13 La. Ann. 57 | La. | 1858
Lead Opinion
The present appeal is a consolidation of five distinct suits instituted by the same creditor, in May, 1855, against two distinct debtors, and the representatives of three other debtors, deceased, upon the following twelve distinct evidences of debt:
1.A note signed by William Bislcmd, matured in all March, 1843.
2.A note signed by William Bisland, matured in all March, 1844.
3.A note signed by Richard G. Ellis, and endorsed by William Bislcmd, matured in all March, 1843.
4.A note signed by Richard G. Ellis, and endorsed by WiVAcmrc Bislcmd, matured in all March, 1844.
5.A note signed by George 8. Guión, and endorsed by Ycm, P. Winder, matured in all March, 1843.
7. A note signed by Van P. Winder, and endorsed by George 8. Guión, matured in all March, 1843.
8. A note signed by Van P. Winder, and endorsed by George 8. Guión, matured in all March, 1844.
9. A note signed by William B. Shields, matured in all March, 1843.
10. A note signed by William B. Shields, matured in all March, 1844.
11. Anote endorsed by Willimn B. Shields, matured in all March, 1843.
12. A note endorsed by William B. Shields, matured in all March, 1844.
The defendants plead the prescription of five years; but it is argued by plaintiff that proscription was interrupted as to all the defendants, and all the obligations above detailed, by a suit instituted by him in the Circuit Court of the United States for the Eastern District of Louisiana, on the 19th of December, 1842, and finally decided, on appeal, in the Supreme Court of the United States, 'at the December term of 1854, reported in 17th Howard, page 130.
Before examining the facts in relation to this interruption of prescription, it is proper to ascertain the principles of the law of Louisiana on the subject of the interruption of the prescription, operating a release from debt.
By Article 3516, taken in connection with Article 3484, it will be seen that prescription is interrupted by a citation to the debtor to appear before a court of justice, upon the demand of the creditor for a judgment for his debt. And it is immaterial, for the purpose of the interruption of prescription, whether the debtor be cited before a court of competent jurisdiction or not. Neither does any error in the form of the action, nor the rejection of the creditor’s demand by the final judgment thereupon, have the effect of avoiding the interruption of the prescription resulting from the citation; for those clauses of the 2247th Article of the Code Napoleon which declare that the interruption of prescription is considered as 11 non amenue ” if the suit be informal, or if the demand be rejected, have not been copied into our Code. The only portion of that Article adopted by our Legislature is the clause “si le demandeur se désiste de sa demande.” See Louisiana Code, Article 3485.
Again, it is clear that prescription cannot be interrupted, until it has begun to run. If, however, a* suit bo instituted upon a note before it is due, and pending the suit the note matures and is protested for non payment, prescription of that note is interrupted so long as the suit lasts, after maturity, even if the suit be ultimately dismissed upon an exception of prematurity. The rule is “ aeUones gum tempore pereunt, semel inclusa judieio, salvce perma/nenl." Marcadé, Prescription, .Art. 2248.
Keeping these principles in view, we find that prescription is not interrupted as to any of the debts or any of the debtors included in the present consolidated action, by the original bill in Chancery filed by plaintiff on the 19th of December, 1842. Of all the present defendants, only one, William Bisland, was party defendant to that bill, and the prayer of that bill was not for judgment upon any of the notes included in this action. On the contrary, the prayer was for the annulling and avoidance of the 'contract which was the consideration of all these notes; which contract was set forth in detail in the bill.
On the 10th of Eebi’uary, 1844, plaintiff amended his bill in Chancery, with leave of the court, by discontinuing and abandoning his original demand in
This amended bill of plaintiff was unquestionably an abandonment of his original demand, and a substitution in its place of an entirely new and directly opposite demand. As such it was held to be irregular and inadmissible by the Supreme Court of the United States in its reasons for judgment upon the appeal in that case. See 17th Howard, pp. 143 and 144. But it is not on that account the less effective under our law, for interrupting prescription, so far as concerns William Bislcmd, the only one of the present defondants against whom judgment is prayed for the amount of his notes and endorsements in the amended bill in question. Although informal, this amended bill interrupted prescription upon those notes, as to Bisland. It must be observed that the amended bill in question was served upon Bisland who appeared and moved to quash the same.
The next phase in this Chancery suit is a bill filed by the defendants in that suit, William Bisland and Viatoire Shields, on the 8th of July, 1844, praying that the agreement or contract of the 9th of November, 1842, above referred to, might be specifically performed, and that plaintiff might be decreed to deliver up to be cancelled and annulled, all the promissory notes of Thomas R. Shields, on which said William Bisland and Viatoire Sields were endorsers; and that said William Bisland and Viatoire Shields might recover such damages from the plaintiff for his non-execution of the contract of the 9th of November, 1842, as should be proven. And the bill further prays for writs of sitbpama to Richwrcl G. Bilis, Wm. B. Shields, Thomas R. Shields, George S. Guión, and Robert R. Barrow, commanding them, to appear and answer the premises and abide the judgment of the court upon said bill; which subpcenas were issued accordingly, and the parties named made appearance.
This bill cannot be considered as an interruption of prescription upon the notes now in suit in favor of plaintiff. In the first place, the parties Bisland and Mrs. Shields, who file the bill, claim no judgment of Wm. B. Shields, Winder, Bilis or Guión, upon the notes signed or endorsed by them ; and as for R. R. Bacrrow, the holder of those notes, and the present plaintiff, he was so far from claiming anything in that bill, that he is actually sued therein for damages. See 17th Howard, 145,146.
Afterwards, on the 5th of March, 1847, plaintiff, with leave of court, filed another amended bill, in which he set forth that William B. Shields was a citizen of Mississippi, and prayed that he might be cited and condemned to pay him the notes in principal and interest which are endorsed by said William B. Shields, (being the notes above described as Nos. 11 and 12).
To this amended bill, William B. Shields appeared and answered. Prescription is therefore interrupted as to the defendant, William B. Shields, upon the two notes endorsed by him and matured in March, 1843, and March, 1844.
Upon the other ground of defence pleaded by the defendants in these consolidated suits, namely, that the release by plaintiff of his mortgage on certain of
A difference of opinion upon the effect of the plea of prescription, as to the defendants, William B. Shields, Van P. Winder, and George S. Guión, has thrown upon me the duty of pronouncing the judgment of the court.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court in the case of Robert B. Barrow v. William B. Shields, be reversed, and that Bobert B. Barrow recover of William B. Shields four thousand seven hundred and sixty-six dollars and sixty- six cents, with interest at the rate of ten per cent, per annum on $2,383 33 from the 3d of April, 1843, and on $2,383 33 from the 3d of April, 1844, and costs of the suit of R. R. Barrow v. William B. Shields in the District Court, the costs of appeal in said suit to be" paid by if. B. Barrow. And it is further adjudged and decreed, that the judgment of the District Court in the case of R. R. Barrow v. Van P. Winder be reversed, and that there be judgment against R. R. Barrow and in favor of the widow and heirs of Van P. Winder, made parties defendant therein, with costs of said suit in both courts. And it is further adjudged and decreed, that the judgment of the District Court in the suit of R. R. Barrow v. W. A. and J. R. Bisland, be affirmed, with costs. And it is further adjudged and decreed, that the judgment of the District Court in the suit of B. if. Ba/i'row v. B. E. Butler, testamentary executor of Bichard G. Ellis, be reversed, and that there be judgment in said suit in favor of defendant and against the plaintiff, with costs in both courts. And it is further adjudged and decreed, that the judgment of the District Court in the case of R. R. Barrow v. George S. Guion, be reversed, and that there be judgment in said suit in favor oí defendant, and against plaintiff, with costs in both courts.
Dissenting Opinion
dissenting. I am unable to concur in all the conclusions of my colleagues.
I adopt the statement of facts contained in the opinion of the Judge of the District Court in order to be better understood.
“ On the 27th July, 1836, Robert R. Barrow sold to Thomas if. Shields, a sugar and cotton plantation, both in the parish of Terrebonne, the former on Bayou Terrebonne, the latter on Baj'ou Caillou, with all the improvements, &c., &c., and seventy-five slaves. This sale was made for the sum of $227,000, for which Shields gave sixteen promissory notes, and accepted drafts payable at various dates : the notes were secured by mortgage on the property sold.
“ Immediately after the sale, Shields took possession of the property and paid some of the notes as they fell due, hut he was unable to pay a great part of them, and in 1842 there was still unpaid the sum of $119,906 36. The unpaid notes had been protested as they fell due, and suit had been brought on them against T. R. Shields and against Wm. Bisland, the last endorser on ail the notes.
