text:
    Morris v. Terrenoire.
    Eraud may in all cases be proved by parol. C. C. 1842.
    Appeal from the District Court of East Baton .Rouge, Boyle, J.

      Elamr for the plaintiff. Brunot, for the appellant»-
   The-judgment of the court was pronounced by

Rost, J.

The facts of this case are fully stated in the opinion of the late Supreme Court,, rendered on a former appeal, and reported in IQ.Robinson, 33. The Supreme Court reversed the judgment rendered on all the issues then presented, and gave the following reasons for remanding the case:

“ A close examination of the evidence has left us under the impression, that nothing sustained- the charge of fraud against the defendant. The person on whose description the notary and the plaintiff'acted in the confection of the' deed, does not appear to have been authorised to represent the defendant. Neither can we concur in the opinion of the judge, that there was error on the part of the plaintiff. This appears to us doubtful, and justice seems to demand that he should be afforded the opportunity of adducing further proof.”

On the return of the mandate the plaintiff filed an amended petition alleging, that Jacques Beauregard, the person who gave to the notary the description of the property, was the son of the defendant and her accredited agent, and that he was authorised by her to designate the lots to be transferred; that, after the two lots in controversy had been examined by the plaintiff, the defendant was tolif, in presence of her son Jacques, that the two lots claimed had been pointed out to the plaintiff as belonging to her; that they had been accepted by him as a part of the consideration for the property in New Orleans ; and that she expressed herself as being entirely satisfied with the acts-of her son.

This petition prays that Jacques Beauregard be made a party to the suit, and condemned in solido with the defendant, to pay one thousand dollars as damages ; and further, that such judgment should be rendered on the original petition as the nature and justice of the case may require, and for a trial by jury. The court refused to permit Jacques Beauregard to be made a party defendant, and Constance filed a general denial, and averred that Jacques Beauregard never did act ns her agent for the purposes stated by the plaintiff.

In the course of the trial, the plaintiff offered parol evidence to establish the agency of Jacques Beauregard, and to show the nature of the contract between the plaintiff and the defendant. The defendant’s counsel objected to the reception of the testimony, on the two following grounds: 1st. That this suit is in the nature of a petitory action, in which the plaintiff soeks to-comped the defendant to convey to him certain lots, and that no parol evidence could be received. 2d. That the evidence was not admissible even to prove damages, in the present action.

The plaintiff having desisted from his claim-for the conveyance of the two lots, the court received the testimony for the purpose of sustaining the claim for damages. This evidence was properly admitted. The plaintiff charges fraud against the defendant, and fraud can always be proved by parol evidence. C. G. 1842.

The plaintiff introduced evidence in support of the allegations in the amended petition, and the jury found in his favor five hundred dollars damages.

The defendant moved for a new trial, and supported her motion by an affiidavit of her counsel, that he was taken by surprise during the trial, by the abandonment of the claim for the lots by the plaintiff; that, if he had been ■apprised of that course, he would have advised the defendant to have been better prepared to establish the true value of the lots. The court overruled the motion, and the defendant has appealed from the judgment rendered •against her.

The questions presented to the .’jury by this case were peculiarly within their province; and, after a careful perusal of the evidence, we are not prepared to say that they have not done justice between the parties. Whether they considered that there was fraud on the part of the defendant, or error on ■the part of the plaintiff, we have no means of ascertaining. Under the evidence adduced, either view justifies the verdict.

There is nothing in the objection that the defendant was taken by surprise. The prayer of the plaintiff was originally in the alternative, and .the situation •of the defendant was not made worse by the abandonment of one of the remedies prayed for. Judgment affirmed,.


source: Caselaw Access Project

author: Erna, J.

license: Public Domain

text:
    Dwight et al. v. Carson, Administrator.

      A purchaser, disturbed in his possession by the institution of a suit, cannot require security for any portion of the price which has been paid. C. 0. 2538.
    Where a party ordered to give security before taking out execution, executes a bond, with surety, for a certain sum, but, on an objection to the bond as not for a sufficient amount, executes a second bond, with the same obligors, for a further sum, the mere fact .that two bonds were given instead of one will not authorize an injunction.
    A debtor of an insolvent succession cannot plead in compensation, judgments against the succession acquired by him since he became its debtor. His claim under such judgments can only be paid contradictorily with the other creditors of the succession, and partially, or in full, according .to its rank. C. <5. 1056.
    Appeal from the District Court of St. Mary, Boyce, J.

      W. C. Dwight, - for the appellants. Simon and Morphy, for the defendant.
   The judgment of the court was pronounced by

Erna, J.

The plaintiffs were sued by the administrator of Johnson for the residue of the price of the slave Isabella, and resisted the demand on the .ground that the slave was entitled to her freedom. A judgment was rendered «gainst them, in solido, for $131 88, which ,on an appeal to the Supreme Court, was affirmed ; but the administrator was required, before issuing execution, to give the plaintiff, W. C. Dwight, security against the consequences of a suit then pending in which the slave claimed her liberty. The case is reported in 5th Robinson’s Reports, p. 484. In pursuance of this decree, Carson, the administrator, filed with the clerk of the court a bond for $131 88, and issued an execution upon the judgment, which was enjoined on the ground, among others, that the bond was for an insufficient sum, and the injunction was sustained. An additional bond, with surety, for $50, was then filed by the administrator, and a second execution was issued, which has been enjoined in the present action, on the grounds: that the bonds furnished are inadequate to secure the plaintiff, W. C. Dwight, against the event of evetion ; that the bonds were not tendered to him, but were filed with the clerk, of which he received no notice, previously to the issuing of the execution. He further pleads in compensation, two small judgments against the administrator. The injunction was dissolved in the court below, and the plaintiffs have appealed.

The slave was adjudicated to the plaintiff, W. C. Dwight, for $700, and he insists that, under the decree of the Supreme Court, he has a right to demand security for the reimbursement of the entire price, in the event of eviction. To this he is clearly not entitled. Pie had paid the first instalment, and, on a seizure and sale of the slave, $232 62 had been made, and applied towards the second instalment. These payments having been made previous to the disturbance, he was not authorised to demand security as regards them. Civil Code, art. 2538.

The bonds filed were for a sufficient sum to cover the amount for which the administrator was bound to give security, and we think there is no weight in the objection that two bonds were given instead of one. The obligors in both were the same, and the second was given as an additional security, upon the complaint of the plaintiff, W. C. Dwight, that the first was insufficient.

This plaintiff complains that the bonds were not formally presented to him, and that no opportunity was afforded of objecting to their sufficiency, or of paying the debt without the further accumulation of costs, if he had deemed them adequate. It is clear that he was aware that the bonds had been filed when he obtained his injunction, and yet he made no objection that the surety offered was not possessed of the qualifications required by law. If that objection had been taken and sustained by proofs, his injunction must have been sustained; or, if he had deemed the security sufficient, and paid the debt, he could not have been taxed with the costs of an execution which issued previous to notice, or a tender of security. The plaintiff was exposed to no loss which required that the execution of the judgment should be suspended, in order to protect his rights.

The two judgments held bjW.C.Dwight cannot be allowed as offsets against the defendant’s demand. Carson, claims as the administrator of a succession which the plaintiffs themselves aver to be insolvent, and both of the judgments which Dwight offers in compensation were acquired long after he became the debtor of the succession. His claim can only be paid contradictorily with the .other creditors. Crain v. Baillio, 2 La. 84. Civil Code, art. 1056.

Judgment affirmed.


author: Sudeia, J.

text:
    The Bank of Tennessee v. McKee.
    An appeal from a judgment rendered in an action instituted by plaintiffs for the use of third persons, will not be dismissed because the appeal bond was made payable, and the citation .of appeal directed, to tbe plaintiffs, simply, without mentioning those for whose use the suit was instituted.
    An appeal will lie from an order of a judge rendering a judgment of another State executory, though not made in court.
    A judgment of another State cannot be rendered executory here, where the transcript of the record shows that a fi. fa., issued on the judgment in the State in which it was rendered, had been levied upon property, but does not show what disposition was made of it.
    Appeal from the District Court of Madison, Curry, J.

      Amonett, for the plaintiffs. Shannon, for the appellant.
   The judgment of the court was pronounced by

Sudeia, J.

The proceedings in this cause are in the name of the Bank of Tennessee, and although it is stated in the plaintiffs’ petition, that the plaintiffs prosecute for the use of Folkes, and J. J., and William, Amonett, yet we are of opinion that a bond given and a citation issued to the plaintiffs was suffieent to bring the case by appeal before this court. The decree which forms the subject of this controversy was a decree rendering executory a judgment obtained by the bank in Tennessee, against McKee and others. Folkes and the Amonetts are not named as petitioners in the petition. It is filed in the name, and as the petition, of the bank, but contains an averment that the bank sues for the use of those persons. The decree of the court below, after reciting that the plaintiffs sue for the use of Folkes and the Amonetts, orders that the judgment rendered in Tennessee be made and adjudged executory in this State, and that the property of McKee be seized and sold to pay the plaintiffs. There was no express appearance of the usees in the cause, in the court below; but they appear here to move the dismissal of the appeal, upon the ground that they have not been cited, and that no bond has been given. We think the ground for dismissal insufficient.

They also ask the dismissal upon the ground, “ that there is no law authorising an appeal from the executory process, or from any other decree granted by the judge at chambers ; that the only remedy is by injunction to bring the matters before the court, from the decision of which an appeal may be taken.” This ground also is insufficient. A decree rendering a foreign judgment executory, is a final decree. The case, in this respect, is not distinguishable from an order of seizure and sale. See McDonogh v. Fort, 14 La. 350.

In the decree rendering the judgment executory there is error. The transcript of the record of the suit in Tennessee shows thst a fieri facias had issued, and levies had been made upon various lands; but it is not shown what disposition had been made of the property levied upon. It is impossible to say, upon the evidence, what amount, if any, is due upon the judgment.

