author: Epsxis, C. J.

text:
    Hatch et al. v. Arnault et al.
    The soil of the roman viapublicm was public property; hut the law in relation to those great works, which were designed to he as permanaent as the labour of man could make them^ cannot he applied, without modification, to an infant colony, such as Louisiana was while under the dominion of Spain, without population, aind'a portion of whose soil only was beyond the reach of annual inundation, and where the roads were necessarily such as the changesin the rivers and future settlements would require.
    The principle established by the decision in Rcnihrop v. Bourg, 4 Mart. 97, that the soil of a highway is public property, cannot be'extended to all highways or public roads in this State.
    The Code of 1825 distinguishes between grands chemins or highways, and chemins publics or public roads. The former até of that class of public things, the property of which is vested in the whole nation (Code of 1808, b. 2, tit. 2, art. 6. Codeof 1825, art. 444); while thelattermay bo made on land subject to private ownership;- Stat. 12’March, 1818, s. 2. The Code of 1825, cannot be considered as altering the law, on this subject', as it stood at the time of its promulgation, but as declaratory ofit. While it recognized the doctrine in Renthorp v. Bourg, to its proper extent, it established those reservations which became necessary as the country, in its settlement, was continually undergoing changes. The roads; old and new, in this State, are generally what are denominated in the Code public roads hence, it by- no means follows, because a road is a public road, that the public has any right to the soil after it has been abandoned. Whether there are roads in this State of the class of vim publica, it is not necessary to decide.
    Tho stat. of 10 April,. 1805, having required'that all judgments should be signed, a judgment rendered while that statute was in force, not signed, cannot have the force of res judicata.

    The road, known as tho Metairie road, extending from the bayou St. John, along the bayou Metairie, to the settlement of Canues Bruslées on the Mississippi river, was not a public highway of which the soil belonged to tho sovereign; and having been abandoned by the public for more than thirty years, during which time the possession of individuals, under their respective titles, has been undisturbed, it can no longer be subjected- to public nse.
    APPEAL APPEAL from' the Fifth District Court of New Orleans, Buchanan, J. The material facts in this case are stated ia the'opinion infra.

      Pepin and Preston, for the plaintiffs.
    This controversy presents questions of fact and of law. The question of fact is, whether the Metarie road is a public highway, as claimed by the plaintiffs. The judgment of Governor Galvez, in 1779, establishes that it was the king’s road, and Had bee.n public as long as the memory of man could reach before that period. Again, in 1805, the oldest residents of the country proved that the inhabitants of lhe german coast were compelled to work upon it by public authority; that it was the shortest road from the coast to the capital; that it was better than the road along the levée : was used not only by horsemen, but also by carriages ; and1 that Governor Galvez especially,-claimed its use during a war. This alone, made it a public road under the express condition of all french and Spanish grants, that the sovereign reserved the land necessary for his public roads. The decree of the Superior Court of the Territory of Orleans also established’ fully that the road was a public road. The act of the Territorial legislature shows that it was an act of- expropriation, which of right belongs to every sovereign. The road being deemed by the sovereign inclispensible to the public, the inhabitants and defendants were allowed to claim indemnification if the government failed to prove it a public road. Having fully established that it was a public road, no indemnification was allowed. Although it is believed that every inhabitant of the coast appeared and defended the suit, yet, like suits of expropriation of the present time, personal citation was not required. The suit and judgment in this case was, therefore, conclusive upon all who appeared and all who failed to appear, and also is rev judicata as to all who hold under them. The decree is, thgt the road of right belongs to the public, and is binding upon all the inhabitants of that day, and their descendants of-the present time. Independent of these solemn judgments after the most able defence, the testimony on the present trial would fully justify a similar judgment. We have thus established, by-three judgments of competent courts before the institution of this suit, that the Metarie road from the capital to the Mississippi river was a public road; also by an act of the sovereign legislature of the country, and by the evidence that it liad been so by immemorial usage.
    Having established it to be a public road, the soil is in the public. This was fully decided in the celebrated case of Renthrop v. Bourg, 4 Mart. 136, 137. The court say; “We call a public road that of which even the soil is public. We do not take it to be in a public road, as in a private one, the soil of which belongs to another, while we have only the right of walking or driving over it. The soil of a public road is public. The contradistinction between a public and private way, as to the ownership of the soil, is here apparent. Here the idea of the right of the public being incorporeal, a -mere right of way is repelled, as well as the corresponding one of the soil being private property, which is said to be the case in private ways. And the distinction between these and public roads is made to consist in this, that in-the latter the fight of passing over the surface and the ownership of the soil reside in the public.” See Mayor of New Orleans v. Metzinger, 2 Mart. 303. Mayor of New Orleans v. Magnon. 4 Mart. 3. The plaintiffs, being part of the public, have not only a right of way, but, in common with others, they also have aright to the soil itself.
    These are the public roads described in the 1st sec. of the act approved the 12th March, 1818. “Sec. 1, Thatall roads in this State that have been opened,,, laid out, or appointed by virtue of an order of any of the police juries in their I respective parishes, are hereby declared to be public roads.” They do not dif-) fer from a street in a city; both are publici juris, belonging wholly to the public, and are not susceptible .of exclusive possession by any one person. Such a road is entirely different from a servitude. The Civil Code, art. 718, declares: “ The right of passage, or of way, is a servitude imposed by law or by convention, and by-virtue of which one has a right to -pass on foot, on horsebabk, or in a vehicle, to drive beasts of burden or carts, through the estate of another.” When this servitude results from the -law, the exercise of it is confined to the wants of the person who has it. When it is the result of a contract, its extent and the mode of using it is regulated by theTContract. It is not such a right of passage for which we contend, but for a public royal road, -the soil and use of which was in the king, for his subjects, from time immemorial, aDd the grants made no doubt subject to it, not the road subject to the grants.
    Having established that the Metarie road was once a public highway, the right which the public had to pass over it cannot be lost by any length of time. This is the doctrine of the english, french, and Spanish law. See Las Siete Partidas, tercera Partida, tit. 32, law 23. Best, on Presumption, p. 133,137. When a road has once been a king’s highway, no lapse of time or cessation of user, will deprive the public of the right of passage, whenever they please 1o resume it. Rex v. James Taunton, 2 Selw. N. P. 1362, 9 ed. Domat, Lois Civiles, book 3, sec. 5, no. 2, vol. -2, p. 220, Des causes qui empéchent la Prescription, says: .“Comme la prescription est une des manieres d’acquérir la propriété, on ne peut prescrireque les choses qui sont .en commerce, etdont on peut devenir le maitre. Ainsi, on ne peut s’acqucrir par la préscription les choses que la nature ou le droit public destinent & un usage commun et public: comma le nvage néeessaire pour la navigation des fleuves, les murs et i'ossés des villes, et autres lieux semblables. Et on ne peutnon plus prescrire ce que les lois rendent imprescriptible, comme l’est en France le domains du Roi, qu’on ne peut acquérir par une préscription, méme de centans. Pothier, Traité de la Prescription, no. 7, says: “ De-lá, il suit, que les choses qui sont hors du commerce, ne peuvent étre susceptibles de prescription.” Troplong, Prescription, no. 156, et seq. says: “Les voies publiques ouvertes par terre, soit qu’elles soient aux frais du trésor et appartiennent é l’Etat, soit qu’elles soient la propriété des communes, font partie du domaine public et sont imprescriptibles.”
    The law of Louisiana is precisely the same as the french law. When a thing is common property and belongs to the public, as a navigable river,, seaport, road, harbor, highway, it is not susceptible of alienation, and therefore is imprescriptible, being a thing out of commerce. Civil Code, arts. 444, 445, 475, 476, 3445, 3463. In Mayor v. Metzinger, 3 Mart. p. 303, it is said: “ That public places, such as roads and streets, cannot be appropriated to priyate use, is one of those principles of public law, which required not the support of such arguments.”
    In the case of Allard v. Lobau, 3 Mart. N. S. p. 293, the defendant pleaded a possession of fifty years against the right of a public road. Rut the court said : “ The title which the defendant sets up by prescription, remains to be noticed, and in our opinion it presents no obstacle to the present action. Possession cannot be pleaded against the public right, unless it has been immemorial. Novissima Recop. lib. 11, tit. 8, ley 4.”

      Labarre and Roseli.us, for the appellant.
    3. The right claimed by plaintiffs is an interrupted servitude, according to arts. 718, 723, 762, and can be established only by a tille. Crossnian v. Vignaud, 14 La. 173. They have shown no such title. 2. Had they done so, any claim under such a title would have been extinguished by presumption. C. C. 770, 785. 3. Plaintiffs claim that the road was a royal public road, and rely on the proceedings of Gov. Galvez and those of the Superior Court of the Territory, averring that they have the force of res judicala. The proceedings before Galvez, were res inter alios arda. The judgment in the Supreme Court was not final. C. C. 3522. 7 La. 579. Rep. de Jurisp. vol. 2, p. 316, verbo Chose-jugce. 4. But plaintiffs go farther, and assert that, having established that the Metarie road was once a public road, the right which the public had to pass over it cannot be lost by any length of time.
    This proposition is in direct opposition to articles 473, 474 of our Code. The first of those articles says : Things, in their relation to those who possess or enjoy them, are diyided into two classes; those which are not susceptible of ownership, and those which are. Art. 474, says : “Among those which are not susceptible of ownership, there are some which can never become the object of it, as things in common, of which all men have the enjoyment and use. There are things, on the contrary, which, though naturally susceptible of ownership, may lose this quality in consequence of their being applied to some public purpose, incompatible with private ownership, but which resume this quality as soon as they cease to be applied to that purpose, such as the high roads, streets, and public places. These two articles of our Code differ very little from the corresponding articles of the Napoleon Code, upon which we have the opiniun of the ablest french commentators. Duranton, yol. 21, p, 253, no. 164, says: “Revenons 4 rimpreseriptibilité quant aux dioses. Celjes qui sont consacrées 4 un usage public, et qu’on appelle pour cela res fublica, é.chappent necessairement 4 faction de la prescription, tani que leur destination n’est -point changée.’’ Again, at p. 261, no. 176, says: “ Mais quand il s’agitd’un chemin qui a réellement été abandonné depuis de longues années, dont leshabitans n’ont fait aucun usage, et41’égard duquel l’autoritémunicipaleel¡e-méme n'a élevé aucunes réclamations, n’a fait aucun acte conservatoire, la prescription, selon nous, fournit 4 celui ou 4 ceux qui ont pris possession de ce chemin, qui 1’ont fait servir au yappurt, ou 4 autre chose, qui font, en un mot, possédé exclusivement, et 4titrede propriétnire, un moyen legal de se défendre eoutre les prétensions actuelles des habitans et de l’autorité munieipale elle-méme; parc.eque la chose ayant par 14 perdu sa destination primitive, son caractére d’utilité publique, elle est yentrée dans le commerce et est ainsi devenu prescriptible; il ya méme supposition d’aliénation par la commune, &e.”
    Yazeille, Traite des Prescriptions, no. 89, says: “ Les routes, les chemins et les rues sont des propriétés publiques ou communales, dont f usage est plus gcnéral. Tant qu’ils subsistent, le domaine en est 4 l’état ou aux communes; la possession 4 tous les individus. Chacón est libre, en tout temps, d’en userou de n’en point user, et aucun, par la jouissance, ne peut acquérir plus de droit que les aulres. Majs des routes ou des .chemins peuyentétre abandonnés com-me impracticables .on inútiles. Négligés par le public, ils sont bons pour les yoisins, qui, .en les rcunjssant 4 ¡eurs heritages, les acquierent par prescription.”
    Troplong, Pe la Prescription, vol. 1, n.o. 163, says: “Mais,si la prescription ne pe.ut fairs tomber dans le domaine privé une partis .quelconque d’une rue, d’une place, d’un chemin public, tant que ces dioses conservent dans leur par-lie principals leur destination publique, ou est-il de mc.me lorsque la possession trentenaire les ,a eomplétement sonstraites 4 fusage public, et les a, pour le total, incorporées 4 une pyopiété prives ?
    “ Lorsqu’une chose n’.est publique que par .une destination factice, elle peut perdre ce.tte qualité par une vojonté contraire 4 cede qui la ¡uiavait donnée, &c. í^uand le public se retire définifiyement d’une chose, cefte chose cesse d’élre publique; elle perd tacitment sa destination; elle n’est plus hors du commerce.”
    Denisart, vol. 1, p. 457, says: “Mais lorsqn’tm chemin est entiévemant, abandonné et absolqment hors d’usage, le terrain appartient an seigneur hautjusticier du lieu de sa situation. See also Henderson v. Mayor, Sfc. 5 La. 417.
    Toullier, vol. 6, page 162, no. 163, says: “II ne faut pas confondre avee les choses hors du commerce par leur nature, les choses consacrées é des usages publics, les chemins, routes et rues, les édifices publics, les temples, les portes, murs, fossés, remparts et fortifications des places de guerre et desforteresses, etc. etc. La nature n’a point mis ces choses hors du commerce. Elles n’en sont done point absojument et irréyocqblement exelnes, mais seulement pendant la durée de leur destination. Si elles pnt cessé de servir aux usnges publics auxquels elles étaient consacrées, soit par le fait, comme par une longue désuétude, soit en verlu d’une ordonnance royale ou d’une loi, elles rentrent dans le commerce, et peuvent étre vendues en suivant les formalités presentes. Le Code a done fait une différence sensible et importante entre les choses consacrées it des usages d’utilité publique, quí sont prescriptibles, et les choses que la nature n’a point mises dans le commerce, et que JL’p-rt. 2226 declare imprescriptibles.”
   The judgment of the court was pronounced by

Epsxis, C. J.

This is an appeal from a judgment rendered by the Fifth District Court of New Orleans, by which it was decreed that the Metairie Road of right belongs to the public, as far as the river Mississippi, at the place called Cannes Bruslées, as it formerly existed, and directing all obstructions to the free public use of the same to be removed. The appellants are owners of plantations fronting on the Mississippi, through whose lands the road passes, and who have been made defendants jn this suit. The plaintiffs allege themselves to be proprietors of land in the parish of Jefferson, situated between Lafayette and the lake.

It is contended, on behalf of the plaintiffs, that having established the road to have been a public road, the soil is in the public, on the authority of the case of Renthorp et al. v. Bourg el ux., 4 Martin’s Reports, 97. This case was determined in 1816, and it was there held that the part of the roman law which declares the soil of a highway to be public properly, appeared to be in force in France, and was so in Louisiana when the co'untry passed under the dominion of Spain.

In dissenting from the principle laid down in this decision to its whole apparent extent, we deem it proper to give some reasons for ourjreservation. A recognition of the doctrine without qualification, at this time, would be considered as an alarming disturbance of private right.

As civilization and improvements have advanced in this State, as the navigation of our water courses has improved, and our lands been explored and reclaimed, new settlements have been established, and new means of passage been required. New roads have consequently been made by public authority, and old ones abandoned. The changes in the banks of the Mississippi necessarily produce the same result, and the old roads about villages have been in many instances enclosed and used as private property. The importance of the subject, with these facts before us, is, therefore, obvious.

The court held that, under the roman law, the soil of the vice publicce was public property. But the difficulty with us is, in the application of the laws in relation to those great works — the roads of the roman empire — some of which exist to this day, to those of an infant colony like that of Louisiana, without population, and a portion of whose soil only was beyond the reach of annual inundation. Those of Rome were intended to be as permanent as the labor of man could make them, while those in Louisiana would necessarily be suchas he changes in the rivers and the future settlements would require.

The authorities on which the soil in a highway was held to be public are, Partida 3, 28, 6; the Cod9 of 1808, p. 94, art. 6; and 3 Martin, 303.

The text of the Partidas authorizes no such conclusion, as to the property in the soil. The commentary of Gregorio Lopez gives no snch interpretation to it.

The Code mentions highways, as among public things, the property of which belongs to a whole nation, and the use of which is allowed to all the members of the nation.” In the french text the corresponding words are, les grands chemins ; and, in the case of The Mayor v. Metzinger, 3 Martin, 303, nothing more is decided than that,roads and streets cannot be appropriated to prívate use, and that a grant of either would be void.

That there are grands chemins, highways, of which the soil is public property, in the same manner as that of the via ¡public.ce in Rome, there is no necessity for our determining; but we desire it to be understood that we cannot assent to extending the principle to all highways or public roads throughout the country, and that the doctrine in Renlhorp’s case, is not to be understood as recognized without this limitation. i

In support of our opinion that the property of the soil in rural roads in Louisiana is not public, in the sense .contended for, the uniform acquiescence of the government and the people in the appropriation of the land to private purposes when a road is .abandoned, is a fact entitled to great weight. When the public interests require the direction of a road to be changed, or whenever it becomes useless and is so considered by the proper police authority, the owner of the plantation through which it passes resumes dominion over it, and we have yet to learn that the right has ev.er been contested. But there-is still a stronger reason for the views we hold on this subject, and that is to be found in our legislation, which is in accordance with the uniform acquiescence in the right of the proprietor to resume the land when it is no longer required for a road.

The counsel for the plaintiffs state, in their printed argument, after quoting the above noted authorities, to show that the soil of a public highway is public property : “ These are the public roads described in the first section of the act, approved the J2thof March, 1818, which provides that all l-oads in this State that shall have been opened, laid out, or appointed, by virtue of an order of any of the police juries in their respective parishes, are hereby declared to b & public roads. They do not differ from a street in a city; both are publici juris, belonging ■wholly to the public, and not susceptible of exclusive possession by any one person.” But to this argument the proviso of the second section of that act furnishes an answer. It reads thus:

“ Provided also, that nothing in this act shall be so construed as to affect in any manner the rights of individuals to any batture or alluvion already formed on the front of any tract of land, which lies on any navigable river or water course within the limits of this State, nor to prevent any owner of the soil on which a public road shall pass to resume the use and possession of such soil whenever said road shall have been abandoned by the public, or shall have been transferred elsewhere with the consent of the owner, and with that of the competent authority.”

