author: Spowokd, J.

text:
    B. C. Crow v. Sarah Watkins’ Heirs.
    A judgment cannot be enjoined by a plea in compensation founded on notes of the plaintiff held by defendant before the judgment enjoined was rendered.
    In the absence of proof it will be presumed that the notes were acquired before their maturity.
    APPEAL from the District Court of Lafayette, Dupré J.

      M. S. Gomel, for plaintiff and appellant.

      D. O. Bryan, J. M. Barter and J. W. Walker, for defendants..
   Spowokd, J.

Both parties complain of the judgment in this case, but we think both should be satisfied.

It is clear, that the credit for $195, claimed by the plaintiff in injunction without a certain date, was embraced in the schedule of credits marked A, as having beon paid, — $95 on the 15th May, I84G, and $100 on the 2Gth May, 1846. As that schedule includes the $700 paid by the draft on John Sail, dated March 10th, 1849, it must have been executed after the receipt of March 14th, 1849, at the bottom of which the memoranda relative to the $195 appeal’s. That memorandum is presumed to bear the date of the receipt above it, and there was as much reason to include the $195 in schedule A as the $700.

There was no error in rejecting' the plaintiff’s pleas in compensation, founded upon the notes of A. J. Porter and A. Campbell, and upon the account for professional services rendered in 1843. The claims were prescribed, and prescription was pleaded by those of the defendants in injunction who wore interested.

The case of Riddell v. Gormley, 4 An., 140, does not apply to this, for here compensation is pleaded by way of exception, and it cannot be pretended that it took place by operation of law. If the plaintiff held the notes before the judgment enjoined was rendered he should have pleaded them there and then, and cannot enjoin now to compensate them. In the absence of proof he is presumed to have acquired them before maturity.

The District Judge did not err in placing his estimate of the value of the services rendered in the suit of Rice v. Campbell at $75, the mean between the two extremes mentioned in the statement of facts.

As to the answer of the defendants to the appeal it suffices to observe, that they were correctly condemned to pay the costs below, and that the prayer of Martha O. Porter, for damages, was rightfully refused, since the defendants brought about the necessity for the injunction, by issuing an execution for the whole of a judgment, about half of which, by their own admissions, had been discharged. No credits appear to have been allowed the plaintiff which are-not justified by the evidence.

Judgment affirmed.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Edmund P. Dwight v. Drury Mason et al.
    Where the garnishee in an attachment suit has in his answers acknowledged to be in possession of property belonging to the defendant, it is not necessary there should be a seizure by the Sheriff to support the attachment.
    APPEAL from the District Court of St. Mary, A. Voorhies, J.
    ■ J. W. Walker, for plaintiff and appellant.

      II. Gibbon, for defendants.
   Buchanan, J.

This suit was commenced by attachment against two absent defendants, Drury Mason and Delila Mason.

One of the defendants, Delila Mason, having died since the commencement of this suit, her estate was administered upon in the parish of St. Mary (where this suit was pending,) and her administrator, Gharles B. Muggah, who had already been cited, as garnishee, under the attachment herein, was cited anew in his administrative capacity, and filed an answer in said capacity upon the merits, to wit: the general issue. The curator ad hoe appointed by the court to represent the other defendant, Drury Mason, also filed in his name a general denial.

Upon these issues the parties went to trial, and judgment was rendered in favor of plaintiff. But upon the motion of the administrator of the one defendant, and of the curator ad hoe of the other, a new trial was granted and the court below gave judgment of nonsuit, as to both defendants, on the ground that the Sheriff had not made a seizure of the property of defendant, which the answers of the garnishee, Olíanles B. Muggah, acknowledged to be in his hands.

We think the court erred. The garnishee’s answers to interrogatories were filed on the 11th July, 1853, and acknowledged the possession of slaves which had been adjudged to belong to Drwry and Delila Mason. The record of the suit in which those slaves had been so adjudged the property of defendants, is in evidence, and identifies the slaves referred to in the answers of the garnishee. The estate of Delila Mason is in court, independently of the attachment, by the answer of the administrator, filed on the 10th July, 1855. The fact of an administration, sufficiently demonstrates the existence of assets within the jurisdiction of the court; and the curator ad hoc of the other absent defendant Drury Mason, was fully authorized by this state of facts to join issue as he did upon the 9th April, 1857.

It is, therefore, adjudged and decreed, that the judgment of the District Court he reversed ; that the cause he remanded to be proceeded in according to law, and that the appellees pay the costs of appeal.


author: Buchanax, J.

text:
    William Rochel, Tutor, v. David Berwick.
    The redhibitory action cannot be maintained by the purchaser of a slave at auction where it appears that he was told by the auctioneer in answer to his own question, that the sale was made without any guarantee except of title, and that tor a considerable time before he gave his notes in compliance with the adjudication he was aware of the extent, if any, to which the value of the slave was impaired by tbe alleged malady.
    From this a waiver of any objection to the purchase on the ground of unsoundness will be inferred.
    APPEAL from the District Court of St. Mary, A. Voorhies, J.

      J. ,0. <b A. Olivier, for plaintiff.

      J. A. MeOlarty, for defendant'and appellant
   Buchanax, J.

The slave William was sold on the 19 th March, 1855, at a probate sale of the estates of Mary Bell and Matthew Rogers, and was adjudicated to defendant for the price of eight hundred dollars, .payable in his notes at 1, 2, 8 and 4 years. The auctioneer proclaimed on the stand, in answer to a question put to him by defendant himself, as one of the witnesses thinks, that • the sale was made without any guarantee, except of title. It is argued for defendant, that this announcement was not binding upon the bidders at the sale. In support of this position the case of Nott v. Oakey, 19th La. Rep., 18, is quoted. But in that case there was an alteration of the terms of sale, by the announcement from the auctioneer’s stand of a condition different from and contrary to those which were contained in the advertisement of sale. Whereas, in the present case there was no such alteration.

It is admitted, that in the advertisement of this sale nothing was said about guarantee.

Upon the merits, it is not proved to our satisfaction that the redhibitory malady complained of existed before the sale. A witness who had charge of the slave as overseer of the plantation, for many years before and up to the time of the sale, swears that he always considered him a good, sound able-bodied negro5.

We have the further circumstance in favor of plaintiff’s claim, that the defendant was fully aware of the extent, if any, to which the value of the slave was impaired by the alleged malady, shortly after the sale, and a considerable time (say three weeks) before he gave his notes in compliance with the terms of adjudication. We infer from this a waiver of any objection to the purchase on the ground of unsoundness.

It is, therefore, adjudged and decreed, that the judgment of the District Court he affirmed, with costs.


author: Spofford, J. Spofford, J.

text:
    Succession of H. Valansart—Opposition of P. J. Pavy.
    On the removal to this State of French subjects, who were married and resided long after their marriage in France, a tacit mortgage in favor of the wife for preexisting claims against her husband, originating during their residence in France, does not attach to the immovables acquired by her husband after his arrival here.
    APPEAL from the District Court of St. Landry, Martel, J.

      J. G. Olivier and E. H, Martin, for appellant.

      Swayze & Moore, for appellee.
   Spofford, J.

Lueile Lemoine, widow of Henri Valansart, and one of the appellees in this case, has moved to dismiss the appeal.

Her motion came too late. The day before it was made, she had filed an answer to the merits praying an amendment of the judgment in her favor. This w'as a waiver of all informalities in bringing up the appeal. Shall v. Banks, 8 Rob. 170; Dunbar v. Owens, 10 Rob. 140; Carmichael v. Armor, 1 Rob. 197; Gayoso v. Garcia, 1 N. S. 327; Duncan's Executors v. Poydras’ Executors, 4 N. S. 360; Burkham v. Livingston, 11 An. 604.

It is true, this court will notice ex officio the absence of essential parties which would render it impossible to interfere with the judgment appealed from without affecting prejudicially the rights of such parties. But in this case, we observe that the only controversy is, whether the claim of Lueile Lemoine, widow of Henri Valansart, for the sum of fifty-two thousand nine hundred (52,900) francs, with a legal or tacit mortgage on all the property of said Valansm’t, deceased, in preference to all other persons, with five per cent, interest from the month of October, 1853, shall bo displaced by the acknowledged mortgage claims of P. J. Pavy, for some $27,566, besides interest, which have been placed upon the tableau and allowed by the judgment as next in rank to the widow’s claim. The opposition to the small claim of Urbain is abandoned; and Louis Chaudet, the administrator of the succession, whose tableau is opposed by Ferny, is a party before us. We can, therefore, settle the controversy between the widow of Valansart and the opponent of Pavy, without disturbing, in any degree, the rights of other parties.

Henri Valamsern't and Lueile Lemoine were married in France, their domicil of origin, in 1835. Just before the marriage was solemnized, they entered into a marriage contract, by which it appears’ that the wife brought to her husband a downy of thirty-five thousand francs. Both spouses continued to live in France, whore Valansart appears to have been extensively engaged in business as a miller and flour merchant, until the year 1848, when he came to this country. In February, 1849, he entered into a planting partnership with the appellant, P. J. Pavy. Valansart contributed $6,900 to the enterprise, and the titles to the lands were taken in his name. The act of partnership being sous-seing privé, Pavy contributed an equal atnount. The plantation was situated in the parish of St. Landry. The partnership became largely indebted to their commission merchants, P. J. Pavy & Co. and Pavy, Lolnt & Co.; the balance due in May, 1852, being $60,352 34. Half of this debt was due by each partner, to wit, §30,176 17. At the same time Pavy, Lobit & Co. owed Valansart, on his individual account with them, $5,823 17. Deducting that from his half of the partnership debt, left him indebted to Pavy, Lobit & Co. in the sum of $24,353 10.

