source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    F. Pena v. The Cities of New Orleans and Baltimore.
    '£he following document, written, signed and dated in the hand of John McDonogh, held to be valid as hi? olographic will or as a oodicil thereto; “ $100,000. New Orleans, January 25th, 1848.
    Four years from and after xny death, I hereby authorize and direct (and will) my executors to pay unto Francis Pena one hundred thousand dollars. John McDonogh.”
    fcut this legacy not being within the terms of Article 1624 of the Civil Code, does not bear interest before the suit brought for the same.
    Conceding the suspicion which may attach to the appearance of a small scrap of paper as the title to a large fortune, and the delay in the person who sets it up four years after the testator’s death as a codicil to his will, yet these suspicions should not counterbalance the testimony of numerous and uncontradicted witnesses who sustain the genuiness of the document.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    . Benjamin, Bradford & Finney, for plaintiff.

      O. Boselius and George .Eustis, for defendants and appellants.
   Buchanan, J.

The answer of the defendants specially denies that the paper which the' plaintiff alleges and pretends to he the last will and testament of John McDonogh, is a genuine instrument, written, dated or signed by the said McDonogh.

Six witnesses, Grivot, BoseMus, Mazureau, M. Barnett, senior, M. Barnett, junior, and Fames, testify that they are well acquainted with John Mc-.Donogh’s handwriting, and have seen him sign his name. They believe the instrument sued upon to he wholly in the handwriting of John McDonogh.

No witness has testified to a contrary belief.

The genuineness of the document appears, therefore, to ho established.

The answer also denies that the document sued upon, if genuine, would he valid in law as a last will and testament.

That document is of the following tenor:

“ $100,000. New Orleans, January 26th, 1848.
Four years from and after my death, I hereby authorize and direct (and will) my executors to pay unto Francis Pena, one hundred thousand dollars.
John McDonogh.”

The provisions of the law of Louisiana upon the form of testamentary dispositions, so far as applicable to the present case, are found in Articles 1503 and 1681 of the Civil Code.

Art. 1668, paragraph S. An act of last will, by which an individual disposes of his property, or of part thereof in any manner whalsovcr, whether he has instituted an heir or only named legatees, whether he has or not charged any one with the execution of his last will, is considered as a testament, if it be, in other respects, clothed with the formalities required by law.

Art. 1581. The olographic testament is that which is written by the testator himself. In order to be valid, it must be entirely written, signed and dated by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.

The document in question is an act of last will — for it is intended to be operative, only four years after the signer’s death. It disposes of a part of the signer’s property, namely, a specific sum of money. It disposes of that sum in favor of a particular person, the plaintiff. This is equivalent to a nomination of that person as legatee of that sum. The executors of the signer (executors appointed by an anterior will), are charged with the execution of this disposition.

Finally, being written, signed and dated entirely by the hand of John Yc-Donogh, it is valid as his olographic will or codicil.

The argument of the counsel of defendants has turned principally upon circumstances, which, as they contend, create a presumption that the document sued upon is not genuine. Those circumstances are, the declarations of John McDonogh, made to various persons, at many times, as to certain peculiar views of that gentleman upon the subject of legacies to individuals; the inconsistency of this large legacy with the preexisting will of John McDonogh ; the tardy disclosure by plaintiff of the possession of so important a document; and the condition and appearance of that document as it is presented.

I and 2. It would seem that John McDonogh frequently expressed the opinion to his intimate friends that more good arose from testamentary devises to classes of persons, than to individuals ; and that this was the leading idea of his will, dated in 1888, and reported in full in 8th Annual, page 1H, there can be no question. But we can hardly reject a posterior will merely for inconsistency with a previous one, nor even for inconsistency with expressed sentiments of the testator. Ten years had elapsed between the date of the two testamentary dispositions, and McDonogh might have had reasons, which he did not choose to avow, for making an exception to his general rule of action, in favor of this plaintiff'.

A more serious difficulty is presented by the two last grounds of argument. It is truly surprising that the plaintiff, a resident of New Orleans when John McDonogh's Succession was opened, and his executors qualified, should have never communicated to those executors the fact of his possession of a document so important to himself, and which upon its face was directed to those executors; that he should have suffered those executors to go out of office; the four years for the payment of his legacy, and two years longer, after MaD.'s death, to elapse, without disclosing to any mortal the existence of such a document. Not a syllable of explanation is offered by the plaintiff of this delay in urging his claim.

Again, the document which has been brought up with the record for our inspection, does not appear to have been carefully kept, as one might naturally expect; but is discolored, as if by moisture, creased as if worn in the pocket .for a long time, and in parts almost illegible.

We would have boon better satisfied with some evidence explanatory of the conduct of plaintiff, so little in accordance with the usual springs of human action, at least with that most powerful of all, self-interest. We concede the suspicion which may attach to the appearance of this small scrap of paper as the title to a large fortune. But, after all, suspicions are not permitted to counterbalance, in the judicial mind, the testimony of numerous and uncontradicted witnesses. It is in the recollection of some of us, that a dirty fraction of a half sheet of foolscap,' was the vehicle for the devise of the large fortune of the late Chief Justice Martin. A similar eccentricity in John McDonogh, which made, in his case, a bit of paper, barely large enough for a promissory note, the repository of an olographic will, may have communicated itself to the beneficiary of that will, and been the cause of his concealing its existence until six years after the death of the testator. We de not find in these circumstances sufficient reason for reversing the judgment of the District Court,

The appellee has filed an answer to the appeal, praying an amendment of the judgment, by allowing interest from the 26th October, 1854, instead of from judicial demand, as awarded by the District Judge.

The appellee is not entitled to the amendment prayed for. Interest is only due upon particular legacies, before a suit brought for the same, in the two cases provided in Article 1624 of the Code. The legacy under consideration is not within the terms of that Article. See case, of Fletcher's Succession, lately decided.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    W. L. Knox v. The Coroner et al.
    Where the plaintiff eujoined the execution of a judgment, alleging that it had been paid, and praying that it should be decreed to have been satisfied, the District Judge erred in rendering a final judgment on overruling defendants’ motion to dissolve-the injunction.
    The conservatory process of injunction in such a case is separate from the principal demand which should be put at issue regularly, before a final judgment could be rendered.
    An affidavit for an injunction stating, that “ the facts and allegations, as set forth in the foregoing ‘petition, are true, as therein alleged, to the best of his (afficMils') knowledge and belief” is sufficient.
    APPEAL from the District Court of the parish of Carroll, Favra/r, J.

      Short & Pa/i'ham, for plaintiff.

      Louis Selby, for defendants and appellants.
   Merrick, C. J.

There is a motion to dismiss the appeal in this case depending on the same grounds as the case between the parties of the same name, just decided. Por the reasons there given the motion must be overruled.

This case differs from the preceding one in this, that in the petition, as an additional ground of injunction, the plaintiff alleges, that the judgmentenjoined has been paid, and he prays that on a final hearing of the case the judgment may he decreed satisfied.

The defendant in injunction moved to dissolve the same on the ground, that the petition contained no cause of action, that the same is too vague and indefinite for an injunction, and that the affidavit is not sufficient and is not direct and positive.

The motion to dissolve was overruled, the injunction perpetuated, and the defendants have appealed.

The District Judge erred in rendering final judgment on overruling the defendant’s motion to dissolve. They should have been allowed to answer over.

The injunction suit contains, when commenced by an injunction, two demands. The principal demand which might be instituted in a proper case as an ordinary action, and the conservatory process of injunction. The conservatory process may sometimes be dismissed without carrying with it the dismissal of the principal demand. The case before us was one of this kind. Had the injunction been dissolved for any irregularity, it would not have destroyed the principal demand to have the judgment decreed to be cancelled, because it had been paid and satisfied.

When, therefore, the motion to dissolve was overruled final judgment ought not to have been rendered upon the plaintiff’s demand in his favor, but he should have been suffered to take his judgment by default, and force an issue upon the merits of his principal demand. 8 N. S., 396; 4 L. R., 293; 11 L. R., 482; 9 Rob. 202.

On a consideration of the motion to dissolve, we think it was properly overruled.

The affidavit states, that “the facts and allegations as set forth in the foregoing petition, are correct and true, as therein alleged, to the best of his (Wm. K Knox's) knowledge and belief.” This appears to be sufficient. Jewell v. Jewell, 1 Rob , 316; Livingston v. Dick, 1 An., 323.

The petition itself discloses a sufficient ground for the injunction, viz: the payment of the judgment enjoined, and, in support of the petition, interrogatories on facts and articles are propounded'to the plaintiff in execution touching the payment thereof.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded for further proceedings and a new trial according to law, the plaintiff and appellee paying the costs of the appeal.


author: Spoffokd, J. Buchanan, J. Meeeiok, C. J.,

text:
    State of Louisiana v. Judge of Second Judicial District Court-O. S. Rousseau praying for a mandamus.

    The Act of the Legislature relative to contested elections, (Rev. Statutes, 217,) does not embrace the case of a contested election of the Judge of a District Court out of the city of New Orleans.
    Out of the parish of Orleans there is no law providing for a judicial scrutiny into the votes for any other than parish officers.
    In the absence of statutory authorization the courts are without jurisdiction raMone materia, to entertain the case of a contested election, and the consent of parties cannot give them jurisdiction.
    A Judge of a district embracing two parishes is not a parish officer within the meaning of the Act relative to contested elections.
    A mandamus will not issue to compel a District Judge to grant an order of any kind in a case where it is apparent that his court is without jurisdiction, raUone materia.

    a mandamus to the Honorable J. Foulhoune, Judge of the Second Judidicial District Court.

      J. A. Bonier, for the Relator.
   Spoffokd, J.

James Foulhoune is commissioned as Judge of the Second Judicial District Court. That he is the acting Judge is admitted by the prayer of the petitioner for a mandamus, compelling him to grant a judicial order.

