and Reynolds v. Swain, 13 L. R. 194. And in Roumage v. Blatrier, 11 R. R. 101, it was held, that where a lessee, for years, and his surety abandon the premises, the lessor, for the preservation of the property and the protection of his rights, may collect the.rent due from the sub-tenants and procure-new ones, for the benefit of the lessee or surety; and where the lessor has never refused to place the premises under their control on their complying with the lease, such acts will not be considered as amounting to a cancelling of the lease, and the surety will be bound for the difference between the amount stipulated in the lease and that received from the sub-tenants. The principles recognized by those decisions are a sufficient answer to this branch of the defence. It is certainly with a bad grace that the surety complains that the lessor’s diligence has lessened his burden. The lessor, if he thought proper, might have left the premises wholly unoccupied, and the lessee and then his surety would have been answerable for a larger sum.

There was an attempt to show that the plaintiff had granted a delay to the principal debtor, and so released the surety; but it is not sustained by the evidence. The amount of the testimony is, that Jordan made to Iioldcn, through a mutual friend, overtures of settlement, by paying some cash and the balance in paper of third persons, such as Holden should consider unexceptionable. The amount of cash and the particulars of the paper were indeterminate. Hoden seems to have intimated, as was very natural, that such an arrangement, if consummated, would suit him ; but never entered into any agreement which bound him to wait, or put it out of the power of the surety, if he had chosen to pay the debt, to enforce immediate payment from his principal.

It is therefore decreed, that the judgment of the district court be reversed ; and that the plaintiff recover of the defendant the sum of $894 12, with interest from judicial demand, and costs of this suit in both courts.


text:
    C. C. Wallis v. J. H. Thomas et al.
    Where an injunction is obtained upon the ground of there having been no appraisement of the property about to be sold, the evidence must show that the sale was one in which an appraisement was necessary, otherwise the court cannot say whether it may not be a sale on a twelve months’ bond.
    It is not a material objection to an advertisement of a sheriff’s sale, that the advertisement is signed by the deputy sheriff.
    from the District Court of Terrebonne, Randall, J. G. W.

      Peirce and P. E. Bonford, for plaintiff.

      J. C. and A. Beatty, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the plaintiff from a judgment dissolving an injunction obtained by the plaintiff against further proceedings under a writ of seizure and sale. The judgment awarded damages against the plaintiff and his security on the injunction bond.

The injunction was obtained on the 4th of August, 1849, the day on which the plaintiff’s property was advertised for sale.

There was an application for a continuance made in the affidavit made by the plaintiff’s attorney of the absence of two witnesses. It is sufficient to say, that the evidence adduced on the trial satisfies us, that the district judge properly exercised his legal discretion in refusing the continuance. It is objected, that there was no appraisement of the slaves seized. The injunction having been granted on the day fixed for the sale, that there was not sufficient time to give the plaintiff notice to appoint an appraiser, under the 10th section of the act of 1828, amending the several articles of the Code of Practice,

But the allegation in tlie plaintiff’s petition, that the slaves were seized under a fieri facias, and advertised for sale to satisfy the judgment of the creditor, is put in issue by the defendant’s answer, and has not been proved. Neither the judgment nor the writ have been offered in evidence. Non constat, that an appraisement was necessary. The execution may have been issued on a twelve months’ bond.

The other objection, that the advertisement was signed by the deputy sheriff, and not by the sheriff, we do not consider as material. Code of Practice, 7G4. Act of March 25th, 1813, § 7. Copeland v. Labatut, ante p. 61.

The judgment of the district courtis therefore affirmed, with costs.


text:
    Mathurin Bourg, Executor, v. J. R. Niles et al.
    Tile space which is to bo left for public use by the adjacent proprietors on the shores of navigable rivers for roads and levees, is a servitude imposed by law, of which purchasers are bound to lmow the existence, and form no cause for refusing to pay the price.
    from the District Court of Lafourche, Randall, J. J. C. and A.

      Beatty, for plaintiff.

      J. L. Cole, for defendant.
   The judgmont of the court was pronounced by

Rost, J.

At the probate sale of the succession of Lamoureux the defendant purchased a lot fronting upon the road on the bank of Bayou Lafourche, within the limits of the town of Thibodoauxville. This action is brought upon one of the notes given for the price.

The defence is, that the plaintiff is unable to deliver the quantity of land sold. That the sale was made according to a plan which represented a distance of about twenty-six feet between the levee on tho bank of the bayoxr and the line of said lot; but that after the sale had taken place, the town of Thibodeauxville was decreed to have a right to a road of sixty feet in width instead of twenty-six foot, in the case of tho Town of Thibodeauxville v. Maggioli and Lamoureux, 4th Ann. 73. That the town corporation has the right to take the quantity of land adjudged to them, and that they intend to exercise it; that the respondent will, when that right is exercised, lose one-tliird of the land he purchased and all the buildings upon it, and that ho is entitled to a diminution of the price, and to damages.

The district court rejected his claim; and he has appealed from the judgment rendered against him on the plaintiff’s demand. The-defendant has no claim in warranty, or for a diminution of the price on the grounds alleged. The space which is to be left for public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing oflevees and roads, is a servitude imposed by law upon the land, of which purchasers are bound to know tho existence. C. C. 6G1. The judgment in the case of Maggioli did not create that servitude ; it amounts only to a recognition of it. It imposes no additional burden upon the land, and could give no cause of action to the defendant against his vendors in warranty, even if actions of warranty could be maintained in cases like this. But the taking of land for the purpose of making a public road, is not such an eviction by a superior title against which the vendor is presumed to warrant. It is on eviction by the act of the sovereign, and the sovereign alone is to make indemnity in cases where indemnity is due. Merlin, verbis, Faits duprince. Repertoire.

The judgment must be affirmed. It is ordered that the judgment be affirmed, with costs.


text:
    M. Welsh v. V. D. Terrebonne.
    Where the plaintiff has denied his signature to an act of sale, after it is proved he will not be allowed to prove that the sale was not areal contract.
    from the District Court of Lafourche, Randall, J.

      Winchester Hall, for plaintiff'.

      J. C. and A. Beatty, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff' claims from the defendant, who is administrator of the succession of Bridget Lyons, a female slave alleged to be his property.

The defendant avers title in Bridget Lyons to the slave, under a sale from the plaintiff himself to her.