It is therefore decreed that the judgment of the court below rendering executory the judgment rendered in Tennessee in favor of the said bank of Tennessee against McKee, Young & Co. et al., be reversed and set aside, and the said suit dismissed, with costs in both courts.


author: Slidell, J.

text:
    Balph, Administrator, v. Hoggatt.
    An appeal will not be dismissed where the bond, though insufficient for a suspensive, is large enough for a devolutive, appeal.
    Legal interest is due from maturity, and without putting the maker in ■default, on a note given for the price of property producing fruits. C. C. 2531.
    Appeal from the District Court of Madison, Selby, J.

      A■ Pierse, for the plaintiff. Shannon, for the appellant.
   The judgment of t-heceourt was pronounced by

Slidell, J.

There is .a motion to. dismiss the appeal in this case, on the grtfund that the appeal bond is not for the amount required by law. The order of appeal was, that a suspensive appeal be granted to the defendant, upon entering into bond with surety, conditioned according to law, in the sum.of $1,500. The appellant gave bond in the sum of $1,500. This sum we find on calculation to be for about $13 less than it should have been, to authorise a suspension appeal.

We do not think this mistake of the judge a ground for dismissal. The bond was ample to authorise a devolutive appeal. It would be an unjust imposition of trouble and expense upon the appellant, to dismiss the appeal, or even to hold up the case until he could correct the irregularity in the court below. The appellee is not injured, for it is a much larger bond than would be neeeasary for a devolutive appeal, in which light we regard it. See Parks v. Patton, 9 Rob. 167.

The alleged failure of consideration is not proved, and judgment was correctly rendered for the amount due on the note. We find, however, nothing to authorise the allowance of eight per cent interest. The plaintiff is entitled to five per cent, and this without a putting in default, because it was the price of property producing fruits. Civil Code, art. 2531.

It is therefore decreed that the judgment of the District Court be so amended, as to allow interest only at the rate of five per cent per annum from the 16th January, 1846, and that, in all other respects, the said judgment be affirmed ; the plaintiff paying the costs .of this appeal.


author: Rost, I.

text:
    Bryan v. Atchison.
    Where all the heirs of a succession are minors, their tutor may, as such, administer the succession, and sue for the sale of the property. The decree for the sale will be binding upon the heirs and creditors. Per Curiam: By tlio dispositions of the Civil Code, when the heirs claimed time to deliberate, an administrator was to bo appointed in all cases;, and when the succession was afterwards accepted with benefit of inventory, the administrator was to continue in his functions, and to settle the succession. But the Code of Practice, subsequently adopted, provides that an administrator shall be appointed in such cases, if any of the creditors of the succession require it; and this we take to be the rule now in force, as being tlie last expression of legislative will. C. P. 976.

      Where a judgment lias been rendered between proper parties and by a court of competent jurisdiction, the truth of the facts upon which it rests cauuot be inquired into collaterally,
    Where the demand of an iutervenor does not grow out of the principal action, andis not specially permitted by law, it mustbe dismissed. C. P. 328.
    APPEAL from the District Court of Carroll, Mayo, J. The facts of this case are stated in the opinion of the court, infra.

      Dunlap, Snyder and Bullard, for the plaintiff.
    The warrantor sets up title by a forced alienation from Neibert’s estate to Wilkins, made April 8th, 1842, resulting from a judgment of the Court of Probates, and sale in pursuance thereof.
    This title, and the judgment or decree upon which it is founded, are opposed by us as absolutely null and void. 1st. Because the decree of sale was ex parte, and without notice to any one as representing the succession, and was not a judgment. 1 Mart. N. S. 9. 5 lb. 446. 19 La. 354. 14 La. 17. 2d. The judgment in favor of Wilkins is a nullity as affects the succession or creditors of Neibert, because there was no defendant authorised to represent the succession or creditors. 10 La. 222. 1 Kent. 261. 5 Rob. 420. 3d. An administrator mustbe appointed in every succession accepted with benefit of inventory. 9 Rob. 141. C. C. arts. 1034, 1037, 327, 1051. 6 La. 207. 17 La. 149. C. P. 976. 18 La. 396. 11 Rob. 69. 4th. Administrators must give bond, 11 La. 134. 11 Rob. 407. A tutrix, as such, could not stand iu judgment. 17 La. 149. 11 Rob. 69. She may be appointed administratrix, but must give bond. 1051 C. C. 963. A administrator must be a resident of the State. C. P. 990, 995-6-7. 5 La. 386. 6 Mart. N. S. 521. 4 La. 202. C. C. 1036. 1 Rob. 235, 261, 268. Forced alienations are void without legal formalities. 2 La. 328. 11 M. 610. 3 La. 427. 4 La. 150. 9 La. 543.
    A tutrix, as such, cannot stand in judgment in an action for the sale of the property of the minors. A sale made under a judgment obtained in such a case will hot be binding on the heirs or creditors. C. C. 1037, 1041, 1042. Tildón v. Dees, 1 Rob. 407. Hally. Parks, 9 Rob. 138. Parks v. Patton, 9 Rob. 167. Beale y. Walden, 11 Rob. 69.

      Thomas, for the defendant.

      R. N., and A. N, Ogden for the intervenors,
    contended that the sale at the suit of the tutrix was legal, citing Erwin v. Orillan, 6 La. 212. Poullney’s Heirs y. Cecil, 8 La. 4. Jacobs v. Tricou, 17 La. 106. Civ. Code, arts. 934, 935, 936, 939.

      Stacy and Sparrow, for Chambliss, cited in warranty.
   The judgment of the court was pronounced by

Rost, I.

James Campbell Wilkins and Joseph Neibert, were joint owners of a plantation and slaves, and Wilkins was a creditor of the partnership for a large sum. Niebert died, leaving a wife and three minor children. Sarah Bryan, the widow, was confirmed as natural tutrix, and an under-tutor was appointed. A family meeting, convened to deliberate on the interests of the minors, was of opinion that it was materially for their interest and advantage, that the succession of then- father should be accepted in their behalf, under the benefit of an inventory; and, with the authorisation of the judge,it was so accepted by the tutrix. Wilkins instituted an action against the succession of Joseph Niebert, for a partition of the partnership property, and a settlement of accounts, and caused a curator ad hoc to be appointed to represent the tutrix, who resides, with her children, in the State of Mississippi. Witkins having subsequently been apprised that the tutrix had appointed an agent to represent her in this State, presented a supplemental petition, asking that he might be cited. This was done, and the agent appeared and defended the suit.

The court, after hearing the parties, gave judgment against the succession of Joseph Niebert, represented by Sarah Niebert, tutrix, for the sum of 577,000, and it having been made satisfactorily to appear that the tutrix had no funds in her hands belonging to the succession, and that a sale of Niebcrt's interest in the plantation and slaves was necessary to satisfy this judgment and such other debts as the succession might owe, the court, on the petition of Wilkins, ordered the property to be sold. The sale was made by the judge, and the undivided half of the plantation and slaves was adjudicated to Wilkins, at public auction, for a sum greater than its appraised value. The purchaser obtained a monition, and, after the usual advertisements, a decree ratifying the sale was obtained without opposition. Wilkins subsequently sold the whole plantation and slaves to the defendant. This sale took place on the 20th of April, 1842.

On the 21st of November, 1845, the plaintiff was appointed administrator of the succession of Niebert, and, on the next day, instituted the present action to avoid the probate sale, on the grounds that the tutrix had not given surety as administratrix; that, in her capacity of tutrix, she could not administer; and that the succession was not represented in the suit of Wilkins, under which the sale took place. He claims the undivided half of the plantation and slaves, and of the crops made upon the plantation since the opening of the succession. The defendant called in his warrantors, and left to them the defence of the suit, claiming against them his legal rights, in case of eviction-. Several banks of the State of Mississippi, who were the holders of .the notes given by Atchison to M'ilkins for the price of the plantation, having been notified of the proceedings by Atchison, intervened, and joined in the defence, asking, at the same time, judgments in reconvention against him, upon such of the notes in their possession as were due at the time.

There was a final judgment against the plaintiff in the first instance, and a judgment of non-suit against all the intervenors, but Jacob Surget, who, we are informed in argument, obtained a judgment against the defendant for the amount of his claim, although this fact does not appear in the record. All the parties cast have appealed.

It seems to have been conceded on both sides in argument, that the legal question upon which this case turns is, whether, when all the heirs in a succession are minors, their tutor may, as such, administer the succession, and has capacity to stand in judgment in a suit for the sale of the property, so as to make the decree of sale binding upon the heirs and creditors. The warrantors, relying upon the case of Erwin v. Orillon, 6 La. 213, in which the Supreme Court held that, under art. 327 of the Louisiana Code, the administration of the succession which gave rise to the tutorship, devolved upon the tutor; the plaintiff resting his case on the decisions of the same court in Self v. Morris and other cases, where it has been held that a succession accepted in behalf of minors cannot be said to be their property ; that it does not legally come to their possession, until it has been administered upon ; and that only what remains after the payment of its debts, belongs to the minors, and falls under the administration of their tutor.

A succession is a fictitious being, representing the rights and charges which a person leaves at his death, and in neither case the person of the deceased-. All persons having rights against it must have a remedy to enforce those rights. Whether the title to so much of the property of the succession as is necessary to pay the debts, vests in the creditors absolutely, or whether the whole property of the succession is acquired by the heir, and stands in his hands as it did in those of the deceased, the common pledgo of the creditors, aro questions of little practical utility, so far as the creditors are concerned. Upon either Hypothesis, the debts must be paid.

It is true that, under the dispositions of the Civil Code, when the heirs claimed the term to deliberate, an administrator was to be appointed in all cases; and when the succession was afterwards accepted under the benefit of an inventory, the administrator was to continue in his functions, and to settle and liquidate the succession. But the Code of Practice, subsequently adopted, provides that an administrator shall be appointed in such cases, if any of the creditors o the succession require it; and this we take to be the rule now in force, as being the last expression of legislative will, and having moreover the advantage to be founded in reason, and to harmonise with other dispositions of the Code of Practice relating to the administration of successions. C. P. art. 976.

