December, 1823. M'CARTY STEAM COTTON EASTERN Drs. The plaintiff sold to the defendants real estate, and by a clause in the contract it was agreed, that in consequence of a doubt which existed in relation to her title to the property, a portion of the promissory notes given by defendants in payment, should be deposited in bank, and should not be withdrawn therefrom, unless by check signed by both the contracting parties, or after a judgment of a court of justice on the matter in dispute. This action is brought to compel the defendants to permit these notes to be taken out of the bank by the petitioner, or in case of their refusal, to obtain a decree establishing her right to do so. The heirs of Jean Blanque, are made parties to the suit, under the supposition that this claim, real or supposed to the premises, formed the principal obstacle to the validity of the plaintiff's title. The steam company answered the petition by averring, that they had just reason to fear they should be disquieted in their possession of the property purchased, by an action of eviction on the part of the heirs of Jean Blanque: Because the land in question belonged to him at the time of his death; his children were minors; the petitioner was their tutrix; the land their property by inheritance, and was sold without the advice of a family meeting, and without the authorization of the parish judge. The plaintiff was tutrix, and not permit ted to purchase the property of her ward. The proceedings of the creditors of the deceased were non judice and void, as the parish court had not any jurisdiction of the subject matter. The curator of the minors filed an answer, in which he stated that he did not conceive the minor heirs had any interest to oppose the demand of the petitioner. There was subsequently executed by the minors, under the approbation of the judge of probates, preceded by the advice of a family meeting, an act, wherein they renounced the succession of their father. One of the children of Blanque, who had obtained the age of majority, pleaded to the same effect as the curator of the minors, and on her part also renounced the succession. On these pleadings, the parties went to trial in the court below. There was judgment for defendants, and the EASTERN DIS. plaintiff appealed. December, 1832. M'CARTY vs. PRESS COMPA By the 2585th article of the Louisiana Code, it is provided, that the buyer who has just reason to fear that he shall be STEAM COTTON disquieted by an action of mortgage, or by any other claim, may suspend the payment of the price, unless the seller prefer to give security. There is an exception to this rule, says the same article, "when the buyer has been informed before the sale, of the danger of the eviction." Our first inquiry, therefore, is, whether the buyers in this instance were informed of the danger, the existence of which they now present as a defence to the demand made in the petition. On recurring to the act of sale, a clause is found, of which the following is a translation: "Whereas, the Cotton Press Company, had the opportunity before signing of these presents, to have the titles of the vendor examined by their counsel, Mr. Dominique Seghers, and by the opinion of said counsel, given in writing, under his signature, of date the 20th of this month, the many objections which may exist to said titles are reduced to one, which is this, that at the time the vendor acquired the plantation which belonged to the succession of her husband, Jean Blanque, a portion of which she now sells, she was tutrix of four children, issue of her marriage with said Jean Blanque, and in this quality it is doubtful if she could become the purchaser of the property which belonged to the minor children, even under the authority which he obtained from the Probate Court, in consequence of this doubt," &c. &c. Where the venmunicated to the dor's title is com vendee, and the confines himself to one ob From this clause it is seen the objections of the defendants were confined alone to the want of power in the mother to buy, in consequence of the relation in which she stood to latter the minors. They cannot now allege any other defect. Did jection, he cannot the proof merely show that the titles had been communicated malities to them, and they had contracted with a knowledge of the Pending payment. informalities in the title, but without remarking on them, they could not, under the article of any code already cited, set up a set up other inforground of sus as December, 1832. vs. PRESS COMPA NY ET AL. EASTERN DIS. those informalities as a ground for suspending payment. They would be compelled to rely on their warranty. A forM'CARTY tiori the same rule must apply, where, after a full knowledge STEAM COTTON of all defects, they confined their objection to one, and required merely that it should be removed, before they paid the price. Our law as it now stands, imposes most onerous obligations on vendors. After having lost the enjoyment and the fruits by the alienation, they may, if unable to give security, for years be deprived of the price, on the suggestion of difficulties in regard to title, which, but for the apprehensions of the purchaser, never would have been thought of. When, to guard against such danger, they submit their title papers to the buyer before the contract is closed, and he chooses to consider them open only to one objection, it would be intolerable if he could afterwards set up every other which his fears might suggest, or the learning of his professional advisers might discover. insolvent's suc tered