The plaintiff having denied the genuineness of his signature to the act, experts were appointed, who, after comparing it with a genuine signature, reported it to be genuine. There is other testimony in the record corroborating the report. The plaintiff then attempted to prove, by the declarations of Bridget Lyons to third persons, that this sale was not a real contract. But the district judge very properly disregarded that evidence, and gave judgment in favor of the defendant. The evidence adduced is objectionable, and in itself too vague and uncertain to disprove the sale. Fletcher v. Fletcher, 5th Ann. 406.

The district judge further reserved the rights of the parties in relation to a child of the slave, under ten years of age, which was not sold with her. This is all he could do under the pleadings.

The judgment is affirmed, with costs.


text:
    Succession of Boudreaux.
    It is the duty of an administrator to ascertain the nature and extent of the assets of the succession, before he attempts to sell them "by an indefinite description of the rights and interest of the succession in lands and debts. If the succession has no rights, a sale would be a fraud upon the purchasers. If it has rights, the vagueness of the description would operate an injury to the minors.
    from the District Court of Lafourche, Randall, J. E.

      E. Malhiot, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, as administrator of the succession of Boudreaux, caused to be inventoried all the right, title and interest which the succession had or might have in and upon two tracts of land described in the inventory, and all the rights and titles which it had or might have against Valery Bergeron for moneys received, &c.

The three items were appraised together at $200 under this loose and general description. The plaintiff then applied to the court for an order to sell those rights and claims, and convoked a family meeting to deliberate on the interest of the minor heirs in relation thereto. The family meeting advised the sale, on the terms proposed by the administrator ; but the district judge refused to approve of their deliberations, and dismissed the proceeding. The administrator has appealed.

We fully concur with our learned brother of the district court, that it is the duty of the administrator to ascertain the nature and extent of the assets of-' the succession before he attempts to sell them. If it has no rights, the-sale would be a fraud upon the purchasers. If it has rights, the vagueness of their description would necessarily operate to the injury of the minors. We doubt whether the members of the family meeting in this case were conscious of the nature of the duty they were required to perform.

Judgment affirmed, with costs.


text:
    B. F. Lynch v. F. Williams.
    Whore there is a contest between the plaintiff and an intervenor, as to the ownership of a ' promissory note sued on, and judgment is rendered in favor of the intervenor against the defendant, the plaintiff being non-suited, he may appeal, in order to determine-to whom the note belongs, without making the defendant a party.
    from the District Court of West Baton Rouge, Burk, J.

      James M. Brunot, for plaintiff.

      Barrow and Favrot, for intervenor.

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

Eustis, C. J.

The plaintiff, Lynch, sued Francis Williams as the drawer and Vincent Kirkland as the endorser of a promissory note for the sum of $400, payable twelve months after date. Pauline Granger intervened in the suit, claiming the note as belonging to her, and asking judgment also against the defendants, to the exclusion of the plaintiff. She alleged that the note had been lost. The district judge gave judgment in her favor against the defendants, and entered judgment against the plaintiff as in case of non-suit. He has appealed. The defendants not having appealed, there is no ground for disturbing the judgment against them, which stands for the security of the debt in controversy between the appellant and the intervening party.

We are of opinion that, the note having been endorsed in blank, the proof of its originally belonging to the intervening party is not of itself sufficient to authorize a recovery against the plaintiff, who stands prima facie as a bona fide holder of the note. She has not proved the fact of the loss of the note. The advertisement in evidence states this note and another to have been mislaid, and the payment stopped. We find no other evidence to this point; it is not sufficient. There is nothing in the case which throws suspicion on the holder. Indeed, the case is not before us in such a form as would authorize us to close it by a final judgment between the parties. We think the court erred in non-suiting the plaintiff.

The judgment of the district court against the plaintiff is therefore reversed, at the costs of the appellee, and the case remanded for further proceedings, in order to determine to which of the parties the judgment against Williams and Kirkland belongs; the appellant standing as plaintiff, and the appellee as defendant in the suit, and the rights of both to be unaffected by the judgment rendered against the original defendants.


author: Preston, J.

text:
    M. M. Thompson, Executor, v. W. C. Mylne et al.
    Where a partnership sells an interest in a plantation to a third person on credit, it being stipulated the share of the third person in the profits shall be applied to the payment of the price of his purchase, the transaction will be regarded not as creating a joint ownership merely in the plantation, but as a sale upon condition that the third person's interest shall be applied to the payment of his debt; and other creditors cannot subject that third person's interest to the payment of debts due 1:o them, until the price of the purchase is first paid.
    from the Fifth District Court of New Orleans, Buchanan, J.

      John R. Chymes and IS. Briggs, for appellants.

      Simon and Morphy, Prentiss and Finney, and li. Hunt and J. Seghers, for appellees.
   The judgment of the court was pronounced by

Preston, J.

On the IGth of March, 1828', Messrs. Dennistoun Sf Co. and . G. B. Milligan, entered info the following agreement: “Agreement betwixt Messrs. Dennistoun Sf Co. on the one part, and (i. B. Milligan on the other part: 1. Dennistoun Co. agree to sell to Cl. B. Milligan one-third of a sugar plantation they own, situated near the English Turn, on the other side of the river, with all the slaves, buildings, utensils, &c., thereon, or appertaining thereto, for fifty-two thousand dollars, payable in one, two, three, four, five, six and seven years, in equal installments, without any interest until the end of the contract; and on whatever sum may be then unpaid, G. B. Milligan to pay six per cent interest per annum, with special mortgage of the properly until the whole is paid. 2. It is understood that ton slaves and six manumitted negroes, owned by G. B. Milligan, are to remain on the estate to assist in its cultivation, and bo fed and clothed as the other negroes on the plantation, at the general expense. 3. It is understood that G. B. Milligan will resido upon the plantation, and devote his attention wholly and, exclusively to its cultivation and improvement; that he shall receive from the concern an annual salary of one thousand dollars, and have the privilege of what the plantation may yield, for his own use; but his expenses, otherwise, tobe borne by himself. 4. The supplies, requisite for the plantation to be furnished by Dennistoun Sf Co., and a commission thereon of two and a half percent, as well as on all sums they may lay out. to be charged ; the crop of sugar to be sold by them, chaining a commission of two and a half per cent, as well as on the proceeds of any wood, stock or other produce that may be sold; an annual statement to be made out, and the proceeds of the sales, after deducting the current expenses, to be considered the annual product of the plantation, one-third of which to be placed to the credit, of G. B. Milligan and the remaining two-thirds to the credit of Dennistoun Sf Co. 5. That this contractshall exist for seven years, and at the end of which period, if agreeable to all parties, be renewed; but if a dissolution should take place, the value of the property to be fixed for settlement by mutual appraisement, or by public sale. 6. In case the proposed sugar house and other buildings are erected, and additional negroes purchased, G. B. Milligan to pay one-third of whatever sums may be laid out, bearing interest at six per cent per annum, from the date of the money being advanced by Dennistoun Sf Co. until his share is paid. 7. This agreement will be regularly completed by a notary public as soon as possible. Signed in duplicate. New Orleans, this sixteenth day of March, 1828. (Signed,) Dennistoun & Co. G. B. Milligan.”