In this state of things, Shields ahd his endorsers proposed to Barrow an amicable settlement of his entire claim. After some hesitation this proposition was accepted, and was fihally concluded by ah act "passed before Beufroy Barras, Parish Judge of the parish of Terrebonne, oil the 9th November, 1842, between B. B. Barrrnb of the first part, Thomas B. Shields of the seccnd part, and the six endorsers of Shields of the third part.
“ According to this act, Barrow agreed to release T. B. Shields and his six endorsers from all liability on their notes and to discontinue his suits against T. B. Shields and Bisland. Thos. B. Shields retroceded to Barrow the property purchased by the act of July 2'Tth, 1836, and the six endorsers gave .to Barrow their notes endorsed by each other, amounting to $82,000, to he delivered to Barrow when he gave up the unpaid notes, which had been given for the plantations, till then to remain in the hands of L. Barras, Parish Judge, &e.
“ After entering into this contract, Mr. Barrow alleged that the other parties had made misrepresentations to him to induce him to do so, and that they also complained of the contract; he therefore sent them a letter offering to rescind it, which they declined to do.
“ Alledging he was injured by the contract of 9th November, 1842, he filed a hill in equity in tho Circuit Court of the U. S. for the Eastern District of Louisiana, against Mrs. Victoria Shields and Wm. Bisland, the only parties to the act of 9th November, 1842, who were not citizens of Louisiana, praying for a rescission of the act upon a number of grounds .therein detailed at length.
“ This suit was afterwards converted into a suit for the specific performance of the contract of 9th November, 1842, and on the notes for $32,000, given in said contract. All the parties to which act were made parties to the action, and after lingering on a number of years was terminated in the lower court by a judgment rendered on the 13th December, 1852, condemning the defendants in the present suit to pay their notes under the act of 9th November, 3842, and also to do other acts to which they had obligated themselves in said contract of 9th November, 1842.
“ An appeal was taken, and the Supreme Court dismissed the case for want of jurisdiction. The plaintiff now brings these suits upon these notes, against those of their makers or endorsers, or their representatives, who reside in Louisiana.
“All the defendants are residents of the parish of Terrebonne, except Geo., S. Guión, who has consented however to be sued in that parish. It is also agreed that all the suits may he tried together, and that the property of the part of the endorsers who are dead, descended as set forth in the petition,
“ All the notes bore ten per cent, interest after maturity, and were payable at the Bank of Louisiana.”
The defendants in their answer set up (¡wo principal grounds of defence:
“1st. The notes signed and endorsed by the defendants in accordance with the terms-of the act of November 9th, 1842, were executed under the false and erroneous belief that they were still bound and liable for their original endorsements, when in fact'they were in no manner bound for their endorsements, their liabilities having been released by Barrow’s having released, without their knowledge or consent, certain of the mortgaged slaves from the mortgage given to secure the payment of said notes.”
“ 2d. They plead the prescription of five years. ”
The judgment of the lower court being adverse to tho defendants on both grounds, judgments were rendered against them and they have appealed.
I. The defendants roly in support of this first ground of defence, that ill April, 1837, Thomas JR. Shields sold two slaves, (runaways,) to Jacob Jacobs for $1050, and Barrow released his mortgage as to them: also, in February, 1840, Shields sold another of his slaves to Lydia WhitoJcerior $150, and Barrow in April following released his mortgage upon the last mentioned slave.
On this branch of the case the learned counsel for the defendants have contended, that the effect of these releases was to discharge the defendants, the endorsers, from the remaining notes of the sale of 1836, amounting' to, say $119,000 ; that being ignorant of their discharge, the contract of November 9th, 1842, was made in error, and void, and if the plaintiff would hold the defendants liable for the last mentioned notes the burden of proof is on him to show, and it must be shown that the endorsers were aware of their discharge at the time they entered into the contract of November 9th, 1842.
This contract was tripartite. Thomas JR. Shields was to reconvey the plantations and slaves to Barroio, Barrow was to surrender to Thomas JR. Shields all the notes then unpaid, release all parties therefrom and dismiss his suit against Thomas JR. Shields and William Bisland.
The defendants, the parties of the third part, obligated themselves to pay thirty-two thousand dollars, “ the consideration of the contract” secured by the notes now sued on.
It is evident that this was not a mere renewal for a former supposed obligation as in the case where an endorser promises to pay a note under the impression that it had been regularly protested, or where he has given a new promissory note for the same: for here on the part of the endorser his new obligation does not amount to one-third of the old.
Again, the maker of the old obligation is, by the agreement of the parties, discharged absolutely by the surrender of the property. The endorsers then assume his position and place, for the balance of Ms indebtedness after surrendering the property. If they are not bound, then the plaintiff loses thirty-two thousand dollars of his •claim, for, by the agreement, Thomas JR. Shields, (whose liability must on all sides be admitted,) was discharged, as just observed, from the remaining obligations which he had given as the price of the property.
The instrument of the 9th of November, 1842, must, therefore, be considered as a transaction, and subject to a rescission only for the same causes and inherent defects as other instruments of this kind. And so a part of these defendants considered it when they opposed Barrow's suit in chancery to set aside this agreement and reinstate the contract of 1836.
Have the defendants then established such facts as ought now to annul this contract which they were formerly so desirous of preserving in force ?
Transactions have, between the parties interested, a force equal to the authority of things adjudged. They cannot be attacked on account of error in law, or any lesion. C. C., 3045. They can only be rescinded where there is error in the person or the matter in dispute, where there is fraud or violence, or where made in the execution of a title which is null, unless the nullity be the subject of the compromise, or unless the compromise be made upon forged documents. C. C., 3046, 3048, 1822, 1825.
The only one of these grounds which can be seriously urged in this case, is that the compromise was made in the execution of a void title. Let us see
But it is said that the release of the mortgage upon the three negroes specified, had the effect of discharging the endorser under Art. 3030 of the Civil Code, the creditor being unable to subrogate the endorsers to his mortgage, it being presumed that they would not have engaged themselves for their large amount, had they not thought they were bound as endorsers. A judicial construction has been put upon this Article of the Code, and it has been hold, that the partial release of any of the mortgages and privileges of the creditor releases the surety only pro tanto. This construction, whatever we might think were the question res nova must govern us, and be considered as the settled law. See cases, Saulet v. Trepagnier, 2 An. 429; Gosserand v. Lacour, 8 An. 75; and Provan v. Percy, 11 An. 179.
We must, therefore, conclude that the title, the subject of the compromise, was not void either as in regard to Thomas R. Shields or his endorsers. It is possible that the endorsers supposed themselves bound for $119,000, when they were only bound for $118,000, but this comparatively inconsiderable error in the amount of their indebtedness in the absence of all fraud, cannot invalidate a contract which our law declares shall have the force of a judgment. C. C. 1825, 3045. On this branch of the case, I think there is no difference of opinion among the members of the court.
II. Is the plea of prescription maintained ? More than five years elapsed between the maturity of the notes and the institution of the suit. Hence prescription has taken place unless interrupted. The plaintiff contends that certain proceedings in chancery had that effect, and I am of the same opinion, as to all of the defendants except one.
I attach no importance to the fact, that the proceedings were commenced before the maturity of the notes for the exception that the suit is premature, is only dilatory, and if waived by answer does not prevent a decision upon the merits. If the exception be not interposed the obligation becomes exigible, and the pendency of the suit must interrupt the prescription.
Neither is citation eo nomine essential to interrupt prescription. The Federal Court exercising chancery jurisdiction, commences its proceedings by a subpoena. We'must, where it has concurrent jurisdiction with our courts at least, consider the subpoena equivalent to a citation. Jackson v. Tiernan, 15 L. R. 485. So also where a citation is waived and the party voluntarily appears in court bjr answer or otherwise, the same effect must be given to the proceeding as would be given had the answer or plea been preceded by a citation. C. P. 177. A reconventional demand has the like effect, because no citation is required, the party being already in court. Driggs v. Morgan, 10 Rob. 119. Under the Roman law it was the contestatio litis which interrupted prescription. The joining of issue cannot have a less effect with us, for it either presupposes a citation or the waiver of citation. C. P. 359.
I will now consider the proceedings in the Circuit Court of the United States for the Eastern District of Louisiana, for it is only as to the effect of these proceedings with regard to a part of the defendants that there is a division of opinion among the members of the court.
In December, 1842, the plaintiff in this action, R. R. Barrow, filed his bill in
Mrs. Shields and William Bisland, by their answers, resist the demand of the plaintiff for a rescission of said contract, and aver it was entered into in good faith. Mrs. Shields denies that that there was “ anything in the conduct of said Thomas B. Shields, or that of any of the endorsers, to induce the complainant to believe any of them were preparing pretexts to justify their intended refusal of payment of their aforesaid notes, amounting to $32,000.”
Bisland averred that he and his coendorsers agreed to pay plaintiff $32,000-to induce him to take back the property; that he, Bislanid, although the last endorser, had consented to pay $10,000 as his portion of $32,000.