It results, then, from the terms of this act, which was passed two years after the decision in Renthorp’s case, that the soil of public roads did not always belong to the public, and that the public right was defeasible on the abandonment of the roads.

Our laws underwent a reyision in 1825, and the Code of that year contains some provisions on this subject, which require notice. That Code retained the article of the Code of 1808, which we have quoted, concerning highways. Code of 1825, art. 444. Code of 1808, p. 94, art. 6. These are in the chapters entitled The Divisions of Things ; and under the chapter of Servitudes are the following articles :

Art. 760. Roads are of two-kinds, public and private.

701. Public roads are those which are made use of as high roads, which are generally furnished and kept up by the proprietors of estates adjacent to them.

702. Private roads are those which are only open for the benefit of certain individuals, &c.

In the projét of the Code, to these and art. 703, this remark is appended: “ These provisions, which are not in our Code, are of the greatest importance in this State, where the cases mentioned may so frequently occur.”

In the french text the terms chemins publics are used in articles 700 and 701; and, as we have before noted, in article 444, the word highways is rendered in french by the term grands chemins. The' distinction made by the Code appears to be between grands chemins, which is translated highways, and chemins publics, which is translated public roads. ' The former are of that class of public things, the property of which is vested in the whole nation; and the latter may be made on land subject to private ownership.-

The roads, old-and new, throughout Louisiana, we believe generally to have been what are denominated in the Code public roads. Hence, it by no means follows, that because a road is a public road that the public has any right to the soil, after it shall have been abandoned. That there are in the country roads of the class of via publica we are not under any necessity of contesting; and, having placed what we conceive, to be necessary and proper limits to the application of the decision in Renthorp's case, we proceed to the consideration of the present case.

Have the plaintiffs established that the Metairie road to the river Mississippi, as described in their petition, was a highway, the soil of which is in the public, is the first question to be examined. The plaintiffs contend that the affirmative of this proposition is proved by the evidence adduced by them. They rely upon a decree or judgment rendered by Galvez, the governor general of Louisiana, in 1779, in certain proceedings instituted by the commandant of the settlement of the Germans ága'inst Pascalis de Ldbarre, in' order to compel the latter to restore a bridge, which he had destroyed', on this road. It is'true that, in the' decree of the governor, the road is recognized as a royal road, as is stated in the argument of the counsel, but we do not find that the' question as to the property in the soil was determined, or even mooted, in those probee'dings, the only question being as to the public right to the road. Labarre was condemned to replace the bridge, but we cannot infer from what was' then done, any thing more than the recognition of the public right by the governor; still less can' we conclude that this road was of a different character, as to the property, from the ordinary public roads in the country.

By an act of the Legislative Council of the territory of Orleans, of the 28th of February, 1805, entitled “ An act for opening the road called the Matairie, Sec.," the attorney general was directed to present to the Superior Court a petition, setting forth that the road had been long of right used and occupied as á public road, and praying that the court would decree that the said road belonged to the public, and that the same might not be in future obstructed in consequence of the unfounded claims of individuals. Under this statute an inquest was had, at the instance of the attorney general. "" On'the minutes of the court, under date of the 11th of February, 1806, this entry is made in the case: “ Upon hearingthe claims of the parties, it is decreed that, the said road belongs of right to the public.” The attorney genéra^claimed the road as, having been long of right used and occupied as public highway, and prayed that it might be decreed to belong to the territory. Several of the owners of plantations through which this road passed resisted the claims thus set up, by a formal protest and answer. It appears that witnesses were examined on both sides, and that the case was several days on trial; but there is no evidence'of any judgment having been rendered, except the extract from the minutes just given. The practice act of 1805 required all judgments to be signed. No judgment’haVingTeen signed in this case', there is no res judicata. The only effect we can give to the act of the Legislative Council, and the proceedings under it, as facts existing at the time, is to consider them to be in affirmance of the decision of the governor general that, the Metairie road to the Mississippi was_ a public road.

It must be observed that, the proprietors of the plantations through which this read passed,- from time to time, resisted, or obstructed its establishment, as the intervention of the public authority in 1779, and in 1805, sufficiently proves. It was a subject of contention which has become not the less difficult to solve as its origin has become more remote, and the facts in relatiou to it less easy to be ascertained by evidence.

Taking it, therefore, as' fully proved that, the road in question was a public road, to which class does it belong? We have not considered the Code of 1825 as altering the law as it stood at that time, but. as declaratory of it, and while it recognized the doctrine in Renlhorp’s case to its proper extent, established those reservations which were necessary, as the country in its settlement was continually undergoing changes. Article 444 provided that highways, great roads, vite publica;, were public things; and article 701 that, public roads were those which are made use of as high roads, which are generally furnished and kept up by the proprietors of estates adjoining them. Article 661 provides that, services imposed for the public or common utility, relate to the space which is to be left for the public use, by the adjacent proprietors, on the shores of navigable rivers, and for the making and repairing of levees, roads, and other publie or common works.

There is nothing before us which distinguishes this road from any of the public roads in the country. In the early settlement of the colony it may have been much frequented, but, as the lands on the river were occupied, its utility diminished, and, for more than thirty years, it has been abandoned.

There is great force in the position which the proprietors of lands through Which this road passed have invariably maintained in relation to their rights as owners. This road is one of the oldest in the colony; and, if it was intended to reserve it to the crown in property, as a grand chemin, or permanent highway, it is very singular that no mention was made of it in the original grants and titles which run from the Mississippi to the lake, without any exception or reservation. A survey has been shown, made by the surveyor general in 1803, in which the road is marked as chemin de la Metairie. On being examined on the inquest, had in 1806, and being asked whether, in the titles of the lands of the inhabitants which had passed through his hands, there was any indication of such a road, he answered: *• Never having had any instructions from the governor upon this subject, and believing the road to be a public road, 1 have always marked it in those titles of land which have passed through my hands.” No title has been exhibited other than the survey mentioned. It is a fact, which we are not permitted to overlook, that this road, which it is attempted to assimilate, as to its character, to the great roads of the roman empire, was never reserved by any act of the sovereign poweras partof the domain, in any grants of land adjacent to, or in its vicinity, nor designated by land-marks or admeasurement in any ancient plan, as streets and public places always are ; nor was it con’ structed and kept up in any manner indicating permanency, or distinguishable from an ordinary road. It has none of those characteristics in its origin, history, construction, or purpose, which accompanied those monuments of enterprise and labor, which, to this day, bear witness to the greatness of that wonderful people, whose institutions and works were not only organized for domestic prosperity, but extended to her colonies as elements of universal dominion.

The plaintiffs’ claims rest upon the occupation and use of the public road during a time sufficient to establish the public right to it as a public road,'but they have shown no right of the public to the soil. The road has been since abandoned by the public for more than thirty years, during which time the possession of the defendants under their titles has been undisturbed. The main road on the river they have kept up;'this road has gone into disuse. The public authorities do not attempt to reestablish it; as far as theyjare concerned, it has been rightfully resumed by the proprietors of the soil, and is no longer for the use of the public.

The judgment of the District Court is, therefore, reversed, and the plaintiffs’ petition dismissed, with costs in both courts.


source: Caselaw Access Project

author: Kino, J.

license: Public Domain

text:
    Succession of Fitzwilliams.
    See. 2 of the stat. of 25 March, 1S44, confers on the surviving spouse where the deceased ha# not disposed by testament of his or her share in the community, the usufruct of the share of the community property inherited by the issue of the marriage, so long as the survivor shall not contract a second marriage. That share consists of the residue after payment of the debts. The statute does not confer on the survivor the usufruct of the share regardless of debts; nor does it impair the rights, either of the creditors or heirs, to insist on the prompt payment of the community debts.
    The usufruct created by sec. 2 of the stat. of 25 March, 1844, must he governed by the rules prescribed by the Civil Code on the subject of usufruct; and by these rules either the creditors or the heirs may claim that property subject to the usufruct be sold to an amount sufficient to pay the debts, unless the usufructuary prefer to advance the sums necessary for that purpose. The survivor can preserve the property unsold only by paying or assuming the debts thereby releasing the heirs from interest; in which case he will be entitled to all the fruits produced by the property, they being deemed equivalent to the interest on the sums advanced (C. C. 578, 579); and, in his settlement with the heirs, he mast be ranked as a creditor for the amount of those debts, without interest, and held not accountable for the revenues received during the existenee of the usufruct.
    Where a surviving spouse, entitled to the usufruct of the share of the community property inherited by the issue of the marriage, is treated in the settlement with the heirs as an usufructuary of the whole share of the community property who has advanced the sums necessary to discharge the debts, he can claim no remuneration, in his settlement with the heirs, for services rendered while administering the property for his own exclusive use.
    APPEAL, from the District Court of Madison, Selby, J.