by syndics, minor heirs of that insolvent may be succession. to the We conclude, therefore, that by the contract between the parties, we are precluded from examining any other illegality in the title of the plaintiff, save that which may result from the want of capacity as tutrix, to purchase. All the objections drawn from the defect of power in the court to order the sale, together with those presented by the non-existence of the other formalities required for the legal alienation of minors' property, were waived by the agreement. At the sale of an The question then, is, whether at a sale made of an insolcession adminis- vent's succession, administered by syndics, the mother of the the mother of the minor heirs of that insolvent can become the purchaser of come the purcha- property belonging to the succession. We think she may, belonging when the purchase is sanctioned by the judge under whose jurisdiction the minors live. For the purposes of this inquiry, we must, as has been already observed, consider the court which ordered the sale as having jurisdiction, and that the syndics properly represented the estate. By the 4th law of the 5th title of the 5th Partidas, in force at the time this transaction took place, tutors are prohibited from purchasing the property of their ward, unless they were authorised by the judge of the place to make the acquisition. By the 1st law December, 1832. of the 12th title of the 10th book of the Novissima Recopi- EASTERN DIS. lacion, this prohibition is repeated, even if the sale be public, M'CARTY vs. PRESS COMPA- The re-enact provision found Such seems to in a former sta tute, does not re but nothing is said in regard to a purchase made under the authority of the judge. It is contended, that the latter STEAM COTTON enactment does away with the exception which stood with a prohibition of the same kind in the Partidas. But it has been frequently decided by this court, and we believe correctly, that the re-enactment of a general provision found in a former statute, does not repeal the exception which accom- ment of a general panied that provision in the previous law. be the opinion of several commentators we to consult in relation to the two laws just cited. Gregorio Lopez on the Partidas, 5. title 5. law. 4 Febrero, p. 1. cap. 7. sec. 1. no. 2. Siguenza, lib. 1. cap. 5. nos. 4 and 5. There are, it is true, others who think differently, but the conclusion of the former it appears to us, is much more consistent with the sound rules of construction. Acêvedo, vol. 2. 385, no. 1. Sala Illustracion de Derecho, lib. 1. title 7. no. 37. have been able peal the excepSee note of vision in the pre tion which accompanied that pro vious law. tion takes place the price cannot be known before the object is But it is said that the approbation of the judge of probates When the alienafollowed, and that it should have preceded the sale. The by auction where law does not specify at what time it is to be given, and we think that when the alienation takes place by auction, where stricken off, the the price cannot be known before the object is stricken off, lone be legally githat the approbation of the judge can alone be usefully and ven after the sale. legally given after the sale. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further adjudged and decreed, that the defendants do sign a check jointly with the plaintiff, for the notes mentioned in the petition, now deposited in bank: and it is further ordered, that the defendants, the Cotton Press Company, pay costs in both cases, except those occasioned by making the minor heirs of Blanque parties to this action, in relation to whom, it is adjudged and decreed, that there be judgment as in case of non-suit, with costs in both cases. approbation of the judge can a EASTERN Dis. PEMBERTON vs. ERWIN ET AL. PEMBERTON vs. ERWIN ET AL. APPEAL FROM THE COURT OF THE FIRST DISTRICT. After an appeal taken from a judgment below dismissing exceptions filed by the defendant. to the security which was furnished by the bond, the inferior court cannot enter into the validity of that instrument on the application of the plaintiffs. If with the consent of the plaintiff the execution be stayed until he furnish security to the satisfaction of the court-the defendant will have the right to contest the sufficiency of the security offered. Although it be questionable whether the case was one, in which security would have been ordered if required by the defendant. The dismissal of exceptions to the sufficiency of the security offered, does not work an irreparable injury, and an appeal therefrom will be dismissed as premature. This action was brought by the payee against the widow and heirs of the drawer of two promissory notes for ten thousand dollars each. The defendants admitting the signature, alleged the notes were given in part payment for a plantation and slaves in the parish of Iberville, sold by the plaintiff, and to which his vendor had never had title. Before this want of title in plaintiff was discovered, the drawer of the notes had sold the plantation and slaves to the widow Zacharie, since deceased. As a part of the consideration of this sale, she assumed the obligation to pay the notes. The defendants averred that her heirs are bound to save them harmless, and accordingly cited them in warranty. The heirs of Mrs. Zacharie appeared and denied any obligation on their part, until a good title should be shown. in the plaintiff's vendor, and until several mortgages on the property, stated in the act of sale to the plaintiff, were satisfied. |