It is not pretended that any creditor in this case ever required the appointment of an administrator, and the judge was not bound to appoint one; so that, if the tutrix did not represent the succession, creditors could not enforce their claims. The law has not left Without a remedy persons, Who being thus situated, are either unwilling or incapable to be administrators, or unable to give the security required. Art. 120 of the Code of Practice provides in what manner, and against whom, suits are to be brought in such cases. Art. 25 of that Code goes so far as to give a direct action against the heirs, for the reparation of injuries caused by the crimes or misdemeanors of the deceased; and, in cases where the heir is not personally responsible, because he has accepted the succession under the benefit of an inventory, art. 992 gives the creditor the right to cause so much of the property of tfie succession as is necessary to satisfy his claim, to be sold. Art. 1370 of the Civil Code gives creditors the right in all cases, to cause the property of the succession to be kept distinct and separate from that of the heirs. All these articles would be inoperative, if successions were in all cases to be administered by administrators.

Wilkins, in his suit against the succession, has substantially complied with these dispositions of the Code of Practice. The proceedings appear to have been conducted in good faith, and there cannot be a doubt that the succession of Niebert was properly represented. The judgment having been rendered between proper parties and by a court of competent jurisdiction, the truth of the facts upon which it rests cannot be enquired into collaterally; and the informalities alleged to have taken place in the subsequent proceedings, were all cured by the monition.

There is no error in tlie judgment of non-suit against Mandeville, Montgomery, and Walworth, claiming to be assignees of the Planters Bank, and Robeson, claiming to be trustee of the Commercial Bank.

Supposing, for the sake of argument, the capacity of those persons to have been shown, their demand does not grow out of the action, and is not specially permitted by law. C. P. art. 328.

The defendant, by leave of the court, abandoned that portion of his answer which claimed a recision of the sale from Wilkins to him, on account of want of title to the three school lots. After this abandonment, his interest, and that of the banks, in the principal demand, were identical. There was no contestatío litis between them, and the banks cannot create one, under color of a reconventional demand, as they have attempted to do. The only issue in the case was the validity of the probate sale, which we have just recognised.

Judgment affirmed.


author: Eustis, C. J.

text:
    McCullough et al. v. Minor, Executor.
    In an action for the partition of a succession', the absent heirs are properly represented by a curator. C. C. 1129, 1238.
    A bona fide purchaser at a judicial sale is protected by the decree. He is not hound to look beyond it.
    Uninterrupted possession, under a just title, for more than ten years, of property purchased at the sale of the effects of a succession, is sufficient to prescribe against the claims of the heirs. C. C. 1024.
    Hor the purposes of prescription, successions now represent, as they did under the Code of 1808 and the Roman law, the person of the deceased, so long as the heirs fail to assert their rights.
    APPEAL. Rom; the; District Court of Concordia, Farrar, J. The facts of this case are stated in the opinion of the court, infra.

      Frost, for the plaintiffs.
    The land sued for did not belong exclusively to the succession oí Joseph Harrison. One half belonged to his wives; and no partition could be made without making their heirs parties, by the appointment of curators for the express purpose. C. C. art. 1291. The heirs should be cited, not the administrator. C-. P. 1024,1025. Even the names of the absent heirs are not given; nor was the counsel of the absent heirs cited.- Prescription cannot be- urged against the- successions of the wives. Calmt v.Mulhollan, 12 Rob. 261.

      Thomas, on the same side.
    The decree under which defendants claim was a nullity. The number and names of the parties between whom the partition was to bo made do not appear in the decree. C. C. 1252. In matters of partition, the order for a sale is the complement of the decree for a partition, and without such a decree is a nullity. Prescription did not run against such of the plaintiffs as were minors, and the claims of such of them as were non-iesidents could only be-prescribed by twenty years. C. C. 3440, 3442.

      Prentiss, also- appeared for the plaintiffs.

      Shaw, Lawrence, R. N., and A. N. Ogden, for the defendant.
    The judgment ordering the sale was rendered in strict pursuance of all the forms of law. C. C. 1129, 1238. The curator of absent heirs was the proper person, and the only proper person, to sue or be sued for a partition. The judgment recites that the curator was present, and that it was rendered contradictorily with him. This is evidence of the fact; and it is every day’s practice in our courts, when the defendant appears in open court and consents to judgment being rendered against him, to enter it up without any thing appearing on the record, but the mention of the fact in the-judgment, which ought to be the highest evidence of it. On this point we cite the cases of Brainard v. Francis, 2 Mart. N. S. 150. Hangerfleld's Executors v. Thurston's Heirs, 8 Ib. N”. S. 236. Hubbelv. Clan-non, 13 La. 496'. On the subject of the partition, we refer also to articles 1246,. 1251, 1252,1261, 1262,1230, 1234, 1238, 1130, 1146, 1147, 1148. The jurisdiction of the Probate Court which ordered this sale, is established by art. 923 of the Code of Practice.
    It is contended that the counsel for absent heirs was not cited, and that to make it alega! sale, he should have been a party. Art. 1238 of the Code dedares that the curator for absent heirs is the proper person to be sued for a partition, and there is no law requiring that the counsel for absent heirs should be cited. Art. 1157, which requires-the counsel of absent heirs to be notified, refers expressly to the caso where the curator himself provokes the sale for the payment of debts. Although, therefore, it was not necessary that he should be notified, yet, in this caso, it was done. The judgment recites that it was rendered contradictorily with him; his name is signed to the inventory and appraisement, and the accounts of the parish judge and the curator, ih the proeeedings, show that a chargo was made and paid, for his services, at that very audience. Art. 1213 of the Civil Code provides the mode in which proof shall be received of the services rendered by the counsel of absent heirs, and authorises the judge to grant compensation, on the proof being made. It must'therefore be presumed, that this proof was then made. The sale was a judicial one, and as the parish judge was, ex officio, judge of probates and auctioneer-, the objection taken, that it was made by the parish judge, is entitled to no weight whatever. In the case of Lallans’s Heirs v. Moreau, 13 La. 433, it was decided that “ sales directed by the Court of Probates are judicial sales, and the purchaser is protected by the decree ordering them.” The same principle has been frequently decided. See Poultney’s Heirs v, Cecil, 8 La. 321. Beale v. IValclen, 11 La. G8. According to these well settled principles, if there had been irregularities preceding this judicial sale, the purchaser would not have been affected by them.
    In the present case, however, both the curator of absent heirs, and the counsel for absent heirs, were parties to the judgment ordering the sale. An inventory and appraisement of the estate had been previously made; the property was sold for a larger amount than the appraisement, and the price paid over to the curator, who had qualified in every respect according to law; and the title of the defendant ought to be considered free of all doubt or difficulty whatever. The defendant’s title is also supported by the prescription of ten years; more ■than ten years having elapsed after the sale and delivery of possession, before the institution of this suit; and the heirs may well be considered to have acquiesced in the sale, when they permitted the price to be paid over to the curator, and took no steps for more than ten years to impeach the sale. The defendant has made out a perfect title to the land in .controversy; but this is a petitory •action, in which the plaintiffs must make out title in themselves.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit to recover a tract of land in the parish of Concordia, formerly belonging to Joseph Harrison, deceased. The suit is brought ■by his heirs, and those of his first and second wives. By the first he had children ; by his second wife he had no issue. The answer sets up title in the defendant’s testator, under a sale made by the Court of Probates, on the 3d of February, 1834.

It appears that a curator of the absent heirs of the succession of Joseph Harrison was appointed by the Court of Probates of Concordia, and that, in a suit ■for a partition brought by an heir present against the curator, a decree was rendered ordering the land in question to be sold, which was accordingly done, and the defendant’s testator became the purchaser for $12,000, which was paid •to the curator.

I. The plaintiffs claim the land as their property, without reference to any judicial proceedings; and it has been argued at bar, that the decree under which the defendant claims is a nullity, and must be treated as such. It is urgod as grounds of nullity that there were not proper parties to the decree ; that the heirs were not parties to it; and that neither their names nor number appear in the record, which is necessary in an action for a partition, inasmuch as no share can be ascertained without the number of the participants be established.

It certainly was the duty of the curator in this case to effect a partition. 'The Code makes it imperative on curators of absent heirs, when one of the heirs is present, to sue for it (article 1129); and makes the curators competent parties, in a suit for a partition, to represent in every respect the absent heirs .(art. 1238). It cannot therefore be said that proper and competent parties were not made in this suit.

The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the court was undoubted, and the jurisprudence of this State has long since been settled, that a bond, fide purchase at a judicial sale is protected by the decree. Lallane’s Heirs v. Moreau, 13 La. 432. Brosnabeau v. Tur ner, 16 La. 440. Beard et al. v. Morancy, 3 Rob. 122. Beale v. Walden, 11 La. 68. Vide also Thompson v. Tolmie, 2 Peters, 168.

II. It is urged in argument that the curator only represented the absent heirs of Joseph JIarrison, and not the heirs of his pre-deceased wives, and that the decree only related to the sale of the land of his absent heirs, and not theirs. The first wife died in 1807: the second in 1.816 or 1817; and Harrison himself died in 1823. Both the successions were vacant. The defendant’s possession is under a just title, and has continued without interruption for more than ten years. Prescription runs against a vacant estate, though no curator has been appointed to it. C, C. art. 3491. We have examined, with much attention, the learned opinion delivered by the late Supreme Court, in the ease of Calvit et al. v. Mulhollan et al., 12 Rob. 261, without having been able to concur in .all Its conclusions.

We find that the vacant succession, the Jiereditas jacens of the roman law, forms an important constituent portion of the legislation concerning the administration of successions in the Code of 1825.

The fact that all prescriptions, which are incomplete on the death of the deceased, continue to run against his vacant succession, necessarily pre-supposes that, until it is accepted by the heir, it represents the person of the .deceased. Article 940 of the Code, by providing that the right of the heir is in suspense until he decides whether he accepts or rejects it, modifies and limits, in accordance with that principle, the rule that the succession is acquired by the heir from the moment of the death of the deceased, by the operation of law.

It is the interest of the State that real property should have a visible and responsible owner. When heirs choose to relieve themselves from the charges of ownership and the payment of the debts of the succession, and await in security the improvement of property falling to them through the enterprise and labor of others, the law has wisely held that they should not be permitted to use their rights to the manifest injury of others. It has provided consequently for the appointment of curators to vacant successions, that prescription shall not be interrupted against them, and that when the heirs accept the succession, it shall be taken only on the condition of not prejudicing the rights which may have been acquired by third persons upon the property of the succession, either by prescription or by lawful acts done with the curator. Civil Code, art. 1024, Davis’s Heirs v. Elkins, 9 La. 147. Poullney’s Heirs v. Cecil, 8 La. 342.

We consider that, for the purposes of prescription, successions now represent, as they did under the Code of 1808 and under the toman law, the person of the deceased, as long as the heirs leave their rights ip abeyance, and avoid the responsibility and charges of asserting them.

Such'being our conclusions, it is unnecessary to examine the other questions which have been raised in argument. We are of opinion that the claims of the plaintiffs, as heirs of the deceased wives of the lato Joseph Harrison, are prescribed by lapso of time. Judgment affirmed,


author: SijDitL, J.

text:
    Succession of Montgomery.
    An appeal from the Probate Court of the parish of Madison, allowed in November, 1815, was ■properly made returnable to tbe Supreme Court at Alexandria. The 149th art. of the constitution, which provides that appeals from that parish shall be returned to New Orleans, was inoperative until the constitution was proclaimed, .on .the 2d of December of that year. Const, art. 150.
    ■Cin an appeal from a judgment.on an opposition to a tableau of distribution presented by the curator of a succession, absent creditors who never appeared in the .court below, nor ever claimed tobe acknowledged as creditors, and who were placed on the tableau by the curator for the protection of his own interest, as a surety of the deceased, need not be made appellees, though their claims were opposed by the appellants. It is enough that the curator, who is the real appellee, be cited.
    Where a deed of trust has been executed in another State for the purpose of protecting a surety against any loss in consequence of his suretyship, the latter, if legally liable, is not hound to wait until he has actually paid as surety, before he can require the trust fund to be applied to the paymentof the principal obligation, so as to effect his reloase. And where .the principal has died, and the liability of tlie surety is contested, the trust fund may be withhold from distribution, for a reasonable time, until it can be ascertained whether the surety will be liable or not. C. C. 3026.
    The omission to state in a mortgage of slaves their " age's and nations,” will not render the mortgage null. C. C. 3273, 3274.
    .Slaves in possession -of a mortgagor at the time of his death, of the same names with those ¿enumerated in a mortgage executed by him, will be presumed to be the same. It is for the party who denies that they are the same, to establish that they are not.
    It is not necessary tbatthe register of mortgages, on registering an original act, not authentic, upon his own knowledge of the signatures of the parties,should certify upon his records that he knew their signatures.
    Appeal from the Court of Probates of Madison, Downes, S.

      Stockton, and Steele, for the appellants. Downes, contri.
   The judgment of the .court was pronounced by

SijDitL, J.

There is a motion by the .curator .of the succession to dismiss ¡the appeal in this case, on two grounds:

I. That the appeal w.as not made returnable to the place required by law. The judgment w.as rendered by the Probate Court of the parish of Madison, and the appeal was granted .on the 22d November, 1845, returnable to Alexandria. Alexandria was, at the time, the proper place to which to make the appeal returnable. By the 149th article of the constitution, appeals from the parish.of Madison were .directed to be returnable to New Orleans. This constitution was .adopted in convention, on the 14th May, 1845. But article 150 required that its adoption or rejection should be submitted to the vote of the people, on the first monday of the ensuing November; that the returns of votes should be examined by the governor and certain other officers, on the first monday of December ensuing; that, if there should be found a majority for its adoption, it should be the duty of the governor to make proclamation of that fact, “and thenceforth this constitution shall bo ordained and established as the constitution of the State of Louisiana.” This proclamation was made on tuesday, the second day of December, 1845. The constitution not having gone info effect at the date of the order of appeal, the objection is not well taken.

II. That the creditors whose claims have been opposed by the appellants, are aot made parties to this appeal, 'iliese ere liters never appeared in the court below, never made any application to the curator to be acknowledged as creditors, and were absentees. The curator voluntarily placed the.n on the tableau for the protection of his own interests, as Montgomery’s surety, as will be more fully noticed hereafter. The curator is the real .appellee, and he is before us. The motion to dismiss is therefore rejected.

The opponets claimed to be creditors of the succession, and that they are so is not disputed in argument by the appellee. The whole of the proceeds of the property of the succession, .after deduction of certain expenses of administration, were awarded by the tableau to Wm. M. Taylor and James W. Gillespie, as mortgage creditors; the former for a claim of $5,000 and interest, and the latter for a claim of $8021 and interest.

The position taken by the curator, William Jenkins, is, that these debts are entitled to a mortgage preference, because they are covered by a deed of trust executed by Montgomery, in Mississippi, on certain slaves, of which those sold at the succession sale formed part, to a trustee in trust to secure Jenkins and another, and hold them harmless from all damages, costs and charges, and loss, for and on account of their liability as sureties of Montgomery, on a certain bill single, executed by William Montgomery, the deceased, together with William Jenkins and James Jenkins, in favor of Taylor, for $5,000, and on a certain promissory note made by Montgomery and William Jenkins, in favor of James Gillespie, for $8,021 24; that judgment has been obtained against William Jenkins on both claims; that upon one judgment a levy has been made on his property in Mississippi, and on the other a writ of error is pending. That this deed of trust was duly recorded in the parish of Madison.

We will now procoed to consider, in the order in which they have been presented by counsel, the objections made to the judgments rendered by the court below in favor of Taylor and Gillespie.

There is no proof in the record that Taylor is a creditor of Montgomery. It is shown by a transcript of a suit in Mississippi, that one Dillingham had brought suit on the bill single above mentioned, against Montgomery and William Jenkins, and obtained judgment against them for the balance due upon it. Upon this judgment a writ of error was taken, the result of which does not appeal'.

It is said that there is a variance between the debt to Gillespie, as stated on the tableau, and that shown by the transcript of the suits of Gillespie v. Montgomery and William Jenkins. In one it is stated as $8,021; in the other, the note sued upon is for $8,021 24. This would perhaps be too trifling a variance to be regarded, if it stood alone. J3ut there is a discrepancy in other respects between the note itself and that described in the deed of trust. The note is dated 26th January, 1841, and payable on or before the 26th January, 1842. The note mentioned in the deed of trust is described as dated the 6th February, 1841, and payable at twelve months after date. It would seem from the Mississippi record that the note sued upon had been given for the price of land, while that descz'ibed in the deed of trust is said to have been given for money loaned.

It is said that, even if the bill single and the note are those contemplated ia the deed of trust, yet the holders of those obligations are not the beneficiaries in the deed, nor have they claimed its benefit, but the curator himself has volunteered to place them on the tableau.

It is true the holders of tl'ose obligations have not appeared in the cause, but as we have come to the conclusion that this case must be romauded with instructions to filo a new account and tableau, and they may perhaps avail' themselves of the opportunity which will thus be afforded for all creditors to- eome in, we do not think it proper to express now. a definitive opinion with regard to their rights. The opponents have made no objection to the form in which this foreign instrument was executed, and we have no evidence before us to show what right under it would accrue by the laws of Mississippi, to the creditors by reason of the security given by the principal debtor to his sureties.

Whether the holders of obligatious mentioned in the deed of trust be entitled' to its benefit or not, there can be no doubt that William, Jenkins was a beneficiary under it. Its object was to hold him harmless against loss or damage by reason of his suretyship. Under such a contract, we are of opinion that he is not bound to wait till he has actually paid as surety. If he be legally liable as the surety, he is entitled to have the fund conveyed for his indemnity applied to the payment of the principal obligation, so as to effect his release. As the liability however is contested, we think the fund, now in the custody of the probate court, should be, pro tanto, withheld from distribution for a reasonable time, that the writ of error maybe disposed of in Mississippi, where the suit against him is now pending, and it may be ascertained whether he is legally liable, or not, on the bill single for $5,000, mentioned in the deed of trust. See Civil Code, art. 3026.

It is said that the deed of trust cannot have validity as a mortgage in this State, because the ages and nation of the negroes are not mentioned. The deed of trust states only the names and sex of the negroes. The counsel relies on article 3274 of the Civil Code, which declares that if the mortgage be of slaves, “ their names, sex, and, as nearly as may be, their age and nation, must be mentioned in the act of mortgage, that their persons may be more easily identified.” The point now raised, so far as our researches have gone, has never been decided. After a careful consideration, we are of opinion that the omission to state the ages and country of slaves mortgaged does not affect the mortgage with nullity. A difference of phraseology will be remarked between this article and that which precedes it, prescribing what is necessary in the description of “immovables,” by which is there meant landed property. We know that in the practice of notaries and parish judges, it has been very common to omit the full and complete description in sales and mortgages of slaves, which the appellants say is required on pain of nullity, This long practice and contemporaneous professional interpretation being not manifestly erroneous, is entitled to great weight. Immense amounts of slave property have been sold and mortgaged under descriptions of the same character as that now in question, and we should do great injustice, were we, in the interpretation of an ambiguous clause, to reject the popular acceptation.