The relator, O. S. Rousseau, has filed a petition in the Second Judicial District Court for the parish of Plaquemines, contesting the election of James Foulhouze to the office of Judge of that district, and claiming to have been elected himself. In form, the proceedings appear to have been instituted under the 42d, 43d, 44th and 45th sections of the law relative to contested elections. Revised Statutes, 217. It appears, that the relator has recused the presiding Judge, who is the defandant in this contest. After recusing him, the relator, through his counsel, moved the presiding Judge to grant an order removing said cause to an adjoining district, or referring it to one of the District Judges of the State, for trial. The presiding Judge refused the motion, and the object of the present proceeding is to have a peremptory mandamus, compelling him to grant it.

In his answer to the rule nisi, we think the presiding Judge has shown, that the District Courts of this State have no power granted them by law to entertain controversies of this character. Out of the parish of Orleans there is no law providing for a judicial scrutiny into the votes for any other than “parish officers.” A Judge of a district embracing two parishes is not a parish officer, within the meaning of the Act relative to contested elections. The whole texture of the Act is inconsistent with the opposite hypothesis. The remedy invoked by the relator is purely statutable. If the statute under which he attempts to proceed does not embrace his case, he is without a standing in court. The contesting of votes is not a judicial function, only so far as made such by special statutes. Indeed, some may have gone so far as to question whether this is not wholly a matter of administration which cannot with propriety be referred to the judicial tribunals at all. At any rate it is clear, that such tribunals cannot usurp any greater control over this business than is specially imposed upon them by law. In the absence of a statutory authorization, they are without jurisdiction of the matter, raUone mateo'ice. The consent of parties cannot give jurisdiction, and all courts before whom such an unauthorized controversy is brought must decline, ex officio, to render any order which would recognize a right to sustain the case.

It matters not, therefore, that no exception has been filed to the .suit of Rousseau ; there being no express law authorizing him to contest the election of his successor before any of the District Courts, he asks us to do a worse than futile thing when he asks an order compelling such a case to be tried. It has been said on a former occassion, that “courts of justice will not lend their aid to foster idle, circuitous and wasteful litigation.” Hyde & Goodrich v. New Orleans, 12 An., 191.

In our opinion, we ought not to compel the tribunals whose proceedings we revise to grant orders with a direct view to the continuance of costly proceedings, when their lack of jurisdiction ratione materim is patent upon the record.

Because, in the case of the State v. Judge of the Fifth District Court of New Orleans, 12 An. 514, we declined to interfere by a writ of prohibition in this case, before any action to the prejudice of the applicant was had, it does not follow that we should interfere now, by a writ of mandamus, to compel the prosecution of a suit which no court can lawfully entertain.

The District Judge being called on to grant certain orders has answered, that the granting of those orders would involve pro tanto, the entertaining of jurisdiction in a cause upon which no judgment could be pronounced ; the applicant has contended that it would not, and the point at issue below was, whether any law authorized the courts of justice to take cognizance of a contest touching the election of a District Judge, out of the parish of Orleans. The same point has been mooted here, and being of opinion with the District Judge, that no such law exists, we think the rule must be discharged.

Rule discharged.

Buchanan, J.

It is settled by repeated decisons, that this court will only issue the writ of mandamus in aid of its appellate jurisdiction. But that appellate jurisdiction of necessity requires an original jurisdiction in the court of the first instance, as its basis. The want of jurisdiction in that court is the foundation of a different suit, that of prohibition. Whenever, therefore, it is brought to our notice, that the matter in which we are called upon to enforce the action of an inferior court by the writ of mandamus, is one which is not within the cognizance of the tribunal whose action is sought to be enforced, we are bound to refuse the writ. It appears to me that we have here a case of this sort. The contest of an election of a District Judge, out of New Orleans, appears to be, thus far, a causus omissus in our legislation. If such an action could be entertained at all, most clearly the Judge whose election was contested would be incompetent to sit in judgment upon that issue. His duty would be to refer the matter to another Judge, to be proceeded in according to the general rules for the trial of recused cases. But there being no action given by law to contest such an election, the recusation of the Judge can produce no effect. For if that particular Judge is incompetent ratione persona, all other Judges are, as well .as himself, incompetent ratione materia. And we can give no relief, because the matter is not the subject of judicial action.

It must be admitted, that the position of the case of Octave S. Rousseau v. James Foulhouze is an anomalous one; and it is said, that being in court, it must be disposed of; that it is impossible that any cause can be in court without being under tho control of the court, so far at least as to dismiss it, if it cannot be entertained. On the other hand, I should say, that the Olerk of the District Court might have declined to file among his records an action unwarranted by any law. As a matter of private opinion, I should say the District Judge might direct the Clerk to return the petition to the party who filed it. But, as a member of this tribunal, I cannot interfere.

For these reasons, I concur in the dismissal of the rule for a mandamus.

Meeeiok, C. J.,

dissenting. I am unable to concur in the views expressed by my colleagues in this case.

The suit instituted by the relator against the defendant was a proceeding-regular in form and full in its details and allegations under the statue at least, if not under the Code of Practice. Moreover, it was accompanied by a citation also regular in form, which was duly served upon the defendant.

The plaintiff, at a regular term of the court, after entering his own recusation and protesting “ that the defendant cannot try and adjudge in any manner whatever the cause, moved the court that said action be removed from this (the parish of Plaquemines) in an adjoining district, there to be tried and adjudged, or that said cause be referred to one of the District Judges of the State, so that said Judge who shall interchange, shall have authority to repair to the parish of' Plaquemines, there to preside, and try and adjudge said caasa to law, and in order, generally, that said cause may be proceeded with and tried and adjudged.” This motion was overruled and refused, on the grounds that “ the defendant, and not the plaintiff, had the right to enter the recusation; that the said Second District Court has no jurisdiction therein; that said motion had for its object to make the defendant acknowledge that any of the District Judges has a right to decide between plaintiff and defendant, and that there is no law showing which Judge and court can be called and authorized to preside over and try the cause herein,”

In the application for the writ of mandamus to compel the defendant to make the order, the applicant prayed also for such other order as the nature of the case might require; and thereupon, we made the following order, viz:

“It is ordered, that a rule issue requiring the Son, James Foulhouze, Judge of the Second Judicial District Court, to show cause, on or before the first Monday of November nest, at 10 o’clock A. M,, why he should not render judgment upon the motion for a recusation in the case of Octane S. .Rousseau against him, in the parish of Plaquemines, in the matter of the contest of an election, and why he, the said Judge, should not either recuse himself, or otherwise proceed to pronounce judgment upon said motion and said canse.”

In answer to the rule, the defendant assigns seven reasons why the peremptory mandamus should not issue.

It is sufficient to notice the first paragraph of the first ground taken by the defendant, inasmuch as it fairly states the real issue on the rule. It is as follows, viz;

“ The plaihtiff sets forth that he has contested the election of the District Judge ; he sets forth, that James Foulhouze, the person whose election as District Judge he contests, has been commissioned by the Governor, has taken the oath of office, and has entered upon the duties of his office; and now, because James Foulhouze, Fsy., refuses to give orders in a suit calling in question his election, commission and judicial capacity, a mandamus is prayed for to compel him to do so. The simple question is, has this or any other court of this State, any jurisdiction of such acase; any authority to order any Judge to try it, or any court to order its trial ? If so, then where is the law giving this or any other court jurisdiction of the controversy. The Supreme Court has in general an appellate jurisdiction, and in furtherance of that jurisdiction, has a right to issue a mandamus ; but it will not certainly do so to compel an inferior Judge to grant orders in a case when the cowi't, over which that inferior Judge presides, has evidently no jurisdiction. On the contran’y, (the defendant continues,) the Supreme Court will grant a prohibition as in the case of Tappan v. Foute, to prevent a District Judge from assuming jurisdiction where he has none. For the greater reason, this court will not compel this respondent (or any other court or Judge in his place) to entertain a case in which no law invests the inferior court with power to pronounce,”

If the position assumed by the defendant he correct, it then follows that a proceeding has been filed in the District Court, which neither that nor any other court has power either to dismiss or grant the demand contained in the prayer of the petition ; and a cause has been commenced which can never be ended. A position which it seems to me cannot be maintained either on principle or authority. For every case must go out of court upon a decree condemning the defendant to satisfy or absolving him from the whole or a part of the plaintiff’s demand. Any thing short of this, is not a decree.

Praises provincial non ignorat definitivam sententiam, gum eondemnationem vel absolutionem non continet, pro justa non Tiaberi. Const. 8, Code 7, 45.

It is not enough, to excuse the Judge from exercising his judicial functions, to show that in his opinion the demand is unfounded and illegal, and, therefore, cannot lawfully he granted. The plaintiff whose demand is unfounded, has a right to be heard and to have the judgment of such inferior tribunal upon his demand; for, poradventure, that which appears absurd to the lower court, may, on a more careful examination, be found to have merits, when it shall have been examined by the Supreme Court.

Suppose, for instance, a suitor should institute a suit against the District Jud^e for some demand, sounding in dollars and cents, which should appear to such Judge frivolous, and even calculated to bring him into contempt if true ; could the District Judge decline either to dismiss or try the case, or enter the proper order of recusation, &c ? On an application for a mamdamm, would it be proper for him to argue to us, that the petition was absurd or demanded some illegal thing which the Judge should choose to construe into a personal affront ?

It seems to me not. We could only consider the case after it had been passed upon by the lower court. If the Judge should deem himself incompetent to try such cause, he should recuse himself, and whenever a judgment should be rendered, whether dismissing the petition or demand, or granting the prayer of the petition, this court could take jurisdiction of the same. To try the case before that time, would be assuming original jurisdiction.