It seems that Pavy paid this sum for Valansart, and thereby became his creditor for the amount. He also paid for him a further sum of $3,213, all of which was acknowledged, in writing, by Valansart, who gave his notes to Pavy, dated in June, 1852, one for $12,000, and the other for the sum of $12,353, and a third note, dated in January, 1853, for $3,213 ; all bearing interest from specified dates. On the 14th of March, 1853, VoJlcmsart and Pavy executed a recognitive act in authentic form, acknowledging each other’s titlo to an undivided half of the property belonging to the “ Valansart plantation in this act the indebtedness of Valansart to Pavy for the three above described notes, -was acknowledged, and to secure the same, the former specially mortgaged to the latter his undivided half of the plantation and its dependencies, together -with the thirty-five slaves thereon. The notes were paraphed and identified with the notarial act aforesaid, which was duly recorded in the alienation and mortgage books of the Recorder’s office for the parish of St. Landry, on the 24th March, 1853.

Late in 1849, Mrs. Valansm't, left her home in Prance, and came to the United States. She joined her husband at the plantation in St. Landry, in the latter part of 1850, or the early part of 1851. Both spouses continued to reside here until the death of Henri Vala/nsart, in October, 1853.

Upon the opening of his succession, Mrs. Valansart advanced her claim for $55,900 francs, with a tacit mortgage upon all the property of her husband. No evidence of this indebtedness ever existed upon the public records of this State previously.

The only controversy to bo settled is, whether she has this tacit mortgage overriding the acknowledged conventional mortgage of P. J. Pavy.

The view we take of the case renders it unnecessary to discuss the questions which have been mooted by counsel concerning subrogation and novation.

Por wo find that of the sum claimed by Mrs. Valansm't (widow), thirty-five thousand francs are claimed for the restitution of her dowry. This is proven to have been paid into the hands of her husband in Prance, within a few weeks after their marriage. Ten thousand five hundred francs are claimed for money loaned to Henri Valansm't in Prance, by her father, to whose succession she has accounted for it since the death of her husband here; and ten thousand four hundred francs are claimed as having been paid by her father and mother in Prance for Valansart upon certain contracts made by him there, before he departed for the United States, and for which she has accounted in the same manner.

She also avers that on the 8th January, 1852, she obtained a judgment against her husband for all these sums, at Paris, in Prance.

One of her witnesses testifies, that all the sums received by Valansm't for the dowry of his wife, and in the way of loans from his father-in-law, were employed in his business as a flour merchant in Prance.

The case, therefore, resolves itself into the inquiry, whether, on the removal to this State of Prench subjects who wore married and resided long after their marriage in Prance, a tacit mortgage in favor of the wife for preexisting-claims against her husband, originating during their residence in France, attaches to the immovables acquired by her husband after his arrival here.

The question has twice been brought before this tribunal and twice answered in the negative. Wo, therefore, consider the jurisprudence of Louisiana upon this point as settled.

In Prats v. His Creditors, 2 Rob. 508, our predecessors declared, that “after an attentive examination of the provisions of our Code, which establish mortgages in favor of minors and married women, we have come to the conclusion that such mortgages, at least so far as they are tacit and exist without being recorded, were intended to be confined to persons who marry in this State, or receive their appointments as tutors from our courts, or who, after marrying or receiving such appointments abroad, come to reside here; and that, in the latter ease, such tacit mortgages exist only for sums received since their removal into this State."

In Stewart v. His Creditors, decided at New Orleans in February last, the case of Prats v. His Creditors was affirmed. On that occasion we remarked, that “ from a review of the various Articles of the Code on the subject of legal mortgages, it appears to us that they point conclusively not only to the supposed residence in the State of the party whose property is sought to be subjected to their operation, hut to the security of a debt originating in the State."

Both of the oases above cited were analogous to this, in that the law of the country where the wife’s claim originated, was similar to our own, with respect to the tacit mortgage reserved to her for the restitution of her dotal affects, and the reimbursement of her paraphernal property alienated by her husband.

It is true, these laws are to be classed among real statutes, and as such they have no extra-territorial operation. The law of France can confer no mortgage or privilege upon property situate in Louisiana. The fact that the appellee has a mortgage for restitution on the property of her husband there, in no wise betters her condition here. To our own law alone, must she look for a mortgage claim upon property here; and if our Code, by its provisions, gives her such a mortgage as she claims, then it must give a similar retroactive relief to all wives who may immigrate to Louisiana, with dotal or paraphernal claims against their husbands originating abroad, whether the law of the domicil where the debts wore contracted, secured them by a mortgage upon the property of tho husband or not.

We cannot give such a sweeping extension to the doctrine of latent mortgages, to the detriment of our own citizens.

It is, therefore, ordered and decreed, that the judgment of the District Court, so far as it overrules the opposition of P. J. Pavy, to tho allowance of the claim of Lucile Lamoine, widow of Henri Valansart, against tho succession of her said husband, as a claim with a legal or tacit mortgage on all the property of the said deceased, in preference to all other persons, bo avoided and reversed. It is further ordered, adjudged and decreed, that the said claim of Lucile Lemoine, for tho sum of (52,000) fifty-two thousand nine hundred francs, be reduced to the rank of an ordinary claim against the succession of her said husband, and that no mortgage or privilege be allowed therefor, and that the tableau of distribution be reformed in this respect. It is further ordered, that the judgment, in other respects, be affirmed; the costs of the opposition of P. J. Pavy, in both courts, to be paid by the succession.

ON A RE-HEARING.

Spofford, J.

The point made in the application for a re-hearing, although not presented in the original argument, was not overlooked by the court.

But we thought, and still think, that the moneys paid by Mrs. ValansarPs father for the debts of Henri Talanswrt in Erance, after he came to Louisiana, did not constitute valid claims in her favor against her husband, if at all, at any rate, until she had collated for them to her father’s succession, and thus assumed the payment of them out of her own funds. But this settlement did not take place until after the rights of the opponent, Pavy, as a mortgage creditor of Henri Valansart were irrevocably fixed.

Re-hearing- refused.


author: Buciianan, J.

text:
    Charles H. Beauchamp v. Chachere, Sheriff, et al.
    The principles settled in the case of Smith v. McMiclcm, 8 An. 821, reaffirmed. A judgment belonging to a partnership in a steamboat, is not liable to seizure under executions issued on a judgment against the individual members of the partnership.
    APPEAL from the District Court of St. Landry, Man'tel, J.

      J. H. King, for plaintiff and appellant.

      T. H. Lewis and Porter, for defendant.
   Buciianan, J.

Plaintiff appears in this cause, as the transferree of a judgment obtained jointly by three persons, named Thomas G■ Anderson, Gyrus Thompson, and Thomas M. Anderson, and enjoins the seizure of said judgment made in execution of two judgments against Thomas O. Anderson and Thomas M. Anderson in solido, and of three judgments against Thomas O. Anderson solely.

The evidence shows that the two Andersons and Thompson had 'all of them an interest in the judgment seized, at the time of the transfer made by them to plaintiff; said judgment being an asset of a partnership in a steamboat, which partnership is in course of liquidation.

The record furnishes no proof of notice to the judgment debtor, of the transfer of the judgment, as required by Article 2613 of the Civil Code. But, as it was observed by Mr. Justice Slidell in delivering the opinion of the court in the analogous case of Smith v. McMicken, 3 An. 321, there is a question which stands before the question of notice, and overshadows it. That question is, whether the seizures made by the defendants were lawful ? Whether upon execution against two, and against one, of the members of a partnership composed of three persons, the defendants herein could seize a judgment belonging to the partnership. Eor the reasons given in the case cited, these seizures must be held to be bad.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the injunction herein be perpetuated; defendants and appellees paying costs in both courts.


author: Spoffokd, J.

text:
    Theriet & Baron v. Edgar E. Voorhies.
    When the husband mortgaged the separate property of his wife to secure a debt due by himself, and the wife appeared in the act and made a formal renunciation of all her rights, it was held that the act was not binding on the wife.
    APPEAL from the District Court of the parish of Lafayette, Dupré, J.

      E. Simon, sen. & L. J. Gary, for plaintiffs and appellants.

      Deblana & Fusilier and G. H. Mouton, for appellee.
   Spoffokd, J.

Euzeide Martin, wife of Edgar E. Yoorhies, received from her mother and natural tutrix the slaves Portalis and Bruno as a part of her paraphernal estate.

Afterwards, her husband, Yoorhies, being indebted personalty to the plaintiffs, Theriet & Baron, in the sum of $800 7G, gave his notes for the amount, to secure which he executed an authentic act of mortgage in their favor upon the slaves aforesaid. Iiis wife, Euzeide Martin, appeared in the act and declared “<ju'ette veut et entend consentir d cette hypothéque, et renonaer d tous droits d’hypothéque légale et autre, qu’elle a oupeut avoir sur les esclavos Portalis et Bruno, ohjet du dit contrat.” The notary detailed in the act the several mortgage rights which she renounced, and explained the same to her out of the presence of her husband, pursuant to the Act of March 27th, 3835, (p. 153), the second section of which has been reenacted in 1855 and may be found in the Revised Statutes, p. 561, sec. 5.