The identity, however, is a lawful subject of enquiry. The appellants have a right to show that the negroes of like names, possessed, inventoried, and sold as the property of the succession, are not the same as those conveyed by the deed of trust.' The identity of name and the possession establish a case infavor of the mortgagee, which it is incumbent on the opposing creditor to disprove.

It is contended that the register of mortgages had no right to register the deed of trust which was not an authentic act, unless he was acquainted with the signature of tho parties, and agreed on his own responsibility to make the inscription on presentation of the original act, in which case it is said that the register should certify such knowledge upon his record. The original deed was presented to the recording officer, and, as we said in the case of Ells v. Sims, ante p, 251, we do not consider it necessary that the register- should- certify on his record that he knew the signatures.

This transcript comes before us in a very imperfect form. None of the proceedings anterior to the filing of the tableau are transcribed,- nor are they noticed in the statement of facts.- We have not the inventory nor the procis-verbal of the probate sale, nor are we informed when the succession was opened. The opponents charged expressly that the tableau was filed prematurely; there is no evidence to contradict the charge, but, on the contrary, indications of an attempt to close the estate precipitately. We are unwilling to conclude creditors upon a showing so loose. We think a new account a-nd tableau- should be filed, so that all the creditors may have a fair opportunity to come in and be heard.

It is therefore ordered that the judgment of the court below be reversed ; that this cause be remanded with instructions to the court below to require a new account and tableau, to be filed by the curator, and for further proceeding» according to law; the appellee paying the costs of this appeal.-


author: King, J.

text:
    Behrnes v. Coxe.
    I-n an action for damages for a malicious prosecution, instituted against'- plaintiff On a charge' of stealing a slave, the testament of a person by whom the slave was devised to plaintiff's wife, and proceedings- had in the court1 of probates by the defendant as co-tutor of other' minor heirs of the testatrix, and other proceedings connected with the administration of the’ Buccessioh of the testatrix, are admissible in evidence to show waiit of probable causé for' the prosecution-. Per Ouriam: It devolved on the plaintiff to show malice ; a fact which is1 usually inferred from the want of probable cause for the-prosecution.
    An objection that the sum for which a verdict is found in-an action for damages-is expressed-in figures, is too late after appeal. If it be a defect, it is one whicli might have-been-corrected' on the trial below! at the request of either party". C. Pi 5281
    Appeal fromthe District Court of East Baton Rouge,- Bwk, J.-

      A.- AT.Dunn, for the plaintiff. /?. S, Lyons, and- Loucks, for the appellant.
   The-judgment of the court was- pronounced by

King, J.

This is an action for a malicious prosecution'. The plaintiff avers-that the defendant maliciously intending to injure him, and witho.ut reasonable or probable cause, charged him, on oath before a justice of the peace, with-having. stolen a negro girl slave, named Maria, and caused- him- to- be arrested and taken before a justice of the peace, by whom he was discharged. i He-prays for five thousand dollars damages, for the malicious prosecution and wrongful arrest. The j.ury gave a verdict in favor of the plaintiff for five hundred dollars, and the defendant has appealed. The defendant denies generally the allegations of the plaintiff’s position, but admits that he made an-affidavit for the purpose of obtaining the negro girl in question, in which he charges the-plaintiff with improperly taking her from his possession, but upon the slave-being returned he desisted from the prosecution.

The answer is substantially an admission that the plaintiff instituted the prosecution, an averment that it was founded upon sufficient probable cause, and a denial of malice. It appears from the evidence that, a short time before the occurrences which led to this suit, the plaintiff intermarried with Elizabeth Williams, a minor daughter of the defendant’s wife, by a previous marriage. The mother, as the tutrix, administered the property of her children, including the slave in question, which had been devised to the plaintiff’s wife by her grandmother, Mary Y. Williams. Shortly after the marriage of .the plaintiff, the defendant and his wife cansed proceedings .to be instituted by which the former was restored to the tutorship of her minor children, which she had forfeited by her second marriage, and her husband was appointed co-tutor. They .applied jointly for several orders, and among others fora sale of property belonging to the succession of Mary Y. Williams, for the purpose of paying debts which were alleged to be still due, although a previous sale had been made, for the same purpose, which produced a sum far exceeding the amount of debts then represented to be due by the succession. While these proceedings were in progress the slave in question left, or was removed from, tire possession of the defendant, and went to the plantation of the plaintiff’s father, where the plaintiff resided, but through whose agency is not distinctly shown. The defendant thereupon made oath before a justice of the peace, “that a slave named Maria belonging to the succession of Mary Y. Williams, .under his control and ma.uagement, was stolen and taken away from his premises, &c., and that he verily and truly believed that George F. Behrnes was the person who committed the act.” Upon this affidavit the plaintiff was arrested, on Sunday, at the defendant’s request; but objecting to appear on that day, the officer assumed the responsibility of permitting him to go at large until the following day. No witness appeared to support the accusation, and the prisoner was discharged.

On the trial in the court below, the will of Mary Y. Williams, which contained the bequest to the plaintiff’s wife, as well as the probate proceedings .already referred to, were offered and admitted in evidence, to show the want of probable cause for the prosecution, and that the object of the defendant was ■to recover possession of the slave in question, with the view .of defeating the .title of the plaintiff’s wife. They were objected to, on the ground of irrelevancy. We think the judge did not err in permitting them to go to the jury. They were admissible for the purposes for which they were offered, and, in ■our opinion, tend strongly to show that the defendant was influenced by other motives than a belief that the plaintiff had been guilty of an infraction of the criminal laws. It devolved on the plaintiff to show malice; a fact which is .usually inferred from the want of probable excuse for the prosecution. The testimony offered tended to show that the prosecution was groundless, and that the defendant must have known that the plaintiff was innocent of any criminal offence, which is the most conclusive evidence of malice. Starlde on Evidence, pp. 911, 913, 915.

For obvious reasons of public policy actions like the present are cautiously entertained, and meet with no favor when the proof is not clear of the absence of probable cause for the prosecution. After an attentive examination of the evidence, we find no circumstances of excuse for the defendant’s conduct which entitle him to relief at our hands. We think that the verdict of the jury ought not to be disturbed.

It is objected that the sum for which the verdict is given is expressed in figures. If this be a defect, it is one which could have been corrected at the trial be low, at the request of either party. The objection comes too late when presented in this court. C. P. 528. 9 Rob. 60, Judgment affirmed,.


author: Kino, J.

text:
    Stanbrough, Curator, v. Evans.
    Where one to whom slaves sold at the suit of a second mortgagee are adjudicated, enters into a bond to prodace them whenever required for the purpose of being sold under the first mortgage, and subsequently hies, a purchases]* of the slaves at a prQbate sale of his succession. will acquire only the rights of the deceased, and will be bound by his obligation to deliver the slaves. Such a purchaser cannot be considered a third possessor; nor can he require the original vendor to resort to an hypothecary action to enforce his mortgage.
    APPEAL from the District Court of Madison, Selby, J.

      Bemiss, Stacy and Sparrow, for the plaintiff. Pierse, appellant, pro se. No counsel appeared for the defendant.
   The judgment of the court was pronounced by*

Kino, J.

At a probate sale of the succession of Jesse Harper, deceased, the defendant, Evans, became the purchaser of four slaves; and, to secure the payment of the notes given for their price, the slaves, together with a tract of land, were specially mortgaged. The plaintiff obtained an order for the seizure .and sale of the mortgaged properly, which was executed by making a levy on the 3d of December, 1842; andón that day the slaves were sold, notwithstanding this seizure, in virtue of writs previously issued under other judgments against Evans, and adjudicated to Walker. On the 5th of December, two days after the sale, Walker entered into a bond, in which lie obligated himself to produce the slaves whenever thereto required, to be sold under the order of seizure of Stanbrough, or the judgment of Kinnard, also a creditor of Evans. Shortly after Kinnard enjoined Stanbrough’s proceedings, and the writ remained suspended until 1845, when, by order of the plaintiff’s counsel, it was returned, and a second was issued, Pending the injunction Walker died. At the probate sale of his property the intervenor appeared in the name of Stanbrough, and forbid the sale of the slaves, notwithstanding which they were adjudicated to himself-and Wallace for $190 50. .Pierse subsequently purchased the interest of Wallace, .and has intervened in this suit and enjoined the plaintiff’s execution, alleging that Harper was without title to the slaves; that they belonged to Evans, when they were inventoried and sold as Harper’s property; that the title to them, fre.e from any incumbrance in favor of Harper’s succession, was vested in Walker by the sheriff’s sale; that the plaintiff’s writ,issued after the intervenor became possessed of the slaves; and that he could only be proceeded against as a third possessor. The right to enforce the mortgage on the slaves only is in controversy. The cause was tried by a jury, who dissolved the injunction with .damages, and the intervenor has appealed.

There is no error in the judgment .appealed from. The evidence establishes clearly the title to the slaves in the succession of Harper, at the date of the sale to the defendant. Walker voluntarily obligated himself to produce the slaves whenever required, to be sold under the judgments either of Stanbrough or Kinnard, who it seems were engaged in a controversy in relation to their respective rights upon the slaves. This contest was in .the nature of a pact of non-alienation. Pierse acquired the rights of 'Walker to the slaves, and incurred all the obligations of the latter in relation to their delivery, when he became the purchaser. Of these he cannot plead ignorance, having appeared at the .sale of Walker’s succession, and forbidden the adjudication as being in violation of the rights of Harper’s succession. The bond of Walker is obligatory on the intervenor, who cannot claim to be treated as a third possessor, and require the plaintiff to resort to an hypothecary action, in order to enforce his mortgage.