So in the case before us. A proceeding has been commenced in the Second Judicial District, in the parish of Plaquemines, of which the defendant is the Judge, at least, de facto. If he is interested in the case as a party, he should recuse himself, and make such other order as may be needed. If he is not interested, he should hear motions, grant orders and try the case. If the demand is wholly unfounded and unauthorized by law, it should be dismissed. If well founded, it should be sustained. All these questions are for the decision of the District Judge who shall try the case, to whose unbiased judgment they ought to be left without dictation on the part of this tribunal, which can only revise such decisions after the parties shall have been heard and the judgments and decrees regularly entered by the District Court, and the parties have taken their appeal from the same.

I see no other way of disposing of the case, than to exert the power of this court, and compel the Judge of the Second Judicial District, to recuse himself, or to try the case, and either dismiss the cause or render judgment thereon, in favor of the party justly entitled thereto.

With the views I entertain, I do not think it proper to express an opinion upon the merits of the controversy. The defendant has not even excepted to the plaintiff’s petition, and it is not yet known what line of defence he may assume in his pleadings in that suit. It may be that what appears doubtful to me in these proceedings now, may be made certain whenever the parties shall be heard upon such issues as they make in their pleadings.

Neither do I consider it a sufficient objection to the rule, that the proceeding which the party has selected is expensive. If it is not founded in law, it is in the power of the defendant to cause it to be dismissed without any considerable cost. If it is an action which can be maintained, the cost of the proceeding is no objection to it.

The ease of Tappan v. Foute, is not applicable lo this case, because the Second Judicial District Court, for the parish of Plaquemines, is one of general jurisdiction.

But it is said, that this court will issue the writ of mandamus only in aid of its appellate jurisdiction, and as the District Court has no original jurisdiction of the cause, this court has no appellate jurisdiction of it, because an appellate jurisdiction necessarily requires an original jurisdiction.

The thing demanded is an office which the petitioner alleges is worth §10,000.

The Second District Court, as was just observed, is one of general jurisdiction. The thing demanded was, therefore, within the jurisdiction of that court, or none.

If it was within the jurisdiction of that'court, this court, whose powers are derived from the Constitution, and not from the Legislature, must have appellate jurisdiction, because the thing demanded is over three hundred dollars. If the District Court has not jurisdiction of the thing, because it is a easus omissus, then this court would have jurisdiction to revise any judgment of that court, wherein it should decree the office to belong to the relator, and this is precisely what this court did in taking jurisdiction in the case of Tappan v. Foute. If the court had no appellate jurisdiction in that case, it had no power to render the decree it did.

Then, if the Second Judicial District Court for the parish of Plaquemines, has jurisdiction of the relator’s demand, and can render judgment in his favor; this court can examine that judgment, because the thing in controversy is over three hundred dollars. But if the said court has no power to decree what the plaintiff demands, then this court has jurisdiction on appeal to reverse any judgment of that court which shall not dismiss relator’s demand, and to render such judgment as that court ought to have rendered.

I am unwilling, on account of the mere inconvenience which this proceeding will occasion, to sanction any but the regular modes of determing this as well as all other causes. And I am, therefore, of the opinion, that a peremptory mandamus should issue in conformity to the rule issued by the court in this case, in order that said cause may be dismissed or tried on its merits, and detei mined according as the right shall appear.


text:
    Succession of Sarah Penny.
    Where one of two joint administrators is prevented by sickness from taking tlie oath before the court where the administration is granted, but takes it before a Justice of the Peace in another parish and transmits it to the Clerk of the court where the succession is opened, it will satisfy the law in relation to the oath of administrators.
    The appointment by administrators residing out of the parish where the succession is opened of an agent residing in that parish, made before they had qualified, but after the decree conferring upon them the administration, íb valid.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Muse & SaA'dee, for Bloom, appellant.

      George 8. Sawyer and 8. F. Bunion, for appellee.
   Buchanan, J.

The defendants having been preferred to the plaintiff for the administration of the estate of Mrs. Sarah Ann Penny, deceased, by judgment of this court rendered at the April term, 1855, (10th An., 290,) the plaintiff presented his petition, subsequently to their having qualified as administrators, that they might be removed from office, on the grounds :

1st. That they had not taken the oath of office as administrators, in the manner required by the decree of this court.
2d. That before qualifying as administrators, defendants had appointed an attorney-in-fact residing in the parish "to represent them in the administration; which attorney-in-fact subsequently declined the said trust.

I. Of the two joint administrators, one, Mr. Foster, was sworn before the Clerk of the court which appointed him; and the other, Mrs. Foster, was sworn before a Justice of the Peace in the parish of Concordia, and her oath of office duly transmitted to the Clerk of the court in which the succession was opened. A satisfactory reason has been proved for Mrs. Foster’s not having been sworn in court as her husband was, namely: the delicate state of her health at the time, which rendered it dangerous for her to travel. We are of opinion, that the requirements of the law in relation to the oath of the administrators have been complied with.

II. The administrators appointed a resident of the parish of East Feliciana as their attorney-in-fact under the Act of 1847, (page 115,) after the decree of this court conferring upon them the administration, but in point of fact a few days before they had qualified as administrators. We do not consider this point of time as affecting the validity of the proceeding.

The attorney-in-fact thus appointed (U. B. Rour7e) signified in writing to defendants his recognition of the quality of attorney-in-fact thus conferred upon him by defendants. He subsequently put of record a renunciation of the mandate, with the professional assistance of the counsel of the plaintiff.

But it is proved, that the defendants on being informed of the renunciation of their mandate thus made by Mr. RourTc, immediately appointed another resident of the parish of East Feliciana (Mr. McRae') as their attorney-in-fact for the purposes of the administration, who made appearance in court and formally accepted the mandate.

There are various other points which have been discussed in argument, but which are unnecessary to examine for the decision of this appeal.

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

Merrick, C. J., took no part in the decision of this case.


author: Cole, J.

text:
    R. T. Collins v. J. W. Graves.
    Where the jury have not rendered a distinct verdict on a claim set up by the defendant in reoonyention the case will be remanded for a new trial.
    APPEAL from the District Court of the parish of Carroll, Fcvrrar, J.

      Goodrich and DeFrance, for plaintiff.

      L. Selby, for defendant and appellant.
   Cole, J.

Plaintiff sues the defendant for five hundred dollars for medical services.

The bill is as follows:

Lake Pbovidence, La., 1855.
J. W. Graves,
To B. T. Oollins, Dr.
1855. To waiting on himself, wife, daughter, son and negro woman during the yellow fever, at $100 00 each................................$500 00

Defendant pleaded the general denial and also set up a reconventional demand for $209 50.

The case was tried before a jury who rendered a verdict for “ one hundred and fifty dollars with interest from maturity till paid, and costs of suit.”

The testimony as to the usual price of physicians in the parish of Carrol in yellow fever epidemics is contradictory.

A part of the evidence shows, that the price for a visit is double of what it is in ordinary cases, whilst other testimony establishes, that the price is one hundred dollars for heads of the family and fifty dollars for each other member thereof.

We think the lowest estimate is a reasonable compensation for the services of plaintiff in this case.

The existence of epidemics does not authorize exorbitant fees. Vide Succession of Victor Duclos, 11 An., 406.

Adopting this estimate, it is impossible to determine the value of plaintiff’s services, for the only evidence is that of Boberts, who testifies, that he knows “from what both parties said to him, that Dr. Oollins did attend to the cases in Mr. Graves' family, some four or five in number.”

According to the lowest estimate of the value of plaintiff’s services he is entitled to be paid double of the ordinary price for a visit, but there is no-evidence to establish the number of his visits.

Defendant had the right to plead his plea in reconvention, because plaintiff resided at the time of the institution of the suit and during its continuance in a different parish from the residence of defendant; the jury, however, did not render any distinct verdict on the claim in reconvention, and we cannot say whether they took it into consideration in their verdict or not.

We think the case ought to be remanded to give the plaintiff the opportunity of proving the number of his visits, and to have the opinion of the jury, or of the court in the event the jury is waived on the reconventional demand of defendant.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court thereon be avoided and reversed, and that this cause he remanded for further proceedings according to law, and that appellee pay the costs of appeal.


author: Merrick, O. J.

text:
    Succession of Charlotte Aguillard.
    In the partition of a succession it is not proper, where a part of the heirs have purchased property, to form lots of the notes of the heirs, who were purchasers, with the cash, thus compelling the heirs who had not purchased to receive a part in the notes of their co-heirs. In such case the obliga- * tions of the heirs purchasing at the sale should be assigned to them.
    When the mass of the succession to be divided is of such a character that it cannot be formed into lots without manifest injury to the parties, that formality is not required.
    A partition will be set aside where a minor heir is represented by his tutor who is himself a party to the partition. The objection need not have been made by way of opposition before the notary, before whom no contestation could have been made concerning it.
    The under-tutor, if he be not interested adversely to the minors, properly represents them all in a partition where there is no division to be made of the share of the minors i/nter se.

    The heirs purchasing at the succession sale are chargeable with the interest stipulated in their notes from maturity until the day of the formation of the mass of the estate for partition.
    The notary must be assisted by experts in making a partition. C. C., 1289.
    APPEAL from the District Court of the parish of Pointe Coupée, Ratliff., Judge of the Seventh District, presiding.

      Prowsty, for opponent and appellant.

      W. JU. Gooley, for appellee.
   Merrick, O. J.

This is an appeal from a decree homologating a partition taken by Aurélie Robillard and other heirs of the deceased.

The assets to be partitioned consisted of cash in the hands of the administrator and the matured notes and notes not yet due of the heirs and others.