      A. Pierse and Micou, for the curator, appellant.

      Thomas and Snyder, contrk.
   The judgment of the court was pronounced by

Kino, J.

Anna Filzioilliams died intestate, in August, 1844, leaving two children, the issue of her marriage with her surviving husband. She left also a succession in community between her surviving husband and heirs, consisting of a plantation and slaves, encumbered with debts to a large amount. The husband preserved the property in kind, and administered it, applying the revenues to the payment of the debts. In June, 1846, he contracted a second marriage, and thereby forfeited the right to the usufruct of one half of the community, conferred by the act of 1844. Subsequently he applied for the administration of the succession, caused the property to be sold, and presented an account, in which he claimed the entire revenues derived from the community property from the death of his wife until his second marriage, and a salary for his services as overseer and manager of the property during that time. These items were opposed by one of the two heirs; the opposition was sustained, and the administrator has appealed.

■The only questions presented, by the agreement of the parties, for consideration on this appeal, relate to the extent of the usufructuary right of the surviving husband, and his right to remuneration for his services in the management of the property.

The second section of the act of 1844, p. 99, upon which the rights of the parties depend, is as follows : “ In all cases where the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed, by last will and testament, of his or her share in the community, the survivor shall hold, in usufruct, during his or her natural life, so much of the share of the deceased in said community property as may be inherited by such issue: provided, however, that such usufruct shall cease whenever the survivor shall enter into a second marriage.” The right conferred by this act on the sur.vivor is', to hold in usufruct the share of the community property inherited by the common issue. That share must necessarily consist of the residue after the payment of the debts. Tlie* statute has not given to the survivor the usufruct of all the community property regardless of the debts, nor has it impaired the rights of either the creditors or the heirs, to insist on a prompt payment of the debts of the community. A different interpretation would violate the letter, and, as we conceive, the spirit of the statute. The language of the law is free from ambiguity. The difficulty arises in applying it to cases like the present; where the survivor has not settled the community at the death of the deceased, paid its debts, and exercised his usufructuary right upon the residue; but has retained the property unsold, and has'received the revenues.

The usufruct created by this act must be governed by the rules established in the Code upon the same subject. By these rules both the creditors and the heirs may claim that, property subject to the usufruct be sold to an amount sufficient to pay the debts, unless the usufructuary prefer to advance the sum necessary for that purpose, xkt the'death of the wife, the rights of the parties respectively, were fixed by law. The survivor had. his election,, either to selli community property to a sufficient amount to discharge the debts promptly, and to exercise his usufructuary right upon one-half of the residue; or, if he preferred to preserve the property unsold, he could only do so on paying the debts himself, or on assuming them, thereby relieving the heirs from the burthen of interest, which might ultimately absorb their entire inheritance. In the latter event, the usufructuary is'entitled to the entire fruits produced by the property, the fruits being deemed equivalent to the interest on the sums advanced. C. C. arts. 578, 579. But he cannot retain the property unsold, leave the debts unpaid to the prejudice of the heirs, and return it to them, at the expiration of the ■usufruct, encumbered with the additional burthen of the interest which may have accrued in the mean time.

If these propositions be correct, it follows that, the surviving partner, who retained and administered the property in kind, which could not be done to the detriment of the heirs, must, in his settlement with the latter, be considered as having assumed, or paid, the debts with which it was burthened at the death of his wife. He must, therefore, be ranked as a creditor on the proceeds of the sale for the amount of these debts, at that date, without interest, and is not accountable for the revenues received during the existence of the usufruct. Deducting this amount of debt from the sales, the residue will be community; to which is to be added three-fourths of the nett crop of 1844, three-fourths of the planting year having expired when the usufruct commenced. He is also accountable to the heirs for one-half of the nett product of the crop of 1846, the usufruct having expired in Ju.ue. This mode of stating the appellants accountability for the revenues, is made in conformity with his account presented.. The result does not vary materially from a calculation based upon the art. 538, which would give him the crop of 1844, and to the community the crop of 1846. Whether it should be so computed has not been made a question, and it is unnecessary to determine the point. According to either mode of calculation the judgment in favor of the appellee is too small. Being treated, for the purposes of a settlement with the heirs, as the usufructuary of the whole community property, who had made the advances necessary to discharge the debts, he is, of course, entitled to no remuneration for services rendered while administering the property for his own exclusive use. The debts of the estate, at the death of the wife, are admitted to have been 5535,000.

A calculation shows that the judgment of the District Court has awarded to the opposing heir less than .she is entitled to. She has not prayed, however, that it be amended. Judgment affirmed.


author: Rost, J.

text:
    Carraby v. His Creditors.
    Where a testator directs that a sum of money shall be placed in the hands of o certain person» to be invested by him in real estate or loaned at interest, as he may deem best, the rent or interest thereupon to be paid monthly to a third person during the life of the latter; and the person by whom the investment was to be made purchases at probate sale of the sue’ cession of the testator a large amount.of property, givingto the executor in part payment of price, his receipt for the sum so to be invested; but the purchaser never invests the sum as directed by the will, and some years after makes á cessio bojiorum, including the property purchased from the succession; on an opposition by the legatee to a tableau presented by the syndics of the insolvent; Held, That he has no legal mortgage on the real estate purchased by the insolvent fi;om the succession of the testator, to secure the principal or interest of his legacy; that the legacy has been discharged, so far as the heirs .could doit; that art. X62G of the Civil Code applies only where the heirs refuse to discharge a legacy; that the opponent has only an ordinary claim against the insolvent, for whose acts ar omissions the heirs of the testator cannot be made responsible.
    APPEAL from the Third District Court of New Orleans, Kennedy J.

      Lewis and Bermudez, for the appellant*
    cited, C.’ C. 1623; 1624, 1626f 1627. Code Nap. 1017. Rogron’s Comm, on that art. Diet, du Droit, verlo Legs. no. 161, p. 375. 5 Toullier, nos. 567, 568, and note (1).

      Seghers, for the executor, control.

   The judgment of the court was pronounced by

Rost, J.

The late Antoine Carraby ordered by his will a sum of $10,000 to be raised out of his property, and placed in the hands of his brother Etienne Carraby, to be invested in real estate, or loaned at interest, as Etienne Carraby, might deem best, the rent accruing therefrom to be paid monthly by him to Arnaud Carraby during his lifetime. After the death of the testator, the property left by him was sold at probate sale, and Etienne Carraby purchased a large portion of it, and gave to the executor of his brother, in part payment thereof, his receipt for the aforesaid sum of $10,000. He never invested this sum as directed by the will, and, several years after receiving it, he made a cessio bonorum, including the property purchased from the succession of Atoine Carraby, and it was sold by his syndics.

Arnaud Carraby has opposed the tableau filed by the syndics, and contends, that He has a legal mortgage on ail the real estate purchased by the insolvent at the probate sale of Antoine Carnaby's succession, to secure the principal of his legacy and the legal interest thereon from the date of his receipt to the executor as part of the price he bid for the property, until the principal and interest shall be paid, and the former reinvested for the use of the legatee under the the will; and that this mortgage takes precedence of the vendor’s privilege which the heirs of Antoine Carraby have on the same property, and for which they have been placed on the tableu. The opposition was dismissed in the court below, without prejudice to the rights of Arnaud Carraby as an ordinary creditor, and he has appealed.

There is no error in the judgment. Art. 1626 of the Civil Code, giving a mortgage to the legatee, applies to cases in which the heirs refuse to discharge the legacy. In this case the legacy has been discharged, so far as the heirs could discharge it. It has been placed in the hands of the person appointed by the testator to receive it, and the heirs are not responsible for the acts or omissions of that person.

The will expressly provides that Etienne Carraby shall incur no responsibility whatever by taking charge of this bequest, and, before his failure, the opponent had only a personal action against him. His claim now, if he has any, is jin ordinary claim. Judgment affirmed.


author: Slidell, J.

text:
    Jamison v. Ludlow.
    Parol evidence is admissible to prove that a written act of compromise, by which the creditor released a portion of his claim, was made in consequence of fraudulent representations by the debtor. C. C. 3046. The introduction of such evidence is not prohibited by art. 3256 of the Civil Code; it does not tend to vary or contradict the written act, but to show that there never was any valid compromise, it wanting; the essential element of consent.
    The rule established by art. 2256 of the Civil Code, which prohibits.the introduction of parol evidence to vary or contradict the terms of a written act. is not infringed by the admission of such evidence to prove a new and distinct agreement to pay a debt released by the written act. Although a debt he released on payment of a part, there remains such a natural obligation on the part of the debtor to pay the balance, as will preclude him from recovering back the amount when paid after the release, or will form a sufficient consideration for a new promise,

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Carter and Winthrop, for the appellants, cited Davis v. Smith, 4 Espinasse, 37. J., and II. H. Strawbridge, for the defendants,
    relied on C. C. 2256. 3 Mart. 250. 3 Mart. N. S. 692. 2 Ib. N. S. 361. 1 Ib. N. S. 640. Greenleaf, Evid. § 275.
   The judgment of the court was pronounced by

Slidell, J.