On the 4th day of March, 1848, William Bisland filed his cross-bill against Ban-row, setting up the contract of November 9th, 1842, and the promissory notes executed in pursuance of it, and praying a specific performance of said contract, and for an injunction against Barrow, restraining him from proceeding upon the suits in the First District Court and in the District Court of the parish of Terrebonne, and from commencing any other proceedings against him, said Bisland, on the notes under the contract of 1830. On the 18th of April, 1843, the six matured and protested notes were ordered, on the motion of Janin, of counsel for Barrow, to bo deposited in court by the notary having them in possession for the purpose of protest.
In 1844, (February 10) Ban-row filed his amended bill, and prayed that the promissory notes executed by the defendants under the Act of November 9, 1842, and deposited under that agreement with Bun-ras, the parish Judge, before whom the contract was passed, should be delivered to him, and prayed “ that the defendants may be decreed to pay to plaintiff the amount of such of the last mentioned notes as may have been drawn by them, and also such of said notes as may be endorsed by them, and which may be protested, and of the protest of which they may be notified before the final decree of this honorable court, the whole with interest from the day of protest.”
On the same day, Ban-row filed his answer to the cross-bill of Bislanid, in which the indebtedness of Bisland upon the protested notes is set up ; and it was further alleged, that on the 3d day of April he would be indebted on the notes which would then mature, in the further sum of $8,483 33, and costs of protest.
The prayer to this was, that the said contract of November 9, 1842, be specially performed according to the time, purport and tenor of said act, and he prays for such relief as'by the showing of his answer he is entitled, concluding with a prayer for general relief.
On the same day, the court ordered Brn-ras, the parish Judge, having the custody of the second series of notes, to deposit them with the Clerk of the Oircuit Court, to be by him deposited in bank for collection.
On the 24th day of April, 1844, the court ordered, that unless Mrs. Shields and William Bisland filed a cross-bill, setting up and praying an execution of said second contract, and make all the parties to said second contract defendants, that said Barrow should be at liberty to proceed upon his bill of com
The defendants, Richard G. Ellis, Van P. Winder and George S. Guión, filed a plea to the cross-bill of Shields and Bisla/nd, in the nature of an exception to jurisdiction of the court, and also averring that no cause of action was alleged against them. Mrs. Shields and Bisland, at the same time demurred to the original bill.
The plea and demurrer were at the May term, 1845, overruled, and the parties making the same were directed to answer over. .
In pursuance of this order, Mrs. Shields and William Bisla/nd answered Borrow's original bill, and, among other things, averred: “ That no legal demand of payment could be made, and they deny that any legal protest for nonpayment or notice thereof was ever made, and they, therefore, say that they are fully discharged from all liability on account of said notes ; and they pray, if this court shall entertain jurisdiction of said complainant’s demand, it may order said notes, as well those signed as maker as those endorsed by your respondents, to be cancelled and given up to them.”
They further averred, that Barrow was responsible for the revenues of the plantation, and prayed, in the event their defences were held insufficient, “ that then the amount of revenues received by said complainant or the amount which he might, with proper management, have received, be imputed by this court to the payment and discharge of all you/' respondent's liabilities undes• said contract of November, 1842, and the notes given in pursuance thereof.”
Van P. Winder and George S. Guión appear, plead and answer the cross-bill of Mrs. Shields and William Bisland, and then they plead to the bill of complaint of Barroto, the want of jurisdiction, and in the event the court should be of the opinion that their pleas (to the cross-bill and original bill) ought not to be sustained; they set up, in substance, the same matters as a defence to the notes, as were set up by Mrs. Shields and William Bisland.
William B. Shields having, by his plea to the cross-bill of Mrs. Shields and Bisland, averred his residence to be in Mississippi, Barrow amended his bill in March, 1847, praying that ho be condemned to pay the notes endorsed by him and described in the bill of complaint, and also conclude by a prayer for general relief.
W. B. Shields thereupon answered the original and amended bills, and averred that he was discharged from the notes signed by him and those endorsed by him, by the release of the mortgage upon the slaves Prince and Joe, and the irregularity in the protest of the notes, &c.
Wiliam B. Shields further denied all liability on the four notes signed by him under the contract of 1842, on the further ground that they were delivered as escrows and were not to be delivered to complainant until he had first performed the stipulations on his part, and that he had neglected to perform the same. He further avers thatsaid notes have never been legally or properly pro"
On the 3lst of January, 1852, Barrow filed his replication to the answers of William Bislamd, Mrs. Shields and W. B. Shields, and conditionally as to Guión, Winder and the executor and widow of Ellis.
Ellis, as has already been observed, pleaded to the jurisdiction of the court in reply to the cross-bills of Mrs. Shields and William Bistand. Of course, the cross-hill was no demand for the payment of the notes, and by that act, Ellis did not become a party to Bao'row's bill. It was not until January, 1852, that Richard E. Butler, testamentary executor, and the tutrix to the minor children, made their appearance and answered the original and cross-bills, setting up substantially the same defences as Winder and Guión had previously done.
By signing thojpromissory notes and delivering them to Barras, Ellis had complied with that'lpart of the contract and from that period until filing answer to. thej original and cross-hills, neither he nor his representatives appear to have done any act to prevent Barrow from receiving from Judge Barras the notes and enforcing them by suit.
A consideration of the facts here shown proves, that the contestatio litis was formed by all of the defendants, except Richm'd G. Ellis, within five years from the protest and'maturity of the notes given under the contract of Nov. 9th, 1842.
Upon the validity and obligatory force of said promissory notes, both as to the makers and endorser's, and their liability to pay the same, and upon a consideration of the issue thus formed, the Circuit Court rendered a decree in favor of Barrow for the amount of the notes, respectively against Victoria Shields, William B. Shields, Van P. Winder, George & Guión, William Bis-la/nd, and the executor,- widow and heirs of Richard G. Ellis, deceased. Code, Const. 1, Lib. 3, Tit. 9.
This decree of the Circuit Court was reversed by the Supreme Court of the United States in December, 1854, on the ground, that the defendants were not lawfully before the court, that the court never obtained jurisdiction over those of the parties who were citizens of Louisiana, and, that it did not have before it such parties as were indispensable for a specific performance of the contract of compromise, or the rescission thereof; and, lastly, that when the Circuit Court proceeded finally to make a decree condemning the defendants to pay the notes given under the compromise, it gave a relief for which there was a plain, adequate, and complete remedy at law.
Now, if the defendants had not prosecuted their appeal to the Supreme Court of the United States, and there caused the decree of the Circuit Court to be reversed, it would have had the force and effect of the thing adjudged, and would have been conclusive upon them as to their obligation to pay the notes. I am, therefore, inclined to think that the proceedings in the Circuit Court of the United States ought not to be treated as corram nonjudice with reference to the question of prescription, although it erroneously assumed jurisdiction over matters and persons not properly cognizable by that court.
The contestatio litis was formed, as I think_as to each defendant, either by an express claim in the bill on the part of the plaintiff upon the notes or an express denial upon the binding force of the notes and their liability thereon, by each of the defendants in the answer and a replication thereto hy the plaintiff, and in some of the cases there were both an affirmance by the one party and a denial by the other, followed by the replication, and this issue of fact thus formed was entertained by the Judge. Lis enim videtur cum judex per narrationem negotii causam audire coeperit.
This contestatio litis was formed, as already observed, as to each of the defendants within five years from the maturity of the notes, except as to B. G. Ellis. As to him, T do not think the proceedings can have the effect of interrupting prescription.
In 184J the court ordered the notes to be deposited in bank for collection, We see no reason why suit could not have been instituted upon the notes in the name of the bank, or any other receiver which the court might appoint. Perhaps also Barrow himself might have sued upon them as well then as now. At all events, neither Ellis nor his representatives appear to have done anything to prevent Barrow from suing upon the notes until they formed the contestatio litis by their answer in 1852. Up to this time they stood upon their rights as simple makers of the notes, In the meantime, the five years elapsed. i
The maxim: Gont/i'a non valentem agere non currit presm'iptAo does not apply to Barrow on his demand against ElUs. The latter did not stand in this respect in the same position as the other defendants, who, in their answers within the five years, contested the plaintiff’s right of recovery upon the notes sued upon, and the judgment as to B, E. Butler, executor, I think ought to be reversed.
I, therefore, concur in the decrees pronounced in the cases of R. R. Barrow v. R. E. Butler, executor, and same v. W. A. & J. R. Bisland, and dissent in the other consolidated cases.
Rehearing
ON A RE-HEARING.
The discussions which the re-hearing has given rise to in this case, have not occasioned any material change in my opinion.
I am still unable to see any safe ground upon which the succession of Ellis can be held responsible.
I can see nothing which in my opinion can be held to be equivalent to a citation or a demand injustice, until after prescription had been acquired.