After the maturity of the notes given by Yoorhies, the plaintiffs procured an order of seizure and sale against the slaves thus mortgaged. Mrs. Yoorhies enjoined the seizure and sale upon the ground, that the slaves being her paraphernal property, had not been legally mortgaged and could not be sold for the separate debt of her husband. The District Judge maintained the injunction, and the plaintiffs in the order of seizure and sale have appealed.

It is conceded that the slaves were the separate property of the wife ; but the appellants contend that, under the Act of 1835, she could validly renounce her title to them, and that she did so; they further contend that, by suffering them to be mortgaged for her husband’s debt, she did not contravene the provision of Article 2412 of the Code, because she did not bind herself for her husband’s debt, but only her property.

The Act of March 27th, 1835, refers not to transfers or mortgages of the wife’s own property, but provides for a renunciation of the hypothecary rights of the wife upon the property of the husband. These she is empowered to renounce by pursuing the formalities prescribed in that statute. But that law gave her no greater or other powers than she had before with respect to the alienation or encumbrance of her own lands and slaves.

It does not clearly appear in this case that the wife renounced or intended to renounce her own absolute title to her paraphernal slaves ; but if the act may be thus construed, still the question recurs, was it a lawful act? Can a wife legally hypothecate her separate property to secure an individual debt of her husband ? When property authorized, and for proper purposes, she may sell her paraphernal estate, and that is all that appears to be implied in the opinion of the court in Delacroix v. Nolan, 7 An., 682, cited on behalf of the appellant.

But it was oxpressly held in Curry v. Brown, 12 Rob., 82, that a contract by which the wife binds her property as a security for her husband’s debt is as much within the prohibition of Art. 2412, as a contract by which she binds herself personally. Indeed, all useful protection for married women would bo gone if the refined distinction contended for by the appellants’ counsel were to be adopted by the court, and it wero to be held that the wife may devote all her proporty without restraint to the use of her husband, so long as she does not sign a personal obligation for his debts. It is the uniform practice of this court to look through all the disguisos in which men may shroud their business dealings, and to prevent, so far as possible, the property of the wife from being sacrificed for the debts of hor husband, from which she derivos no benefit.

Pascal v. Sauvinet, 1 An. 428; Erwin v. McCalop, 5 An., 173; Provost v. Provost, 5 An., 572. It was held in McIntosh v. Smith, 2 An., 756, that a wife who had stood by and soen her property sold to pay her husband’s debts, was not estopped from bringing an action to reclaim it. The legal presumption of marital influence relioves a married woman, in some cases, from what might otherwise be a just imputation of fraud.

Judgment affirmed.

Vo os hies, J., recused himself in this case, on account of relationship to one of the parties.


author: Spojtoed, J.

text:
    H. Dejol et als. v. E. Johnson, Administrator.
    The legal presumption, that the husband of the mother is the father of all children conceived during the marriage, can only be rebutted in the mode and within the time prescribed by law.
    The right to disavow or repudiate a child born under the protection of the legal presumption, is peculiar to the father and can be exercised only by him or his heirs within a given time an l in certain cases; and if the father renounces the right expressly or tacitly, it is extinguished and can never more be exercised by any one.
    The disavowal by the father must be made in a judicial proceeding, an action to which the child is a necessary party. If the father has never legally contested the legitimacy of a child born in lawful wedlock, mere oral and ex parte declarations of the father, or his wife, or of the child whose claim is contested, touching the legitimacy, cannot be received as evidence.
    The penalty of ten per cent, interest upon the funds in hand, for a failure by an administrator to render an annual account, can only be enforced when accompanied by a proceeding to remove the administrator.
    APPEAL from the District Court of St. Landry, Martel, J.

      T. H. Leíais & Porter, for plaintiffs and appellants.

      J. T. Morrogh, for defendant.
   Spojtoed, J.

Tapley Déjol and his wife, Sarah Johnson, were free people of color, residing in Louisiana. Tapley Déjol died, leaving a small estate, of which one Seylancl was appointed administrator in the year 1852. Seyland having died, the present defendant, Edmond Johnson, was appointed administrator of the succession of Déjol, which was still unsettled, in the parish of St. Landry.

The present plaintiffs, alleging themselves to b j the only legitimate children and heirs of Tapley Déjol, on the 8th of August, 1850, filed a petition calling upon the administrator, Johnson, to file an account and to pay over the funds of the succession to them, with ten per cent, interést from the date when he was bound to render his annual accounts.

In response to this call, the administrator filed an account and with it a proposed tableau of distribution among the heirs of Tapley Déjol, whom he mentions by name as six in number.

The plaintiffs opposed two items onty of the account, to wit: the sum of $120, alleged to have been paid Edward Johnson for horse-feed, and the item of $012 55 paid Dr. A. G. Thornton for a medical bill of the deceased. They specially opposed the distribution suggested by the administrator, upon the ground that throe of the alleged heirs, to wit, Patrióle Déjol (alias Johnson), Murvin Déjol (alias Gary), and Mathilda Déjol (alias Gay) were not children and heirs of Tapley Déjol deceased, but were adulterous bastards born of their mother at a time when she was the lawful wife of Tapley Déjol, of an illicit connection with other persons.

Roth oppositions were overruled and the account and tableau homologated.

The opponents have appealed.

The item for horse-feed seems to be established by adequate proof.

The large medical bill is not justified by the evidence. There is no detailed account of items. Two or three visits to the parish of Calcasieu, about forty miles from Dr. Thornton's residence in Elat Town, and constant attention to the deceased for a fortnight in his own house, whither Déjol was removed before his death, together with the furnishing of medecines, are all the services specifically proved. It is true a witness states that the doctor attended the deceased for six or eight months before his death. The disease was also a loathsome one. But the opinion of this witness, that the bill was a just and correct one, cannot supply the lack of data to support such an opinion. Upon a survey of the evidence wo are satisfied that $300 would be a liberal allowance for the services as proven, and the item charged as paid to Dr. Thornton must be reduced to that sum.

The appellant’s counsel states, in his written argument of the cause, that he pleads the prescription of one and three years to these two items. But as we find no such plea filed in the Record, we cannot consider it. A brief of counsel forms no part of the pleadings in a cause.

On the opposition to the proposed distribution, the judgment was clearly correct. The appellants offered witnesses to traduce the character of their own mother by showing that she abandoned her husband, their father, and lived so remote from him when she conceived the children whose claims they oppose, that cohabitation with him was physically impossible; they also offered to show that these children were adulterous bastards alleged to bo such by their father and openly acknowledged to be such by their mother; all of which evidence was rejected by the court, on the ground that the father bad never legally contested the legitimacy of these children, as required by the Article 210 of the Civil Code, and that the delay for doing so had expired before his death, so that his heirs were by the Article 211 debarred from raising the controversy now.

The appellant excepted to the ruling of the court, and now contends that the cause should be remanded for the reception of this parol evidence. The Article 203 of the Code embodies the maxim pater est quern nuptice demonstrant;

“ the law considers the husband of the mother as the father of all children conceived during the marriage.” The legal presumption can only be rebutted in the mode and within the time prescribed by law. “The right to disavow and repudiate a child born under the protection of the legal presumption is peculiar to the father and can be exercised only by him, or his heirs, within a given time, and in certain cases. If the father renounces the right expressly or tacitly, it is extinguished and can never more be exorcised by any one.*** The right to disavow (action en désaveu) is entirely distinct and different from that which all parties, whose interest may be affected, have to contest the legitimacy of one in whose favor the legal presumption does not exist (contestation de légitimité)." Eloi v. Mader, 1 Rob., 584.
“In all the cases above enumerated, where the presumption of paternity ceases, the father, if he intends to dispute the legitimacy ot the child (s’il veut réclamer contre la légitimité) must do it within one month, if he be in the place where the child is born, or within two months after his return, if he be absent at that time, or within two months after the discovery of the fraud, if the birth of the child was concealed from him, or he shall be barred from making any objection to the legitimacy of such child (et & défant defaire la réclamation dans ces délais, lepére y sera déclaré non recevable). O. 0., 210.
“ If the husband die without having made such objection (avant d’avoir fait sa réclamation), but before the expiration of the time directed by law, two months shall be granted to his heirs to contest the legitimacy of the child, to be counted from the time when (he said child has taken possession of the estate of the husband, or when the .heirs shall have been disturbed by the child in their possession thereof.” C. 0., 211.

It was held in Tate v. Penne, 7 N. S., 553, to be a perfectly well established principle, that “a child born during marriage cannot have its condition affected by the declaration of one or both of the spouses.”