The defendants, being indebted to the plaintiffs in the sum of $1680 30, the parties entered into a Written compromise, by which the defendants agreed to pay one-half of that amount, by instalments, and for the residue they were released. The plaintiffs now seek to recover the other half of the debt, upon the ground that they were induced to make the compromise by false and fraudulent representations of the defendants, and upon the further ground of a subsequent promise to pay.

It appears by a bill of exceptions that, on the trial of the cause the plaintiffs offered a witness to prove “ that, at the time of the compromise, the defendants made declarations which were false as to their pecuniary condition, and which declarations led to the compromise,” which testimony the court refused to admit, upon the ground that parol evidence was inadmissible to contradict the written agreement of compromise and discharge. This ruling of the court the defendants attempt to sustain by reference to the 2256th article of the Code, which declares “ that parol evidence shall not be admitted against or beyond what is contained in the acts, nor on what may be said before or at the time, of making them, or since.”

The reason of this rule is a safe guide in its proper application. The law excludes parol evidence tending to vary or contradict a written instrument, because, where the parties have put their agreement into writing without any uncertainty as to its objector extent, it is presumed that they have committed to writing their whole engagement, and everything that was necessary to express their wishes and meaning; and because, also, seriims mischiefs would result from the admission of oral testimony in such cases. But the lawgiver certainly did not intend to exclude parol testimony to establish fraud. Not only is stich testimony in most cases the only testimony by which the fraud can be proved, but it is also obvious that such evidence does not go to explain or vary the contract as made, but to show that in fact the contract never had any binding force. Fraud vitiates all contracts, and a contract induced by fraud, is, in fact, no contract, if the injured party chooses to repudiate it, becaese it wants the essential element of consent. See Broussard v. Suduque, 4 La. 351. Brounson v. Fenwick, 19 La. 435. Greenleaf on Evidence, § 275 et seq. A compromise, in this respect, stands upon the same footing as any other contract. C. C. 3046.

By the bill of exceptions it further appears that, tlie plaintiff’s offered a witness to prove that “ since said compromise, and since the fulfilment of its terms, the defendants promised to pay the amount sued'for.” This testimony was also rejected, upon the same ground asthe parol testimony to show fraud. We think the court erred. The rule which forbids oral evidence to contradict or vary the terms of a written contract, is not infringed by the admission of oral evidence to prove a new and distinct agreement. Commandeur v. Russell, 5 Mart. N. S. 459. Bouligny v. Urquhart, 4 La. 30.

If there was such a promise it did not require a new pecuniary consideration. Although an indebtedness be released upon the payment of a part, there still subsists such a natural obligation on the part of the debtor thus relieved by the mercy of the creditor, as would estop the debtor from recovering back if he paid, stv form a sufficient consideration for a new promise. A debt prescribed involves no legal liability, yet anew promise to pay it without a new consideration is bind-The certificated bankrupt is discharged in law, but his duty in foro conscientios remains, and will support a new agreement to pay. The same rule, we think, applies to a voluntary release given upon a partial payment. Willing v. Peters, 12 S. and R. 177. A fortiori, Where the release was induced by misrepresentation or fraud.

It is, therefore, decreed that, the judgment of the District Court be reversed, and that this cause be remanded for further proceedings according to law, the defendants paying the costs of this appeal.


author: Eustis, C. J.

text:
    Fisk, Guardian, v. Fisk et al. Executors.
    Where a testator bequeaths a sum of money to A, “ for bis sole use and benefit, without any security whatever, during his natural life, and at his death to be divided and given equally to the children of S”, he must he considered as intending to create an usufruct in favor of A. Such a disposition is within the exception created by art. 1589 of the Civil Code to the prohibition of substitutions and Jideicommissa. The property in the sum bequeathed .does not vest absolutely in A ; for though, where the usufruct is of things which cannot be used without being expended or consumed, the usufructuary has a right to dispose of them at his pleasure, under the obligation of replacing them or their value, at the expiration of the usufruct (O. C. 542), as between the parties in interest, the law recognizes him to whom the property is to fall on the termination of the usufruct as the owner, and the usufructuary simply as such. C. C. 543 to 549, 556. Whenever an usufruct is legally established, whether perfect or imperfect according to the provisions of the Code, the prohibition is not violated.
    Where the facts of a cause present a double aspect, one of which represents a contract which the law authorizes, and the other one prohibited by law, the contract must be sustained.
    Where the usufructof a sum of money is bequeathed to a person," during his natural life, and at his death to be divided and given equally to the children of a third person,” such only of the children of the latter as were alive at the testator’s death, can take under the testament. C. C. 1457, 1458,1459, 1469.
    APPEAL from the Second District Court of New Orleans, Kennedy, J.

      Elmore and King, for the plaintiff.
    The bequest in the will of Stebbins Fisk is valid. It created merely an imperfect usufruct in favor of Abijah Fisk during his life, the-ownership being in the children of Sereno Fisk. C. C. 525,528, 533, 601, 603, 604, 605, 552, 1456, 1460, 1465, 1509, 1515. 17 La. 52. 4 Rob. 302, 410. 1 Rob. 115, 118. 5 Toullier, no. 91, p. 99. The bequest to the children of Sereno Fisk is not a substitution. C. C. 1507. 1 Rob. 118. 4 Rob. 204. 3 Marcadé, 418, 428. 8 Duranton, 62.

      Prentiss and Finney, for the appellants.
    1. The legacy to the children of Sereno Fisk, was clearly a legacy to those who might be living at the time of the death of AbijahFisk, the first legatee, and not to those living at the death of the testator. Such was manifestly the intention of the testator Stebbins. The words used are prospective, and refer for their effect to the death of Abijah— not that of the testator. “ At his death (that is Abijah’s), it shall be divided and given to the children of Sereno ” The testator does not give, but directs, that at the death of Abijah “ it shall be given.” The expression is clearly a direction or command to Abijah, to render or return the legacy, at his death, to the children of Sereno, who may be then living, and this constitutes a "fidei cammissum” conditional, reprobated by our law.
    2. At the death of the testator, no interest vested immediately, in the two children of Sereno then living; their interest was conditional upon the survivor-ship ; if they had died before Abijah, their heirs would not have been entitled to the legacy.

      3. All “ fideicommissa” are expressly prohibited by the Louisiana Code, except vulgar substitutioos, and the case where the usufruct alone is given to one and the property at the same time to another.
    4. This is not a “vulgar substitution,” because the person first called, to wit, Abijah Fisk, was capable of taking, and did take, the legacy.
    5. It is not a legacy of the usufruct to Abijah, and of the ownership to the children of Sereno, for the following reasons : 1. The terms of the donation are complete and absolute, embracing the fall property and ownership. “ To my brother Abijah Fisk, I give, devise and bequeath the sum of $>100,000”— not the usufruct of $>100,000, but the absolute property and ownership, “during his natural life.” Had the words just quoted been the only ones used, there could be no doubt that the property itself waa conveyed, and that Abijah had a complete life estate in it. The additional words “for his sole use and benefit, without any security whatever, during his natural life,” &c., so far from diminishing, strengthen the character of the legacy. It is to be “ for his sole use and benefit” daring his life. If, at the same time, the absolute ownership was in another,.how could it be sliid to be for his sole use and benefit.? Ownership is property, and can be sold, transmitted, and used like'any other property. He who has the ownership has a use and benefit int.he properly, as well as he who has only the usufruct. The terms of this legacy give to Abijah Fisk, during his natural life, full, complete, and absolute dominion over it. He can do with it as he pleases — “ without any security whatever.” These last words show that the testator intended to give him absolute dominion over the legacy, and that he should hold as absolute owner, and not as a mere usufructuary. This complete dominion rendered him complete and absolute owner during life (see Civ. Code, arts. 480, 481, 483, 484, &c.); and proves that the property, and not the mere usufruct, was given to Abijah. The same property was given to Abijah during his life, which was to be given at his death, to the children of Sereno.