The partnership thus formed was carried on to the entire satisfaction of all parties until the death of G. B. Milligan, in March, 1841. He was so well satisfied with the arrangement and conduct of the partnership, that he appointed M. M. Thompson, a partner in the firm of Dennistoun Sf Co., his testamentary executor. The accounts of the partnership were kept by the firm of Dennistoun &; Co., who, by the terms of the contract were to be the factors of the plantation, furnishing its supplies and disposing of its crops. They made up and rendered annua] accounts of the partnership, and credited Milligan with one-third of the net proceeds of the crops, which with his annual salary, after deducting his private account, was appropriated to the payment of his interest in the plantation and slaves. They continued to keep and render similar accounts to Thompson, the executor of Milligan, until 1844. He had made an inventory of the estate of Milligan in the parish of Plaquemines, where the plantation was situated, and in March, 1844, rendered an account of his administration. The widow and heirs of David Urquhart, who was a large creditor of Milligan, opposed the account. This induced the executor to bring a suit in New Orleans for a partition of the plantation and slaves, and settlement of the partnership. The widow and heirs of David Urquhart intervened. George B. Milligan has also been appointed dative executor of his father, George B. Milligan, and has become a party to the suit. And after much litigation in the Fifth District Court, in the late Supreme Court, also in this court, the case has been submitted to us almost exclusively on questions of law.

It is ascertained that when Milligan died, on the 16th of March, 1841, he was indebted to the firm of Dennistoun &)• Co. in the sum of $31,834 65, growing out of their transactions with regard to the plantation and slaves. At the same time, he owed the late David Urquhart $93,419 30. The plantation and slaves have'been sold to effect a partition of the same, and settlement of the partnership. And since the death of Milligan there has been realized from the third of the crops belonging to his succession, and from the sale of his third interest in the plantation and slaves, and also from the hire of some slaves belonging separately to his succession, a sum of near sixty thousand dollars.

The firm of Dennistoun Sf Co. insist, that this money should be applied to the extinguishment of the indebtedness of the succession to them. The heirs of David Urquhart contend, that it should be appropriated proportionably to the payment of the indebtedness to them and to Dennistoun $¡• Co. And the dative executor, George B. Milligan, claims that it should be handed over to him to make the distribution, there being no other creditors of the testator.

The decision of the controversy depends upon the application of our laws to the agreement between Dennistoun Sf Co. and George B. Milligan in 1828, and the effect of that agreement under those laws.

It is contended by the dative executor and the heirs of Urquhart, that Dennistoun Co., by the agreement, sold to G. B. Milligan the third of the plantation and slaves on terms, that for the payment of the price they are. his creditors, but have no special mortgage, because none was given or recorded; and have no legal privileges over Urquhart's heirs on the proceeds of the crops, and plantation and slaves, because the code gives them none. They contend further, that Dennistoun Sf Co. are not creditors of the partnership, and are not, therefore, entitled, under article 2794 of the Civil Code, to be paid out of the partnership funds in preference to the creditors of the individual partner. In these positions they are correct, and the surviving partners must support their claim without reference to the articles of our code, giving special mortgages or privileges and a preference to the creditors of the partnership over the creditors of an individual partner upon the partnership funds. Those articles do not apply directly to the case before us, although the equitable principles upon which they are founded indicate that the same equity should govern the present case, which is so similar to those to which they apply.

To decide this controversy justly, it is necessary to examine carefully the contract of the parties, to ascertain their objects, and to give effect to their whole intentions, if not prohibited by our laws. They made an agreement, embracing several species of contracts. Its leading object was to form a partnership for the cultivation of a sugar plantation in the parish of Plaquemines. For that purpose : 1. Dennistoun Sf Co., who owned the plantation and slaves, agreed to sell to G. B. Milligan one-third of the same, with all the appurtenances, for $52,000, payable in one, two, three, four, five, six and seven year's, without interest. 2. The parties agreed that Dennistoun Sf Co. should have the factorage of the partnership for two and a half per cent commissions for all supplies furnished, and a like commission on the sale of all the products of the plantation. 3. That Milligan should have employment as superintendent of the plantation, with a salary of $1000 per annum, and some perquisites. 4. The profits of the partnership were to be shared in proportion to the interest of the partners in the concern. The share of Dennistoun Sf Co. was to be credited t to them, and the share of Milligan was to be credited to him. 5. The partnership, at its dissolution, was to be settled by a valuation of the property, or. by a public sale. 6. The partnership was to continue seven years, to be renewed if agreeable to the parties; and was, in fact, continued until dissolved by the death of Milligan, in 1841.

It is our duty to carry the whole of this agreement and all its objects into full effect, and to allow the parties the benefit of every part of it, unless absolutely prevented by some positive provision of law. And to do so, itwill.be proper: 1st. To consider the terms of the agreement. 2d. To ascertain, if possible, the intentions of the parties. 3d. To derive what light we can from the analogies of the law; and lastly, and above all, to consider what is equitable between the parties. In perusing the contract, it cannot be doubted that there was a sale by Dennistoun Sf Co. to Milligan of the third of the plantation and slaves; but there is as little doubt that it was sold for a purpose which constitutes the most essential part of the whole agreement, and without which it would never have been made,---that it should form Milligan’s stock in the partnership. The sale was made entirely upon credit; and to reduce the debt, Milligan was to be credited annually with one-third of the net profits of the plantation. Substantially, then, one partner furnished the whole capital of the partnership, and the sale was only a mode of ascertaining the present share and final interest of the other partner.