And in the case of Vernon v. Vernon’s Heirs, 6 An., 245, where the Banbury Peerage case was held to be the rule as to the condition of the plaintiff, which was fixed by the law in force in South Carolina, it was remarked by the court that, under our laws (Code, 209, 210, 211), the defendants would not be permitted to question the legitimacy of the plaintiff, although he was never acknowledged by the husband of his mother to be a legitimate son. See also 2 Toullier, Nos. 831 et seq. 858 et seq. The reason was that he had not contested the legitimacy of this son in the manner and time pointed out by the Code. Our Article 210 is taken substantially, and Article 211 literally, from the Napoleon Code — Articles 310 and 317. It has uniformly been considered that the mode of disavowal prescribed by the latter Articles of the French Code, was, by a judicial proceeding or action to which the child was a necessary party either in person or by the intervention of a tutor ad hoc appointed by a family meeting. Le désaveu doit etre formé devant les tribunaux civils, dans les formes ordinaires,’’ 2 Toullier, No. 842. “Ze désaveu est une action qui tend d dépouiller un enfant de la qualité de fils ou filie légitime, que lui donnait injustement la présomption légale. Gette action appartient au mari; elle appartient aussi d ses héritiers, mais seulement dans deux cas déterminés’’ •317, 425. Rogron C. N. 312. “Z« désaveu est Z’actiox par lo,quelle on pretend qu’un enfant, conga ou tout au nioins né dans le mwriage, n’est pas lefils dumari desamére; e'est tout ^implement la dénégation jtoiotatiíe de la pater nité du mart. La contestation de légitimitéest V action par laquelle on pretend qu'un enfant riestpas legitime, pour une cause queleonque.” 2 Marcadé, No. 10.

There is no reason to suppose that the framers of our Code intended that the disavowal should be made in any mode less solemn, public and imperishable than a judicial proceeding. The terms of the Articles 210 and 211 quoted above indicate a legal contestation; “if he intends to dispute the legitimacy (sHl veut réclamer conti'e la légitimité), or “ to contest the legitimacy,” are phrases which mean something more than a mere oral and ex parte declaration. The Article 318 of the Napoleon Code is omitted in our Code. “Toutacte extra-judiciairo contcnant le désaveu de la part du mari ou deses héritiers, sera comme non-avenu s’il n’est pas suivi, dans le délai d’un mois, d’une action en justice, dirigéo contre un tutenr ad hoc donné á l’onfant, et en presence de sa mére.”

But the last clause of Article 210, “or he shall be barred from making any objection to the legitimacy of such child ” (et á défaut defaire la réelemnation dans ces délais, lepere y sera déclaré nonreeevable), has been added to the corresponding Article of the Napoleon Code (Art.- 310) by which it is apparent that the extension of one month for bringing the action, which might be gained under the latter Code by an extra-judicial disavowal of the child, was not intended to be retained in Louisiana.

There was therefore no error in refusing' to hear parol evidence of the declarations of Déjol or his wife, or of the children whose claims are contested, touching their legitimacy.

As to the prayer for ten per cent, interest upon the funds in hand for a failure to render an annual account, it suffices to remark that this is not a proceeding to remove the administrator, and that the former penalty has been held to be an accompaniment of the latter under the statute of 1837 reenacted in 1855. Rev. Stat., p. 3, see. 4; Thomas v. Bougeat, 1 Rob., 406; Succession of Desorme, 10 Rob., 480.

It is, therefore, ordered, that the judgment appealed from, so far as it overrules the opposition to the item of $612 55, charged as having been paid by the administrator to Dr. A. Q. Thornton for medical services, be avoided and reversed; and it is further ordered, that the sum allowed for said item be reduced to $300; it is also ordered and decreed, that as thus reduced and amended, the judgment homologating the said account be affirmed; and it is further ordered, that the judgment homologating the tableau of distribution be so amended as to fix the sum to be equally distributed among the heirs named in the tableau at five thousand two hundred and sixty-six dollars and 42 cents ($5,200 42), or eight hundred and seventy-seven dollars and seventy-three cents and two-thirds each; and it is further ordered, that the judgment homologating the administrator’s tableau of distribution, as thus amended, be affirmed; the costs of the opposition in both courts to be borne by the appellee.


text:
    E. H. Angomar v. J. G. Wilson.
    Where the contract in relation to the movables embraced in a sale was in writing — Held : That the vendee could not be permitted to prove by parol, that it was the intention of the parties certain articles not designated should be included in the sale, unless he has alleged mistakes or fraudulent omissions to his prejudice*
    APPEL from the District Court of St. Landry, Dupré, J.

      T. H. Lewis and Porter, for plaintiff. J. IS. King, for defendant and appellant.
   Buchanan, J.

Plaintiff and appellee sues defendant for the value of certain movables enumerated in a schedule annexed to and made part of the petition. Plaintiff alleges that he sold and delivered to defendant a sugar plantation, slaves, &c., situated in the parish of St. Landry 5 that soon after said sale, the defendant, without any right or authority, took into his possession the articles enumerated in the schedule, which belonged to plaintiff; part of which articles were on the plantation, and part at other places.

Defendant pleads, in his answer, that the property claimed by plaintiff, and for the recovery of which he is sued, belongs to respondent, which he is ready to verify on the trial of the cause.

Upon this issue, the only question remaining was the interpretation of the acts of sale between the parties. The identity, and perhaps the value, of the objects in dispute, are not controverted.

There are two sales, both by authentic act.

By the first, plaintiff sells to defendant a sugar plantation, “ with all the buildings and improvements thereon, and all the rights, ways, customs and advantages thereto belonging or in anywise appertaining; also, all the horses, mules, cattle, and instruments of husbandry thereto properly appertaining.”

By the second sale, plaintiff conveyed to defendant “ all the house furniture contained in the house and residence of said vendor, and all the furniture appertaining to the said dwelling and residence, except the following described property, the linen furniture appertaining to the said dwelling house,” &e.

On the trial of the cause, after defendant had offered in evidence the second of these sales, he offered the notary who drew the act and one of the witnesses who signed it, to prove that the intention of the parties was to include in that sale the articles sued for by plaintiff.

This parol evidence was properly rejected by the District Court. The case of Akin v. Drummond, 2 An. 94, relied on by defendant’s counsel, only goes to the extent of recognizing the right of parties to prove mistakes or fraudulent omissions in written contracts relating to movables. The defendant’s answer does not allege any mistake or fraudulent omission, to the prejudice of defendant, in the written contract in question.

This case certainly resembles that of Larne v. Hampton, 4 An. 53, as to the generality of the expressions of the sale, “ house furniture,” and “furniture appertaining to the dwelling and residence,” hut there is no ambiguity in those expressions. The only item of the schedule annexed to plaintiff’s petition that can possibly come under these general terms is the silver plate, estimated at one hundred dollars.

In like manner, the only items of the said schedule that can be classed un der the general expression “instruments of husbandry” in the other sale, are the sugar house mill, and the four sugar kettles, estimated in the aggregate, nine hundred and forty-eight dollars.

But if we deduct these three items from the bill of particulars, there is still left an amount exceeding that allowed to plaintiff, by the judgment appealed from.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed with costs.


author: Spoeford, J.

text:
    Mary King v. Police Jury of St. Landry.
    No remedy is given by statute against a parish, for a private injury caused by the absence of bridges or a neglect to keep them in repair,
    Where it was not shown that the Police Jury of the parish were under a legal obligation to keep the bridge over a certain water course always in repair — Etelcl; They were not liable for damaji ges occasioned by the ruinous oondition of the bridge.
    APPEAL from the District Court of St. Landry, Dupr'í, J.

      H. L. Gwrl.nd,, for plaintiff and appellant. A, Depr'e, for defendant.
   Spoeford, J.

This case presents the following question: Is the parish of St. Landry liable in damages for an injury to the property of one of its citizens, occasioned by the ruinous condition of one of the parish bridges connecting a highway across the Bayou Téehe ?

There was no law which compelled the parish of St. Landry to build the bridge in question. Having built it, there was no law which required the parish to keep it in perpetual repair. The whole subject seems to have been confided to the uncontrolled discretion of the Police Jury of the parish.

“ The Police Juries shall have power to make all such regulations as they may deem expedient, as to the proportion and direction, the mating and repairing of the roads, bridges, causeways, dikes, levees and other highways.” Acts 1813, p. 158 ; Revised Statutes, p. 408, sec. 18; see also Revised Statutes, p. 480, sec. 1.

The repair of the public roads, causeways, bridges, &c., so far as regulated by the general law, is entrusted to the management of overseers of roads, with certain directions and under certain penalties. Revised Statutes, p. 505, secs. 132, 133, 134, 335, 136, 137, 188, 139. These overseers are subject to a presentment and prosecution for neglect of duty. And they are empowered, whenever it shall be necessary for the public convenience, that any road, bridge or causeway be immediately made or repaired, or any obstruction removed, to call out a sufficient number of hands to perform the work on one day’s notice. Act 1839, p. 4; Rev. Stat. p. 507, sec. 141,

As no remedy is given by statute against a parish for a private injury caused by the absence of bridges or a neglect to keep them in repair, and as it is not shown in this case that the Police Jury of St. Landry were under a legal obligation to keep the bridge over the Teche always in repair, we think there was no error in the judgment rejecting the plaintiff’s demand. Upon this subject, see also Moore v. Mayor of Shreveport, 3 An. 645. The question of the liability of municipal corporations for the injurious acts of their agents clone in the proper scope of their employment, is quite different, See Houston v. Police Jury of St. Martin, 3 An, 566; Walling v. Mayor, &c., 5 An., 660.

Judgment affirmed,


text:
    George W. Johnston v. Jane M. Cocke.
    The jurisdiction of the Supreme Court is limited by the Constitution and the statutes which have organized the court, and although the parties are willing to waive the objection, the court itself will refuse to entertain an appeal in a case which by law is unappealable.
    APPEAL from the District Court of St. Martin, A. Voorhies, J,

      DeBlanc & Fusilier, for plaintiff and appellant, F, Simon, sr., and F. Simon, jr,, for defendant.
   Buchanan, J.