It is said that the cross-bill filed by William Bisland and Victoria Shields, was a sufficient citation or “ demand in justice,” to interrupt the prescription as to ElUs, because William Bisland was the endorser of Ellis upon that series of notes, and, that, therefore, he was interested in bringing him into court, in order that judgment might be rendered against him as maker, if rendered against Bisland as endorser.
As Barrow did not undertake to make ETlis a party to his bill, and did not pray for a subpoena or judgment against him, the case as to Ellis’ Succession
But on looking into the cross-bill, instead of finding such a demand, we only find that the contract of 1842 is recited at length, and a prayer for Us specific performance, and no demand in any shape for judgmentuponthe notes. The subpoena is not in the record, but it must have followed the cross bill as usual.
What is the meaning of the prayer for a specific performance is ascertained by the decree of the Supreme Court upon this very cross-bill. See 17 Howard, 146. Indeed, the complainants sufficiently explain themselves when they say, that they are ordered to bring in by their cross-bill, ElUs, Winder and Guión, with a view to the specific performance of the contract of 1842, and when, also, they pray that the notes given under the sale of 1836, on which they were endorsers, may be cancelled, and that they may recover damages against Ba/rrow for Ms non-execution of Ms contract. It is also known, that the cross-bill was filed to avoid the danger arising from the threat of the Circuit Court to allow Banrow to set up the sale of 1836.
In all this I do not discover any demand formed upon the promissory notes. There was no citation to Ellis, requiring him to pay them, and nothing that informed him that they were set up against him by any one. Moreover, such a demand in a cross-bill (in which Barrow himself was defendant) would have been most singular, as that court had no jurisdiction upon ordinary demands upon commercial paper, there being a remedy at law, and no pleadings between the several defendants to the cross-bill.
In my opinion it was by the answers of Winder and Guión to Barrow's bills and not to the cross-bill, which interrupted prescription as to them. As already remarked, neither Ba/rrow nor any one else on his behalf had as yet demanded judgment against them on account of the notes. But these defendants, in answering Barrow's original and amended bills, assumed that it was a demand, irregular it is true, but nevertheless a demand against them for the amount of the notes and in this sense they denied Barrow's right to recover against them upon the notes, and prayed that they might be declared extinguished. By the replication filed by Ban'row, the issue was formed which the parties and the Circuit Court understood as embracing Barrow's right to recover upon the notes, and the defendants’ defences against them.
But it is suggested, that this view substitutes the answer for that citation, and declares, what the law has not said, that an answer can interrupt prescription.
The reconvention which comes by way of answer, interrupts prescription without any citation. And I cannot see why the defendants in this irregular chancery suit, who chose to assume that the plaintiff had in said suit demanded payment of the notes when such demand was never in fact made as to all of the parties, should now, on account of the irregularity of such proceedings, deny the demand which they had undertaken to answer, and which they did answer when they prayed that the notes should be cancelled or, at least, com
But it is further urged, that Ellis’ plea was overruled, and that he was ordered to answer over to Barrow's bill, and, therefore, he was constructively in court as well as his succession from the.date of the overruling of his plea.
Whether such is the effect of a proceeding in chancery after the death of parties, it is not necessary to inquire; for it is clear, that the cross-bill was not Barroio’s bill, and no issue could bo formed on Baorow's bill until the parties were forced to answer by the machinery of the cross-bill.
The Circuit Court, in this curious proceeding, know that it could not compel Ellis, Winder and Guión, to answer Ba/rrow's bill, because they were, with him, residents of Louisiana. But it supposed that, by compelling Bisland and Mrs. Shields to file a cross-bill against them, it would then have jurisdiction over their persons in virtue of the cross-bill and could thus force them to answer Ban'row's bill for a specific performance. When, therefore, the plea of these defendants was overruled, the court decided one branch of a controversy between the parties to the cross-bill, and not a contest between themselves and Borrow. That issue could only bo formed when the court had exerted its power at the instance of William Bisland and W. Shields, to compel them to answer Bai'row's bill.
Ellis having died, his representative was not forced to answer, and did not answer Barrow’s bill until 1852, after prescription had extinguished the liability of Ellis' succession upon the notes.
But it is further objected, that Bisland is the accommodation endorser of Ellis and, therefore, the citation on him must interrupt prescription, because when Bisland pays the judgment, he will have his recourse over against Ellis' estate. Whether such will be the effect of payment or not, we are not called upon to decide. The question here is between Ellis' suecession and the plaintiff. On this point, the authorities leave no room to doubt that the citation against the endorser does not interrupt prescription as to the maker. 12 Rob. 185, Jacobs v. Williams; 2 An. 332, Jacobs v. Newcomb; Ibid 792, Hickman v. Stewart.
We all concur that the judgment heretofore pronounced by this court in the case of Robert R. Barrow v. W. A. & J. R. Bisland, remain undisturbed.
I concur with Justice Voorhies and Buchanan, that the decision heretofore pronounced by this court in the case of Robert R. Barrow v. Richard E. Butler, executor of R. G. Ellis, remain undisturbed. And I concur with Justices Spoeeord and Cole, that in the other three cases of this plaintiff against W. B. Shields, Van P. Winder and George S. Guión, that judgment of this court ought to be set aside, and the judgments of the lower court affirmed.
In the opinion heretofore pronounced in this cause by a majority of the court, it was stated that prescription was interrupted by a citation to the debtor to appear before a court of justice upon the demand of the creditor for a judgment for his debt. And as in the chancery proceedings, the creditor, Barrow, had not demanded a citation and judgment against Van P. Winder, R. G. Ellis and George S. Guión, nor prayed expressly for a judgment against W. B. Shields, upon the notes subscribed by him, prescription was held not to have been interrupted as to those parties.
In this, I have been satisfied by further examination, that too much prominence was given by a majority of the court to the fact, that Barrow himself did not directly cause tho parties above named to be summoned to take part in the litigation commenced by him in the federal courts and prosecuted so long, so irregularly, and so fruitlessly.
The Code puts stress upon the citation of the party, not upon the manner of the citation or the person at whose instance it may be ordered. “ A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the properly or of the possession ; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.” It would seem that the interruption takes place whenever the debtor is brought into court, no matter how irregularly or improperly, to answer on account of the debt, in a suit to which the creditor is also a party. Under a similar textual provision, it has been held in France, that the appearance of a warrantor in a cause cited only at the instance of the defendant, if he sets up a defence to the plaintiffs demand, will interrupt the prescription pleadable by the warrantor against the plaintiff. Dalloz, 32, 1, 164.
Upon the same principle it would seem that, when parties are called in by defendants with whom they are equally interested to defeat the plaintiff’s demand, and when they actually do contest his demand, prescription must be interrupted as between them and the plaintiff.
Van P. Winder, George S. Guión and William B. Shields, subpoenaed at the instance of the original defendants with whom they were equally interested to defeat the plaintiff, did, by their answers in the chancery suit, put at issue Barrow's right to recover an account of the notes now sued upon, and before prescription had accrued. It was thereby interrupted as to those parties with regard to all their liabilities upon the notes in question.
Upon this point the Code is positive ; and the claims of Barrow, to which Ellis was cited to answer at the instance of a party in interest, involved an assertion of Ellis' liability upon the notes now in question, by necessary inference. And, under the prayer for general relief, the Circuit Court actually gave judgment in favor of Barrow against Ellis' representatives for the sums now claimed. Uno demam.de implícito est interruptíve de la prescription, atissi bien qu'une demande expresse. Sirey 6, 2, 696.
All the parties to the extraordinary litigation in the Circuit Court, evidently thought that the liability of each of the defendants in this suit upon the notes was there at issue. I, therefore, think our judgment heretofore rendered, should he set aside, and the judgment of the District Court in all these cases, be affirmed with costs.
Concurrence Opinion
I concur with Mr. Justice Spofeord for the reasons given by me as District Judge.
On the 27th July, 1836, Robert R. Barrow sold to Thomas R. Shields a sugar and a cotton plantation, both in the parish of Terrebonne, the former on Bayou Terrebone, the latter on Bayou Caillou, with all the improvements, &c., &c., and seventy-five slaves. This sale was made for the sum of $227,000, for which Shields gave sixteen promissory notes, and accepted drafts payable at various dates: the notes were secured by mortgage on the property sold.
Immediately after the sale, Shields took possession of the property and paid some of the notes as they fell due; but ho was unable to pay a great part of them, and in 1843 there was still unpaid the sum of $119,965 35. The unpaid notes had been protested as they fell due, and suit had been brought on them against T. R. Shields, and against Win, Bisland, the last endorser on all the notes.
In this state of things, Shields and his endorsers proposed to Bmrow an amicable settlement of his entire claim. After some hesitation, this proposition was accepted-, and was finally concluded by an act passed before Leufroy Barras, Parish Judgo of the parish of Terrebonne, on the flth November, 1842, between R. R. Barrow of the first part, Tlws. R. S.', kids of the second part, and the six endorsers of Shields of the third part.