There is a clause in the agreement which must bear this construction, and therefore supports a like construction of the whole contract. It was agreed that, “ in case the proposed sugar house and other buildings are erected, and additional negroes purchased, G. B. Milligan is to pay one-third of whatever sums may be laid out, bearing interest at six per cent per annum, from the date of the money being advanced by Dennistoun Sf Co. until his share is paid.” This clause and the terms of the whole contract satisfy us that it was an agreement by one partner to advance the whole capital of the partnership; and the debt by Milligan to Dennistoun 8f Co., for his share, was contracted in consideration that they furnished the whole capital of the partnership. It grew out of the partnership, and without the formation of the partnership the sale would not have been made, nor the debt have been contracted. Dennistoun Sf Co. became creditors, not only of Milligan, but of his interest in the partnership to the amount of the price of his share.

For thi3 reason, the intervenors erroneously treat the plantation and slaves as property only subject to a joint ownership, the same as if acquired by the joint owners respectively from different vendors, and with regard to which there are no social relations. For it is to be considered that the joint ownership in this case was created for the purpose of being subsidiary to a partnership, and that it is to be subject to, and governed by, the terms of the contact of partnership for which it was created. The joint ownership in this case is the capital stock of the partnership, created by the articles of co-partnership, and must be disposed of so as to settle fully the rights of all the parties. For this settlement there was an express provision in the contract, that on the dissolution of the partnership, the value of the property, that is, of the whole plantation and slaves, should be fixed for a settlement by mutual appraisement or by a public sale. The settlement thus contemplated and provided for must have been a settlement of the claims of the partners upon the partnership property, and claims upon each other respectively, growing out of the partnership, and then a division of the surplus. The appraisement or sale of the whole property was for the purpose of making these settlements, and to asceriain the interest of Dennistoun 8f Co. in the residuum after these settlements, and the like interest of Milligan in the residuum. And it was even provided in another clause in the agreement, that if, at the termination of the agreement, any sum whatever should then remain unpaid by Milligan, he should give a special mortgage on the property to secure its payment, with six per cent interest until it was paid.

A reasonable interpretation of these clauses of the contract leads to the conclusion, that Dennistoun 8f Co. were to receive the whole price of the share in the partnership sold to Milligan, before the latter was entitled to draw any part of the capital stock or its proceeds ; and that there was to be a full settlement of the debt created for the formation of the partnership, as well as of the partnership itself, to ascertain the residuary interest of Milligan, before any division of the capital stock could be made.

The agreement before us was indeed an agreement to sell; but it was an agreement to sell for the sole purpose of forming a partnership, and upon the condition that the vendors should be paid by the vendee, out of his third of the plantation and slaves, the whole price, before the vendee should draw anything out of the capital of the partnership formed by the sale. Now, conceding that an agreement to sell amounts to a sale, yet an agreement to sell for a certain purpose, and upon conditions, amounts to a sale for that purpose and upon those conditions ; and the property sold remains subject to the purpose and conditions, which must be carried into full effect before the sale becomes unconditional.

Our code has not defined the various conditions which may be appended to the contract of sale. Justinian attempled it in the title of his code, De pactes inter empt. et vendit; and his failure warned his successors of the futility of the attempt. They have no other limit than the will of the parties, and the paramount obligation on their part to enter into no contract against good morals and public policy. For the purpose of giving to the contract of sale the faculty of adapting itself to all objects and modifications not incompatible with, general principles, our code simply provides in general terms, that it may be made purely and simply, or under a condition either express or implied, and that in all cases its effects are regulated by the principles laid down in the title of Conventional Obligations, 2432. The article 2021 in the title of Conventional Obligations provides, that conditions in obligations are either express or implied. They are express, when they appear in the contract. They are implied, when they result from the operation of law, the nature of the contract, or from the presumed intent of the parties. No case was ever presented to a court of justice in which the condition of the contract more clearly resulted from its nature and the intent of the parties than in the present. The whole agreement was a contract to sell, with an express condition that a partnership should be formed between the vendor and vendee, and that the thing sold should be the vendee’s capital in the partnership; with a further condition, partly expressed and partly implied, that the vendee should not take his capital out of the partnership until the selling partner should be paid the price. And, as the entire contract was advantageous to the purchaser, the enforcement of it can give no just ground of complaint to his creditor.

There is a further difference between an agreement or promise to sell and a sale. An agreement to sell is an executory; a sale, an executed contract. If the agreement to sell is not accompanied by delivery, the sale is not perfect until the delivery corporeally, or by a public act of real property. So, if the agreement to sell contains a clause that an authentic act shall be passed and a special mortgage given to secure the price, creditors of the véndee are informed that this act must be passed and a special mortgage given before the sale is perfect between the parties; and that, by a fair interpretation of article 2437 of the code, they can acquire rights against the property only subject to this agreement. So, we have come to the conclusion, in examining the case of Millaudon v. Sylvester, to be noticed hereafter, that when the agreement to sell is made for the purpose of forming a partnership between the vendor and vendee, there is no delivery to the vendee individually, but to the partnership. And that the selling partner retains a joint possession of every part of the thing of which an undivided part is sold, of which he cannot be divested; nor creditors of the vendee acquire rights in the thing sold until the price is paid and the terms of the agreement fulfilled. We have no doubt the intentions of both parties, in making their agreement, conformed to this plain interpretation of their contract. If the proposition now made, that Milligan or his creditors might take any part of the capital stock sold to him on credit out of the partnership before it was paid for, had been distinctly proposed in making the contract, we know Dennistoun Sf Co. would not have accepted it, or made any sale, or entered into any partnership with Milligan upon such a condition. Milligan, too, understood the agreement as we have interpreted it. For Dennistoun <j- Co. rendered him annual accounts, crediting his indebtedness for an interest in the partnership with the net profits of his share, which accounts he accepted during his life ; thus compensating what is called his private debt to Dennistoun 8f Co. with his claims against the partnership, and showing his understanding that he was entitled to draw nothing from the partnership until that debt, whether a private or partnership debt, was extinguished. And we do not entertain a doubt that if he were now living he would unite in declaring that to have been the contract With his partners, and would so carry it into effect. And so well was he satisfied with this mutual understanding, that he appointed one of his partner# his testae mentary executor; mo doubt, faithfully to carry it out.after his death. Neither his testamentary representative nor his creditors have' a right to claim a different execution of the contract from that intended by Milligan, or to construe it in a manner which would work palpable and unqualified injustice to the other party to the contract.

We have not been able to derive much light 'from the decision of eases analogous to the present, nor from elementary writers on the law of partnership. Judge Story, in his work on Partnership, states as a general rule, “that no separate creditor of a partner can acquire any right, title, or interest in the partnership stock, funds, or effects, by process or otherwise, merely in his character as such creditor, except for so much as belongs to that partner as his share or balance after all prior claims thereon are deducted and satisfied.” The authority has some weight with us in this case; although the veiy question as propounded by the intervenors is, whether Dennistoun Sf Co. have priority over the claim of the widow and heirs of Urquhart. The authority, however, has weight, because we do not think that is the true question, as we will now explain, in considering the case of Millaudon v. Sylvester. The agreement of sale and partnership in that case was in every respect similar to that in the present case. Millaudon stood precisely in the relation of partner and creditor of Sylvester, in which Dennistoun Sf Co. stood to Milligan. He sued for a settlement of the partnership, and the court ordered the whole property to be sold, and Millaudon to be paid out of its proceeds his whole debt, as well what was due for the sale to Sylvester of his interest in the partnership, as for his claims strictly against the partnership. Sylvester was not allowed to take his share of capital out of the partnership until Millaudon was paid for it. There was no creditor, it is true, conflicting with Millaudon, as the Urquharts' conflict with Dennistoun Sf Co. in the present ease. Can that make any difference? Certainly not; unless the creditor of a partner can draw out of the partnership what the partner himself cannot. But the creditor of the partner can have no greater rights against the partnership than the partner has. No one can transfer greater rights to a thing than he owns himself. A creditor can acquire the whole interest of his debtor in a thing, but not a greater interest.

The true question, therefore, in the present case is, what interest Milligan had in the partnership. And if he had only a residuary interest after the payr ment of all he owed to his partners, the authority of Story, and the proceedings, rather than the decision, in the case of Millaudon v. Sylvester, have a bearing upon the present case favorable to Dennistoun Sf Co. The report of the case of Skip v. Harwood is somewhat obscure ; but we gather from it that Lord Hardwicke also adopted in its decision the principles invoked by Dennistoun 4* Co. in the present case. Our own code authorizes the solvent partners to require that the partnership debts should be paid out of the partnership funds, and until the partnership creditors are paid, neither the insolvent partner nor his creditors are allowed to draw anything. There seems to be the same reason for allowing a partner who has advanced the capital of another, and who is indebted to him for it, to draw that indebtedness out of the partnership funds before the debtor partner or his creditors can draw anything.

It has always been held by our courts that a partner cannot sue for any particular part of the partnership property; but that, at its dissolution, there must be a general settlement, in which every partner is entitled to his just claims, not only on the partnership property, but for all obligations contracted, inter se, as-partners. As the partner is subject to this settlement, his creditors can claim nothing more than he could or would receive on this settlement. In fact, the creditor can only seize the partner’s interest in the partnership. He cannot seize any particular thing belonging Jo the partnership, or acquire any rights upon it. Now, the interest of a partner is what belongs to him after a full settlement with his partners, according to the terms, spirit and intention of the contract of partnership, and of all agreements incidental to it. Bearing this in mind, it is easy to answer the arguments of the intervenors in this case.

It is urged that Dennistoun 8f Co. are not creditors of the partnership, but of their deceased partner. Be it so, but they are creditors of their deceased partner with an agreement that, in settling the partnership, their debt should be satisfied out of the property they sold him to form the partnership. This part of the contract is as binding as the sale itself. Changing the proposition, it is said Milligan owed his partners and not the partnership. If so, he owed them for the advance of his share in the capital to form the partnership, and which advance must be paid before he or his creditors can take anything out of the capital. It is said, that if a third person had sold to Milligan the property which he put into the partnership, the vendor could not have claimed payment out of the partnership funds, nor out of Milligan’s interest, in preference to other individual creditors of Milligan. That is true, and for the obvious reason, that there would have existed between him and his vendor nothing but the'relation of vendor and vendee, and a transaction to be governed exclusively by the laws applicable to sales and the rights of creditors. But an agreement to sell, only as an auxiliary to the higher object of forming a partnership, subjects the property to the terms of the partnership and the intention of the partners, as evidenced by the double contract of sale and partnership.

Upon a full consideration of the whole agreement before us, no other fair and equitable interpretation can be given to it, than that the parties formed a partnership in planting; that Dennistoun 8f Co. conveyed by way of sale to G. B. Milligan a third interest in the plantation and slaves for that purpose, for the sum of $52,000, payable on terms, and to be his portion of the capital; but with a perfect understanding between the parties, that no part of his third interest should be withdrawn from the capital until full payment of the price; and in case of dissolution of the partnership, and settlement by sale of the partnership property, that Dennistoun Sf Co. should be paid out of its proceeds the debt due for Milligan’s portion, before he, his creditors or representatives should receive any part of the partnership capital. We see nothing in this agreement in conflict with the provisions of our laws relative to partnership, or upon any other subject. We see nothing in the agreement which ought not and cannot be enforced without injury to the equitable rights of others. And if, from the paucity of our legislation on the subject of partnership, it be true that no provision of law expressly applies to the case, it is one to which the court is bound to apply that general provision of equity contained in the 21st article of our code. “ In civil matters, where there is no express law, the judge is bound to proceed and decide according to equity, by appealing to natural law and reason.” It would indeed be a reproach to our jurisprudence if Dennistoun Sf Co. should not be permitted to take out of this partnership, to which they owe nothing, the very capital which they put in, and for which they have not been paid, and that the creditors or representatives of Milligan, who was a debtor to the partnership, and to his partners for his share in the partnership, should be permitted to take out capital for which he never paid. There has been no suggestion that the surviving partners did not manage the plantation and slaves until sold advantageously for the succession of Milligan. ■

It is therefore decreed, that the judgment of the district court be reversed; and it is adjudged and decreed, that Dennistoun Sf Co. be allowed to retain out of the net proceeds of the third of the crops and produce belonging to Cr. B. Milligan's succession, and out of the proceeds of the third of the plantation and slaves belonging to him, the sum of thirty-one thousand eight hundred and thirty-four dollars and sixty-five cents, with six per cent interest from the 16th of March, 1841,; the accounts to be made up annually, as was done during his life ; the costs of the district court to be paid, two-thirds by Dennistoun Co., and one-third by the succession; and the costs of this court by the appellees.


text:
    Marguerite Landry et al. v. P. Marchais.
    Where the wife who had sued and obtained a separation of property from her husband, had taken property in payment of the judgment, and a creditor of the husband had caused her property to be seized on an execution, treating the judgment for separation and the dationenpaiement as a simulation to defraud creditors, and consequently a nullity. Held: that the consideration for the judgment having been shown, and the dation en paiement not being simulated, they could not be set aside without a direct action, which should have been brought within one year from the date of the dation en paiement.

