March, 1833. M'DONOUGH vs. ZACHARIE. latter was rightfully condemned to the payment of interest EASTERN DIS. as adjudged by the District Court. These facts are the release and cancelling of the mortgages in the office of the recorder, and payments having been made of some of the instalments by the vendee, which she was not bound to make except in the event of knowledge, that these mortgages had been released from the property purchased. The fact of cancelling appearing in the same office where the hypothcations were inscribed, it is said ought to produce the same legal effect as the recording does; that is notice to every person, and consequently so far as it operates on the rights and privileges claimed on the part of the defendant in the present instance, he must be presumed to have been conusant of this fact, and also all the other vendees. Although the performance of an registered, so as notice to all per cient notice to a another is bound the fact of the performance. What effect this reasoning might produce on our minds if act has been duly the terms of the clause of the contract which we are now to operate legal considering, did not embrace two stipulations: First, that sons, it is insuffithe mortgages should be cancelled; and secondly, that the fact person to whom of cancelling should be made known to the purchaser, both to make known necessarily to be done by the seller; we deem it unnecessary to declare, as there is no evidence to show that the obligation imposed on him by the latter stipulation has ever been fulfilled. Neither, in our opinion, does the circumstance of partial payments having been made, raise such a presumption of knowledge in the vendees as to dispense the vendor from his obligation to communicate the fact of cancelling be. fore he could enforce these obligations to pay. The payment made was a voluntary act and ought not to be construed so as to injure the rights of the party secured by express agreement. It might have been done under a full confidence of the ability of the obligee to make amends for any damage they might possibly have incurred by their incautious act. We have said that the delay to make payment of the last four instalments, did not of itself impose an obligation on the purchaser to pay interest in consequence of such delay, as she had a right to refuse payment and retain the amount of these instalments, in consequence of the seller having failed to give notice of the eradications of certain mortgages which March, 1833. M'DONOUGH vs. ZACHARIE. EASTERN DIS. affected the property sold. But an unconditional promise was made to pay interest on this part of the price at the rate of six per cent. per annum, from April 1, 1823, on the principal sum contained in each of the notes given, until by their terms they respectively became due. The privilege granted to the vendee to retain these instalments as stipulated in the clause of the act of sale, so often referred to, was a right to suspend and refuse the payment of this much of the price of the property, and the interest which was agreed to be paid on these notes down to the periods at which they respectively were due, was as much a part of the price as the principal, and the obligation to pay interest from 1823 down to those periods, was as complete, as it was to pay the principal sums; therefore the defendant cannot be exonerated from the payment of the principal, (which is not pretended,) and we can see no reason why he should from the payment of interest, both having been promised in the same unequivocal manner. The application of the doctrine which authorises debtors to anticipate in certain cases the payment of their debts, to the present case is not easily perceived; in truth we dot think that in justice it can be applied, there having been neither an offer to pay, nor payment by anticipation. According to the best examination which we have been able to make of the facts of the case, and the law applicable to it, we are of opinion that the plaintiff has a right to recover the balance which remains due on the first two instalments assumed by Mrs. Zacharie, with interest from the periods when they respectively become due at the rate of six per cent. per annum, to the time when the defendant was disturbed in his possession by the suit of the heirs of Belly; and also the principal and interest stipulated to be paid on the last five instalments; that is to say, interest on the first of these instalments from April 1, 1823, to April 1, 1824; interest on the second from April 1, 1823, until April 1, 1825; interest on the third from April 1, 1823, until April 1, 1826; on the fourth from April 1, 1823, until April 1, 1827; and on the fifth, interest from April 1, 1823, until April 1, 1828; on all at the rate of six per cent. per annum; deducting the March, 1833. amount paid and credited on the instalments to which the EASTERN DIS. payments have been imputed. The result of calculation according to the principles laid down, shows that there is now owing and due to the plaintiff the balance of the price of the property sold, fifty-two thousand and twenty-eight dollars and sixty-three cents. And as the defendant, according to the terms of the probate sale of his mother's succession, is personally bound to pay this amount, judgment must be rendered against him. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that the plaintiff do recover from the defendant the sum of fifty-two thousand and twenty-eight dollars and sixty-three cents; and that the mortgaged property in his possession be seized and sold to satisfy this judgment. But no order of seizure and sale shall be issued until the plaintiff give security as directed in the decree of the District Court, allowing to defendant three judicial days, to commence from the first day of the next term of said court to be holden in the parish of Iberville, on the three first days of the term of that court, in which the mortgages and security aforesaid may be filed; and if no exceptions to said security be filed within that period, or if they be filed and overruled, then the order of seizure and sale as above required, shall be issued, &c., the appellee to pay the costs of this appeal; those of the court below to be borne by the defendant and appellant. SAME CASE. On an application for a rehearing, the opinion of the court was delivered by MATHEWS, J. In this case a rehearing has been prayed for, and a request is made that the judgment heretofore rendered by this court should be so altered or modified as to reduce the sum in which the plaintiff is bound to give security before he is permitted to pursue his order of seizure and sale. And it appearing M'DONOUGH vs. ZACHARIE. March, 1833. COLLINS vs. BRIGGS. EASTERN DIS. to the court, that as no substantial grounds were alleged in the petition for the rehearing, and the counsel for the defendant having consented that the judgment might be allowed in this respect, &c. It is, therefore, ordered, adjudged and decreed, that the plaintiff be bound to give security in the sum of sixty thousand dollars instead of the sum decreed by the judgment heretofore rendered; the said security to be given in the manner and under the formalities prescribed in our former judgment, which in this respect had reference to the judgment of the District Court. Grymes, for appellant. D. Seghers, for appellee. 5 256 Case 2 119 860 COLLINS vs. BRIGGS. APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. Appearance in court and contesting the cause on any other ground than the want of citation, cures all defects in the citation of appeal. A party who claims property under a contract, must first show the fulfilment of the condition on which the property in question was given. This suit was brought by a minor above the age of puberty, assisted by a curator ad bona and one ad litem. It was a petitory action in which the plaintiff as sole heir of his deceased mother, claimed certain real property situated in the town of Madisonville, and of which the defendent was in possession. The defendant denied the principal allegations of the petition, and cited in warranty his vendors, who then called Canfield their vendor in warranty. The cause was tried upon the merits, and judgment was rendered in favor of the plaintiff, from which Canfield appealed. Service of the petition of appeal and citation was made at the store of the curator ad bona of the plaintiff upon his clerk. The plaintiff's counsel moved the court to grant an order for a certiorari, directed to the judge of the inferior court, in order to complete the transcript of record, as the clerk had not certified that the transcript contained all the testimony produced in the cause. The appellee resisted this motion because, as he alleged, owning to the great lapse of time, the required certificate could not be obtained. The court overruled the objection, and directed the mandate to be issued as prayed for. At the last December term, the appellee moved to dismiss the appeal on the ground that he had not been properly cited in appeal. The court sustained this motion, and dismissed the appeal, but on the application of the appellant, a rehearing was granted; and afterwards the final opinion of the court was pronounced. Hoffman and Hill, for appellants, contended: 1. That the appearance of appellee in this court and his opposition to the motion for a certiorari, amount to a waiver of any imperfection in citation on the appeal. 2. That there is error in the judgmant, because no absolute right to the property in controversy, ever became vested in the ancestor of the plaintiff. 3. That it is not shown that the condition of the marriage settlement ever took effect. And if not, the title was never absolutely gone from the vendor of the appellant, until the time of sale. 4. That the plaintiff cannot claim by inheritance or descent, property that never in any way became vested in his ancestor. 5. That if any rights to the property in question ever had vested in plaintiff's ancestor, there was a full renunciation of the same in the act of sale made in this appellant. I. W. Smith, contra. PORTER, J. delivered the opinion of the court. |