These were: Mrs. Victoria Shields and William Bisland of Adams County, (Miss.), Wm. B, Shields, R. G. Ellis and Van B. Winder, of Terrebonne, and Geo. S. Guión, of Lafourche Interior.
After entering into this contract, Mr. Bairow alleged that the other parties had made misrepresentations to him to induce him to do so, and that they also complained of the contract; he therefore sent them a letter offering to rescind it, which they declined to do.
Alleging he was injured by the contract of 9th November, 1842, he filed a bill in equity in the Circuit Court of the United States for the Eastern District of Louisiana, against Mrs. Victoria Shields and Wm. Bislcmd., the only parties to the act of 9th November, 1842, who wore not citizens of Louisiana, praying for a rescission of the act upon a number of grounds therein detailed at length.
7)his suit was afterwwards converted into a suit for the specific performance of the contract of 9th November, 1842, and on the notes for $32,000, given in said contract. All the parties to which act were made parties to the action, and, after lingering on a number of years, was terminated in the lower court by a judgment rendered on the 13th December, 1852, condemning the defendants in the present suit to pay their notes under the act of 9th November, 1842, and also to do other acts to which they had obligated themselves in said contract of 9th November, 1842.
An appeal was taken, and the Supreme Court of the United States dismissed the case for want of jurisdiction. The plaintiff now brings these suits upon these notes, against those of their makers or endorsers, or their representatives, who reside in Louisiana.
All the defendants are residents of the parish of Terrebonne, except George S. Guión, who has consented, however, to be sued in that parish. It is also agreed that all the suits may be tried together and that the property of the part of the endorsers who are dead, descended as set forth in the petition.
All the notes bore ten per cent, interest after maturity, and were payable at the Bank of Louisiana.
Having given this statement of facts, we would remark that the principal grounds of defence are, 1st, the release of mortgage on Charles, Primus and Joe Ogden, though it does not appear clearly that the mortgage on Oha/rles was ever actually raised, and 2d, prescription.
And I shall now proceed to investigate this defence and see if it is valid and sufficient.
One of the grounds of defence is that a mortgage bearing on the slaves Charles, Primus and Joe was raised by Barrow.
These servants were among those sold by Barrow to Thos. B. Shields by the sale of 27th July, 1836. Charles was sold by Shields by private act, on the 27th of February, 1840, to Lydia Whittaker, f. w. c., his grandmother. Barrow, on the 29th April, 1840, wrote under said act, that he does now and will raise the mortgage on said Charles. The boys Primus and Joe Ogden are stated in the bill of sale to Shields to be absent from the plantation from having run away, are supposed to be in the vicinity and are at the risk of Shields
Barrow, on the 11th of April, 1837, by public act, before the Parish Judge of Terrebonne, raised the mortgage on Primus and Joe Ogden, it having been agreed in said sale of 3d April, 1837, by said Thos. Shields, that this should be done, and said act was recorded in said Parish Judge’s office on the 11th of April, 1837.
Now it is alleged by defendants that they were entirely released from all legal obligation to pay their endorsements on the notes given for the price of the plantation by sale of 27th July, 1836, on account of the lifting of said mortgage, and if they had known the fact and that they were released by the actions of Barrow, they should not have entered into the compromise of November 9th, 1842.
In investigating the effect of said release of mortgage, the first question that arises is, whether the release of said mortgage was known to the endorsers The presumptive evidence is in favor of the hypothesis, that the endorsers knew of the raising of the mortgage previous to the time of passing of the Act of 9th November, 1842. These gentlemen would not have endorsed for Thos. B. Shields for such large amounts unless they were on terms of very great intimacy with him. Wm. B. Shields was a witness to the sale of Charles and brother to Thos B. Shields.
It is true that in said sale Charles is sold subject to the mortgage of Bcvrrow, but he must have known that the sale would be of no practical avail unless the mortgage was raised. G. S. Guión resided in the parish of Lafourche, Van P. Winder in Terrebonne, B. G. Ellis lived in Terrebonne.
Thos. B. Shields and Wm. Bisland were brothers-in-law. Taking into con" sideration the relation of the parties, it is very natural to suppose that these sales of Charles and of Primus and Joe must have been spoken of by Thos. B_ Shields to the endorsers.
Besides, the sale from Thos. B. Shields to Jacob Jacobs was made by public act in New Orleans on the 5th April, 1837, and recorded in the Parish Judge’s office of Terrebonne on the 11th April, 1837, and the release of the mortgage by Barrow was recorded in the said Parish Judge’s office on the 11th of April 1837; the sale of Charles was recorded in the Parish Judge’s office of Terre’ bonne on the 24th of August, 1840.
Now, the act of compromise of 9th November, 1842, was passed before the same Parish Judge, L Barras, and as the matter of this compromise was talked over some time before the act was passed, and these acts had been on the public records of the parish of Terrebonne, the release of mortgage for about five years and the sale of Charles over two years, and as a part of the endorsers lived in Terrebonne, it is difficult to imagine that nothing was ever known to them of these sales and the release of mortgage on Primus and Joe. Besides, Primus and Joe were sold as runaways, Thos. B. Shields no doubt desiring to rid his plantation of them, and this sale must certainly have been talked over before, and it does not seem probable that Barrow would have released the
Besides, Mrs, Vietoire Shields, in her answer, filed March 4, 1843, says, in speaking of the state of property of Thos. B. Shields, previous to the compro mise of November Oth, 1842:
That although a few of the negroes were dead and and had been sold, whose names are mentioned in the complainant’s bill, the property had been greatly improved by valuable improvements put upon it by the said Shields. On p. 16, in her answer to Barrow's bill, she further says: “and this defendant further saith that she has been informed and believes that the said complainant, previous to the execution of said agreement, gave a memorandum in his own hand writing to one of the endorsers, in which the said complainant himself had set down the names of these same negroes as being then dead, with the names of two others which had been sold and one exchanged, which memorandum, with proof of its being in the handwriting of the said complainant, this defendant is ready to produce.” And Wm. Bisland, in his answer, filed March 4th, 1843, repeats exactly what Mrs. Vietoire Shields says as to the memorandum. Prom these averments of the pleadings of these two endorsers, which are under oath, it appears that Bm'row gave the name of two that had been sold. These were no doubt Primus and Joe Ogden, for the only other one sold was the child Chandes to which sale Wm. Shields was a witness. Although these averments may not be considered as binding any one in particular, still as this memorandum was given to one of the endorsers previous to the execution of the agreement of November 9th, 1842, is it not reasonable to suppose that this endorser communicated the fact to the endorsers, and this fact of a sale supposes the raising of the mortgage, for no one would have bought them subject to that mortgage, and in examining the sale in the Parish Judge’s office of Terrebonne, they would also have scon the release of the mortgage.
Without then taking into consideration at all the evidence of Lydia Whittaher, there is strong presumptive testimony that the endorsers under the act of 27th July, 1880, were aware of the sales of Charles, Primus and Joe, and of the release of the mortgage on Primus and Joe ; assuming, however, that they were all ignorant of these sales and of the raising of any mortgage on said slaves, what effect would this release of mortgage have had on the liabilities of the endorsers to the act of 27th July, 1836 ? Would they have been entirely or partially released? It is contrary to equity and every idea of justice to release a security for more than he is injured by the release of the mortgage granted by the vendor to the vendee for whose benefit the security may have signed.
Reason teaches that the security should be released only for the amount of injury that he has sustained. It is true that the act of mortgage bears upon every part of the property, and each part of the property is subject to the mortgage, but each part is only worth a certain amount, and when the mortgage on that part is released, the security is only injured to that amount. If it should bo argued that the mortgage is one and indivisible, and the release of a part is equal to the release of the whole, because the whole amount of the mortgage bears on every part, then it follows that a partial release is no release at all, for if a peace of property is mortgaged for $50,000 and the release is for $10,000, then if the mortgage is one and indivisible, the release of $10,000 amounts to nothing.
I conclude then, that the release of the mortgage on these slaves, merely released the securities for their value, or else that they have never been releasd at all, on account of the impossibility of executing a partial release. If the latter view is adopted, then the objection of defendants is deprived of all force. If the former, then the securities were released only for the value of the slaves on which the mortgage wes raised.
But there is authority to show that the securities are only released fro tanto.
The case of John B. Hereford v. W. H. Chase, 1st Rob. Rep., has been quoted by tho defence as sustaining the doctrine, that the release of mortgage on a part of the property cancels the liability of the security for the whole amount; but an examination of this case shows that it cannot bo considered as a decision clearly in favor of that principle.