    2d. We have attempted to show, that by t.he terms of the legacy, it was the intention of the testator that it should he “ divided and given” to the childreu of Sereno, living at the death of Abijah. If this was his intention, he could not at the same time have intended that the property should vest in the children of Sereno then living, at his own death. A usufruct is defined to be “the right to enjoy a thing, the property of which is vested in another. See Civil Code, art. 525. Whenever, then, there is a usufruct lhere must be, at the same time, an owner of the property in existence. If, then, Abijah Fisk took only a usu'fruct, what become of the property or ownership at the same time? If it vested in the children, of Sereno Fisk, then it vested in the two who were living at the death of the testator, and the three children born afterwards, are not entitled to a cent of the legacy. Again, by arts. 1459 and 1469 of the La. Code, “ donations mortis causa” cannot be made to persons, not “ in esse” at the death of the testator.
    Three of the present plaintiffs were not “in esse” at the death of Stebbins Fisk; he could not, therefore, make them a donation of the property or ownership, because they were incapable of taking. The construction contended for by plaintiff necessarily excludes three of them from the operation of the will. It is manifest that the testator intended that Abijah Fisk should hold the legacy in full property, and, at his death, return it to the children of Sereno who might then be living. This view is sustained by another portion of the will.
    After various pecuniary bequests, the testator says : “ Should there be any surplus of my estate, after paying these bequests, I give it to my brother Abijah Fisk; but should there be any deficiency, it shall be taken from the bequest made to him.”
    Even if the first clause of the will does convey to Abijah only a usufruct in the legacy, still it does not follow that the property was in the children of Sereno. We say that if it did not pass to Abijahhy the first clause, it did by the last, in which he is constituted residuary legatee. Abijah Fisk took the usufruct by specific bequest, and the naked property for his life-time, under the residuary clause; thus uniting usufruct and property, he became for the term of his life, absolute owner.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, who is the natural tutor and guardian of his minor children, residing in the territory of Wisconsin, seeks to recover from the executors of the late Abijah Fük, the sum of $100,000, being the amount of a legacy alleged to be left to them under the will of their deceased uncle, Slebbins Fisk, who died in June, 1837. One of the executors, Alvarez Fisk, resists this demand, and claims the amount as belonging to the succession of Abijah Fisk, of whom he is the residuary legatee.

The rights of the parties before us depend upon the construction of this clause in the will of the late Siebbins Fisk :

“ To my brother, Abijah Fisk, I give, devise, and bequeath the sum of $100,000, for his sole use and benefit, without any security whatever, during his natural life. At his death it shall be divided and given equally to the children of Sereno Fisk, my younger brother.”

Under this clause Abijah Fisk received the $100,000, which he retained till his death, which took place, in New Orleans, in December, 1845.

It is contended that this legacy contains a. fideicommissum, and is within the prohibitive article of our Civil Code on that subject.

In the case of Ducloslange v. Foss, recently decided, arate p. 432, we held that, under article 1507 of the Code, fideicommissa, as well as substitutions, were prohibited. To this prohibition, the Code, in the ai tides immediately following, 1508 and 1509, establishes two exceptions; the first, in favor of the vulgar substitution of the civil law, and the second, in favor of dispositions testamentary, or inter vivos, by which the usufruct is given to one, and the naked property to another. The difficulty of distinguishing with precision between the latter and fideicommissa, leads to the conclusion that, the sense of these articles, taken with other articles of the Code, is that, these exeepted cases, although they may be substitutions or fideicommissa, are exeepted from the general prohibition. That the intention of the testator was to create an usufruct in favor of the legatee, Abijah Fisk, the language made use of leaves no room to doubt; and it is equally clear that, if no prohibition existed in relation to substitutions and fideicommissa, the children of Sereno Fisk could recover the amount of it from his succession at his death, the usufruct having terminated with that event.

But it is contended that this legacy is within the prohibition, and not within the exception, because the property in the money, or subject of the legacy, was absolutely vested in Abijah Fisk, and not merely the usufruct, and that he thereby became the owner, and not merely the usufructuary. This is true in one sense. If the usufruct is of things which cannot be used without being expended or consumed, the usufructuary has a right to dispose of them at his pleasure, under the obligation of replacing them or their value, at the expiration of the usufruct. C. C. 542. But, as between the parties in interest, the few recognizes him as the owner, to whom the property is to fallón the termination of the usufruct, and the usufructuary, simply as such, though the ownership is absolutely in him, of things which are expended or consumed in the use. See articles 542, 543 el seq. and 556. The interest, or property, in things subject to usufruct, is a fiction of few, created by the Code, with reference to which article 1509 must be construed as to its operation and intendment. Wherever an usufruct is legally established, whether perfect or imperfect according to the provisions of the Code, the prohibition is not violated.

We have held in the cases of the Bank of Louisiana v Briscoe, ante p. 157, and of Macarty and others v. Mandeville, ante p. 239, that where the facts of a case present a double aspect, one of which brought the case within, and the other left it without, the scope of a prohibitory few, the contract would be sustained. "We, therefore, concur with the district judge in his conclusion, as to the validity of the testamentary disposition in favor of the children of Sereno' Fisk.

At the time of the death of the testator, Stebbins Fisk, but two of the childrens of Sereno Fisk, were in esse, and it is urged by the learned counsel that, the? three of the present plaintiffs in interest, born since, are necessarily excluded' from all participation in the legacy. The terms of the Will are: “ At his death, it shall be divided and given equally to the children of Sereno Fisk, my youngest brother.” At the decease of Stebbins Fisk, in June, 183?, but two of the plaintiffs were bofrn, or conceived ; Mary Elizabeth, born in 1834, and Newton,- born in' 1836. The nextinage, 'Caroline, was not bora bntii September, 1838. Under the' terms of the Will, and in accordance with the provisions of the Civil Code, arts. 1457, 1458, 1459, 1469, we think that the children living at the decease of thé‘ testator can alone take under his will.

The learned judge before whom this cause was tried, at the instance of thó' counsel for the tutor, abstained from determining this question, as to Which of . the children this legacy belonged. The same request has been made in this court, but we do' not feel ourselves at liberty to decide the ease adversely to- the residuary legatee and the succession of Abijah Fiskf represented by the executors,- without determining to whofri the money in dispute, of right, belongs.- The’ judgment of the District Court will have to be changed in this respect,-

The judgment of the District Court is, therefore, in part reversed; and it is ordered that, judgment be rendered in favor of "Sereno Fisk, tutor and' guardian of his minor children, Mary Elizabeth Fisk, and Newton Fisk, agai'nst Alvarez Fisk and Charles Watts, éxeéufors of the late Abijah Fisk, for the sum of IllOCi,000, with legal interest thereon from the 13th- December, 1845, until paid,with-costs of suit. In other respects the judgment is affirmed, the appe'llo© paying, the costs of this appeal.


author: King, J.

text:
    The State v. Nelson et al.
    Snob confessions of the accused alone as have been voluntarily made, uninflu’enced' by either hope or fear, can be given by evidence against him; but they must be shown to have been* thus made before they can be received.
    The fact that the accused was in the Stocks at the time that a confession of guilt was made by him, in which he bad been placed' merely for Safe-keeping, will not render the confession inadmissible. Where the restraint is such only as is necessary for the safekeeping of the prisoner, it will not render his cbnfession inadmissible.
    Where a slave in confinement under a charge of murder, on a- representation made to him by tbe overseer of the estate, asonof his master, “that it would be better for him to tell what be bad done,” confesses tbe crime, tbe confession cannot be given in evidence against him-. Per Curiam: Although opposite opinions have been entertained as to the question, whether a confession made to a- person who has no authority over the prisoner, upon an inducement offered by that person, be admissible, it seems to be settled that if the inducement be offered by a master to a servant, or by any other person having authority over the prisoner, the confession will not be deemed voluntary, and will be rejected.
    The jurisdiction of the Stipreme Court in criminal cases being limited by the constitution, art. 63, to questions of law alone, it will not examine into the facts in any such case, for the purpose of determining whether the evidence authorized a conviction.

      (Questions in criminal cases can only be brought before the Supreme Court by a bill of exceptions to the opinion of the judge admitting or rejecting testimony, or to his charge to the jury, or by an assignment of error.
    The fact that there is no judge to preside over the deliberations of the jury of freeholders, on the trial of slaves fbr criminal offences before the tribunals established by the stat. i June, 1846, and the impossibility, in consequence, of presenting to the Supreme Court, any question as to the sufficiency of the proof to justify a conviction by a bill of exceptions to the charge of a judge, is a difficulty resulting from the defective organization of the inferior tribunal, which can only be remedied by legislative interference.
    APPEAL from a judgment rendered by a tribunal for the trial of slaves, organized under the stat. of 1 June, 1846, in the parish of St. James. This case was argued ex parte by