    Where a creditor acquired his rights nine years after a judgment and separation of property between husband and wife, he cannot complain that he was 'defrauded by that judgment and separation of property. I

    Under the laws of Spain, a wife could not make a marriage-contract to be governed by the laws of a foreign country; nor could she stipulate by" marriage contract, that her separate property should enter into the community.
    APPEAL from the District Court of Assumption, Randall, J.

      G. C. Raby and llsley, for plaintiffs.

      J. C. and A. Beatty, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant being judgment creditor of André LeBlanc, caused some sugar to be seized under execution, as his property. Marguerite Landry, his wife, enjoined the sale, on the ground that she was separated in property from her husband ; that she has resumed the administration of her property, and that the sugar seized is the product of her own plantation and of the labor of her own slaves.

The defendant answered the petition by a general denial; and further averred, that there never was a separation of property between the plaintiff and her husband; that all her proceedings to obtain a separation were fraudulent and collusive, and for the purpose of defrauding the creditors of her husband; that by her marriage contract all her separate property fell into the community, and all her pretended claims were false; that her husband has remained in possession of the property, and disposed of the crops as owner; and that the alleged judgment of separation and the separation itself are absolute nullities.

To this answer the plaintiff in injunction has pleaded the prescription of one year, under art. 1989 of the code.

The plaintiff subsequently filed an amended petition, in which she prayed judgment against her husband in this suit for debts paid by her on his account after the separation of property. No answer having been filed by LeBlanc, and no judgment by default taken against him, the district judge dismissed this part of the claim; and being further of opinion, that the judgment of separation was legal and valid, that no fraud had been shown, and that the sugar seized was the separate property of the plaintiff, he perpetuated the injunction. The defendant has appealed.

This proceeding appears to have been resorted to on the authority of the case of Dennistoun v. Nutt, 2d Ann. 483. But the facts of the two cases differ very materially. The case of Nutt was a direct action to annul a judgment of separation of property. This is a seizure in which the judgment of separation is treated as an absolute nullity. In Nutt’s case it was proved conclusively, that there was no indebtedness from the husband to the wife at the time the judgment was obtained. Under that state of facts we held, that as the power of the husband and wife to contract together was exceptional, and the parties were not within the exception, the general incapacity was not removed and there was no contract between them; that the title not having passed out of the husband, the prescription of one year did not apply. We intimated, however, that if the wife’s claim'had been real, so as to give her capacity to stand in judgment against her husband, this plea would have availed her.

In this case, so far from the judgment and dation cn paiement by the husband being mere simulations, it is conceded that the plaintiff had slaves of her own; and the evidence in the record satisfies us, that she also had landed property.

The clause in her marriage contract, that the parties should be common in all their property, movable and immovable, suivant el au desir die la coulume du pays, had not the effect of subjecting her separate property to the payment of her husband’s debts: she could not contract such an obligation under the laws of Spain.

The coutume du pays referred to, was the custom of Paris, which had been the law of the colony during the dominion of France. That law had been abrogated by O’Reily, and the laws of Spain substituted in its place forty-one years before the date of this marriage contract; though it seems that this fact had not yet come to the knowledge of the parties or of the notary in the then remote regions of Lafourche Interior.

. When the marriage took place, parties were not permitted to contract according to foreign laws, and the landed property brought by the plaintiff inlo marriage remained her separate estate, notwithstanding the agreement that it should enter into the community.

It is urged, that she obtained a judgment against her husband for too large a sum, and that the judgment is on that ground absolutely void. The district judge was of opinion, that the judgment of separation was authorized by the evidence; and we are unable to say he erred. The evidence in-the record makes out nprirnd facie case in the suit of separation, and no attempt has been made by the defendant to falsify it. Under that evidence the plaintiff had capacity to stand in judgment against her husband in that suit; and this case does not differ from that of Fennessy v. Gonsoulin, 11 L. R. 424, in which we concur.

The court in that case said: “So far as the object of the present suit is to avoid the judgment recovered by the defendant against her husband, and the assignment of property to her in pursuance of it, as in fraud of the plaintiff’s rights, we can regard it in-no other light than as a revocatoi-y action, by which, according to the code,..creditors'may cause to -be annulled any contract or transaction, so far as they may have been injured by it. Every device, contrivance, or machination by which a creditor may have been prejudiced, may form the subject of this action. The assignment made to. the wife, of property, though made by the parish judge and experts, in conformity to the judgment, in presence and by the express consent of the parties,.must be considered as essentially a contract: a dation en paiement. A contract of that description, in consideration of the dotal and paraphernal rights of the wife, is, perhaps, authorized by the code; but, like all other contracts, it is liable to be attacked, as in fraud of other creditors of the husband. The action is, however, prescribed by one year, to run from the date of the judgment which the attacking creditors may have obtained. L. C. 1989.”

The judgment and dation en paiement in this case not being simulated, and the consideration being shown, it is clear that they could only have been set aside in a direct action, and that this action should have' been brought within one year from that date.

There is another ground of defence. The note sued upon was subscribed by André LeBlanc nine years after the rendition of the judgment of separation of property. That judgment may have been fraudulent with regard to parties who were creditors of LeBlanc at the time. But it could not be in fraud of rights which had then and for many years afterwards no existence. C. C. 1988.

It is therefore ordered, that the judgment in this case be affirmed, with costs.


author: Smdeil, J.

text:
    Pierre Michel v. Shubael Tenney.
    The act of 15th April, 1847, limiting the time within which suits were to he brought for the annulment of prohate sales made in Lafourche on account of informalities, is constitutional, and all such suits are barred by the prescription mentioned in the act.
    APPEAL from the District Court of Lafourche, Randall, J.

      C. A. Johnson, for plaintiff.

      J. L. Cole, for defendant.
   The judgment of the court was pronounced by

Smdeil, J.