In that case the plaintiff sold to one Desmont ten slaves for $6,750, and received tho note sued on, which was endorsed by defendant, Chase, and boro ten per cent, interest from its date. On the 11th March, 1839, tho plaintiff repurchased of Desmont nine of the same slaves with the addition of a child born after the sale, for $4,675, and it did not appear whether the tenth slave died or remained in the possession of the vendee, nor was the relative value of tho slaves shown, and notwithstanding this state of facts, the endorser had judgment against him in the Commercial Court for $3,458 50. Now, under this state of facts, tho judgment of the Supreme Court reversing said judgment was certainly correct, because there was no relative value shown of the slaves sold, and the one which may have remained, and all the slaves were sold but one, and nothing was shown as to that slave, whether he was living or dead, and the mortgage was removed from all the slaves except one, and yet there was judgment against the endorser for $3,458 50.
Now by this state of facts the right of subrogation was taken from the security, because it was not shown what was the value of the slave that remained; but the present suit is very different; more than half of the price of tho plantation and slaves by the sale of 27th July, 1836, had been paid previous to the compromise of November 9th, 1842 ; the plantation and negroes still remained with the exception of any of the slaves who may have died and of Cha/rles, Primus and Joe Ogden.
The value of these three slaves is shown by the sales. Primus and Joe Ogden could only have injured the plantations, and the recourse of the securities, as they were runaways and set a bad example to the other slaves, and they were sold for 1,050. As to Charles, in case the mortgage on him could be considered as raised by the promise of Barrow to raise it, he was when sold aged three years, and at the time of the compromise he was not quite six years old. Thos. B. Shields sold him for one hundred and fifty dollars.
The rights of the security thus at the utmost were valued $1,150, and if the mortgage on Charles is not deemed to have been raised by Ba/rrow, then the rights of the securities cannot be considered as having been injured at all by the raising of the mortgage on the runaways Primus and Joe. The situation then of the endorsers to the sale of 27th July, 1836, by the release of this mortgage on Primus and Joe, at the time of the compromise, was
In the latter case, the Supreme Court no doubt thought that there was a fraudulent combination between the plaintiff and the principal debtor to make the surety lose, and fraud tainting the whole transaction, the Supreme Court very properly released the defendant from the whole claim.
The principle is well stated by C. J. Eustis in Saulet v. Trépagnier, 2 An., p. 429 ; he says: “ It would seem to be a necessai’y consequence of the principles of the law of suretyship, that the surety is entitled to the whole benefit of all the sureties in the hands of the creditor; and if any of them be lost by his willful neglect or want of due diligence, the surety is to that extent discharged,Judge Eustis refers in that decision to various authorities, and among others, to Theobald on principal and surety, in which the following passage occurs (Law Library, vol. 1, p. 153, §274). After stating the facts, Lord Loughborough said: “If the plaintiff might have recovered the whole, this action might, on equitable grounds, be entirely stopped, if only a part, equity would relievo pro tanto. And page 87, §176, it is said that in Capel v. Butler, the Vice-Chancellor was of opinion that the plaintiff, as security, was entitled to take advantage of the proviso for redemption, and that as the value of the vessels had been lost to him by the neglect of the defendant, Butler, he was entitled to deduct it from the stipulated price of redemption.
The case of Gosserand v. Lacour (8 An., p. 75) is based on the same spirit and considerations. In that case, a debt was secured by two joint and several securities. Either of them might have been sued for and compelled to pay the whole debt, and if one of them had paid it, he might have recovered one half of it from his co-surety. The creditor gave time to one of the sureties, and sued the other for the whole. It was held that, by this giving time, he had discharged the defendant of one-half of the responsibility and could recover from him only the other half, and for this amount the plaintiff had judgment.
The French authors also show that releases of mortgages only discharge the endorsers to the extent of the injury which such releases would cause by impairing their right of subrogation to all the securities in the hands of the creditors. Dalloz, Juris. du XIX siécle, vol. 4, p. 5, v. Caution:
“Encore que par son fait le créancier se soit mis hors d’Etat de pouvoir subroger la caution á to us ses droiís et priviléges contre le débiteur principal, il ne s’en suit pas que la caution doive étre libérée par le tout; elle n’est déchargée vue jusqu’á la concurrence du préjudice qu’elle éprouve par l’impossibilité de la subrogation. Bouteille c. Reveillac.
The Court, in giving its opinion in the above case, refers particularly to Arts. 2024 and 2037 of the French Code, which are almost word for word Arts. 3017 and 3030 of our Code. Dictionnaire du Droit Civil Moderne, vo. “ Oautionnement” No. 161. “Remarquez au surplus, que bien que par son fait le créancier se soit mis hors d’état de subroger la caution á tous ses droits contre le débiteur principal, il ne s’en suit pas qu’elle doive étre libérée pour le tout; elle n’est déchargée que jusqu’á la concurrence du préjudice qu’elle éprouve par l’impossibilité de la subrogation.” Vide also Troplong, No. 572, Ponsot, No. 334, Repertoire du Journal du Palais, Cautionnement, No. 326. Gilbert^ Codes Annotés — note 15 to Article 2037, &c., &c.
The courts in the other States also hold the same doctrine. — A creditor who releases any security which ho holds for the paymont of his debt thereby
Now let us suppose that this release had been known to the endorsers, would that have prevented them from entering into the compromise of Nov. 9 th, 1842 ?
The defence is that the defendants were in error when they entered into the contract of 1842. Art. 1811, C. C., says, that it is only an error in some point which was a principal cause for. entering into a contract, which can invalidate it. Now, in this case, it appears that at the time this act of Nov. 9th, 1842, was passed, the defendant or their ancestors wore endorsers on notes still unpaid on the price of the sale of 1836, to the amount of one hundred and nineteen thousand, nine hundred and fifty-nx dallars and thirty-five cents. The whole of this amount was then actually due, except the sum of $26,000 due 4th March, 1843, and $26,000 due 4th March, 1844. Owing to the depreciation in the value of property, and so large an amount being due, Barrow might have got the property and still held the securities liable for a much larger amount than the $32,000 due by them by the act of Nov. 9th, 1842 ; he might also have got an immediate judgment against the defendants and harassed them much and put them to a great deal of expense.
Their principal object was to obtain time for themselves — to extricate their friend, Thomas B. Shields, and to relieve him and Bisland who was endorser on all the notes, from the ruinous effect of an execution at that disastrous period.
It cannot be presumed that in the execution of the contract of 1842, which they pressed upon the plaintiff, they would have been arrested by the thought that they might possibly have diminished their responsiblity by $1050, (the price of Primus and Joe Ogden in the sale from Thomas B. Shields to Jacobs). Were these $1050 the principal object of the contract?”
Toullier, vol. 6, p. 69, par. 68, says:
“Mais s’il n’était pas prouvé que l’erreur de droit était la cause principale du contrat, par exemple, s’il pouvait avoir pour motif de satisfaire une obligation imparfaite, ou un devoir naturel, il ne pourrait étre annulé, parce qu’alors il deviendrait impossible qu’il n’ait d’autre fondemeni qu’une erreur de droit. Ibid, p. 11, par. 10 and 11; vide also 18 Duranton, No. 423.”
Another motive for making- this compromise of Nov. 9th, 1842, was that Barroio had already instituted a suit against Thomas B. Shields and Bisland, which Barrow by that act bound himself to dismiss, and Barrow had also instituted another suit against Bisland in New Orleans, the prosecution of which was enjoined by Bisland's cross-bill.
The principal motives for entering into the contract of Nov. 9th, 1842, wmuld not then have been affected, if the endorsers had known the releases, and they would have made the compromise of 1842 ; for if they had refused the compromise on account of the release of mortgages, they might have had $1050 de
We conclude then, that the endorsers knew of the release of the mortgage, but if they did not, they would have been released only pro tanto, and as they would still have entered into the contract of Nov. 9th, 1842, even if they had known of their partial release, such release of the mortgage cannot invalidate the act of Nov. 9th, 1842.
The defendants also plead that the notes sued on are prescribed, and plead the prescription of five and ten years ; but an examination of the evidence establishes that this plea cannot be sustained. TheO. C.,Art. 3483,says: “There arc two modes of interrupting prescription, that is by a natural interruption or by a legal interruption.” Art. 3484, C. C., says: “ A legal interruption takes place when the possessor has been cited to appear before a court of justice on account, either of the property or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not," and Art. 3516 C. C., says “ The prescription releasing debts is interrupted by all such causes as interrupt the prescription by which property is acquired, and which have been explained in the first section of this chapter.”
It is a reasonable deduction .from the preceding Articles, that a legal interruption takes place when a debtor voluntarily appears to contest the right of action on the demand of a creditor.”