      Bcrault, for the appellants.
    The decision of the case depends on a correct application of two cardinal principles of the law of evidence relating to confessions of guilt; one of which is that the confession must be free and voluntary, and “before it is received in evidence in a criminal case must be shown to have been such.” Greenleaf on Evidence. § 219, vol. 1, p. 263. “ A free and voluntary confession,” said Eyre, O. B. in WarickshaU’s case, “is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and, therefore, it is admitted as proof of the crime to which it refers; but a confession, forced from the mind by the flattery of hope, or by the torture of fear, conies in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.” The material inquiry, therefore, is, whether the confession has been obtained by the influence of hope, or fear, applied by a third person.to the prisoner’s mind. See Greenleaf, vol. 1, § 219. Phillips on Evidence, ed. 1843, C. and H. notes, vol. 1, p. 111.
    This doctrine has been expounded by Hawkins : “ As the human mind under the pressure of calamity is easily seduced, and liable in the alarm of danger to acknowledge indiscriminately a falsehood or a t.rulh, as different agitations may prevail, a confession whether made upon an official examination or in a discourse with private persons, which is obtained from the defendant either by the flattery of hope or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence ; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Curw. Hawk. 595, cited from Leach’s Hawk, and approved in Slate v. Aaron, 1 South. 239. Phillips on Evidence, 0. and H. vol. 2, p, 242.
    In the case of the Stale v. Field 8f Webber, Peck’s Rep. p. 140, the court, in treating of this subject, eloquently said ; “ The evidence of such confessions is liable to a thousand abuses. They are made by persons generally under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure will be productive of personal safety. The confession is made in want of advisers, under circumstances of desertion by the world, in chains and degradation, with spirits sunk, fear predominant, hope fluttering around, purpose and views momentarily changing, a thousand plans alternating, a soul tortured with anguish, and difficulties gathering into a multitude. How easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker. And for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner and action of the one who made the confession, how almost impossible it is to make third persons understand the exact state of his mind and meaning. For these reasons such evidenc is received with great distrust, and under apprehensions for the wrong it may do. Its admissibility is made to depend on its being free from suspicion that it was ob-tained by any threats of severity, or promises of favor, and of every influence, even the minutest.” Cited in Ph. Ev. C. and H. notes, vol. 2, no. 216, p. 236.
    On this subject, see Green. Ev. vol 1, §.219, p. 263, who says that; “Before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. The course of practice is to enquire of the witness whether the prisoner had been told that it would be better for him-to confess, or worse for him if he did not confess, or whether language to that effect had been addressed to him.”
    The second ground of dofence is approached with equal confidence, a a the
      confession of both Nelson and Edwin, (even admitting that, that made by Nelson was properly obtained), are extra-judicial, uncorroborated by any other proof of the “ corpus delicti,” and consequetly insufficient for their conviction. The doctrine is now well settled that, the mere confession of a crime, not made in the course of an examination before a committing magistrate or upon arraignment, or in other words, an extra-judicial confession, cannot warrant a conviction, unless fortified by other proof (dehors the confession), of the crime confessed. See Greenleaf on Evidence, vol. 1, sec. 217, p. 260, who in treating this subject says: “ Whether extra-judicial confessions, uncorroborated by any other proof of the ‘ corpus delicti,’ are of'themselves sufficient to found a conviction of the prisoner, has been gravely doubted. In the roman law, such naked confessions amounted only to a 'semiplena probatio,' upon which alone no judgment could be founded ; and at most the party could only, in proper .cases, be put to the torture. Bat. if voluntarily made in the presence of the injured party, or if reiterated at different times in his absence, and persisted in, they were received as plenary proof. In.each of 'the english cases usually cited in favor of the sufficiency of this evidence, there was some corroborating circumstance. In the United States, the prisoner’s confession, whan.the corpus-delicti is not otherwise proved, has been held insufficient for his conviction; and this opinion certainly best accords with the humanity of the Criminal Code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases; and it seems countenanced by approved writers on this branch ef the law.”
    In the case now under consideration, not an iota of -evidence corroborative of the crime charged can be .found in the record, which is barren of any testimony to that effect. Not even the existence and disappearance of the victims are accounted for. They may be, so far as the recoi-d informs us, yet alive, and, in this state of uncertainty, the monitory voice of Sir Mathew Hale warns us, “ Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and never to convict any person of murder or manslaughter, till at least the body be found dead ;” on account of two instances he mentions, where persons were executed for the murder of .others who were .then alive, but missing.
   The judgment of the court-was pronounced by

King, J.

The appellants, who are slaves, were tried for the crime of murder, by a tribunal organized .under the act of 1846, ('Acts, p. 114,j) and found guilty. From the judgment pronounced upon that conviction, they have appealed.

The questions which arise are presented in bills of exception to the opinion of the inferior tribunal, receiving in evidence the confessions of guilt made by the accused, which -were objected .to on the trial, as not having been free and voluntary, but made under the exercise of improper influences on the -minds of the prisoners. It appears that the confession of Nelson was made to the overseer of the plantation, who was also the son of his owner. The witness stated that the accused was in ¡the -stocks when the confession was made, and that he “ told Nelson previously, that it would be better for him to tell what he had done.”

The well settled rule of law is, that only such confessions of the accused as have been voluntarily made, uninfluenced by either hope or fear, can be given in evidence against him, and they must be shown to have been thus made, before they can be received. The circumstances of this case do not authorize the conclusion that, threats or violence were used to extort confessions. The accused, Nelson, was in the stocks, it is true, but only for safekeeping. A* regards him, the only enquiry is, whether the inducement held oat to him to confess was such as should have excluded the confession from evidence. Saying to a prisoner that “ it would be better for him to confess,” or words to that effect, has been repeatedly held to be such an inducement offered to the prisoner as will exclude his confession ; and, although opposite opinions have been entertained as to the question, whether a confession made to a person who has no authority over the prisoner, upon an inducement offered by that person, is Receivable, yet it seems to be settled that, if the inducement be offered by a master to a servant, or by any other person having authority over the prisoner, the confession will not be deemed voluntary, and will be rejected. 1 Greenleaf ,on Ev. § 219, 220, 221, 222. McNally on Ev. 42, 43. Phil, on Ev.

The confession .of Nelson comes strictly within the rules which should haye .excluded it from .evidence. It was made to his youpg master, who was also his overseer, to whose authority he habitually submitted, to whom he would naturally look for protection, and upon being advised “ that it would be better for him to tell what he had done.” The admonition coming from such a source was well calculated to inspire the slave with the hope of protection from the .consequences of his act if fully confessed, and his confession made under that impression should have been rejected. The conviction of the slave Nelson, based upon this evidence, must be set aside.

As regards the slave Edwin, his confessions were repeated and voluntary. JTo inducements were held out to him to conless, and he was under no other .constraint than that necessary for his safe custody. But it is objected that, his confessions are the only evidence against him ; that they are imperfect, stating .only in general that the accused “aided in killing two white men;” that they are unsupported by any other proof of the corpus delicti, and are not sufficient to found a conviction upon ; that neither the time, place, nor manner of death, not even the existence and disappearance of the persons charged to have been piurdered, are shown. We are referred to the record which is said to contain the entire .evidence adduced against the accused, to establish this alleged irregularity, and the impropriety of the conviction. .Our jurisdiction in criminal-cases is limited in express terms by the constitution, article 63, “to questions of law alone,” and we have uniformly refused to examine the facts, for the purpose of determining whether the evidence authorized a conviction. State v. Fant, 2 An. 837. State v. Bogan, Ib. 838. State v. Peterson, Ib. 921.

Questions in criminal matters can only be brought before us by bills of exception to the opinion of the judge admitting or rejecting testimony, or to his .charge to the jury, or by assignments of error. But it is urged, that, constituted as the tribunal is before which slaves are to be tried for criminal offences, in which the justices and freeholders have equal authority, there being no judge to preside .over the deliberations of the jury or to give them the law in charge, the question of the insufficiency of the proof to justify a conviction, can never be presented to the appellate tribunal, unless the latter be permitted to exam* fee the evidence; as such questions can only be presented in bills of exception to the charge of the inferior judge. The difficulty suggested is serious, but it results from the defective organization ,of the inferior tribunal, and can only bo remedied by legislative interference.

As regards the slave Edwin, the judgment must remain undisturbed.

It is, therefore, ordered that, as far as relates to the slave Nelson, the judg, ment appealed from be reversed, and the cause remanded for a new trial, with instructions to the inferior court to leceive no confessions of said slave Nelson which were not voluntarily made. As regards flip slave Edwin, the judgment is affirmed.


text:
    Beck v. Howard.
    A promise to pay a debt, made by .the debtor after a cessio lonorum, will support an action, ■whether the insolvent was discharged by his creditors or not. If not discharged, the legal obligation resting on him is to pay those creditors whose demands accrued prior to the cession, on hi? acquiring property more than sufficient for his maintenance and for the discharge of debts subsequently contracted; and the only remedy of the prior creditors is to require anew surrender. C. C. 8173. Stat. 20 Eeb 1'817, s. 28. The subsequent promise creates a new debt, which may be recovered in a separate action without requiring a new surrender. -Though the debtor have been fully discharged, the previous debtis a sufficient consideration for the subsequent promise. C C. 1752.
    APPEAL, by the defendant, from a judgment of the Fifth District Court of New Orleans, Buchanan, J.
    1. W. Smith, for the plaintiff.

      Sigur and Bonford, for the appellant.
    An action like the present, even where a positive promise is clearly proven, cpnnot he maintained under our insolvent system. The principle of equality in the distribution of th.e debtor’s assets among his creditors, is the essential characteristic of that system. If the defendant has acquired property since his cession, that property is the common pledge of all his creditors. It must be brought into the insolvency and equally partitioned. No one creditor, by obtaining a promise from the common debtor, can gain a preference over the others. See the cases of Gurlie v. Flood, 11 Rob. 166. Goicochea v. Ricarte, 4 La. 44., Morgan v. Dalton, 3 La. 334.
   The judgment of the court was pronounced by

Kino, J.