The defendant is sued upon two promissory notes signed by him, payable to the order of Emma Anfoux, and by her endorsed. These notes were given for the price of a tract of land bought by him of the payee in 1848. She purchased at a probate sale of a succession, in which a minor was interested, made in 1845. The defence is, that the probate proceedings were irregular, and particularly in this, that the probate judge did not sign the procés verbal of sale; that the defendant should not be compelled to pay at all, or at least not until the plaintiff has given him security against eviction.

It appears that the defendant has been in quiet possession of the land since his purchase, and that no proceedings have ever been instituted on the part of the minor or others interested in the succession to rescind the sale. There was judgment in favor of the plaintiff; and the only matter which we need notice in affirming the judgment, is the plea of prescription under the statute of 15th April, 1847, p. 88.

The probate proceedings were had before the late Judge McAlister, Parish Judge of the parish of Lafourche Interior, and it seems that in various cases his duty had been loosely discharged. To cut off within a reasonable time the litigation to which such informalities would give rise, the Legislature thought proper, in 1847, to enact a statute in the following words : “an act to limit the time in which certain persons may institute suit to annul sales of property in which they are interested. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That any major or minor heirs, universal or particular legatees, legatees under a universal title, or any person or persons whatever, who have been or are interested in any succession sale made in the parish of Lafourche Interior during the time James McAlister was parish judge of said parish, or who have been or are interested in any succession sale made by any auctioneer under his authority, whether such sale be or be not duly authenticated, shall have the right of instituting suit to annul said sale during only the twelve months which follow the promulgation of the present act: any law or part of law to the contrary notwithstanding.”

Under this statute, the informality upon which the defendant relies, was barred by the inaction of the parties interested for a much longer time than is limited by the statute; the defendant is therefore protected by the statute from eviction, and needs no protection from the plaintiff. That the operation of the statute upon the case in question is constitutional, admits of no doubt.

Judgment affirmed, with costs.


text:
    Charles Guidry v. Davis and Collins.
    Any contract or engagement entered into by the father during the existence of the community, showing that his apparent title is not a real one, is binding upon the community, and descends to the heirs of the wife, who has not renounced the community, as a burden upon their inheritance, estopping them from disturbing a title derived from the father in execution of such a contract or engagement.
    The declaration of a father, made on oath to a family meeting convened for the interests of his minor children, of whom he is tutor, declaring that certain property purchased by him in his name was, in reality, a purchase made on the joint account of himself and another, is a fact admissible in evidence against the children when claiming the whole property; and when corroborated by other evidence, is sufficient to exempt the possessors of the property from the danger of eviction by the minors.
    It is an error to suppose that the law can sanction the perpetration of frauds by minors.
    APPEAL from the District Court of Lafourche, Randall, J.

      J. C. and A. Beatty, for plaintiff.

      J. L. Cole, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 14th of January, 1847, the plaintiff sold to the defendants a tract of the undivided half of land on the Bayou Lafourche. Among other considerations, the defendant agreed to pay $2000, in March, 1847, and $1000 annually in the months of March, 1848, 1849 and 1850. The sum of $2216 68 of the price being due in April, 1849, the plaintiff, in June, issued an order of seizure and sale against the premises sold, for that sum with interest, and for the installment of $1000, to become due on the 1st of April, 1850. The premises were in the joint possession of Davis and Collins, as planting partners, and they enjoined the sale on the allegation of many informalities in obtaining and executing the order of seizure. The district court on the trial did not consider these grounds for the injunction well founded; and, indeed, they appear to have afforded little foundation for obtaining it.

But an objection having been made by the defendants to their title to the property worthy of serious consideration, the plaintiff has waived his proceeding via ejecutiva, and all damages claimed on account of the injunction, and consented that his suit be considered an ordinary suit, to obtain the seizure and sale of the premises sold by him.

The defendants state, as a lawful ground for withholding the price, that on the 11th of February, 1840, at a probate sale of the estate of Charles Falgout, the plantation possessed by them was adjudicated to Leon Falgout, then a married man ; that sometime subsequently his wife died, leaving a numerous offspring, the issue of their marriage, some of them majors and some minors; that by her death the undivided half of the plantation, held until that event in community, was inherited by the children; that notwithstanding their right, Leon Falgout averring that the property had been adjudicated to him for himself and Charles Guidry their vendor, did, on the 3d of February, 1844, make a conveyance of the undivided moiety thereof to Guidry. They allege that the title of the children, especially the minors, was not thereby divested.

In February, 1844, Leon Falgout qualified as tutor of his minor children, and had an under-tutor appointed and sworn. He caused a family meeting of his minor children to be convened, to whom he communicated, that the purchase of the plantation, though made in his name alone, was. really for himself and Charles Guidry; that they became joint owners and possessors of the plantation, and ever since its purchase had cultivated and used it as partners ; and asked their recommendation that he should be authorized to make a formal conveyance of his undivided half to Guidry. The family meeting, composed of the nearest relatives of the minors, acting under oath, declared to the probate court, that the facts stated by the father and tutor were notorious and well known to them, and advised that the father and tutor should be authorized to make a formal title to Guidry of his undivided half of the plantation. It is proper to mention, further, that the children were then of age or married, and joined the family meeting in the declaration which they signed, that the facts stated by their father and tutor were, to their knowledge, true. The husbands of those who were married authorized their wives to make the declaration, and joined in signing it. Thereupon, the probate judge, by a decree, authorized the father and tutor to make the conveyance to Guidry, and he accordingly did so by an authentic act.

There are clerical errors pointed out in these proceedings which are immaterial, as a leading object is clearly manifested by the whole; also, omissions of signatures, which are cured by the decree homologating the proceedings of the family meeting, and authorizing the conveyance to Guidry.

But taking it for granted that the undivided halt .oí the plantation became the property of the community existing between Leon Falgout and his wife, by the adjudication in 1840, and was inherited by her heirs on her death, the counsel of the defendants contend, that there is no law authorizing a family meeting to order such a sale as took place in the present case; that it would be a most dangerous power to entrust to them; and that the laws pointing out the manner of selling minors’ property ought to be strictly observed.

The error of this reasoning consists in taking it for granted that the whole plantation belonged to the community which existed between Falgout and his wife. As decided in the case of Hennen v. Caldwell, 5 R. R. 20, any contracts or engagements entered into by the father during the existence of the community, which are binding upon him, showing that his apparent title is not a real one, is binding upon the community, and descends to the heirs of the wife as a necessary burden upon their inheritance, estopping them from disturbing a title derived from the community.