We consider that the defendants have all been cited to appear in the manner contemplated by these Articles, and shall proceed to show the same by reference to the pleadings on the suit originally instituted by the present plaintiff for the purpose of rescinding the contract, of Nov. 9th, 1842, and by reference to the pleadings on the'“cross-bill in equity,” ijled March 4th, 1843, by ~Wm. Bisland of the State of Mississippi. But before doing so, we will mention the principal points made in the argument of the defendants to show that a legal interruption to prescription was not effected by the Chancery proceedings.
Now it has been alleged by counsel of defendants in the argument, that prescription is only avoided by suits 'when the demand is clearly set forth in the petition. That at the time of filing amended bill, by Barrow on the 10th Eeb., 1844, one-half only of the notes given under the act of Nov. 9th, 1842, were due, to wit: those due in March, 1843, and that prescription could not be arrested by a bill in Chancery suing for notes not due, and that there is no prayer for judgment on the second series of notes, falling due in March, 1844, that prayer for the specific performance of any thing- is not the same as asking for payment; that there is no description of any notes endorsed by Shields in the original or amended bill; that there was no suit pending for the notes that William Shields executed, but only for those he endorsed ; that, if the prayer as to William Bisland and Mrs. V. Shields, which counsel for defendants alleges is rather more full than as to the rest, is sufficient, then they are bound only for one-half of the notes, for the other half were not due when suit was commenced; as to William Shields, that there is no prayer asking judgment on the notes against him, therefore ho is not bound at all, and as to Guión, Winder and Bilis, they were never made parties, and prescription has accrued without legal interruption.
We will show, by an examination of the pleadings, that none of these ob
Let us now proceed to an examination, of the pleadings in the Chancery proceedings and we will perceive the invalidity of the defence of defendants to this present suit.
On the 19th December, 1842, Ban'row filed a bill in equity in the Circuit Court of the United States, Eifth Circuit and Eastern District of Louisiana, against Mrs. Victoria Shields and William Bisland, the only parties to the act of Nov. 9th, 1842, who were not citizens of Louisiana, praying for the rescission of the act upon a number of grounds, therein detailed at length.
In this bill the act of Nov. 9th was explained; in it, Barrow mentions the stipulation in said act between himself of the first part, Thomas B. Shields of the second part, and Mrs. Victoria Shields, William B. Shields, William Bisland, George S. Guión, Richard G-. Ellis and VanP. Winder, his endorsers of the third part; as to the cancelling- the sale of July 27th, 1836, as to his objections, and the bill alleges that in consideration thereof, “ the said six endorsers should execute each two promissory notes of equal amount, one of them payable in March next, (1843,) the other in March, 1844, which notes were given by them in different sums, and made together the sum of thirty-two thousand dollars; that said notes were deposited in the hands of the parish Judge of Terrebonne, to be delivered to your orator as soon as he should have reacquired a title to said property, and should have released said endorsers •from all further responsibility. And it was further agreed that a negro woman, Liza, who had been obtained by said Thomas R. Shields in exchange for a negro man whom he had purchased from your orator, should be given to your orator, and that said parties of the second part and third part, should pay all expenses of said plantations for the current year up to the time of said contract.”
As the object of this bill was to rescind the act of Nov. 9th, 1842, and not to enforce payment of the notes given under it, it was not then necessary to specify the amount of each note given by the endorsers under the provisions of said act, but the names of the makers of each note now sued on are given, that each executed two notes, and the time when payable is also alleged, and the total amount, and reference is given to the office where said act was passed.
On the 4th March, 1843, Mrs. Victoria Shields and William Bisland each filed their separate answers, and they both aver that a compromise was made
It is clear from the original bill and answers of Mrs. Victoria, Shields and William Bisland, they were aware of the amount of the notes executed by them and endorsed by others, for they expressly alleged, they executed their notes and had them endorsed for the respective amounts called for by the act of Nov. 9th, 1842.
On the same day that the answers were filed, to wit: on the 4th March, 1843. William Bisland filed a cross-bill praying for a specific performance of the act of Nov. 9th, 1842, for an injunction to restrain Ba/rrow from proceeding in the suits which he had instituted against him in the First District Court in New Orleans, (this allegation was erroneous, the suit was in the Commercial Court of New Orleans,) and in Terrebonne on the unpaid notes given for the plantations on the 27th July, 1836, and for an order compelling the delivery of these notes as agreed upon in the act of Nov. 9th, 1842. The injunction was granted, the suits discontinued, and the notes ordered to be deposited in the court
Let us now consider briefly the object of the cross-bill and come to its allegations.
In it Bisland avers the validity of the act of Nov. 9th, 1842, he fully sets it forth and asks to have it specially enforced, he being ready and willing and hereby offering specially to perform the said agreement in all things on his part and behalf.”
He further alleges, that notwithstanding said act of Nov. 9th, that Barrow has not discontinued two suits, and an attachment suit commenced before the act of Nov. 9th, on the notes endorsed by Bisland at the sale of the 27th July, 1836.
Bisland asks for an injunction to keep Barrow from proceeding against him on any of said notes of July 27th, 1836, and that he may be restrained from negotiating them, and he reserves the right hereafter to proceed at law against Barrow, to recover the damages sustained by him, up to the time that the said agreement shall he specialty performed by said Barrow, and he prays for general relief and for a citation against Ba/rrow, &c., &c.
In said cross-bill the names and responsibilities of the defendants on their notes wore given in the following words: “The consideration of said contract, as therein expressed, was the sum of thirty-two thousand dollars, which your orator and the other endorsers obligated themselves to pay to the said BaA'row, in the following manner and in the following proportions, to wit: your orator was to pay ten thousand dollars in two equal instalments, the first in March, the next and other in March following, for which sum your orator made his two promissory notes, endorsed by John P. Watson, and payable at the office of the Louisiana Bank in New Orleans. The said J2. G. Ellis was to pay six thousand nine hundred and sixty-six dollars and sixty-six cents in two notes endorsed by your orator; the said GeorgeS. Guión was to pay two thousand
Now in said cross-bill Bisland states the amount of his obligation hy act of Nov. 9th, and that he is ready to fulfill his part of said contract, and gives the names of the other parties and the amounts of their respective obligations, and reference is made to the act of Nov. 9th, 1842.
On the 10th of February, 1844, Barroio filed his petition declaring his willingness to abide by the contract of Nov. 9th, and praying to be allowed to make Thomas M. Shields a party to the act, to wdiich the court assented.
In this petition Barrow prays that “ if the court should be of opinion that the said agreement of November 9th is valid and should not be set aside, then he prays a specific performance may be decreed according to its true purport and tenor.” And he prays that the defendants may be ordered to pay “him the amount of the notes that may have been drawn by them, and also such of said notes as may be endorsed by them,"
On the 10th of February, 1844, Barrow filed an answer to the cross-bill of Bisland, repeating his willingness to abide by the contract of 9th November, 1842, and reciting the discontinuance of the suits against Shields and Bisland and the deposit of the notes in court according to the order of court. In this answer he avers that if the other parties of said agreement will execute the act of Nov. 9th, he will do the same, and avers also that said Bisland and Mrs. Shields have filed their answers, averring that they and the other parties to the act aforesaid were willing to comply with the same, he also avers that Bisland js indebted to him on certain of the first series of notes, and if the second ao'e not paid, that he will ho indebted to him in thefurther sum of $8483 33 with costs of protest and 6 per cent, interest from 3d April, 1844, for which sums he is entitled to judgment. Barrow also mentions specially the amount of the notes of the first series which are due. On the same day, 10th February, 1844, he filed his petition repeating the above facts and praying that the notes under the act of Nov, 9th, 1842, should be delivered by L. Barras to the Clerk of the court, who should deposit them in hank for collection. He represents, that although he reserves for the present his claim to the possession of said notes, still it is necessary for his rights to have the second series put in hank for collection, and-if not paid, protested; he prays, if said notes are paid that the proceeds may he held subject to the order of court, and that if not paid, the Clerk may withdraw them after protest and Teeep them in his possession until the further)' order of comt."
This order was granted and the notes deposited in court by the Clerk who had received them from Judge Barras. Subsequently, on the 24th April, 1844, the court ordered that unless the defendants filed a cross-bill, praying for a specific execution of the contract of Nov. 9th, 1842, and making all parties
This order changed the whole nature and object of the suit. In obedience to it, Willimn Bisland, and William Shields filed their cross-bills to this effect on the 8th of July, 1844.