The appellants complain of the partition made by the notary on the following among other grounds, viz:

1st and 2d. That the notary allotted the shares to the heirs, instead of forming lots, and allowing the heirs to draw for the same. It is true, that the Civil Code, Art. 1289, directs the formation of lots, and that the same be drawn by the co-heirs, but this is not possible in all cases, and in some, it would be an idle ceremony, as where the sum to be divided consisted entirely of cash. See 10 L. R., 458. It might also happen, that only a part of the heirs had purchased property. Now, if the residue of the mass consisted of cash, it would be unjust to form the notes of the heirs with the cash into lots, and compel those heirs who had not purchased property to receive a part in the notes and to collect the amount due them from their co-heirs. Justice in such cases could only be done by assigning to the heirs who had purchased property their own obligations. So, too, where a part of the heirs demand the sale of property for cash, and others on a credit there can only be a partial formation of lots. C. C., 1264. The partition, therefore, was not informal in that particular if the mass was of that character, by reason of the obligations of the coheirs forming a part thereof, that it could not be formed into lots without manifest injury to the parties.
3d. That the minor, Justin Aguillard, was not properly represented by his tutor, Prosin Aguillm'd, who was himself a party to the partition. The under-tutor ought to have acted in this instance. But if he also should be interested, then a tutor or curator ad hoc, under Articles 116 and 964 O. P., or a special tutor, under Article 1291 of theOivil Code, ought to be appointed. See C. P., 117. It will here be observed, that this is the case of one minor concurring with other heirs and not a division of an estate among several minors having the same tutor. The partition appears to be erroneous on this ground. But xx it is urged, that this objection was not made before the notary, and cannot, therefore, be set up by way of opposition to the partition itself. This was not a matter submitted to the notary, and no contestation could be formed before him concerning it. It is further objected, that even if informal in this particular, the appellees are entitled to have the partition homologated as a provisional partition. The heirs who oppose the partition cannot be bound by anything except a definitive partition. As they would have the right to institute an action to procure a definitive partition, so they may by way of exception oppose one that is informal, and demand that it be made in due form.
4th. As the children of John 3. Johnson do not demand a partition of the Share which they will receive inter se, they can be represented in the partition by the under-tutor if not himself interested adversely to them. C. P., 117.
5th. The notary properly charged Aurélie 1iobülard, Borsin Rdbilloñ'd and the other heirs who bought property at the probate sale with the interest stipulated in their notes from maturity until the day of the formation of the mass. If the heir pays interest after his obligations have fallen due, he has the equivalent in the revenues of the property which he has bought, and justice requires that he should make his co-heir equal by payment of interest. We see nothing-in Article 1265 of the Code opposed to this view of the obligation of the heir purchasing property, and so it was adjudged in the case of Marionaux v. Marionaux, 12 Rob., 666.
6 th. The decree of the District Court on the opposition to the account which was affirmed by this court, binds all persons who were parties to the proceeding, and as to them it is not open to examination. If any of the heirs were not cited and the proper notices have not been given, such heirs might perhaps be heard. But, as to all others, the decree must be held conclusive, and subject to the construction ordinarily put upon the language used in decrees.
7th. The notary ought to have been assisted by experts in making the partition. C. C., 1289.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the partition be set aside, and that this case be remanded to the lower court, in order that the minors maybe properly represented and a new partition be made in accordance with law and the views herein expressed ; and it is further ordered, that the appellees pay the costs of this appeal.


author: Oole, J.

text:
    J. V. Catalogne v. J. M. Alva.
    like holder of á promissory note, payable at a specified place, secuved by ait act ¡mpoi'fciilgpl confession of judgment, is entitled to executory process agaihst the maker without making authentic proof that the note was presented at that place for payment.
    APPEAL from the Third District Court of New Orleans, Buvigneaud, J.

      3. R. Grandmont, for plaintiff,
    A, Oastwa, for defendant an’d appellant.
   Oole, J.

The sole question in this ease is, whether, when an act of mortgage imports confession of judgment in favor of the holder of a note payable at a specific place, the holder of said note is entitled to have the executory process issued without alleging that he has presented the note at the place designated for its payment, or by alleging that he has presented the note to the defendant who has refused to pay, without proving either of said allegations.

The recent decisions of this court do not, in ordinary actions, require proof of demand of payment at the place specified in a note, but the debtor has the right to show he had funds at the place of payment, and was injured by .the neglect of the holder of the note to demand its payment at the place specified therein for payment.

We think that the reason of this principle applies to executory process, and the mortgagee is entitled to it without authentic evidence of demand of payment at the place specified in the mortgage note,

If the mortgagee has never demanded payment at the place designated in the note, and the mortgagor is thereby injured, the latter can arrest the order of seizure by an injunction.

If, then, it is not necessary to have authentic evidence of demand of payment at the place specified in the note, it is not then requisite to allege the demand in the petition.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


text:
    McLaughlin, Davis & Co v. P. Sauvé.
    The testimony of a partner Who has transferred his interest to his copartner, notwithstanding a release by .the plaintiffs must always be received with grave suspicions.
    Although parol proof, to establish an agreement to pay eight per cent, interest, may be received withoutobjection, yet the court cannot give judgment for that rate, “ It is of the essence of legal evidence in support of it, that it be written.”
    APPEAL from the District Oourt of the Parish of Jefferson, Burthe, J.

      Singleton é Ivy, for plaintiffs.

      J. W. Buncm, for defendant and appellant.
   Merrick, O. J.

This suit is brought to recover for the use of Alien McLaughlin from the defendant the sum of $800, with interest at the rate of eight per cent, per annum from the 1st of January, 1852, for work done to stop the well known crevasse which oceured upon the plantation of the defendant in 18 J9, and occasioned the inundation of a portion of this city.

There was judgment for the plaintiff for debt and interest, and defendant has appealed. The plaintiffs introduced one of their partners who had transferred his interest to Allen McLaughlin as a witness to prove the claim. It must be remarked in regard to this kind of proof that it always must be received with grave suspicions, notwithstanding it is accompanied by a release from the plaintiff. For it is often the case that these transfers are made in order to obtain the testimony of the original obligee, and at a time when the defendant has lost all the means of showing such testimony to he erroneous. Moreover a party who will receive the price of an unjust demand from a third person may be supposed to be capable of supporting it by his oath against the party or the estate against which it is preferred. Such testimony uncorroborated ought rarely, if ever, to make full proof. See Lentz v. Merryman, 12 Ann. p. 180. But in this case the repeated promises of the defendant are proven by other testimony. The work is shown to have been done in an attempt to stop the crevasse upon the defendant’s plantation. The obligation which rested upon the defendant to maintain his levee was a sufficient consideration or cause to support the promise. If there was error or the demand had been paid by other parties, viz., the City of New Orleans or the Parish of Jefferson, the burden of proof in order to defeat the promise was upon the defendant.

But it is further urged that if there is sufficient proof to establish the debt, yet the judgment is erroneous, because the demand for interest at eight percent. is supported by parol proof only. The parol testimony was received without objection, and there might be reason to think, under the decisions under an analogous article of the Code, that where the proof is received without objection that the court would be authorized to give effect to it as is the case in regard to real estate and slaves. C. C. 2416. 7 An. 33. But on looking into the authorities we find that although writing is not of the essence of the contract to pay conventional interest so far as to prevent a party from interrogating his adversary on facts and articles in relation to such promise, still it prevents the court from considering the testimonial proof of the same, C. C. 2896. 6 M. R. 278. 7 L. R. 523. 3 Rob. 252, and 10 Rob. 119, Succession of Peytavin. In this last case the court says,, “It is of the essence of legal evidence in support of it” (a promise to pay conventional interest) “that it be written.” As the account originated in work done in 1849, and this promise to pay interest is stated in plaintiffs petition to be due from Jan., 1852, it cannot be affected by the statute of that year passed subsequent to the alleged promise, and plaintiff can only recover five per cent, interest from the judicial demand. See case of Sanders v. Carroll et al., 11 An.

It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be avoided and reversed, and that the plaintiffs, for the use aforesaid, do recover and have judgment against the defendant for the sum of eight hundred dollars with legal interest thereon from the seventh day of March, A. D., 1855, until paid, and its further ordered that the plaintiffs pay the costs of the appeal and the defendant the costs of the lower court.


author: Vooriiies, J.

text:
    Antonio Nolasco et al. v. S. H. Lurty, Administrator.
    The mother of a natural child, deceased without posterity, is entitled to the inheritance to the ex-elusion of natural brothers aqd sisters.
    An action for the recovery of a legacy is barred by the prescription of ten years.
    APPEAL from the District Court of the Parish of Point J.

      Eudson, for plaintiffs and appellants.

      Brew&r & Oollins and U. B. é E. Phillips, for defendants.
   Vooriiies, J.

The plaintiffs, Antonio Nolasco and Gertrude Nolasco, free persons of color, claim by inheritance the Succession of Antonio Nolasco, James Nolasco and John Rous, of which John G. Morris, since deceased, was appointed curator by the Court of Probates of the Parish of West Feliciana. The petition alleges that Antonio Nolasco died testate, bequeathing to the plaintiff Antonio Nolasco, Margcwet Nolasco and Gertrude Nolasco, his acknowledged natural children, born of Ellen Wooten, a free woman of color, a legacy of $1,000, and the residue of his estate in equal portions to his brother, James Nolasco, and John Rous; that James Nolasco also died testate, bequeathing one-half of his estate to John Rous and the other to Margaret, Ges'trude and Antonio, the children of Ellen Wooten; that the plaintiff G&i'ti'ude is the uterine sister of her co-plaintiff, born subsequent to the death of the testator, Antonio Nolasco, deriving her rights from her two half sisters, Margaret and Gertrude, who died at the age of minority without issue, and from her mother, who died since the institution of the present suit; that after the death of both testators and the legatee, John Rous, James Turner was appointed curator of the three successions, and as such was succeeded by John G. Morris, to whom he rendered an account of his administration ; that the latter’s appointment was reneioed from time to time until the 20th of September, 1830, when he filed a tableau of distribution, embracing the three estates and acknowledging the receipt of $4,476 57 from his predecessor, James Turner, who had also thus administered said estates. It is alleged that the legacy to Margaret and G&rtt'ude devolved at her death on her mother and the plaintiffs as her legal heirs. The claim of the plaintiff Gertrude is limited to whatever rights she may have acquired by inheritance from her half sisters. The other plaintiff claims one-third of the $1,000 legacy, one-sixth of the estate of James Nolasco, as legatee under his will, and whatever rights may have devolved upon him from the successions of his deceased sisters, Marrgan'et and Gertrude.