The only difficulty in the present case would consist in furnishing the proof necessary to defeat the child, who falsely and fraudulently should endeavor to fasten fraud and perjury on his father for the purpose of gain. But it is to be observed, that most of the heirs have acknowledged the truth of the father’s declaration, that half the plantation belonged to Guidry.' The latter and his vendees have now been joint possessors of the plantation as owners for ten years. Our code provides that the verbal disposition of immovable property shall be good against him who confesses it, when interrogated upon oath, provided actual delivery has been 'made. The declaration of the father to a family meeting of his children, under his oath, as their natural tutor, and required by Guidry to perfect his title, is, at least, a fact admissible in evidence against the children when claiming the property. And in the present case, where the truth of the declaration was notorious, as declared by the family meeting, under their oath and signatures, and acknowledged in writing by most of the heirs, there is no danger that the present or future possessors of the property can ever be evicted by any of the heirs.

Moreover, as Guidry would unquestionably have sued for his formal title if it had not been acknowledged, it was clearly a case for a compromise on behalf of the minors, under articles 348, 3038 and 3039 of the code; and the decree of .the probate court upon the advice of a family meeting, diverting the formal conveyance to Guidry of half the plantation, was binding upon the minors. It is an error to suppose that the law can sanction the perpetration of frauds by minors ; the truth and reality of bona fide transactions are as binding upon them as upon majors.

The judgment of the district court, decreeing damages, is reversed; and it is adjudged, that the plaintiff recover from the defenant, George R. Davis, the sum of two thousand two hundred and sixteen dollars sixty-eight cents, with five per cent interest, from the 21st day of April, 1849, until paid, with costs in the district court; and that the mortgaged premises described in the act of sale from Charles Guidry to him, dated the 14th of January, 1847, be seized and sold according to law to satisfy this judgment, with the privilege of vendor and special mortgagee ; and that the costs of the appeal be paid by the plaintiff.


text:
    Mallard and Armistead v. Aillet and Balsener.
    The plaintiffs had received of a third person, who subsequently became insolvent, the negotiable promissory note of defendants before its maturity, as collateral security for a debt due to them. The syndic of the insolvent claimed that the note belonged to the insolvent’s estate, and that, being placed in the hands of the plaintiffs merely as collateral security, they had no right of preference to the proceeds of the note. Held: That as no objection had been raised as to the form of the contract by which the note was placed in the hands of the plaintiffs, and no case made out under C. C. art. 1973, by which it could be avoided at the suit of creditors of the insolvent, the plaintiffs were entitled to the note and to judgment against the defendants for its amount.

      The want of consideration in whole or in part cannot be insisted on, if the plaintiff or any intermediary party between him and the defendant took the hill or note bond fide and upon a valid consideration.
    APPEAL from the District Court of West Baton Rouge, Burle, J. G. S.

      Lacey and P. E. Bonford, for appellants.

      Greeves and Brunot, for appel-
    lees.
   The judgment of the court was pronounced by

Eustis, C. J.

Mallard and Armistead instituted suit against the defendants, Henriette Aillet and her husband, on a promissory note made by her with the authority of her husband in favor of H. R. Graham $f Co. or order, for the sum of five hundred and sixty-five dollars, payable on the 1st of January 1849. The note is endorsed by the payees in blank. In the court below, judgment was rendered against the husband and wife in solido for the sum of four hundred and seventy-five dollars with interest, but in favor of' the syndic of Graham, Sf Co., who had become insolvent, the syndic having intervened in this suit. As this judgment was adverse to the petition of the plaintiffs, they have appealed from it.

The deduction of one hundred dollars from the amount due on the face of the note, would have been authorized by the evidence adduced, had the suit been between the original parties. But the plaintiffs became the holder of the note bond fide before its maturity for a valuable consideration, in the usual course of business. The circumstance of their having taken the note as a security for a preexisting debt would not impair their rights as third persons who are holders of negotiable paper without notice, even if that fact was established.

The rule on this subject is laid down in the most general terms by Mr. Justice Bayley in his Treatise on Bills of Exchange: “The want of consideration in whole or in part, cannot be insisted on, if the plaintiff or any intermediary party between him and the defendant took the bill ór note bond fide and upon a valid consideration.” p. 499, 450.

A preexisting debt constitutes a valuable consideration in the commercial signification of the term, and a bond fide holder of-negotiable paper taken before its maturity in the discharge of a debt is unaffected by any equities between the original parties. Swift v. Tyson, 16th Peters Rep. 1. Independent of the claim of the intervening party, the plaintiffs would be entitled to recover the full amount of the note.

The petition of intervention presented by the syndic in the interest of the creditors of Graham 8f Co. alleges, in general terms, that the note belongs to the creditors, and must be collected by the syndic for their benefit; that it was left in the hands of the plaintiffs merely as a collateral security, and that they have no right to obtain a preference on its proceeds over the other creditors of the insolvent.

The evidence adduced by the intervening party, fails to establish the requisite facts which would authorize the plaintiffs to be condemned to surrender the note or its proceeds to the creditors. The contract by which they acquired the note, appears to have been perfectly fair. The insolvent, Graham, who was examined as a witness for the intervening party without objection, states the note to have been delivered to the plaintiffs as a collateral security for a debt due by the firm in the month of April, 1848. The failure of the insolvents appears to have taken place in December of that year. Under the provisions of the art. 1973 et seg. of the code, no case has been made out in which the contract between Graham Co. and the plaintiffs can be avoided at the suit of then-creditors.

We have made no inquiry as to the validity of this contract in point of form, because the petition of intervention contains no allegation of any defect of form; and the matter of form cannot be considered as having been at issue between the parties. Had a proper allegation been made, non constat, that the plaintiffs would not have shown a compliance with the requisites of the code in respect to form.

The judgment of the district court is therefore reversed; and'it is decreed, that the petition of intervention be dismissed with the costs thereof, and that the plaintiffs recover from the defendant, Henriette Aillet, wife of Balsener, the sum of five hundred and sixty-five dollars, with interest from the 4th of January, 1849, and two dollars costs of protest and costs of suit, and that the property mortgaged to secure the payment of said note, be seized and sold to satisfy the same-with interest, and that the appellee pay the costs of this appeal.