Judgment affirmed.


text:
    Farrar v. Rowly et al.
    Whore one of the parties to a contract is bound to protect the other from eviction from property delivered to him in pursuance of the contract, and which he was to receive freeof encumbrance, the seizure of the property by a mortgage creditor will put the former in default from the time of the seizure.
    Where a mortgage creditor by whom an order of seizure and sale had been taken out against the mortgaged property, enters into an agreement with the debtor, by which it is stipulated that the latter shall convey to him certain property free of encumbrance, and that, in consideration thereof, the creditor shall assign to the debtor “ all his right to the judgment, or acknowledge satisfaction thereof, with subrogation, as may be required, by the debtor,” the creditor may, on the seizure by another mortgage creditor of the property which was to have been conveyed to him free of encumbrance, proceed by an hypothecary action against the property originally seized, though in the possession of a third person, and cause it to be sold to satisfy his claim, without having taken any steps to rescind the contract.
    In Case of doubt as to the moaning of a contract, the mode in which the parties undertook to execute it themselves, is the best exposition of its intendment.
    A married woman, who has obtained a judgment against her husband, is competent to receive payment, and give a discharge. Her receipt is evidence of payment, as between the parties. ;
    APPEAL from the District Court of Concordia, Mayo, J. In this case the defendant Rowly alone appealed. The facts of the case are stated in the opinion of the court, infra.

      Thomas and Snyder, for the plaintiff. Frost and H. A. Bullard,, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an hypothecary action, brought by the plaintiff as assignee of a certain judgment rendered by the Supreme Court, in October, 1841, at the suit of Jane Rowly, against one of the defendants, her husband. 1't is stated at length in 19th Louisiana Reports, 583. It decreed to the plaintiff, Jane Roivly, the sum of $43,549 14, with five per cent interest from July 3d, 1841, until paid, for which sum she was declared to have the following securities, to wit: for $2,983 14, a special mortgage on the Marengo plantation, its stock, slaves, &c., to date from June 15th, 1835; for $37,390, a legal mortgage on all the property of her husband, to take effect from said date ; and also a legal mortgage as aforesaid for $3,7G1, to take effect from the 15th of October, 1839.

The object of this suit is to subject a plantation, called the Bristol plantation, and slaves, to the satisfaction of the two last mortgages. Rowly, the principal debtor, and Frost, who appears as a third possessor, are made defendants. The prayer of the petition is, that the hypothecated property may be seized and sold, and that the defendants pay the costs.

It has been presented to us as aground of defence by counsel, that there existed a subsisting contract, made between the plaintiff in this suit and Charles N. Rowly, for himself-, and as agent for Jacob D. Lansing, dated the 30th of December, 1843, which it was alleged precluded the possibility of enforcing the judgment on the part of the plaintiff, until that contract was rescinded, or otherwise disposed of in a lawful manner.

The question of law- which this proposition presents under article 2042 of the Code, has been the subject of argument here, but it does not appear that the opinion of the court below was taken on it. It is setforth in the answer of the principal defendant, which also contains allegations of performance of the agreement on his part and that of Lansing, and other matters relating to the merits of the cause,.and.eoncludes thus: “Wherefore he prays that this suit be dismissed; that he have judgment in his favor; that the mortgage of Mrs. Jane Rowly be decreed extinguished by transaction, novation, and payment. If such judgment cannot be granted, he prays that their suits be reinstated in the condition in which they were previous to the compromise and settlement hereinbefore named, and for all such relief- as the nature of the case may require; and prays a trial by jury.”

The whole case was submitted to a jury, who-found a verdict in these1 words: “ We, the jury, find for the plaintiff, and that the contract between Thomas P. Farrar and Jacob D. Lansing, is a nullity; and that the judgment and mortgage in the case of Jane Rowly v. Charles N. Rowly, binds the Bristol plantation and property, and we assess no damages to either party.”

In this case, as in the case of Kemp v. Rowly, which we have recently decided, ante p. 316, Lansing, Rowly, senior, the Mechanics and Traders Bank, with"some additional parties, are all concerned in the promotion of one single purpose. The jury appear to have come to the same conclusion as to their respective interests, which was forced upon us in that case. After the finding, of the jury,, we shall consider this case as exclusively between the plaintiff and Charles N. Rowly, the defendant.

It would extend this opinion to an inconvenient length to repeat the particular facts and incidents to which this litigation extends. The present suit is a portion of the whole, to understand which references may be had to the cases recently decided by this court, in which Rowly was a party. See pp. 208, 316, ante. The plaintiff, the assignee of the judgment of Mrs. Rowly against her husband, had obtained an order of seizure and sale against Lansing and Rowly, under which the Marengo plantation and slaves were under seizure, and the agreement of the. 30th December, 1843, was made for, the purpose of compromising and adjusting not only that suit, but all suits pending between Mrs. Roivly,. Lansing and Rowly, or either of them1. It is in substance as follows :

1st. That all suits then pending between Mrs. Rowlyr and Lansing and Rowly, or either of them, should be dismissed, at their costs.

2d. That Mrs. Rowly should renounce the community of acquets and gains between her and her husband, and acquiesce in a decree of separation from, bed and board, dismissing her appeal therefrom.

3d. That her claim for alimony should be assumed, and paid, by Farrar.

4th. The the amount then due on the judgment was about $45,000; and shall be paid and satisfied as follows-: 1st. The said Lansing and Rowly shall make to the said Farrar, either by judicial sale or otherwise, a good and unincumbered title to the one-third, divided, of the Marengo plantation, slaves, &e. The said third, when partitioned, to be composed as hereinafter specified. 2d. The said Lansing and Rowly to pay Farrar $5,000 ; $2,500 on the tenth of March next, 1844, and $2,500, on the first of January, 1845, to Be secured by notes, in solido, “and, in consideration of such title and payment, said Farrar is to assign all his right in said judgment, or acknowledge satisfaction of the same, with subrogation, as may be required by said Roioly and Lansing.”

5th. The third of Marengo to be conveyed to said Farrar, is to be taken from the upper portion of the Marengo tract, to contain the fair third of the cleared and uncleared land, to be ascertained by survey. The third of the slaves, &c., and the third of the land falling to the share of Farrar, to be furnished with negro cabins, mills, &c.-

6th. The division of the slaves to be made, &c.

7th. The balance of the slaves to be divided, &c.

8th. All the costs to be paid by Rowly and Lansing.

9th. The title of the one-third of the Marengo plantation, &c., ns above set forth, to be made as follows : “ After ascertaining the equitable division thereof, as herein before required, the sheriff shall advertise and sell the third of said property, which is to be transferred to said Farrar, under the order of seizurennd sale by virtue of which he now holds said property, and at said sale said Farrar shall bid the sum of $40,000, and receive the sheriff’s deeds thereto, in payment of so much of the judgment owned by him.”

10th. The payment of the $5,000 may be- made as follows, by the delivery of cotton, &c.

In fulfillment of this agreement a separation was made of the one-third of the plantation by a surveyor, and the third assigned to the plaintiff was delivered to him as well as his proportion of the slaves, stock, &c. No complaint appears to have been made as to the manner in which the agreement was performed on the part of Rowly. Both parties appear to have been satisfied with their bargain, until the plaintiff’s possession was alleged to be disturbed by a seizure under an execution, issued on the 4th June, 1845, at the instance of the Mechanics and Traders Bank against the Marengo plantation and slaves.

Evidence was offered on both sides concerning the doings of each in relation to the different requisitions of the agreement; and, under this state of the cause, we are authorised to consider and determine on the rights of the parties, as in a direct act to rescind the agreement, or for damages for its non-execution, We have an aversion to send causes back for revision when we have all the evidence before us, especially when the parties have had a fair and full opportunity of supporting their respective rights, and of scrutinising those set up adversely to-them. Such has been the case in the cause now before us. There does not appear to have been any question of law which requires our notice, reserved by bill of exceptions; and the argument at bar has been based on those questions of law which the facts present.

It is urged for the defence that Rowly, or Lansing, were never put in default; that all the conditions of the agreement were strictly complied with by them; that Farrar, the plaintiff, was in default, and thaf he never made, nor offered to make restitution c f what he received under the agreement; that the agreement itself'was a sale, and extinguished the judgment held by the plaintiff; and that no time was stipulated within which the conditions of the agreement were to be performed.

I. The breach of the agreement of which the plaintiff complains was, his eviction from the portion of the plantation and slaves possessed by him under the agreement, by seizure under judicial process, at the suit of the Mechanics and Traders Bank, under which the whole plantation and slaves were sold to Samuel Rowly, with the crop gathered after the seizure, on the 5th of January, 1846. This is charged to have been an active violation of the agreement, which dispensed the plaintiff from the necessity of putting the other party in default. That Rowly was bound to protect the plaintiff from this eviction cannot be questioned; and no satisfactory reason has been given why he failed to do it, and he was in default from the day of the seizure.

II. So far from the judgment hold by the plaintiff having been extinguished by the agreement, or what was done under it,- it was to remain in force; and when the good or unincumbered title, by judicial sale or otherwise, and the payment, should be made, it was to be assigned, or satisfaction, with subrogation, was to be acknowledged, at the option of said Rowly and Lansing. In the mean time, Farrar was put in possession of the land and slaves, the parties were to proceed in the performance of the agreement, the execution of the judgment being of course suspended. This-agreement we consider to have been what the parties called it, and understood it to be, a compi-omise or transaction, for the termination of the litigation in which the true iuterest of no one was likely to be advanced. Up to the time of the disturbance of the possession-of Farrar, by the seizure at the instance of the Mechanics and Traders Bank, it appears to have been carried into effect, in good faith. The respective rights of the parties, that is Rowly’s right to demand the extinguishment of the judgment, and Farrar’s to exact the title to the land and slaves, depend on the completion of the conditions of the transaction,, and on their due performance by the party obligated. The contract is entire, and by its very terms must stand or fall as a whole. Neither party has any advantage as to any rights acquired under it. We cannot recognise the principle on which it is maintained in argument, that Rowly is permitted to consider it in the light of a sale of the plantation and slaves to Farrar, while he fails to remove the encumbrance which rendered them valueless.