The defence set up is that of res judicata ; that the matters now in controversy have already been passed upon, first, in the judgment of homologation of the account rendered by the curator Morris, whose estate is represented by the defendant as administrator; and, secondly, in the judgment in the case of Ellen Wooten, f. w. c. v. G. Harrison, tutor, et al. (See 9 A. 234.) The defendant also interposed the prescription of one, two, three, five, ten and twenty years as a bar to the action.

The first question presented is a motion to dismiss the appeal, on the ground that the appeal bond was signed by one of the plaintiffs, without the authorization of her husband. The record discloses the fact that B. Populus, besides appearing with his wife in the case, has specially authorized her “ to act and perform all acts necessary for protecting her interest in the prosecution of the same to its final termination.” We consider this sufficient.

Our next inquiry is, what were the rights acquired by the respective parties under the alleged heirship. Ellen Wooten inherited both estates of her natural children, Margaret and Gerti'ude, to the exclusion of Antonio and G&rtrude, the plaintiffs in this case. C. C. 916. The plea of res judicata, based on the judgment in the case of E Wooten, f. w. c. v. G. Harrison, tutor, et al., must be considered as a perpetual bar to the plaintiffs’ recovery of any rights alleged to have been derived from the estates of the testators by inheritance from their mother. 9 A. 234. It is clear then that the claim of the plaintiff, Gerti’ude, is entirely unfounded in law. With respect to the other plaintiff, Antonio, we consider the action for the recovery of the legacies bequeathed to him barred by the prescription of ten years. The present case is analogous in principle to the one of Wilson v. McGreal, 12 A. 257.

Judgment affimed.


text:
    L. Jones v. A. Pereira et als.
    A lessor who Instead of resorting to the process of law, uses intimidation or threats of police officers to expel the lessee, will be liable in an action for damages.
    Where the damages allowed by a jury are excessive, they will be reduced in the Supreme Court.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Field and Wooldridge, for plaintiff.

      Dunccm, & McConnell, for defendants and appellants.
   Cole, J.

This suit is instituted to recover ten thousand dollars for damages alleged to have been suffered by plaintiff in having been violently and forcibly expelled from a house she had leased, by A. Pereira, the lessor, aided by other persons.

The case was tried before a jury; they awarded two thousand dollars to plaintiff against said Pereira,- the case having only been tried as to him, and he has appealed from the judgment of the court thereon.

The evidence does not establish as clearly as could be desired, the nature and extent of the violence used by Pereira, the lessor, in ejecting plaintiff, inasmuch as those who were cognizant of the affair and competent witnesses, were actors in the drama, but as we perform the functions of a jury when we decide upon facts, we are obliged to conclude from the testimony, that the action of Pereira was illegal. 1 Rob. 140, Thayer v. Littlejohn; 3 An. 670, Byrne v. Riddell et als.

If he had wished to have banished Mrs. Jones from his premises, he ought to have done it by process of law and not by the intimidation or threats of police officers or others, but we think that the verdict is excessive under all the circumstances of this case, and that five hundred dollars are sufficient damages to accord. Vide Fitzgerald v. Boulat, just decided.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury, and the judgment of the court thereon, be set aside and reversed, and that plaintiff obtain from the defendant, A. Pereira, five hundred dollars ; and that appellant pay the costs of the lower court, and appellee pay the costs of this court.


author: Spoeford, J.

text:
    Succession of Fink.
    Where, by the terms of a will, a bequest ts made to the testamentary executor, “ in full compensation and satisfaction for all charges and commissions which he may be entitled to as executor,” and he enters upon the execution of his trust and manifests no disposition to renounce the legacy, he will be debarred from claiming any other or different remuneration.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant & Eornor, for Bullerdieck, Executor, appellant.

      J. J. Michel and E. O. Miller, for appellees.
   Spoeford, J.

Diedrich Bullerdieck, testamentary executor of John D. Fink, is 'appellant from a judgment of the District Oourt, sustaining an opposition to two items of his account, to wit, the item of $4,758 69 charged by him for commissions as executor, at two-and-a-half per cent, on the inventory, and an item of $15,000 charged for fifteen years of services by said Bullerdieck as agent for Fink, before his death, collecting his accounts, keeping his books, attending to his houses, and his business generally, at $1,000 per annum.

I. It is admitted by the appellant’s counsel, that the deceased, by his last will, appointed Bullerdieck his testamentary executor, and in the same instru • ment bequeathed him a piece of immovable property in New Orleans, expressly “in full compensation and satisfaction for all charges and commissions which the said Bullerdieck may be entitled to as executor,” &c.

The appellant entered upon the execution of his trust, without manifesting any disposition to renounce this legacy in lieu of his commissions. That action, on his part, was an acceptance of the trust under the conditions lawfully imposed by the testator, and debars him from now claiming any other or different remuneration. For, by Article 1679 of the Louisiana Code, “ testamentary executors, to whom the testator has bequeathed any legacies or other gifts by his will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above their commissions.”

It was too late for him to say, in answer to tho opposition, that ho had always intended to renounce the legacy, and claim his commissions. Eon con-stat, that the testator wished him to be executor upon any other terms than those expressed in the will. He was not obliged to accept the trust. But he did accept it, unqualifiedly, and he is bound by its conditions.

The remarks in Gucullu’s case, 4 Rob. 898, do not apply to this, for there it was contended that the legacy was not a bequest in lieu of commission, but was merely a remuneratory donation in payment of past services. Here the testator has given a legacy specially “in lieu of commissions.”

II. Upon the other point, the main reliance of the appellate is tho case of Fowlers succession upon the claim of Bogart, curator, reported in 7 An. 209.

We agree with the District Judge in the opinion that the facts of that case are so widely different from the facts in this, as to furnish no precedent for the allowance of the sum claimed by Bullerdieck for services rendered to Fink in his lifetime.

The appellant pursued the trade of a watchmaker and kept a small shop, where Fink had his books and papers, and usually staid in business hours. Fink was capable of transacting his own business, and did transact it in the main. Bullerdieek rendered him occasional servercies, but their extent and character are not shown, as was so amply done in the case of Bogart Fink made a will without forgetting Bullerdieek, and Fowler died intestate. The claim for services, as agent, appears to he an afterthought, and unsupported by sufficient data to authorize a judgment for any sum.

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


text:
    William Wood v. John G. Tyson
    ‘X'he rule maintained by the older decisions in Louisiana, that a special endorsement invested the title to a note in the endorsee, who alone could sue on it, was always subject to exception, where it appearel that the endorsee had been merely the agent of the party in whose name the suit was instituted.
    An order of seizure and sale was properly granted to the mortgagee, on the notes of the defendant, payable to his own order, although there was a special endorsement on the back of the notes to a third party.
    APPEAL from the Tenth District of Tensas, Farrar, 3.

      Gaither & McPheeters, for plaintiff.

      J. P. Farrar, for defendant and appellant.
   Buchanan, J.

Plaintiff, a resident of New York, through his agent, John O. B. Yuille, a member of the firm of A. & J. Bennistoun & Do., merchants of New Orleans, sold, by act before a Notary Public in New Orleans, to defendant, a tract of land in the parish of Tensas, for the price of twelve thousand dollars, of which twenty-five hundred dollars cash, and, for the residue, the defendant furnishes his five promissory notes for the sum of nineteen hundred dollars each, drawn to the order of, and endorsed by himself; which notes, after having been paraphed by the notary to identify them, were delivered to said Yuille, who, in the name of his constituent, acknowledged receipt thereof, and in order to secure the payment of said notes, the defendant specially mortgaged the land thus purchased in favor of the vendor, and of any holder of the said notes, promising not to alienate or incumber the same to the prejudice of the mortgage.

After two of these notes had matured, and were not paid, the plaintiff instituted this suit in the parish of defendant’s domicil, (Tensas,) by the via execution, annexing to his petition a duly certified copy of the act of sale and mortgage, and also the five notes of defendant referred to in said act.

On each of these notes, there appears, written above the endorsement of the defendant, the following words: “ Pay Messrs. A. & J. Bennistoun & Go. or order.” The defendant has appealed from the order of seizure and sale, and assigns for error in this court, that the special endorsement upon the notes shows, that the plaintiff has parted with his interest in the same.

The facts of this case are identical with those of Squier v. Stockton, reported in 5th An. 120, with the exception that in Squire v. Stockton there was a certificate under private signature of the special endorsee, that the note had been sent to him by Squier, the plaintiff, as his mere agent, for collection. But the court held, that no evidence of retransfer to plaintiff by the special endorsee, was required; quoting Dugan v. United States, 3 Wheaton, 183; United States v. Barker, 1 Paine, 162; Story on Promissory Notes, paragraphs 452 and 256; and Norris v. Budger, 6 Cowen, 450. The older decisions in Louisiana certainly maintain the doctrine contended for by the appellant, that a special endorsement vests the title to the note in the endorsee, who alone has a right to sue. But this rule seems to have been always subject to exception, where it appeared that the endorsee had been merely the agent of the party in whose name the suit was instituted. See Dicks v. Cash, 6 N. S. 45. And we think that fact is sufficiently apparent from the documents annexed to the petition in this case.