The District Court for the 14th Judicial District, sitting in St. Martin, rendered an interlocutory judgment in this cause on the 19th February last, decreeing the provisional keeping of the children of the parties to the defendant. Plaintiff presented a petition for an appeal from this judgment. At the bottom of the petition of appeal was written the following consent of counsel: “These are to certify that it was agreed between us, the undersigned, that there should be an appeal in the case of George W. Johnston v. Jane M, Cocke, in relation to the provisional keeping of the children born of the marriage ; said appeal to be decided in New Orleans by the Supreme Court.

Mwrch 2d, 1857.
[Signed] DeBlanc & Fusilier, of Counsel.
“ Edward Simon, jr., of Counsel."

The following order of court was written below this consent of counsel:

“ Let an appeal be granted as prayed for, on appellant giving bond and security in the sum of fifty dollars, said appeal returnable at the Supreme Court sitting at New Orleans, as agreed upon between the parties.
St. Martinsville, March 3cl, 1867.
[Signed] Albert Voorhies,
Judge of 14th District."

The appeal bond also refers on its face to New Orleans as the place of return of the appeal; which was accordingly passed upon in that city by this court; and judgment rendered on the 8th June, 1857, dismissing the appeal, at the cost of appellant.

Immediately upon the decree of the Supreme Court being certified to the District Court of St. Martin, a petition was presented by plaintiff to the District Court for another appeal returnable to Opelousas at the present term. It is this second appeal which is now before us.

The appellee moves the court to reject the appeal, and we do not hesitate in sustaining that motion. We are satisfied that the plaintiff had no right to the present appeal.

If we have rightly understood the argument of the learned counsel of plaintiff, the consent given by him for the return of his first appeal to New Orleans being-, by its terms, a consent to have the cause decided in New Orleans, did not authorize the appellate court to dispose of the cause in any other manner than by a decision upon its merits ; and the counsel argues that the foundation of the jurisdiction of the Supreme Court in New Orleans in this matter not being the law, but the consent of parties, the court was bound to follow the letter of the consent as plaintiff’s counsel understood it in the decision to be rendered; or otherwise the decision might be treated by the appellant, as it manifestly has been, as a nullity.

We do not thus understand the relations of this tribunal to the parties litigant before it.

Our jurisdiction is an appellate one, limited by the Constitution and the statutes which have organized the court. We cannot recognize any authority in suitors to require us to give judgment upon the merits of a cause which is not within our appellate jurisdiction. And if we indulge the parties to a suit by consenting, upon their joint application, to hear and dotermine an appeal at a place of session of the court, where it would not be legally triable and determinable without the consent of parties, this will certainly not place the cause upon different and higher ground than those causes which are regularly returnable in the place where such decision is rendered.

Our decision in New Orleans proceeded upon the ground, that the judgment appealed from did not work an irreparable injury; and was, therefore, unappealable.

It is not correct to style this a decision upon mere matter of form and procedure. It concerned, on the contrary, the jurisdiction, the most vital and essential attribute of the court; without which wo are usurpers and our judgments blank paper: a matter which it is our duty to settle whenever any doubt presents itself, even though both the parties may have overlooked it, or have been willing to waive it.

This appeal is, therefore, rejected, at appellant’s costs. .


author: Voorhies, J.

text:
    Henry C. Dwight v. Walter Brashear et al.
    A party may abandon his appeal from the portion of the judgment which passed upon the title to the property, and retain the appeal as to the part of the judgment which condemned him to pay the fruits and revenues or their value.
    On a judgment of the Supreme Court which condemed such party to pay the fruits at a certain rate per annum, until the restoration of the property, execution could only be issued for the fruits up to the time at which the possession of the property was abandoned to the owner.
    APPEAL from the District Court of St. Mary, A. Yoorhiea, J.

      J. G. Olivier, for plaintiffs. J. W. Walk&r, for defendants and appellants.
   Voorhies, J.

This is an injunction sued out in the case which was decided between the parties litigant by this court in September, 1855. See 10th An., 645.

The appeal in that case was taken on the 6th of February, 1863. During its pendency, it appears the defendant offered to restore to the plaintiff, Brashear, the property in litigation, acquiescing in the judgment so far as it passed upon ■the title, but reserving his right of appeal on the other branch of the case, namely: the rents or fruits of the property. Brashear declined to accept the offer, alleging as a reason, that he had agreed to convey the property to his attorney, William O. Dwight, on the final decision.

“A mixed action, is one which, in its nature, partakes both of the real and ■ of the personal action, such as a claim for the ownership of real property, and also for the fruits it has produced, or their value.” O. P., 7. The question as to the title or the fruits may be decided in a seperate action. See Winter v. Zacharie, 6 R. 466. Wo are unable to perceive any good reason why the defendant Dwight could not abandon his appeal from that portion of the judgment which passed upon the title to the property. Article 567 of the Code of Practice declares: “ The party against whom judgment has been rendered, cannot appeal, if such judgment have been confessed by him, or if he have acquiesced in the same, by executing it nolunta/rihy.” The tender of the property to Brashear was in writing. It was, therefore, competent for him to avail himself of it, under this provision, as a ground to dismiss the appeal on that branch of the case.

The property in question appears to have been in William O. Dwight’s possession until his death, when it went into the possession of the administrator of his estate, who continued to hold it from the date of the tender until the final decision of the case. E. P. Dwight, the administrator, testifies “ that William O. Dwight in his lifetime occupied rooms in the building which was in controversy between Walter Brashear and 3. O. Dwight, and for the rent of which property the execution enjoined was issued. There existed a written agreement between Walter Brasheao' and 3. O. Dwight, by which the former was to transfer the property to the latter, after the title to the same was decided. On the 23d of December, 1854, he requested L. P. Curtis to take charge of the property and rent it for him. Had a conversation with Ourtis a short time after the above date, in which Ourtis stated that he had rented the property to Ibert,” &c. Gross-examined says, that “he was not directly authorized by Walter Brashear to take possession of that property and rent it; but considers that under the agreement he was authorized,” &c.

The testimony of this witness forms the subject of a bill of exceptions taken by the counsel of the defendant and appellant on the trial below. His testimony was objected to “ on the ground, that the defendant should not be prejudiced by the acts of other parties, who, without his authority, assumed to control his property, and that all such testimony went to prove res inter alios acta.” We do not think the Judge erred in overruling the objection, which could only go to the effect, and not to the admissibility of the testimony. Had the witness no authority to control the property, it is perfectly clear that his acts could in no manner affect or prejudice the appellant's right. But we think the evidence discloses that he had such authority under the written agreement of the appellant. That agreement, it is true, has not been produced, but we are bound to presume from the testimony of the witness that such authority existed as he understood it under the agreement. Had it not been so, the appellant should have shown it by the production of the instrument itself, which is not pretended to havejjeen destroyed, although the contraot between the parties was voluntarily revoked by them in 1856. That such authority existed, we think, is fully oonfirmed by the admission of the appellant himself. The appellee having thus parted with the possession of the property, it appears to us to flow as a matter of natural consequence, that he cannot be hold liable eithor in equity or law, for its fruits,

The judgment affirmed by this court decrees the appellee to pay the appellant the fruits at the rate of $418 per annum until the restoration of the property, The fruits which have accrued since the tender, constitute the only claim for which the appellee is sought to be made liable; and, as wo have seen, without any legal foundation. We-are, therefore, of opinion there is no orror in the judgment of the court below, which is affirmod, with costs,


author: Spofford, J.

text:
    State v. William Bass.
    The Act of the Legislature empowering the Judge to appoint an Attorney to prosecute in behalf of the State {pro. tempore), when the District Attorney shall not attend, is not unconstitutional.
    In all criminal cases as well as civil cases, a written assignment of errors must be filed, in eonfor* mity to Art. 897 of the Code of Practice.
    If the assignment is not filed before the cause is submitted the right to file it is waived,
    APPEAL from the District Court of St, Landry, JDitpré, J.

      JP. D. JKwrd/y, for the State. J. F. King, B. F. Linton and G. 11. Moitton, for the accused and appellant.
   Spofford, J.

William Bass was indicted in the Parish of Calcasieu for the murder of one Anthony Gorltran. The venue was changed to the Parish of St. Landry, where the prisoner was tried and found guilty of manslaughter. His motions for a new trial and an arrest of judgment being overruled, he was sentenced to the penitentiary for twenty years. From this sentence he has appealed.

The only point presented by the record itself concerns the legality and constitutionality of the appointment by the Judge of a member of the bar to act as District Attorney pro. tempore, in the absence of that officer during the term of court at which the indictment was found. The authority to make this appointment is found in an Act of 1817, reenacted in 1855, (p. 369, sec. 11) in these words : “Whenever the District Attorney shall not attend, the Judge shall have power to appoint an Attorney to prosecute on behalf of the State, {pro. tempore), who shall be paid such amount as may be allowed by the court, to be paid by the Auditor out of the salary of the District Attorney, on the warrant of the Judge.” Roc. Stat., p. 183, sec. 11.

In this case it is not denied that the District Attorney was absent, or that the Attorney who framed and signed the bill, as acting in the place of the District Attorney in his absence, was regularly appointed in pursuance of the statute.