In said cross-bill, speaking of the act of Nov. 9th, 1842, they say: “The consideration of the said contract was the sum of thirty two thousand dollars, which the parties of the third part obligated themselves to pay to the said Barrow in the following manner and in the following proportions, viz : ”
“ Your orator, William Bisland, was to pay ten thousand dollars in two equal installments ; the first in March, 1843, and.the other in March following, for which sum your orator made his two promissory notes endorsed by John P. Watson, and payable at the office of the Louisiana Bank in New Orleans; the said E. G. Ellis, §0,966 16, in two notes endorsed by your orator, William Bisland; the said George S. Guión, $2,760 in two notes endorsed by Van P. Winder; the said Yam P. Winder, $2,750 in two notes endorsed by GeorgeS. Guión; the said William B. Shields, $4,766 66, in two notes endorsed by Mrs. Victoria Shields; and your oratrix, Victoria Shields, the same amount in two notes payable as aforesaid at the office of the Louisiana Bank in New Orleans, which notes were deposited in the office of the parish Judge of Terrebonne, to be by the said Judge delivered unto the said B. B. Barrow, as soon as he should have acquired a title to the aforesaid property, &c., &c.” They also pray that B. G. Ellis, Van P. Winder, W. B. Shields, T. B. Shields, Guión and Barrow, may answer the premises, and that the aforesaid agreement of 9th of November, 1842, may be specially performed, &c., &c. — and pray they may be cited to answer the premises and abide such order and decree herein as shall be agreeable to equity and good conscience.
It is clear, in said cross-bill, the whole amounts owned by defendants are set forth distinctly, as well that due as endorsers, as that duo by them as makers, and the prayer is that they may be ordered to execute the contract specially, which would be the delivery of the notes to Barrow, the payment of them and the execution of the other obligations they had incurred by the act of Novemver 9th, 1842.
The parties thus brought in answer as follows: Ellis, Winder and Guión, first filed a plea to the jurisdiction of the court, which was overruled, and on the 1st of September, 1845, Winder and Guión filed their answers, averring, among other pleas, that they could not pay the notes of November 9th, 1843, while Barrow sought to annul it. That Ba/i'row having refused to comply with the act of 1842, he must be considered as holding the plantation as a trustee, “ and your respondents pray that said complainant do render a strict and full account thereof and of said management, and that if the other grounds of defense above set forth be deemed insufficient by this court, that then the amount of revenues received by said complainant, or the amount which he might with proper management have received, be imputed by this court to the payment and discharge of all your respondents’ liabilities under said act of 9th November, 1842, and the notes given in pursuance thereof.
Now, in this answer they pray to be discharged from the payment of the notes before fully described, and of which they show they have full knowledge; and if they cannot be discharged, that the revenues received by Ba/rrow from
In this petition, then, Bm'row not only asks for judgment against William B. Shields on the notes he had endorsed, but also for judgment against him 'for all that was asked for in the other two bills. On the 5th of April next, W. B. Shields sets forth the sale of 1836, and compromise of 9th November, 1842 ; ho avers, that “in pursuance of this contract, respondent'executed and placed in the hands of the parish Judge, according to agreement, two notes for $2,383 33, as drawer, and endorsed the other notes of same amount drawn by Mrs. Shields, the same being notes now in court, and to which reference is hereby had.” He sets up the release of the mortgage and his freedom thereby from liability on said notes, and he “denies all and singular the claims and pretensions set up by complainant against this respondent.”
On the 15th of December, 1852, judgment was rendered, condemning the parties to pay their notes under the agreement of November 9th, 1842.
On appeal, the case was dismissed by the Supreme Court of the United States.
It thus appears that all the parties were cited to appear before a court on account of the claim, to which prescription would attach, which created a legal interruption of prescription. O. 0., Arts. 3484 and 3516. Prescription being once interrupted, the previous time can never afterwards be computed to make up the time necessary to prescribe, which recommences only from the cessation of the interruption. Hen. Digest, p. 1283, sec. 1. This cessation took place in 1855, when the suit was dismissed by the Supreme Court of the United States. On this point, see also Driggs v. Morgan, 10 R. 119.
It has been decided in 15 La. 491, that a citation and suit in a federal court, whether in this State or in another State interrupts prescription. In conclusion, we would remark, that as long as the suit in chancery was to rescind the act of 9th November, 1842, and to enforce the contract of 1836, no suits could be brought upon the notes of 9th November, 1842, and, therefore, the time that elapsed from the commencement of the suit for rescission up to the time that this action was changed into one for the enforcement of the contract of 1842-, cannot be counted to make up prescription, and then from the time that
These remarks apply not Only to the first, but also to the second series of notes — the latter were ordered also to ho brought In court, and held subject to the order of the court, and finally judgment Was rendered on them as Well as On the first series. It is also clear that all the defendants or their ancestors Were parties to the suit in chancery — their ancestors show a perfect knowledge of their liabilities under the act of November 9th, 1842, and it is in vain to Say that they were not cited and did not know what they were sued for, and that there is no prayer against them, when their answers proved that they perfectly understood the claim of Barrow, and asked to be relieved therefrom, Resides, as Bisland asked for the execution of the contract of 9th November, 1842, it Could not he done unless it was executed by all the other parties to it, so that the prayer was good as to them When they should he made parties.
Again, as long as it Was undecided by the court whether the act of 1842 should be executed or not, prescription could not begin to run. By that act some duties were incumbent on. Borrow, and some on the endorsers, before the notes could be delivered up by Judge Barras, and, consequently, before a Suit could be 'brought upon them, and several of the questions before the Chancery Court, Were as to the various liabilities of the respective parties to this compromise, and the judgment of the court is not only for the payment of the notes, hut also for other claims of Barrow under the act of November 9th; among others, the transfer and retrocession of the property intended to be re-Conveyed to him by Said act of November 9th, 1842, said transfer to be approved by a master of the court.
And by said judgment, the endorser’s were condemned to pay certain priviledged debts of Thomas B. Shields, which Bm'row had been forced to pay, and which, by said act of November 9tli, 1842, they had assumed to pay.
Now, Bisland in his cróss-bill sought to enforce the contract of 9th November, 1842, and all the liabilities of the parties to it had to be investigated, before the Court could order the notes given under said act, to he delivered up to Barroib, or before it could give judgment thereon. Besides Barrow could not institute another suit for payment of the notes, because defendants, in their answers to Bisland?8 cross-hill, denied their liability on the notes, and asked to he discharged — --how could Borrow bring a new suit for payment of these notes, when the liability of the defendants on these notos was directly put at issue by themselves, and when they prayed to be released entirely from their payment.
Burge on Suretyship, p. 274, says; “It is a general maxim that proscription does not run against a person who is not entitled or not enabled to sue for his demand: “ contra non valentem agere non currit prescriptio.”
And I would here remark, that all the pleas in the present defence, and more also, were urged by defendants in their appearance in the Chancery Court, in their defence against the payment of the notes now sued on; how can they say they never were cited, When the whole record of the chancery proceedings establishes the contrary f And even supposing they were not cited, they appeared in court, filed their answers and clearly set forth what they were defending themselves against.
If a party appears in court and contests the right of a plaintiff, and thereby it becomes impossible for the plaintiff to Institute other proceedings; after contesting those rights for years, When finally the Supreme Court throw the Whole proceedings out of court, and plaintiff begins his suit again in another tribunal, can defendants with any reason or justice allege they never were cited in the original proceedings and that prescription attaches to their obligations ? No, I think it is impossible to sustain such a plea under such circumstances ; the plaintiff in the present suit and the defendants are in such circumstances, and the plea of prescription cannot be effectually made.
If it be said the Chancery Court had not the legal right to order Bislmul to make the part of the defendants, Who resided in Louisiana, parties to the suit, I answer, that this right was exercised, and the defendants were placed in no worse position, than is always the case when persons are sued in courts that have no jurisdiction over them, and the Civil Code asserts positively that the prescription is interrupted whether the Suit is brought hi a competent court or not.
It is also urged that the Supreme Court of the United States, in their judgment avers, that the defendants were not parties to tho Suit in chancery, and if not parties, then defendants allege prescription was arrested. This, however, is not the meaning of the court. The judgment avers, that when the defendants, Mrs. Shields and Bisland had complied with the order of court, and filed their cross-bill against the other endorsers and Thomas B. Shields, they came into court, hut that in truth, “ they were not parties to the original bill, they were only defendants to the cross-bill. They had no right to answer the original bill or make defence against it, and of course no decree could be made against them on that bill.”
The Supreme Court do not intend to assert that the defendants were not all in court. On the contrary, they aver that they were, but that the court have no lawful jurisdiction over the parties under the pleadings — and that the court never had lawfully before it such parties as were indispensable to a decree for a specific performance of the contract. Now, Art. 3484 C. C. says, that prescription is interrupted, whether it is brought before a competent court or not.
It is admitted in the judgment of the Supreme Court that the defendants came into court, but that the United States Court had no lawful jurisdiction. This then is a case provided for in said Art. 3484, and, therefore, as the suit was only dismissed in the year 1855, prescription lias not accrued.
As to the objection made that the demand for the first series of notes could hot he made, and consequently they could not be legally protested because defendants were prevented from paying them by the suit to rescind the com
These remarks apply as well to the second as to the first series of notes.
Eor the reasons above set forth, and the premises considered, judgment must be written up for plaintiff.