Judgment affirmed with costs.


author: Voorhies, J. Vooruies, J.

text:
    Syndic of Barrett v. The City of New Orleans.-Widow Valois v. same.
    The principles of law respecting the right of batture as settled in the cases of K&mie&y v. MwvicipaUty Mo. 2,10 An., 54, and Memy v. Municipality Mo. 2, re-afflrmed.
    The alluvion belongs to the owner of the soil situated on the edge of the water whether it be a river or a creek, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use. C. C. 501.
    from the Sixth District Court of New Orleans, Cotton, J.

      Durant & Hornes' and H. B. Eggleston, for Syndic of Bas'S'ett.

      Ja/nin & Griffon, for Ms's. Valois, plaintiff and appellant.

      J. Divingston, for the City of New Orleans.
   Voorhies, J.

The City of New Orleans and the plaintiff, Eulalie Josephine Virginie Gaiennié, widow of Jacques Viator Valois, are both appellants from a judgment of the court below, rendered against them, in favor of the other plaintiff, as Syndic of the creditors of Thos. Barrett, in these two cases, consolidated by consent.

On the 30th of June, 1806, Urbain Gaiennié purchased of Ma/rgues'ite Foucher, widow of Delord Saspy, a certain tract or parcel of land, divided into six lots, described as “ containing 120 feet front on Tchoupitoulas Street, 120 feet front on New Levee Street, and 360 feet deep from one to the other on Gaiennié Street, together with the right to the alluvion or batture in front thereof.” On the 20th of February, 1824, Us'bain Gaiennié sold to Constance Vvoant, f w. e., the one undivided half of this batture, describing it as “ bounded by the river, Gaiennié Street, the properties of Burthe and Feueher and New Levee Street.”

The newly formed alluvion or batture extending beyond this, has given rise to the present litigation. The widow Valois claims, as one of the heirs of Urbain Gaiennié, deceased, the one undivided twelfth, and the Syndic the whole of said batture, both alleging that the same, to the extent specified in their respective petitions, is no longer necessary for the public use, and that they are entitled as owners to be putin possession thereof, as claimed by them.

The defendant answered in both cases, by pleading the general 'issue; that the property in litigation is a locus publicus ; and that the defendant, by actual and undisturbed possession for more than fifty years, has acquired by prescription a legal title to said property.

Thus a twofold controversy is presented in these consolidated cases, one between both plaintiffs and the city, and the other between the plaintiffs themselves.

The points involved in the first may be considered as settled by the decisions in the cases of Kennedy v. Municipality No. 2, 10 An., 54, and Remy v. Municipality No. 2, 11 An. 148. Touching the merits, we consider the Syndic’s demand fully sustained by the evidence.

The other controversy presents the question whether Thomas Barrett, the insolvent, ever acquired any legal title to more than the undivided half of the alluvion in question. An affirmative answer to this question wo think is fairly deduciblo from the evidence in the Record.

The Syndic sets forth in his petition that the insolvent purchased of Maurice Gannon, on the 2Pth of October, 1835, “the undivided half of the following property, to wit, all the right, title and interest, and that which Francois Dominique Burthe had in and to the batture in front of the lots of ground numbered one, two, three, four, five and six, situated in the Faubourg Delord, agreeably to a plan made by the City Surveyor, dated 30th March, 1832, &c; that the said lots of ground were then situated in the square bounded by Gaiennié, Susette and New Levee streets, and the public road or street next to New Levee Street and near the river, the lot No. one forming the corner of Gaiennié Street and the said public road, &c., and to the batture conveyed by Maurice Gannon to the insolvent, as above stated, situated on the other side of the Levee in front of the said six lots, and extending to the Mississippi River.” The syndic’s petition concludes with a prayer to be decreed the legal owner of the lots thus described, and of all the alluvion or batture formed in front thereof.

As to the undivided half of the batture in question, the insolvent’s title, derived from Oonstance Yivant, is conceded to be valid; but as to the other undivided half, it is opposed by the plaintiff, Valois, on several grounds.

After the death of Urbain Gaiennié, the executors of his last will presented, it appears, a petition to the Probate Court of the Parish and City of New Orleans, in the following words, to wit:

“ The petition of K. Fauris and JJ. Gaiennié, testamentary executors of the late U. Gaiennié, further humbly sheweth: That several creditors having opposed the sales as directed by this Hon. Court, at the request of your petitioners, of the real property of said estate at one, two and three year’s credit, and desiring that the same should be sold at 6, 12 and 18 months credit, your petitioneers, to avoid law suits and difficulties, have consented to it. Wherefore they pray the order and authorization of this Hon. Court accordingly. And your petitioners further show that on the inventory of the property of said estate, a certain parcel of ground measuring --feet front on-, was inventoried and appraised in one lot. But your petitioners further show that the same was divided in twelve lots from Nos. 1 to 12, and that it becomes necessary, therefore, to have them appraised separately, and that said appraisement be made part of the original inventory. Wherefore they pray the order of this Hon. Court to this effect, and that appraisers may be appointed and sworn by this Hon. Court.”

The court therefore granted the following order :

“ Let an appraisement of the twelve lots of ground within mentioned be made by Messrs. A. Foueher, jr., and G. Gurlie, in the presence of 3. Lmergne, Esq., Notary Public, and let the said lots of ground be sold by the Register of Wills at six, twelve and eighteen months’ credit, as within prayed for, and after the publication required by law.
New Orleans, March 8, 1825.
J. Pitot, Judge.”

All the property of the estate of Urbain Gainnié, including the lots thus specified, appears to have been sold by the Register of Wills, on the 8th of April, 1825. The undivided moiety of a lot of ground, with the buildings thereon erected, also included in the sale, is described as situated “ on the batture of suburb Delord, measuring 120 feet front to the river, by 250 in depth, forming a rectangular parallelogram, and bounded by the. river, the property of Messrs. Burthe & Foucher, and New Levee and Gaiennié streets, &c.” In the proces-verbal of the Register of Wills, also signed by the Judge, this sale is declared to have been made on the application of the executors, “ and by virtue of a decree of the Probate Court, bearing date the 8th of March last past, and also after the publications required by law.” Subsequently, on the 28th of July, 1825, the executors passed an act of sale to Pierre Edmond Foueher as the purchaser of the undivided half of the lot of ground thus described as fronting on the river.

This lot and the other property, as we infer from the petition and order of sale, which would seem to be merely supplemental, were sold for the ostensible purpose of discharging the debts of the estate. The validity of this sale, accompanied by uninterrupted possession, does not appear to have ever been previously questioned by any of the heirs.

It has always been held, in setting aside an illegal sale in favor of a minor, that the vendee was entitled to be allowed whatever he had paid in discharge of the debts of the former; a fortiori, the appellant, Valois, in this case would certainly be bound for the reimbursement of the price applied to the discharge of the debts of his ancestor, before claiming the rescission of the sale, on the ground of the informalities of which she complains, if such informalities may be considered available. 6 N. S., 284; 8 N. S., 210.

It appears then that the tract of land thus sold to Pierre Edmond Foueher was bounded by the river, the real boundary, and that nothing intervened worthy of being considered a fit subject for exclusive ownership, giving him consequently the right of accession, although not expressed in the adjudication of the Register of Wills, and which would have been superfluous, inasmuch as such a right existed merely by the operation of law. Neither can it be pretended, that the sale from the executors could add anything more to it than what the purchaser had already acquired under the adjudication. The law on the subject of the right of accession appears to us to be clear and free from any ambiguity. “ The accretions which are formed successively and imperceptibly to any soil situated on a shore of a river or creek, are called alluvions.”

“The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or creek, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use,” C. C. 501, 6 M. R. 210, 8 N. S. 576. The creditors of the insolvent Thomas Barrett, who derived his title from Pierre Edmond Voucher, are therefore entitled to the alluvion in controversy.

Judgment affirmed.

ON A RE-HEARING,

Vooruies, J.

The counsel of Mrs. Valois in her application for a re-hearing have thought proper to use the following language:

“They find that their position in this case, and the object of this appeal, have been totally misapprehended, &c.”

Prom a careful reconsideration of this case, we are now fully convinced that there is no error to the prejudice of the appellant in the judgment heretofore rendered by us, and consequently no foundation for such assertion. The object of Mrs, Valois' appeal appears to us to be too plain to be misapprehended. She claims, as already stated in our former judgment, by inheritance from her deceased father, TTrbodn Gaienni'e, an undivided twelfth of all the alluvion formed between a certain tract of land described in her petition and the river Mississippi. It is, however, conceded by her counsel, that her ancestor’s title to an undivided half of this tract, with the right to the alluvion, was divested on the 2flth February, 1824-, by virtue of a sale from him to Constance Vivant, f. w. c., and that the same is now vested in the creditors of the insolvent, Thomas Barrett. But the counsel say : “ Gaienni'e died in 1825, and in the settlement of the estate, the other undivided half of the saw-mill and the property upon which it was situated, were sold by the Register of Wills on the '8th of April, 182D, pursuant to an order of court. In this sale, this property is described as situated on the batture ’of Suburb Delord, measuring 120 feet front to the river, by 250 in depth, forming a rectangular parallelogram, and bounded by the river." This, as must be observed in our decision, certainly did not escape our attention. But it may not be amiss to remark in this connection, that the proces-verbal of the Register of Wills shows that that sale purports to be a sale of all the property and effects of the succession of Qaiennié. This we think is certainly significant. If the alluvion in question ivas then a fit subject for exclusive ownership, it may be asked with propriety, why was it not mentioned in the inventory, the sale, or in any of the other proceedings of the succession ? The counsel proceeds: “ The court will, therefore, perceive, that when they say the question is presented, whether Thomas Ban'rett, the insolvent, ever acquired any legal title to more than the undivided half of the alluvion in question, they exhibit an entire misapprehension of the case.” The Syndic claims the ownership of the entire tract or parallelogram, and as such riparian proprietor, all the alluvion in controversy. Whether it was proper to examine the title of Barrett, derived from the sale of the 8th of April, 1825, to an undivided half of this tract, is a question to which the counsel’s brief affords, we- think, an apposite answer. If that sale had not an important bearing on the question as to the right to the alluvion, why was its legality then so strenuously opposed by them ?