The only question made is whether the statute he constitutional. It is said to conflict with that disposition of the organic law, which requires District Attorneys to be elected by the people. Const. Art. 83. We do not perceive that there is any real conflict. The District Attorney was chosen by the People. He was not superseded in his office. The appointee of the court did not become a District Attorney. He became authorized by the appointment, under the law, to discharge a specific duty which usually falls upon theu District Attorney, but which the Constitution has not confided exclusively to that officer. If there is nothing in the Constitution to prohibit it, the Legislature may dispense with the signing of indictments by the regular District Attorney, and authorize them to be signed by a substitute appointed by the court. It is the finding of the grand jury endorsed upon a bill by its foreman, that gives an indictment authenticity. The signature of the framers may not be essential to its validity, if the Legislature does not make it so. The duties of District Attorneys shall be determined by law. Const. Art. 74. And there is nothing in the Constitution which requires bills of indictment to be signed, or all pro■secutions to be conducted by the regular District Attorneys. The law makes it incumbent upon them to perform the duties of prosecutors in behalf of the State when they are present and not recused; if absent or recused, the State law confides their duties temporarily to other persons, and no clause of the Constitution forbids it.

The case of the State v. the Judge of the Sixth District, 9 An. 62, furnishes no parallel to this ; for the Constitution vests all the judiciary power in a Supreme Court, in such inferior courts as the Legislature may from time to time order and establish, and in Justices of the Peace, but limits the power of the Legislature as to the mode of ordering and establishing the inferior courts by declaring that their judges must be elected by the qualified voters of the respective districts or parishes. Const. Arts. 61, 81. The Legislature cannot therefore confer judiciary powers upon any inferior court whose judge shall not be elected by the people. It cannot transfer judicial duties to any other than judicial officers.

The propriet3'- of the appointment of an attorney to prosecute in such a case as this, in lieu of the absent District Attorney, has been recognised by previous decisions. The State v. Jerry, 4 An. 190; The State v. Viaux, 8 An. 517, 623.

In what is styled a supplement to the printed argument of the appellant’s counsel we find several points discussed as errors assigned upon the record. But we find no written assignment of errors, as is required by the Code of Practice, Article S97. That rule applies to the course of practice to be pursued in this court in all cases brought by appeal before it, whether civil or criminal, and the assignment should be filed before the cause is submitted or the right to file it is waived. If we wore permitted, however, to examine the points presented in this portion of the argument, wo do not think the appellant could profit by them. He did not move to arrest the judgment in the court below on any such technical grounds, although, if there was a foundation for these objections, they were then obvious to the accused and should have been brought to the notice of the District Judge. The State v. Arthur, 10 An. 205.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


author: Spofford, J. Merrick, C. J. Buchanan, J.,

text:
    Cornelius Voorhies v. J. A. DeBlanc, Sheriff, et als.—Pierre J. Pavy et al. v. The Same.

    The word “ immovables,” as employed in Article 3250 of the Civil Code, which specifies the objects which aloft# are susceptible of mortgage was intended to embrace only such things as are immovable by their nattwe^ as lands, buildings, &c.

    “ An action for the recovery of an immovable estate or an entire succession,” although, by legal intendment considered an incorporeal immovable, is not susceptible of mortgage.
    An entire succession, disregarding the elements which enter into its composition, is not an object susceptible of mortgage.
    A judicial mortgage will not attach to an immovable action as distinguished from the property which is the object of the action, nor to the entire interest of the debtor in the movables, slaves and immovables which composed the active mass of a succession falling to him as heir.
    APPEAL from the District Court of the Parish of St. Martin, Dupré, J.

      M. Voorhies, for plaintiff and appellant. A. DeBlanc & Fuselier and E. Simon, for appellees.

       This case wns decided at New Orleans, March 2d, 1S57.

   Spofford, J.

Alexander Declouet being a judgment creditor of Jean Adolphe Dumiartrait levied an execution upon “ all the hereditary rights, actions and pretentions of said J. A. Dumartrait in and to the property, real and personal, by him inherited, for one undivided fourth, from his father Adrien Dumartrait, deceased, whose succession is opened in the Parish of St. Martin,”

The property thus seized being sold, produced a fund of four thousand dollars, which Declouet sought to apply to the satisfaction of his judgment, by virtue of his seizure. '

Cornelius Voorhies filed an opposition in which he claimed a preference on all the proceeds of this sale by virtue of a judicial mortgage upon the seized property, resulting from the registry of a judgment against Jean A. Dumartrait in the Parish of St. Martin, which took rank of all other claims by priority of inscription, and was sufficient in amount- to absorb the fund in court.

P. J. Pavy & Co. also filed an opposition. They had the eldest judicial mortgage against Jean A. Dumartrait recorded in the Parish of St. Mary, the parish of his domicil.

The succession of Adrien Dumartrait was composed of movables, slaves and immovables, in the Parish of St. Martin. Some time after the sale of Jean A. Dumartrait’s one fourth interest in the succession, under Deelouet's judgment, the property of the whole succession was sold, and the relative value of the movables, slaves and immovables was thereby determined. The value having been thus ascertained, and shown on the trial of these oppositions in the court below, the District Judge divided the fund in court into three parts having the same ratio to each other as the respective products of the movables, the slaves, and the immovables of the entire succession of Adrien Dumartrait.

Of these three parts, he awarded to the seizing creditor, Declouet, the portion corresponding to the proceeds of the movables ; to Voorhies, the portion corresponding to the proceeds of the St. Martin immovables ; and to Pavy c6 Co., the portion corresponding to the proceeds of the slaves, as ascertained by the sale of the entire property of A drien DumarbraiCs succession.

The theory upon which this judgment was based seems to have been this : that the common debtor, Jean A. Bumcirt/rait, was seized at the death of his father, Adrien Duma/rtrait, of one undivided fourth of all the movables, immovables, and slaves belonging to Adrien's Succession, (O. C. 1214, 934,988) ; that thereupon Voorhies' judicial mortgage attached at once to the undivided one-fourth interest of his debtor in the succession lands with their accessories, situated in the Parish of St. Martin, where his judgment was the first of record; that, at the same instant, the judicial mortgage of Ferny & Go. attached to the undivided one-fourth interest of the same debtor in all the slaves belonging to the succession, because they had the first recorded judgment in the Parish of St. Mary, the debtor’s domicil; and, lastly, that Beclouet, by virtue of his seizure, under Article 722 of the Code of Practice, was invested with a privilege on the undivided one-fourth interest of the common debtor in all the property of the succession, which privilege, however, was overridden, quoad the lands and their accessories, by the prior judicial mortgage of Voorhies, and, quoad the slaves, by the prior judicial mortgage of Fa/oy & Go.; that the fund in court represented one-fourth interest of Jean A. Bumartyrait in all these kinds of property, composing the active mass of the succession of his father, as if the succession had been partitioned and he had taken one-fourth of each of these three classes of property in kind; that the mortgages and privileges which attached to the property itself were transferred to the fund; and that the only practicable mode of ascertaining the relative proportion of each class was to take as a basis the subsequent sale of the whole property of the succession.

From this judgment Voorhies alone has appealed; Pmy & Go. only have joined in the appeal, and they merely pray for an amendment allowing them, in addition to what they got below, one-third of the portion allotted to Beclouet as representing the value of the debtor’s interest in the movables of his father’s succession.

The sole ground of the appeal by Voorhies, as presented by the brief of his counsel, is that Jean A. BwmoyrVraiÜs interest in the succession was an entirety, and an immovable situated in the Parish of St. Martin, where Voorhies held the first recorded judgment against the heir; that his judicial mortgage, therefore, bound the whole interest of the debtor in this succession, regardless of the nature of the property belonging thereto, and entitles him to be paid by preference out of all the proceeds of the sale.

If the entire interest of an heir in a succession which has fallen to him is susceptable of mortgage, irrespective of the nature of the property which comprises the active mass of the succession, it follows, we think, that the appellant would he entitled to relief.

The question must, therefore, be solved at the threshold of the case.

Our lawgivers have thought it wise to restrain the power of hypothecating property, which is one of the rights of dominion, by the following general and sweeping rule:

“ The mortgage only takes place in such instances as are authorized by law.” O. O. 3250.

The mortgage right then is to be measured, in every case, by the express grant of power in our Codes and other statute books.

The following objects alone are susceptible of mortgage:

“ 1. Immovables subject to alienation, and their accessories considered likewise as immovables.
“2. The usufruct of the same description of property with its accessories during the time of its duration.
“ 3. Slaves.
“4. Ships and other vessels.” O. O. 3256.

Now it is contended that, because, in Article 463, it is declared that “ an action for the recovery of an immovable estate oran entire succession” is “ considered as immovable from the object to which it applies,” such an “action” is embraced under the disignation of “ immovables subject to alienation” in the first class of the objects which, according to Article 3256, are alone susceptible of mortgage.

Closer investigation will, we think, show- this interpretation to be inadmissible.

The word “ immovables” is used in various senses in the Code.

“ There are things immovable by their nature, others by their destination, and others by the object to which they are applied,." O. O. 454.