III. It is said there was no time stipulated within which the agreement was1 to be carried into effect. The mode in which the parties undertook to execute-it themselves, is the best exposition of its intendment. The portion of the-plantation and slaves were delivered immediately, and the defendant, Roivly, expressly relies upon his performance of his part of the agreement. Though, it may be true that he was not in default, in point of time, so far as relates to-furnishing the plaintiff with an unincumbered title,-yet he was delinquent in suffering Farrar to be evicted, by reason of a judgment from which he was bound, and had the power, to protect him.

On the trial of the cause evidence was offered in support of the claim of each party on the other, arising out of the breach of the agreement and the injury sustained thereby, which were mutually attributed to each other. The jury, by their verdict, left the parties where their attempted compromise found them. We shall not disturb their verdict, as it turns exclusively on questions of fact, and upon matters with which planters must necessarily be particularly competent to come to a just conclusion. The terms of the verdict are peculiar, but its intendment is unqualifiedly in favor of the plaintiff as to the agreement, as to his judgment, and as to the claims of each party for restitution and indemnity.

There are several matters to which a great deal of importance seems to have been attached, which we do not make any mention of, on account of the view we have taken of the real merits of this case.

It was impossible for a title to be given to Farrar, tinder the agreement, by a judicial sale, except after the encumbrances, on the portion of the plantation and slaves which ho was to take,should be removed. They could have been removed by the agreement of the mortgagees, or by payment. Their removal was within the power of Rowly to accomplish, and we have seen no attempt to effect that object on his part, which we are permitted to consider as serious.

It is alleged that, the sum of $4,000 was paid on the judgment in favor of Mrs. Rowly, in January, 1842. This matter was before the jury. The evidence in support of this sum consists of the simple receipt of that sum, under an agreement to which it was appended, signed by Mrs. Rowly during her coverture. The verdict of the jury gives effect to the judgment for its whole amount, and the jury must have considered the evidence as insufficient to establish the paymentnf this sum of §4,000, which was was formally pleaded in the answer. In this, we think, the jury erred. Mrs. Rowly, having a judgment against her husband, was competent to receive payment, and give a discharge. The receipt, having been offered in evidence without objection, is good proof of the payment between the parties. The judgment was reduced before the plaintiff acquired it; and the imputation must be made according to the agreement of the parties at the time the payment was made. In this respect the judgment appealed from must be amended.

It is therefore ordered that the judgment appealed from be amended, by allowing interest thereon from the 18th of July, 1842, and that, in other respects, it be affirmed ; the plaintiff paying the costs of this appeal, and the defendants those in the court below.


text:
    Gaines v. The Merchants Bank of Baltimore.

      A purchaser at a sheriff's sale, who has been evicted, cannot maintain an action against the seizing creditor alone; he must proceed against the creditor, and the debtor in execution, jointly. C. P. 711. The fact that the domicil of ene of the parties is out of the State, is no obstacle to the exercise of the remedy provided by art. 711 of the Code of Practice.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      Britton, for the appellant. Wharton, for the defendants.
   The judgment of the court was pronounced by

Kino, J.

Most of the facts upon which this case depends have been admitted by the parties. They are as follows: The United States Bank, incorporated by the State of Pennsylvania, being in insolvent circumstances, made a general assignment, in September, 1841, of all its property, rights and credits, not previously assigned, to certain trustees, with power to sell the same and distribute the proceeds rateably among the creditors of the institution. Among the assets thus assigned was, the ‘-right of the bank to any further dividend that may be declared in the estate of Wm. Kenner & Co.” In January, 1842, the United States instituted a suit in the Commercial Court against the bank, in which, among other effects of the latter, the claim to any dividend to be declared in the •estate of Wm. Kenner cj- Co. was attached. The trustees intervened in that proceeding, and claimed the property attached, m virtue of the assignment, and ¿apon a final decision of the cause it was determined that the assignment was valid, except so, far as the United States were concerned. In May, 1842, the Merchants Bank of Baltimore caused a judgment, obtained in Philadelphia .against the United Slates Bank, to be made executory in this State, and in virtue of a fieri facias issued under it seized, among other things, the right of the United States Bank to receive any further dividend from the «state .of Wm. Kenner & Co., notwithstanding the previous .assignment to the trustees and the .attachment of th.e United Sates. At the sheriff’s sale, .this right was .adjudicated to the plaintiff for $1,000 cash. The plaintiff has instituted this action to recover back the price thus paid, alleging, first, that the United States Bank was divested of title previous to the seizure and sale by the sheriff, .and that nothing passed by the adjudication ; secondly, that the sale was made without ,a previous appraisement, and is consequently void. There was a judgment of non-suit in the court below, and the plaintiff has appealed.

We think that there is no error in the judgment appealed from. The purchaser at a sheriff’s sale, who is evicted, has his recourse against the seized debtor and seizing creditor, but must exercise his remedy against those parties jointly. This suit is instituted against the plaintiff in execution alone, against whom the action cannot be maintained without uniting with him the defendant in execution. C. Prac. art. 711. The questions, therefore, presented by the pleadings cannot be disposed of in the presentsuit. It may not, however, be improper to observe, that it has been left doubtful by the evidence at present in the record, whether the mere contingent residuary interest of the United States Bank, after the completion of the trust, was adjudicated, and whether the plaintiff understood that he was acquiring only a future hope. We wish not to be understood as deciding whether anything passed by the sheriff’s sale, or not.

We conceive it to be no objection to the exercise of the remedy provided by the 711th article of the Code of Practice, that the domicil of one of the parties is out of the State. Our laws have provided the means for causing absent parties to be represented, who have an interest in a pending litigation between other parties. Judgment affirmed.


text:
    Groves v. Steel et al.
    An account rendered, or a letter written, to a party to a suit by his agent, is inadmissible in an action against a third person, to prove payments made by the principal, where the agent is alive and within the State. His testimony must he procured personally or under a commission.
    Parol evidence is admissible in favor of one not a party, nor representing a party, to asale of land, to prove that tbe consideration of the sale was different from that stated in the written act.
    The declarations of a vendor, made shortly before and after a sale, though out of the presence of the vendee, acknowledging its simulation, are admissible against the latter, to prove fraud in the vendor} but such evidence is insufficient in itself, to establish fraud in the vendee.
    Where an endorser on notes given lor the price of property purchased by the maker, is compelled to pay them, he will be subrogated to the right of the creditor to maintain an action against a subsequent purchaser of the property to rescind the sale as simulated and fraudulent, though it was made before the payment of the notes by him. PcrCuriam: The first vendor could have attacked the sale, for it was made while he was a creditor; and as the conditional liability of the endorser existed at the date of the sale, it is just that, when subsequently compelled to pay, he should be considered as standing in the place of the vendor, and subrogated to his right to sue for a l'ecision of the sale. C. C. 2157.
    Where the testimony of a witness was taken under a commission, on account of her infirmity and inability to attend the trial, and a rule, taken on the opposite party, under the stat. of 20 March, 1839, s. 17, to show cause why the testimony should not be read, returnable on the day of trial, was made absolute without opposition on that day, but before the trial commenced, the testimony cannot be objected to on the trial, on the ground that the witness was really able to attend.
    A mother is incompetent as a witness for or against her daughter (C. C. 2260); but her evidence is admissible in favor of her son-in-law; her credibility, as affected by her connection with him, being a proper subject for the consideration of the jury.
    Appeal from the District Court of Madison, Curry, J.

      Snyder, Stacy, and Sparrow, for the plaintiff. J. Dunlap, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff seeks the recovery of the amount of two promissory notes, drawn by John W. Brown, and endorsed by the plaintiff, both dated at Natchez, December 20,1836, one for $7,000, payable twelve months after date, and the other for $7,875, payable twenty-four months after date. He alleges that, these notes were given for the price of certain slaves sold by one Slaughter to Brown: That the notes not being paid at maturity, the plaintiff was sued as endorser by Slaughter, and compelled to pay their amount: That Brown died and left a child and a surviving wife, the defendant, now the wife of Steele: That she was in community with Bmen, aud by intermeddling with the community after his death, has made herself personally liable for his debts: That the child also died, and the mother has accepted its succession purely and simply: That Brown, in the year 1838, to screen his property and defraud his creditors, made simulated sales to Steele of certain slaves, being those sold by Slaughter, the said slaves, however, really remaining the secret property of Brown, judgment was asked against the widow Brown, for the amount of the sums thus paid by plaintiff as endorser, with interest and costs. It was also prayed that the sales of the slaves to Steele be annulled, and that they be decreed to be sold to satisfy the plaintiff’s claim. There was judgment for the plaintiff, and the defendants appealed.

Portions of these averments were mado by a supplemental petition; but we deem it unnecessary to consider any objections of form in that respect, 'as the defendants have not pressed a dismissal, but have asked that the cause be remanded for a new trial. There are bills of exceptions in the record which entitle them to this relief.

The court erred in admitting an account rendered, and a letter written to Groves by Bogart, his commission merchant, to prove certain payments to Slaughter, for account of Groves. Bogart was alive, and residing in the State. His testimony could have been procured.

In the answer it was pleaded, among other matters, that Groves had received from Brown a conveyance of a tract of land, which was made for the purpose of securing Groves on account of his liabilities as endorser for Brown, and that Groves was barred by the arrangement from recovering in the present suit. The deed from Brown to Groves was offered in evidence. It purported to be for a consideration of $13,200, paid by Groves to Brown in cash. In the inventory of Groves’s estate, these lands’ were inventoried as belonging to his sue. cession. The two subscribing witnesses to this deed were then offered, to prove the acknowledgments of Groves, before and after the execution of this deed, that he had received the land in satisfaction of all claims against Brown, and that he particularly specified the debt now in controversy. This testimony, upon objection by the plaintiff that it went to explain and contradict the deed, the court refused to receive ; and Steele now contends that it should have been received in his fevor.