In our opinion we said, “ that the tract thus sold to Pierre Edmond Voucher was bounded by the river, the real boundary, and that nothing intervened worthy of being considered a fit subject for exclusive ownership, giving him consequently the right of accession, &c.” Have wo erred in this conclusion ? The counsel say : “In this case we base our claim entirely upon the ground, that there was outside of this parallelogram of 120 by 250 feet, sold to Fouaher, an extent of batture sufficient to be susceptible of private ownership, which, not having been expressly included in the sale, still belongs with its accessories to the heirs of Gaiennik But on what proof is this attempted to be justified? It is said that on the 26th of April, 1832, when D. F. Burthe, the vendee oí Fouaher, sold to John Green, a plan, under which th'at sale was made, showed that a public road, ordered by the City Council in 1830, now called Front Street, was situated at a distance of 807 feet from New Levee Street, and consequently 57 feet in advance of the parallelogram sold by the Register of Wills. That, “ according to the testimony of Pifié, the batture has now increased to 400 or 500 feet in width in front of Front Street. Taking it at the outside estimate, the batture has increased 400 feet in 23 years, a little over 18 feet per annum. Supposing the batture to have increased prior to 1832, at about the same rate as since, which was no doubt the case, we find that of the 217 feet existing in 1832, in advance of the limit of the lot sold to Foucher in 1825, 125 feet were formed during the seven years, from 1825 to 1832. Consequently, there existed, at the time of the sale of Foucher, over 90 feet of batture in front of the prescribed limits of the lot sold to him by the Register of Wills.” Is it upon such fanciful speculation or theory that we are bound to conclude that there must have existed outside of the parallelogram, on the 8th of April, 1825, an extent of batture sufficient to be susceptible of private ownership ? If such had really been the case, it certainly must have been within the knowledge of persons then residing in the neighborhood by whom it could have been proved, and whose testimony should have boon resorted to for that purpose. It is incumbent on a party to make his case certain and not probable merely.

The counsel have also thought proper to remark, “ that their explanation in regard to the clerical errors in the decree of the court below, which render that ■decree a mere impracticable absurdity, has not even attracted the attention of this court.” It is certain that the alleged errors could only result to the benefit of the appellant, Mrs. Valois, and consequently to the prejudice of the appellee. Hence, we must confess that we are at a loss to discover the reason or motive which prompted the remark. But be this as it may, we readily acknowledge that not only this, but the prayer of the appellee for an amendment of that decree in his favor had escaped our notice. Hence the amendment must be made to conform with our decision.

It is, therefore, ordered and decreed, that the judgment of the court below be amended by avoiding and setting aside that portion of it which reads as follows : “ and it is further ordered and decreed, that Mrs. Valois be decreed to be the owner of one undivided twelfth part, 1-12, of the other undivided one half of the batture situated in front of the lot of ground formerly belonging to and owned by Drbain Gaiennie and fully described in the act of sale, the petition, and plan of E. L. Filié on file, and that she bo put immediately in possession of so much of said batture as is not required for public use at this time, as appears by a plan of L. E. Filié, City Surveyor, on file herein;” and that in every other respect said judgment be affirmed with costs.


author: Spoffobd, J.

text:
    W. A. Shaffer v The Heirs and Creditors of B. Cross and Wife.
    The inventory of the estate, which served as the measure of the administrator’s bond, is the basis l^upon which to estimate the commissions of the administrator, and not an inventory taken subsequently without any new bond being given by the administrator.
    need not specify the charge for each item of service, and it is no objection to it that it makes an aggregate claim larger than that claimed in the petition. When a bill of particulars is called for in a suit by an attorney-at-law for services rendered, it
    The object of the bill of particulars is to show the nature and extent of the services to enable the court to judge of their value in the aggregate, and no greater amount could be allowed than that claimed in the petition.
    APPEAL from the District Court of the Parish of Lafourche, Bpman, J.

      O. Belcher, for plaintiff.

      Beatty & Bush, for opponents and appellants.
   Spoffobd, J.

As to the compensation of the administrator, which forms one of the items of controversy between these parties, the evidence is insufficient to establish a legal contract between him and the heirs to carry on the administration for a stipulated salary in lieu of commissions.

His commissions must, therefore, be determined by the law.

■> The charges made in the tableaus which had been homologated previous to the final tableau, are not now open to revision, no appeal having been taken from those judgments of homologation.

There is no error to the prejudice of the appellants in the allowance made for administrator’s commissions in the last tableau.

But the administrator answering the appeal, contends that his commissions as charged were erroneously reduced by the District Judge, who took the inventory of 9th Nov., 1853, as the basis upon which to estimate commissions, instead of an inventory taken three years afterwards and long subsequent to the appointment of Mr. Shaffer as administrator.

The District Judge did not err. The inventory first taken was that which served as the measure of the administrator’s bond, and as no new bond was given by him, he should not derive an advantage from the fluctuation in the value of the property inventoried, as he. would not have been subjected to loss in case of its depreciation.

The fees of Messrs. Connelly & Ak'^iwy/attorneys, are opposed, and it is contended that the sum charged by them and allowed by the court ($2,500) is excessive, and is not properly chargeable to the whole succession.

When ruled to file a bill of particulars, they answered by detailing their services and affixing prices to each item, which make an aggregate of about $1,000 more than the total sum really claimed by them for their services.

A bill of exceptions was taken to the refusal of the court to require the attorneys to make out a new schedule of fees in items which would only make an aggregate of $2,500, the sum claimed.

We see no such error in this ruling as would justify any action on our part in relation to it.

The object of the bill of particulars was merely to show the nature and extent of the services of counsel specifically, and thereby to enable the court and the witnesses better to judge of their value. There is no statute fixing the fees of counsel for such work as was done by Messrs. Connelly & Bightor. Under the pleadings, they could not claim more than $2,500 in all; the hill of particulars need not have specified the charge for each item of service; and by stating too large a sum, no harm could be done to the opponents.

The question is, were the services as detailed in the bill, reasonably worth the sum of $2,500 in the aggregate ? Under the evidence and from an inspection of the work done, we are unable to say that the District Judge erred in answering the question affirmatively.

But some of the heirs contend that the succession should not pay all these fees, because only a portion of the heirs benefited by a part of the services for which they are changed.

There were debts to a heavy amount hanging over the succession ; an administration was necessary; the sale whereby a partition between the heirs was effected, was made also to pay debts; and the professional services rendered by these counsel appear to have redounded to the advantage of all the heirs, and are properly chargeable against the succession.

Objection is made to an item of $24 10 for costs of a transcript in the case of Egana v. Shaffer, Administrator, in which the administrator took an appeal, which he afterwards abandoned at the request of the heirs.

There is no evidence that the administrator acted improvidently in taking' the appeal. If the heirs afterwards chose to abandon it, they cannot throw the costs necessarily incurred in .the prosecution of a legal right upon the administrator, without showing an abuse of his trust.

There was no opposition to the items No. 24, No. 33, No. 37 and No. 38, amounting in all to only $89 15, in a succession worth over $150,000, which appears to have been well administered. If Mr. Shaffer has not already paid these small items he is personally liable for them, and there seems to be no reason to apprehend that the appellants will ever be called upon to pay twice. If they intended to hold him to a production of vouchers for them, they should have opposed the items.

Judgment affirmed.


author: Voorhies, J.

text:
    P. Sartorius v. F. M. Dawson, Sheriff, et al.
    Objections which relate to the mode of taking a bail bond in a criminal case, and to the description of the defence, are matters of defence which, if not made available when the motion for the forfeiture of the bond was made, or on appeal, or on application to set aside the judgment of forfeiture, do not form legal grounds for an injunction.
    It is no objection to a judgment of forfeiture of the bond, that it was rendered on the last day of the term, and without previous notice to the surety, l'he State has the right to have the bond forfeited on any but the first day of the term.
    from District Court of the parish of Madison, JPwrar, J.

      JS. W. Moise, Attorney General, for the State, appellant.
   Voorhies, J.

S. M. Cherry was arrested under the charge of shooting one J. Ingrain, with intent to kill, and, after commitment, was admitted to bail upon furnishing bond in the sum of $1,000, for his appearance at the October term of the District Court, and from term to term until finally discharged. Ail indictment was found against him for the crime of shooting' with the intent to commit murder, an offence including- the one for which he had been arrested. On the 6th of November, 1856, his bond was forfeited, and judgment rendered against him and his sureties in solido for the amount thereof.

No attempt appears to have been made to set aside this judgment of forfeiture. An execution, issued on it, was enjoined by Philip Sartorious, the surety, whose property was levied upon, on the ground that the bond forfeited is null and void, and that the proceedings wore irregular and informal.

The defects of which the plaintiff and appellant complains as regards the bond, relate to the mode of taking the same, and to the description of the of-fence therein set forth. These objections might have been available to the plaintiff when the motion for the forfeiture of the bond was made, or on appeal, or on an application to set aside the judgment of forfeiture within the legal delay. But such matters of defence as might have been pleaded on the merits, it is clear, cannot form legal grounds for an injunction. 6 An. 282.

The supposed mistake of the accused as to the term of the District Court, would, we think, come more properly in a motion to set aside the judgment of forfeiture. But in urging this ground, the plaintiff has, it appears to us, overlooked the fact that, in the bond itself, the accused bound himself to appear at the term of the court during which the forfeiture took place.

It is no objection to the judgment enjoined, that it was rendered on the last day of the term, and without previous notice to the plaintiff. The duty of the accused was to be present during the whole term, ready to answer the charge preferred against him;-and the State had accordingly the right to proceed summarily, and without previous notice, to have the bond forfeited, on any except the first day of the term. 6 An. 282; Acts 11th March, 1837, p. — . It was necessary only to call the principal at the courthouse door, and, in default of his answering, to call on his sureties to produce his body. We are bound to presume that this was done; for the judgment so states it, and besides there is no complaint of its not having been done.