Slaves are considered as immovables, the operation of law." O. O. 461. It appears to us that the word “immovables,” as employed in Article 3256, Was intended by the lawgiver to be limited to its first and literal sense, embracing only such things as are immovable by their nature, as lands, buildings, &c. We are led to this conclusion, first, because to the expression “immovables- subject to alienation,” is added the phrase “ and their accessories considered likewise as immovables,” an addition quite unnecessary if the -word “immovables” had been used in its broadest signification, and as embracing things immovable by their destination as well as by the object to which they are applied; secondly, because the lawgiver has added, as another and distinct class of things susceptible of mortgage, “ the usufruct of the same description of property with its accessories during the time of its duration;” there can be no usufruct of an “immovable action” or of “an action for the recovery of an entire succession,” so these rights do not fall within the “same description of property” intended to be specified in the first class of things susceptible of mortgage; thirdly, because “the usufruct of immovable things” is declared, by Article 463, to be considered as immovable from the object to which it applies, and, therefore, it was idle to specify such usufruct as a distinct thing susceptible of mortgage, if the words “immovables subject to alienation and their accessories” were intended to include all sorts of immovables, whether by nature, destination, or from the object to which they apply ; fourthly, because “ slaves” are enumerated as the third class of things susceptible of mortgage, another superfluous specification, if the word “ immovables” was used in its widest sense, in the first class, for Article 461 had already declared that “slaves, though movables by their nature, are considered as immovables, by the operation of law; and, finally, because the enumeration of the “usufruct” of immovables as subject to mortgage, in Article 3250, and the otnmission to enumerate the “ action for the recovery of an immovable estate or an entire succession” demonstrate the intention of the Legislature to exclude the latter from the power of hypothecation granted as to certion specified objects alone; expressio unius eet exclusio alterius ; and the argument acquires additional force when we observe that, in Article 403, “the usufruct and use of immovable things,” “ a servitude established on real estate,” and “ an action .for the recovery of an immovable estate or an entire succession,” had been specified as three distinct things “ considered as immovables, from the object to -which they apply.” Eor we cannot suppose that the lawgiver enumerated one of these things, in Article 3256, as being liable to mortgage and omitted the other two without a design.

Article 3296, which declares that: “The judicial mortgage may be enforced against all the immovables (biens-immeubles) and slaves which the debtor owns or may subsequently acquire” does not, in our opinion, enlarge the catalogue of things susceptible of mortgage, enumerated in Article 3256, if, indeed, it can be considered as embracing all of that catalogue, except ships and other vessels, upon which it is unnecessary now to express an opinion.

We therefore conclude that “an action for the recovery of an immovable estate or an entire succession,” although by legal intendment considered an incorporeal immovable, is not susceptible of mortgage.

Still less do we think that an entire succession, disregarding the elements which enter into its composition, can be mortgaged. If it were so, we should be forced to the conclusion that whén a succession was composed wholly of personal effects not one of which could be mortgaged, the heir could yet mortgage the totality or the ideal being which represented those effects.

If it be true that the property which enters into a succession can be mort- . gaged by the heir, whenever it is by its nature susceptible of mortgage, we are then led to the conclusion which the District Judge adopted, and whiqh seems to be supported by the views of Persil, Beg. Hyp. I, pp. 276, 279.

But it would be going beyond what is called for by the case iri the position of the parties before us, to decide whether these alleged judicial mortgages really attached to anything. Eor, as remarked already, Yoorhies alone has appealed, and the other parties have not complained of the judgment in his favor for a portion of the fund. The only question he presents is whether he has a privilege upon the entire proceeds of the sale under Beclouet's judgment by reason of his supposed judicial mortgage ; and we find that he has not, for his mortgage could not attach to an immovable action, as distinguished from the property which is the object of the action, nor upon the entire interest of his debtor in the movable, slaves and immovables which composed the active mass of the succession falling to the heir. If it attached to anything, it could only attach to the undivided interest of his debtor in the immovables situated in the parish where the judgment was recorded.

Pavy & Co. had recorded their judgment in the parish of the debtor’s domicil, which, they say, affected his interest in the slaves by Article 3318 of the Code. As no amendment has been asked by Declouet, as against Pavy & Co. or Voorhies, we cannot enquire whether he was entitled to more than he obtained.

Pavy & Go, only complain of the allowance to Beclouet of the entire portion the fund which represents the relative nature of the debtor’s interest in the movables of the succession, and they assert that they are entitled to one-third of it. As their demand is a third opposition, founded wholly on an alleged privilege, it is difficult to see how, under the principles by which they support the correctness of the judgment in all other particulars, they can assert a privilege upon the fund representing the movables. They made no seizure, and if they have no privilege they cannot dispute the seizing creditor’s right.

Nor can we, in the peculiar attitude these parties occupy towards each other, inquire into the correctness of the action of the District Judge, in taking as a basis of his estimate of what J. A. Dumm'Prait would have received of each sort of proporty by a partition in kind, the result of a sale posterior to the Sheriffs sale, which, as all parties agree, divested his interest in his fathers succession.

And we express no opinion concerning the validity of the seizure, advertisement and sale under Deolouet’s judgment, inasmuch as all parties are claiming the proceeds in affirmance of the sales.

Under the view we have taken of this remarkable case, we do not think the judgment between these parties can be disturbed. It is therefore affirmed with costs.

Lea, J., concurred in this opinion.

Voorhies, J., being a party to this cause, recused himself.

Merrick, C. J.

I concur in the conclusions of Justices Spofford and Lea, although I do not think it necessary to decide the question whether an action to recover an entire succession is susceptible of mortgage ór not.

In my opinion, where the heir is present and recognized, or where the creditors have accepted the succession for him by the seizure of his interest in it, the succession, even if it be under administration, must be considered as in the possession of the heir. O. 0., 1985.

If the heii'S reside upon the property of the succession, and enjoy the same in a state of indivisión, their possession is apparent. If the property be under administration the administrator is their agent, and his possession is that of the heirs. Hence the mortgage attaches upon the undivided interest of one of several heirs in each and every immovable and slave of that succession. This mortgage, where there are several heirs, is not absolutely fixed and certain but movable, and by the mere act of partition, is transferred to the portion falling to the heir who has given the mortgage, leaving the portions of his co-heirs unincumbered. Act 1843, p. 44, sec. 2.

Now if the property, the movable, immovable and slaves of a succession are sold to effect a partition or for other cause, the mortgage attaches to the proceeds of the mortgaged property. 2 N. S. 231; 8 Rob. 97; 9 L. R. 200.

Where debts of the succession are to bo paid before the rights of the heir can be ascertained, the relative rights of the mortgage and other seizing creditors of the heir will be adjusted according to equity and such principles of law as are laid down in the code.

If the right of the heir to a succession under administration were to be considered as in action only, and not in possession, and the property were to be sold by the administrator, it would follow (the mortgage not attaching to the real action) that the proceeds were free from all incumbrances in the hands of the administrator.

Again, if the real action, as for instance the right of the heir to a partition were subject to the judicial or other mortgage, the mortgage creditor would have a mortgage upon the interest of the heir in all the movables of the succession, which would be instantly defeated by the partition or the reduction of the right of action, according to Art. 463, into possession.

I think, therefore, that the mortgage attached to the interest of the heir in each of the immovables of the succession, precisely as it would have done if he had bought the like interest by a single or a succession of purchases, save only the liability of the creditor to be defeated in part by the shifting of his mortgage by the act of partition to immovables of less value. C. C. 1434, Act 1843; 12 Bob. 450, Succession of Pigneguy.

I, therefore, concur in the decree affirming the judgment of the lower court.

Buchanan, J.,

dissenting. The object of this litigation is the proceeds of a Sheriff’s sale.

What was sold ? Jean A. Bumartrait's share in the succession of his father, stated in the advertisement and seizure to be one-fourth.

What did the purchaser acquire ? The right to recover, by action of partition or otherwise, all of Jean A. Bumartrait'sixitvesst in the succession of his father. This was an entire thing — an entire estate — not to be confounded with any particular objects or articles contained in the inventory of Ad/rim Bumartrait. See Ternant v. Boudreau, 6 Rob. 488, in which Simon, J., as the organ of the court, took great pains to elaborate the legal distinction. See his reasoning on pages 493 and 494.

The legality of the seizure of defendant’s interest in the estate of his father is scarcely an open question, since the decisions in Noble v. Nettles, 3 Rob. 152, and Mayo v. Stroud, 12 Rob. 105. Besides, all the parties acquiesce in its legality.

The next step in our inquiry is to ascertain what is the technical classification of the thing or object seized and sold ? It is an incorporeal immovable. C. C. 451 and 463. It is an action for the recovery of an entire succession. This action is indivisible, according to the authorities quoted above. The purchaser was put in the shoes of Jean A. Bumartrait, as heir of his father— entitled to the advantages of such a position in the distribution of Adrien Bumartrait's estate — and liable to its burdens, in contribution to debts and charges. The price of adjudication represents the estate or right which he purchased.

The Article 462 O. O. relied upon by the counsel of appellees, does not contradict the Article 463, which declares the right seized and sold to be an immovable. On the contrary, the Article 462 refers to Article 463, as explanatory of his meaning.

Was that right affected by the inscription of Voorhies' mortgage ? In answering this question, I premise that the right seized and sold had its existence in the parish of St. Martin, -because Adrien Bumartrait’s succession was opened in that parish, and because the seizure and sale was made in that parish. And this being premised, it follows, as I conceive, that the right of action for the recovery of Jean A. Bumartrait's inheritance, was affected by the inscription of Voorhies' judgment in the parish of St. Martin.

It comes within the first class of objects susceptible of mortgage, conventional, legal or judicial, in Article 3256 of the Code, which class is as follows :

“Immovables subject to alienation, and their accessories considered likewise as immovables.”