We think he was clearly entitled to the benefit of such testimony, tie was a third person, nota party to, nor representing a party to, the act. The' declarations of Brown arid wife, made shortly before and after the sale to Steele, but out of Steele's presence, acknowledging the simulation, were admissible against Steele to prove fraud in the vendor. The defendant, Steele, might have asked the court to charge the jury as to the limited effect of this evidence, and its insufficiency in itself to- establish fraud in the vendee. The doctrine on this subjects more fully stated in Martin v. Reeves, 3 Mart. N. S. 24. See also Guidry v. Grivol, 2 Mart. N. S. 13.

The charge “ that the surety is not the creditor of the principal until he has paid the debt,” was calculated, in the form asked for, to mislead the jury, and was properly refused. If there' was simulation as alleged, it was a fraud upon Slaughter, then the crédito;1. That very fraud may have induced Slaughter to believe that it was useless to attack Brown, and have led him to pursue the endorser, Groves. Slaughter could have attacked the sale, for it was made while he was a creditor; and as the conditional liability of Groves existed at the date of the sale, it is just that when he subsequently was compelled to pay, he should be considered as standing in the place of Slaughter, and subrogated to his right to maintain this action. Civil Code, art. 2157.

A witness, the mother of Mrs. Brown, now the1 wife of Steele, living in the parish where the cause was tried, had been examined under commission, obtained upon the affidavit of the defendant Steele, that she was infirm and unable to attend the court. After her testimony had been taken under commission, a rule was taken, under the statute of 1839, upon the plaintiff, to show cause why the testimony should not be read. This rule was returnable on the same day that the cause was put on trial, and was made absolute, without opposition, before the trial commenced. It would have been a surprise upon the defendants to permit the plaintiff still to object to this testimony, upon the ground that the witness was really able to attend personally. We think, however, that at a future trial, the enquiry may be raised upon affidavit by the plaintiff, whether the infirmity and disability to attend still continues; and, if it should satisfactorily appear that the witness is still living in the parish and able to attend the trial, the testimony under commission should not be received. The privilege accorded by article 430 of the Code of Practice should not be extended beyond the fair intendment of the law. It is always desirable that witnesses should be seen and heard by the judge and jury, if possible, and especially in a controversy involving questions of fraud.

Objection was made to the competency of this witness, on the ground that she was the mother of Mrs. Steele. If such was the fact, she was incompetent to testify either for or against her daughter (Civil Code, art. 2260); but her testimony was admissible in favor of Steele. Her credibility, as affected by her connection with him, was a proper subject for the consideration of the jury. See 6 La. 74. 10 Mart. 554.

It is-therefore decreed that the judgment of the District Court be reversed, and that this cause be remanded for a new trial, and for further proceedings according to law; the plaintiff paying the costs of this appeal.


text:
    Dennistoun et al. v. Nutt et ux.
    In principle, no distinction can be made between a conventional transfer of property by a bus-band to bis wife for the payment of her dotal or paraphernal rights, and one made under the form of judicial proceedings.
    A judicial sale .made in execution of a judgment obtained by a wife against her husband, where no debt was due by the latter to her, is a mere nullity., and transfers no .title to her. The prescription of one year, established by art. 1989 of the Civil Code, applies to actual contracts, made in fraud of creditors, by persons capable of-contracting. It is inapplicable to such a simulated sale.
    The general rule is that, husband and wife are incapable of contracting with each other. The only exceptions to this rule are those enumerated in art. 2421 of the 'Civil Code.
    APPEAL from the District Court of Madison, Willson, L The facts of this case .are stated in the opinion of the court, infra.

      Stockton and Steele, for the appellants,
    contended that the judgment and sale under it, were mere simulations, and are not protected by prescription. Cammackv. Watson, 1 Ann. R. 132.

      Short, Prentiss and Finney, for the defendants.
    The action is prescribed by art. 1989 of the Civil Code, See also arts. 3484, 3487, and 1965 to 1989. 6 Mart. N. S. 130. 8 Ib. N. S. 532, 675. 3 La. 29. 4 La. 260. 8 La. 308. ‘0 La. 106. 11 La. 552. 12 La. 533. 14 La. 308, 322. 16 La. 103. 17 La-213. 19 La. 594. 2 Rob. 279. 4 Rob. 396, 438. 9 Rob. 105.
   The judgment of the court was pronounced by

Slidell, J.

The appellants are judgment creditors of Nutt, and instituted this action against Nutt and wife, for the purpose, among other things, of setting aside a judgment rendered in favor of Mrs. Nutt against her husband, and a judicial sale of his lands made to her in execution of said judgment. ’ The defendants pleaded, by way of exception, the prescription of one year ; the exception was sustained, and the plaintiffs, A. ¿y J. Dennistoun § Co., have appealed. The judgment in favor of Mrs. Nutt, against her husband, was obtained in May, 1844; the adjudication to her upon execution took plaee the 5th of August, 1844. The judgment held by the appellants was obtained against Nutt by one Dawson, in May, 1843, with a stay of execution for twelve months. Dawson transferred this judgment, in May, 1844, to Pinckard ¿j- Huntington, -who transferred it to the appellants. The citation in the present action was served on the 16th of August, 1845-

If the judgment and judicial conveyance sought to be annulled had occurred between ordinary parties, having full capacity to contract, and their dealings under the form of judicial proceedings were not merely simulated, the prescription of one year would have been properly invoked, pursuant to article 1989 of the Civil Code. For the purpose of considering the applicability of that prescription to the present case, it is necessary to recur to the allegations of the plaintiffs’ petition, which, for the purposes of the exception, must be taken as true.

The petition is diffuse and inartificially drawn, but the averment is repeatedly made, not only that the judicial proceedings between the husband and wife were fraudulent and collusive, but that in fact the indebtedness of the husband to her,' upon which she based her action and obtained judgment, and in satisfaction of which she became a judicial purchaser of his property, never had any existence.

In principle no distinction can be made between a conventional transfer of property, made by the husband to the wife for the payment of her dotal or par.apbernal rights, and one made under the form, and by the instrumentality, of judicial proceedings. The right of the parties thus to contract, either directly .or indirectly, is exceptional to the general rule. The general rule is, that the husband and wife are incapable of contracting with .each .other; the exception is in the three cases only which are enumerated in art. 2421 of the Civil Code. Out of those enumerated exceptions attempted contacts between husband and wife are nullities. See the case of Spurlock v. Mainer, 1 Ann. R. 301. If therefore the allegation of the plaintiffs’ petition be true, that there was no indebtedness of the husband to the wife, there was an utter incapacity of the parties to do what they have done, and the case presented does not fall under the prescription applicable to actual contracts made in fraud of creditors by persons capable of contracting. If there was an absolute incapacity to contract, there was no contract, .and the title has not passed out .of the husband.

Entertaining this view of the plea of prescription, it is unnecessary to enlarge upon the other allegations of the petition. It is proper however to say that, even if there should prove to have been a real indebtedness of the wife to the husband, so as to have capacitated them to stand in judgment against each other, .■still the action should have .been entertained upon other allegations. The plaintiffs claim to be the antecedent mortgagees of the land adjudged to the wife at judicial sale, the existence of which mortgage-they charge was known to her, and that, if she be a purchaser, she is a purchaser with notice. If their allegations be true, they have a right to have .the mortgaged property applied to the payment of their judgment.

The court below should have overruled the exception, and required the defendants to answer.

It is therefore decreed, that the judgment of the court hejow be reversed, and that this cause be remanded for further proceedings according to law; the iippelle.es paying the costs of this appeal.


text:
    Bates et ux v. Weathersby et al.
    A party who had obtained an order allowing him .an appeal, on discovering that several de.fendants had not "been made parties, presented a second petition, .and obtained a second order of appeal, embracing all the parties. A transcript having .been sent up .under each .order, by amagreement of counsel the first appeal was dismissed Held, that .the court below was not divested of jurisdiction by the first order of appeal, it having been irregularly obtained; and that the second appeal cannot be dismissed on the ground tba,t a previous appeal had been abandoned.
    Where one of the defendants in an action for the partition of a succession dies while the case is pending in the court of the first instance, and it is afterwards decided without his heirs having boen made parties, the appeal will not be dismissed, but.the.case will.b.e .remanded, that the heirs may be made parties to the action. C. P. 120.

      Appeal from the Court of Probates of Livingston, Watts, J.

      Waiterston aud Winter, for the plaintiffs. Baylies, for the appellants.
   The judgment of the court was pronounced by

King, J.

The appellees have moved to dismiss this appeal, on 1he ground that it was granted while another was pending in the same cause, which has since been abandoned, and because all the parties to the suit in the pourt below have not been made parties to the appeal.

In the first petition presented for an appeal, the appellants omitted to make several of the defendants parties. Upon discovering this error a second petition was presented, which embraced all the parties, and on this a second order of appeal was granted. The clerk prepared and sent up a transcript under ■each order. By ,an agreementof counsel on file the first appeal was dismissed. It was irregularly taken, and the inferior court had not, by the first order given, divested itself of jurisdiction of the eause, but still retained full authority to grant a second order, which would be available to the parties, and enable them to be heard in this court.

The fact relied on in support of the second ground, does not, in our opinion, authorise the dismissal of the appeal, but requires that the cause be remanded, During the pendency of the action in the court below, one of the parties, Lodwick L. Weathersby died. No notice appears to have been taken of the fact, and the cause was tried and decided without citing his heirs, who have neither been made parties to the proceedings below., nor to this appeal. This is clearly irregular. The suit is for a partition, and the validity of certain testamentary dispositions are brought in question. The interests of the heirs of the deceased must necessarily be affected by the result, and no final judgment can be rendered until they are made parties. 3 La. 524, 442. C. P. art. 120.

It is therefore ordered that the judgment of the court below be reversed, .and that the cause be remanded, with instructions to the judge not to proceed ■to trial until the heirs of Lodwick L. Weathersby be made parties to the suit; the appellees paying the .costs of this appeal.