The last objection is, that there was not sufficient evidence to warrant a judgment of forfeiture. If such was the case, the party’s remedy was by appeal, and not by injunction.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed; that the injunction in this case be dissolved at the plaintiff’s costs-; that the said plaintiff and A. R. Hynes, the surety on the injunction bond, be condemned to pay in solido to the State, interest at the rate of eight per cent, per annum, on the amount of the judgment enjoined from the date of said injunction to the date of the dissolution thereof, and one per cent, on said judgment, as damages, and the costs in both courts.


author: Spofpord, J.

text:
    Succession of Michael Schaffer.
    When a curator’s account is homologated only in “ so far as not opposed,” the heirs are not concluded as to items in the account to which opposition was filed by creditors.
    The treaty between the United States and Trance, the effect of which was to suspend the State law imposing a tax of ten per cent, on successions falling to foreign heirs, stipulates, “it shall remain in force for the space of ten years from the da/y of the exchange of the raiAficaUone, which shall be made in conformity with the respective Constitutions of the two countries, and exchanged at Washington within the period of six months or sooner, if possible ” Held: Thatunder such a stipulation, the ratifications did not relate back to the date when the treaty was signed.
    The treaty did not become operative until the exchange of ratifications on the 31th of August. 1868
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      V. F. Gotton, for curator and appellant.

      J. A. Rozier, for appellees.
   Spofpord, J.

It may be conceded that an unqualified homologation, after due advertisements and delays, of a curator’s account and statement of debts, is binding upon the heir in the absence of fraud.

But here it does not appear that the items in controversy have been passed upon. The account was homologated only in “so far as not opposed.” The opposition of Michel and Gilmore, attacked the items now in question. Those items having been opposed, are not covered by the terms of the decree.

The oral testimony offered, if admissible, is insufficient to conclude the heirs against questioning the items not homologated. The evidence as to what their agent, Kern, said to the administrator, Kaiser, is too loose to authorize the inference that he made such a settlement as was contemplated by his power of attorney. And his written receipt to Kaiser is couched in guarded terms, acknowledging no specific debts, but allowing him to retain the balance not receipted for, “ to reimburse him for debts paid by him against said succession and to pay all the debts that shall be legally brought against the same.” This receipt also authorized the administrator “ to pay any debts that may be just and reasonable, and to resist any that may be unjust.”

In the answer to the appeal, the heirs, subjects of the Emperor of the French, have prayed for an amendment in their favor, rejecting the item allowed by the District Judge to be retained by the administrator for the tax of ten per cent, alleged to be duo by the foreign heirs upon the succession falling to them, by virtue of the fourth section of the Act of March 26th, 1842. Session Acts, p. 435.

The appellees contend that the fourth section of the Act of 1842, is suspended by an existing treaty or consular convention between the United States and France, and that the said treaty was in force at the death of Michael Schaffer on the 22d July, 1853, so that no right to claim the tax -were vested in the State of Louisiana.

In the Sxiccession of Préoost, 12th Annual, p. 577, we held that the treaty could have no retroactive effect, and if a right to claim the tax vested in the State before the treaty was in force, the claim could be enforced by legal proceedings afterwards. And this opinion was affirmed by a judgment of the Supreme Court of the United States upon a writ of error. See Prévost v. Greneaux, 19 Howard, 1.

But in that case the decedent’s death occurred before the treaty was signed, to wit, in 1848. In the Succession of Dufour, 10 An. 392, we held that the rigllts of the heirs 0f a party wh0 died on the 14th of August, 1853, vested after the consular convention went into effect, and that the tax could not be imposed during the continuance of the treaty, because, for that period the State law would be paralysed by the paramount law.

We have now to determine whether this treaty was in force and effect upon the 22d July, 1853.

It was signed at Washington on the 23d of February, 1853, and ratified by the Senate of the United States on the 1st of April, 1853 ; the ratifications of both parties were exchanged at Washington, on the 11th of August, 1853, and proclamation thereof was made by the President of the United States on the 12th of August, 1853. See 10 U. S. Stat. at Large, p. 992.

The appellees contend that the ratifications relate back' to the date when the treaty was signed, and that it was, therefore, operative from and after the 23d February, 1853.

In the silence of a treaty relative to the time when it shall take effect, this would probably be a correct interpretation. See United States v. Reynes, 9 Howard, 148 ; 1 Kent’s Com. 169.

But, in this case, the contracting powers have signified their will by stipulating in the convention itself, that it shall remain in force for the space of ten years '•'■from the day of the exchange of the ratifications, which shall be made in conformity with the respective Constitutions of the two countries, and exchanged at Washington within the period of six months, or sooner if possible.”

The treaty, therefore, did not become operative until the 11th of August, 1853, and the rights of the State of Louisiana to claim the ten per cent, tax vested upon the death of Schaffer in July previous.

In respect to the other items mooted on either hand, we find the opinion of the District Judge to be sustained by the evidence.

Judgment affirmed.


text:
    Pierre Landreaux v. A. M. Foley.
    The presumption which has been applied for the purpose of quieting titles in the interest of parties in possession under a Sheriff’s sale for a long period of time, that the formalities for effecting the sale had been complied with, will not be applied for the purpose of disturbing possession.
    A Sheriff’s sale is radically null, where the land conveyed by the Sheriff does not correspond with the order of seizure either in quantity or boundary.
    APPEAL from the District Court of the parish of Assumption, Roman, J.

      Johnson & Davis, for plaintiff and appellant.

      Beatty & Bush, for defendant.
   Buchanan, J.

The plaintiff claims a tract of land under a purchase made at Sheriff’s sale on the 12th October, 1812. This sale was never followed by p ossession; and the present action is brought against the party in possession, on the 7th June, 1854, or forty-two years afterthe Sheriff’s sale. The District Judge, proceeding upon the doctrine which is elementary in the petitory action that plaintiff must succeed by the strength of his own title and not by the weakness of that of his adversary, has rejected the plaintiff’s demand for a nullity apparent upon the face of the Sheriff’s deed, which is the basis of his title.

That Sheriff’s deed commences by a recital, that an order of seizure had been directed to the Sheriff, against a moiety of three acres and a half of land more or less front, with the depth of forty, situate on the Bayou Lafourche, bounded on the upper side by the land of the Widow Gaulreau, and on the lower by the land of Ambrose Garidel, the property of John Foley, at the suit of Jacob Trimble & Go.; and, that by virtue of such order of seizure, he, the Sheriff, had seized all that certain piece or parcel of land of one arpent and three-fourths in front, with forty in depth, bounded below by the land of the said Ambrose Garidel; and, that, having exposed the same to public sale according to law, Pierre Aucoin became the purchaser thereof, &c. The deed then proceeds to convey to the purchaser “ all the above described parcel of land, and all the right, title, interest or demand which the said John Foley, on the lYth January, 1812, as at any time since, had in or to the said land,” &c.

The record of the suit of Jacob Trimble & Co. v. John Foley, including the writ of seizure and sale issued therein, and the return of said writ, seems to have been destroyed with all other records of the Supreme Court of the Territory of Orleans for the parish of Assumption, in a fire which consumed the court-house of said parish, in the year 1846. But the plaintiff has given in evidence the mortgage, by authentic act before the Parish Judge, of John Foley to Jacob Trimble & Go., upon which the said suit and writ were grounded. The description in that act of the land mortgaged corresponds with the recital of the writ of seizure contained in the Sheriff’s deed, that is to say, “the undivided” moiety of two tracts of land held in common with John Hutchinson, containing the one tract, three acres and a half more or less, situated on and fronting the Bayou Lafourche, with the depth of forty acres, and on the right hand side thereof, and bounded on the upper side by the land of the Widow Maria Gautreau-, and on the lower side by that of Ambrose Garidel,” &c.

As the District Judge observes, the land conveyed by the Sheriff, in no respect corresponds with the order of seizure, neither in quantity, (being one and three-quarters arpents, instead of an undivided moiety of three and a half aeres ; ) nor in boundary. On the face of the deed itself there appears, therefore a radical nullity. The Sheriff has not sold that which he was commanded to sell. And the mortgage in execution of which the writ of seizure was issued, further informs us who was the owner of the other undivided moiety of the property mortgaged, to wit; John Hutchinson. Supposing even, that one and three-quarters arpents were the exact half of three and a half acres, (which is not the fact,) what authority had the Sheriff to make a partition of this land between Foley' and Hutchinson, and to assign the half adjoining Gao'idel to Foley, and the half adjoining the Widow Ganitn'eau to Hutchinson? But if we deny to him such authority, which we must necessarily do, the conveyance is inconsistent and contradicts itself. For, as we have seen, the Sheriff conveys to the purchaser 1st, all the above described parcel of land —that is to say — one arpent and throe-fourths in front by forty in depth, entire: 2d, all the right, title and interest of John Foley in the said iand — that is to say — one undivided moiety of the same.

The cases of Brosnaham v. Turner and Fink v. Lallande, reported in 16th La., upon which the plaintiff relies, have no application to the present case. In those cases this court decided, that in the interest of parties in possession under a Sheriff’s sale more than twenty years old, and for the purpose of quieting titles, it would bo presumed that all the requisite formalities for effecting such sale had been complied with. The same presumption is not understood to have been applied for the purpose of disturbing possession. But the essential feature in which this case differs from Brosnaham v. Turner and Fink v. Lallande, is, that it is not here a question of a compliance with legal formalities for divesting title by forced sale, but of a sale of one thing under color of an order to sell another thing totally different: and this is not matter of presumption, as in the cases cited, but of direct proof furnished by the party claiming under the Sheriff’s sale.

Judgment affirmed, with costs.