The defendant is sued on an open account, and pleads in bar of the action, a cession of his property made after the debt accrued, to which the plaintiff was a party, and which was accepted by the judge. The plaintiff relies on a promise to pay the debt, made by the defendant subsequently to the surrender.

The subsequent promise, which is fully proved, created a new obligation, which authorized the plaintiff to maintain his action, whether we are to consider, under the pleadings an.d evidence, that the defendant was discharged, or not, by his creditors. If he was not discharged, the legal obligation resting upon him was, to pay his creditors whose demands accrued prior to the cession, on his acquiring property more than sufficient for his maintenance, and for the discharge of his debt subsequently contracted. In that event, the only remedy of the prior creditor is to require a new surrender. C. C. art. 2173. 4 La. p. 45. 8 Rob. 2,04. Bui. & C’s. Dig. 492. But the defendant’s subsequent promise created a different obligation from that imposed by law. It was an unconditional undertaking to pay the debt without regard to the legal consequences of his previous cession, and made a new debt, for the recovery of which the plaintiff could proceed by a separate action, without requiring the debtor to make a new surrender. If he was fully discharged, as is contended, the moral obligation resulting from the previous indebtedness was a sufficient consideration to support the subsequent promise, and the effect of that promise was to create a new debt. C. C. art. 1752. Bach v. Cohn, ante p. 101. Wa think that the district judge did not en-, in overruling the plea.

Judgment affirmed.


author: Edsxis, C. J.

text:
    Succession of Story.
    Where a succession, which .owes no debts, consists of property susceptible of immediate division, and all the heirs are present, and one of the heirs of age and the tutrix of the minor heirs oppose the appointment of auy administrator, insisting on an immediate partition, and the appointment of an administrator will only produce unnecessary expense and delay, no such appointment should be made. Art. 1040 of the Civil Code which pro yides that, where there are several heirs, some of whom have accepted unconditionally and others claim the benefit of the term for deliberating, an inventory shall he made, and an administrator appointed to manage the effects of the succession until a partition be made among the heirs, must he considered as modified by art. 976 of the Code of Practice, which requires the appointment of an .administrator only in case some of the creditors require it. Per Curiam: Even in case there are no debts we do not undertake to say that an administrator cannot he appointed. There may be cases in which such an appointment would be advantageous, nay necessary, to the interests of a succession.; and the propriety of subjecting the succession to such a charge, must rest with the discretion of the judge, on the facts before him.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Josephs and Grymes, for the appellant.

      L- Peirce, contrit,
    contended that an administrator should be appointed, citing Civil Code, arts. 1030 to 1041, 1045, 1046, 1049, 1051. C. P. 974, 976. Picon, v. Dussuau, 4 Rob. 413. Self v. Morris, 7 Rob. 25.
   The judgment of the court was pronounced by

Edsxis, C. J.

On the 25th of December last, Benjamin Story died in the .city of New Orleans, andón the 31st of that mouth Henry Clement Story, the eldest son, applied to the Fourth District Court of New Orleans for the .administration of his succession, without alleging any reason other than that he was desirous of obtaining letters of administration, the deceased having left property. The petition charges that the wife of the deceased had been for .some time dead, and that the issue of the marriage was himself, Sidney Story, and Mrs. Mackie, who are of age; and Benjamin Story, Norman Story and Ann Eliza Story, who are minors, and represented by their grandmother, Mrs. Elizabeth Clement.

On the 12th of January, Mrs. Clement filed her written opposition to the petition of Henry Clement Story, in which she states that she considers it to be her duty to oppose his application, because the law does not authorize such an administration to be granted on such a succession, where all the heirs are present; because the petition does not present any case proper for the court to grant an administration of the estate ; and because the court cannot legally grant the administration asked for, as the heirs, all present, can take the estate, and partition the same according to law, without the expense and intervention of a separate administration. A petition was filed by her on the same day for letters of tutorship .of the minors, by virtue of her right as grandmother, and for a separate appraisement and inventory of the portion of the minors, in order to ascertain the amount of her suretyship. To this petition an opposition was filed by Sidney Story, who represents that Mrs. Clement is a lady of great age, and not qualified or competent to the management of so large an estate as will fall- to the share of the minors in the division of their father’s succession, which consists principally of real estate, and will require constant .and activo attention for its management and preservation during a long minority. He prays for the appointment of a dative tutor to the minors as required by the interest of the minors, and asks that a family meeting be convened to deliberate thereon, &c.

On the 13th of January, Mrs. Mackie filed her opposition to the application of Henry Clement Story, for letters of administration, on the ground that an administration of the succession was unnecessary, and only calculated to produce great delay and expense; and she also alleged that she had instituted her suit in partition, and that she has no objection to the inventory and appraisement, asked for by H. C. Story, being made, but insists that the proceedings in partition go on, and to that end that they be cumulated With the proceedings for the inventory and appraisement.

These oppositions were fixed for trial; and, on the trial,the opposition of Sidney Story to the appointment of Mrs. Clement as tutrix, was discontinued; the opposition of Mrs. Mackie was dismissed ; and letters of administration were granted to Henry Clement Story. A new trial was, however, granted, on the ground that the decree was prematurely made, before the inventory was returned ; and with a view to let the cause pass to the Supreme Court on its merits. On the subsequent trial, which took place' on the 26th February, Henry C. Story was appointed administrator of the succession, and Mrs. Mackie has appealed.

It appears that H. C., and Sidney Story filed an exception to the suit of Mrs. Mackie for a parthion, on the ground of the action being premature, which was, on the day of the trial, discontinued. After the rendition of the judgment, t.o wit, on the 9th of March following, they join in that suit, and concur in the prayer of Mrs. Mackie for a partition.

The appellant asks this court to reverse the judgment of the District Court appointing the administrator, and to order the proceedings in partition according to the prayer of her petition. By the'-inventory the estate is estimated at f?6e9,969 53-, and consists of property susceptible of immediate division.

The learned judge who decided this cause considered that the law was imperative, and left him no discretion as to the appointment of an administrator, tinder article 1040 of the Civil Code, which provid.es that:

“ If there" be several heirs to a succession, soma of which have accepted Unconditionally, and otheis claim the benefit of the term for deliberating, the judge of the place where the succession is opened shall notwithstanding cause an inventory to be made of the effects of the succession, and shall appoint an administrator to manage them, until a partition of the same be made among the hen’s.”

In the ease of Bryan v. Atchison, 2 Ann. R. 464, we held that the appointment of an administrator was not a matter of course, but was to be made when any of the creditors of the succession required it. The construction of the article of the Code given by the district judge, and insisted on in the argument of Atchison's case, brought it, we thought, in direct conflict with other articles of the Code, while that construction, on the contrary, of which we considered the 975th article of the Code of Practice as the exponent, reconciled it wiih other provisions of the Code and the Code of Practice on, the subject of the administration of successions; and we could adopt none other when- we considered the purpose and object of the law itself, which is to secure the rights of the heirs, and the prompt payment of the debts of successions. Even in case there are no debts due by a succession, we do not undertake to say that an administrator cannot be appointed. There may be cases in which such an appointment would be advantageous, nay necessary, to the interests of a succession ; and the propriety of subjecting the succession to this charge would rest with the discretion of the judge, on the facts before him. In the case before us,the issue was directly made on the application of the appellee for letters of administration, that no necessity existed for the administration, that it would be productive ouly of delay in the settlement of the affairs of the succession, and of useless expense. On this issue the appellee made out nó case, and the judge, as we have stated, made the appointment, as being imperatively required under the'Code.

But under our views of the law as stated in Atchison’s case, and which a consideration of this case before us has fortified, the district judge was not bound to appoint an administrator. The right of the heirs to an immediate partition cannot be questioned; it was insisted on by the appellant, and the administration, if carried out, could be little else than an impediment to the proceedings in partition.

Although the appeal is not taken in the name of the min ors, their interests afe involved in this controversy. Upon them falls one-half of the expense of this administration. Besides the lawful charges of the tutorship, why should they be taxed with the commissions of the administrator 1 And for whose benefit, and at whose instance, is this expense to be entailed upon this succession, which has been left to them unencumbered, and in a condition to be immediately divided1 and liquidated 1 The answer is found in the reeord. Henry Clement Story, their co-heir, is the sole applicant for this administration. By the inventory, the debt he owes the succession, amounts to $105,387 44. We can understand that he has an interest in the administration, which gives him, to a certain extent, the control of the estate; but that this interest is paramount to the great and lawful interest that the minors and co-heirs have in the speedy division and liquidation of their inheritance, no one can undertake to assert.

We concur with the appellant’s counsel that, the'only fruits of this administration are litigation, unnecessary expense,- and useless delay, and that no case was before the judge on which he was authorized to grant it. The succession had no debts, and we are at a loss to discover any one useful object to be attained by embarrassing the succession with this unnecessary administration.

The judgment of the District Court is, therefore, reversed; and the application of Henry Clement Story for letters administration of the successionef Benjamin Story, dismissed, with costs in both courts.-