It is an immovable subject to alienation. See Article 463 already quoted, and Article 2424 of the Civil Code.

Again, Article 3296 of the Code subjects to the judicial mortgage especially, all immovables and slaves which the debtor actually owns, (at the date of inscription,) or which he may afterwards acquire. Jean A. Buma/rtrait acquired the immovable right of inheritance in this parish, after the inscription of Voorhies' judgment. I therefore say, the right of inheritance in question, or the action for the recovery of the inheritance (which is synonimous) was subject to the judicial mortgage of VoorMes.

But here we are met by the argument, that the estate inherited might consist solely of movables, in which case there would be an injustice or an undue advantage in favor of the holder of the judicial mortgage. This argument is nothing more than an ingenious attempt to withdraw from, view the distinction between the entire estate or inheritance, and the particular objects which compose it.

Eor the purposes of this litigation, it seems to me entirely superfluous to consider what were the kinds of effects which composed the inventory of Adrien Dwmartrait. It is very clear that Mr. Declouet, acting under the advice of his distinguished and able counsel, did not venture to seize Jean A. Dumartrait's undivided interest in any of the lands, slaves, furniture, cash, stocks, movable effects, or active debts comprised in the inventory. He seized the entire inheritance, which the law says, in terms unambiguous, in various texts, is an immovable. Eor instance, the Code treats it as an immovable in relation to prescription. By Article 1023, the faculty of accepting or renouncing an inheritance is barred by the lapse of time required for the longest prescription of the right to real estate.

It seems to me inconsistent and inadmissable that the seizing creditor should now shift his ground and say: “ I stand upon my privilege, so far as the estate-of my debtor, which I have acquired under my execution, consists of rnova-bles ; conceding to you an hypothecary right, so far as it consists of immovables.”

The judgment of the District Court, which is affirmed by the majority of this court, I cannot help regarding as a total change of the jurisprudence on this subject; yet I do not understand my brethren as declaring their dissatisfaction with the decisions in Ternant v. Boudreau, Noble v. Nettles and Mayo v. Stroud, and their intention to overrule those cases.

The decision of the District Judge is to the following effect: Adrien Dumarto’ait's succession realized, at an auction sale made by the heirs, without authority of justice, after the Sheriff’s sale, the total sum of...........$20,,140' 45

Add active debts or claims in the inventory, not sold at the public sale.................................................... 9,000 70

Total of Adrien's estate........................$29,153 15

Of which one-fourth belonged to Jean A. Dumwbrait and was acquired by Deelouet at Sheriff’s sale, amounting to............$ 7,288 28

The price of adjudication of the fourth interest of Jean A. Dwmartrait in his father’s succession, at Sheriff’s sale, was $4,000.

Now, as the aggregate of sales of houses and lands at the auction sale was $7,720, and as the aggregate of sales of slaves at the said sale was $8,901, and as these two sums bear Respectively to $29,153, total of Adrien Dumozrti’ait's estate, the proportions of twenty-six and a half per cent., and thirty and a half per cent, or thereabouts, the District Judge gives about twenty-six and a half per cent, of the net proceeds of Sheriff’s sale to VoorMes; about thirty and a half per cent, of those net proceeds to Pavy & Go.; and the remainder, say about forty-three per cent, of the net proceeds of Sheriff’s sale, to Beclouet, the seizing- creditor. This would be entirety correct, if the specific lands, slaves and movables had been seized and sold, and if Jean Bumartrait’s interest in these specific objects had been adjudicated for four thousand dollars. But this has not been done; and the injustice of the distribution to VoorMes is apparent, when we find from the record that the fourth interest of BumarPrait has realizéd to the purchaser, JDeelouet, a profit over and above his bid, of three thousand two hundred and eighty-eight dollars ; in addition to which, the judgment returns to him sixteen hundred and fifty-five dollars; making an aggregate of four thousand nine hundred dollars; while the total amount of his judgment against Bumartrait, with interest to the day of sale, was less than twenty-seven hundred dollars.

Thus it is seen that in the particular case, the seizing creditor who purchased the inheritance of the common debtor, loses nothing, by adjudging to the opponent the whole proceeds of the Sheriff’s sale.

Were it otherwise, indeed, it would make no difference in principle. The question is, does the inscription of VoorMes’ judgment carry a mortgage upon the property which has been, sold to a larger amount than awarded by the court below. Being impressed with' the conviction that it does, I am of opinion the judgment should be reversed.


text:
    T. M. Tucker v. J. Burris.
    The certificate of a Commissioner for Louisiana of the official capacity of the Clerk of a county court in another State, affords prima facie presumption of the legal authority of the Clerk to do what he is shown to have done, to wit, to receive the acknowledgement of a deed.
    APPEAL from the District Court of the parish of St. Mary, A. VoorMes, J.

      T. K. Lewis, J. W. Walker, and J. JS. King, for Tucker, appellant. J. A. McOlarty, for appellee.
   Buchanan, J.

In September, 1848, Thomas M. Tucker brought a possessory action against John Burris, claiming damages for trespass committed by said Burris, upon the N. W. quarter of section 85, township 16 S., range 13 E., containing one hundred and sixty acres, more or less, of which Tucker alleges himself to have been in the actual and uninterrupted possession as owner, for more than one, five, ten and twenty years, previous to the institution of the suit.

In December, 1848, John Bwris instituted a possessory action against Thomas M. Tucker, alleging actual and quiet possession, as owner for many years, of a tract of land situated on the south side of Bayou Boeuf, having thirty arpents front on said bayou, by the depth of forty arpents, bounded, &c. The petition alleges that Thomas M. Tucker had committed trespass and waste upon said land, on or about the 1st of September, 1848 ; and prays for judgment quieting petitioner in his possession, and for damages against Tucker.

Finally, in March, 1850, John Burris brings another possessory action against Thomas M. Tucker, upon allegations identical with those contained in his previous suit, but with a prayer for the conservatory process of injunction, to prevent further trespass and waste.

In June, 1851, Burris, by his answer filed in the suit of Tucker, and by an amended petition filed in the first of his own suits against Tucker, converted those actions into the petitory, by alleging title in himself to the locus in quo, as derived from William G. G. Martin, by public act dated 32th January, 1848, by making Martin a party to the suits, and by praying for judgment for the title and possession against Tucker.

Tucker makes no objection to the change of action from possessory to petitory : but to both the suits of Burris, pleads title and the prescription of ten, twenty and thirty years.

The three suits were consolidated by order of court, and were tried by a jury in October, 1856.

In the consolidated issue, John Burris was properly regarded as the plaintiff, the burden of proof being upon him, under the pleadings, to make out his title.

The jury found a verdict in his favor for the land and damages, but they allowed Tucker the value of his improvements. He appeals.

The first thing which arrests our attention in the record, is a bill of exceptions to the introduction of a deed of sale executed in the State of Texas, by John Garrett and others, to the defendant, before George B. Billups,'Clerk of the county court of Jackson county, in said State, dated 21st of July, 1So4, with a certificate of a Commissioner of Deeds of the State of Louisiana, in and for the State of Texas, annexed. The objections made to the introduction of these instruments as evidence were :

1st. That Commissioners of Deeds, acting in other States under the authority of the State of Louisiana, are not empowered to certify as to the official attributes of officers before whom a deed or other instrument may be acknowledged in such States.
2d. That it does not appear that Clerks of the county courts in said State of Texas are authorized by the laws of the said State to take the acknowledgment of acts of sale.

It would seem from the remarks of the Judge a quo at the foot of the bill of exception, that a portion only of the certificate of the Louisiana Commissioner was intended to be rejected by the court, to wit, that portion which referred to the taking of deeds by the Clerks of courts. But in point of fact, the whole deed, with the certificate of the Clerk of the county court in Texas, and the certificate of the Louisiana Commissioner, have been excluded from the jury; and we may well suppose, that the want of this evidence has-been prejudicial to the cause of appellant. For his plea of the prescription of ten and twenty years required proof of a title translative of property; and accordingly Tucker exhibits a claim of title, of which one of the links is, a conveyance from Thomas Davis to Joshua Garrett, of date the eighth day of August, 1808; and another, a conveyance from certain heirs of Joshua Garrett to Tucker, of date the 7th July, 1854.

The Act of 1855, sec. 3, p. 44 of the Session Acts, copied from the Act of — , (Bullard & Curry, p. 165, sec. 7,) provides as follows: “The Commissioners are authorized and empowered to authenticate and attest the signature, official capacity and official acts of any Judge, Justice of the Peace, or other public officer, holding a commission or acting under the authority of the State or territory in which he shall reside, and for which he shall have been appointed. We are of opinion that the certificate of the commissioner for Louisiana being-good evidence, under the Statute, of the official capacity of the Clerk of the county court in Texas, there is a prima facie presumption of the legal authority of the county Clerk to do that which he is shown to have done, to wit, to receive the acknowledgment of the deed, and that the document should have gone to the jury.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the verdict of the jury, be reversed; that this cause be remanded for a new trial, with instructions to the District Court to receive in evidence the deed from John Garrett and others to Thomas M. Tucker, of date the 21st of July, 1854, with the certificates of George B. Billups, Clerk of the county court of Jackson county, Texas, and of J B. M. Bowden, Commissioner of Deeds for Louisiana in Texas, annexed to said deed. It is lastly ordered, that the appellee pay the costs of appeal.