2 La. 593 | La. | 1831
delivered the opinion of the court.
This is a suit brought by the plaintiff in his own right, and ’ as curator to Edward Muggah, an absentee, to recover from the defendant a slave (described in the petition) belonging to the succession of John Muggah, claiming as heirs to the latter. They obtained judgment for the recovery of the slave, in the court below, from which the defendant appealed.
The evidence of the case shews the legal title to have been vested in John Muggah, during his life-time; and it is not disputed that the plaintiffs are his heirs.
The defendant sets up title to the slave in dispute, as having been purchased for him, and with his funds, through the agency of the deceased Muggah; and that the title, though taken in the name of the latter, legally enured to his benefit. There is no legal evidence to shew that the appellant constituted John Muggah his attorney-in-fact, to purchase for' him the identical slave claimed in the present suit, or any other slave; he relies wholly on testimonial proof to establish this fact, and possession of the property, in support of the title by him claimed. '
, . Our law on the subject of conventional obligations, requires that “every transfer of immoveable property or slaves, must be made -in writing:” and no testimonial proof of such ° t < # r sales of transfers can be received, in ordinary cases, except
According to article 2961 of the Code, “a power of attorney may be given either by a public act, or by a writing un- . . _ . , der private signature, &c. It may also be given verbally, this testimonial proof is admitted, only, conformably t0 the title of conventional obligations. In relation to con- , ° 1 tracts which may be proven by parole, the power granted to enter into them, may well be proven by the same kind of evidence which would suffice when the contract was made directly between the parties. But in the contract of sale, or ot^er transfer of immoveables or slaves, required by law to be made in writing, and which the parties are not permitted ... „ . to support by testimonial proof, written evidence ought to be produced, as being alone legally admissible to establish the authority by which an agency is ^ assumed for either of the contracting parties.
The record of the present case affords no legal evidence to shew that Greig, the defendant, authorized John Muggah j-0 purchase, for the former, the slave in question; and we 1 x are of opinion that the district court did not err, in coming to the conclusion, that the legal title to said slave was in the iatter ^e time of his death, and that it descended to the plaintiffs, who have a right now to recover the property, 1 °
That part of the decree which condemns the plaintiffs to refund the money which was proven to have been advanced by the defendant to their ancestor, is not’complained of by the appellee.
This decision has the appearance of contravening the doctrine of mandate, as established in the case of Hale vs. Sprigg, reported in 7 Martin, 243. But the opinion of the court in that case, seems to be predicated on full proof of the power granted to the attorney, or on evidence of that fact not excepted to; whereas, in the present case, the whole evi-
It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs.