13 La. Ann. 538
La.
1858

Lead Opinion

Buchanan, J.

The title under which plaintiff claims the slave Absalom alias Henry, is a sale to William Charles Pope, Eliza Hight Pope, and John Haggerty, and to the survivor of them, his or her heirs or assigns. The sale is made for the consideration or price of three hundred aud fifty dollars cash, paid to the vendor by William Charles Pope and Eliza Hight Pope.

The two latter are proved to be dead, and John Haggerty, the other vendee, survives them, and is plaintiff in this suit. Mr. and Mrs. Pope left no forced heirs, and no creditors having an adverse interest to plaintiff’s claim under the conveyance of the slave in question. His title has vested by the death of Pope and his wife, and by the fulfilment (which is proved) of another clause in the deed of sale, to wit, that plaintiff should continue to live with the two other vendees until their death.

The defendant and warrantors rely upon the prescription of five, ten and fifteen years. The two longest of these prescriptions are manifestly inadmissible, from the fact which the record establishes, that plaintiff attained the age of majority only seven years before the institution of this suit. 0. 0. 3488.

The plea of prescription of five years is based upon Article 3444 of the Code. But the defendant and warrantors have not brought themselves within that Article. The oldest title which they produce is the sale from Henry Corri to David Kinney, of the 11th of July, 1850, less than five years before the institution of this suit, February, 1855.

The only remaining question under the pleadings, relates to the liability of Goold, called in warranty by Kinney. We agree with the counsel of Goold, that this warranty was only conditional upon the insufficiency of the power of attorney from Joseph Newton to Henry Levy, to enable Levy to contract in the name of Newton the engagement of suretyship in the premises, by reason of the said power of attorney not being in an authentic form. No evidence or argument is before us, tending to establish the insufficiency of the power of attorney, and we conclude that the liability of Goold has not attached.

*544It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; that plaintiff, John Haggerty Pope, recover of defendant, H. 0. Anderson, the slave Absalom alias Henry, described in the petition, with costs in both courts; that H. 0. Anderson have judgment in warranty against James White, for the sum of eight hundred and fifty dollars and costs ; that James White have judgment against David, Kinney, in warranty for the sum of six hundred and fifty dollars and costs ; that David Kinney, have judgment against Henry Corrí, in warranty for the sum of seven hundred dollars, with costs; and that Edmund L. Ooold, be hence dismissed, with his costs.





Dissenting Opinion

Merrick;, 0. J.,

dissenting. I am not able to concur with my colleagues in this case. The instrument, the basis of this suit, is in these words, viz :

“ Be it known, that on this twenty-fifth day of March in the year 1830, before me, Hughes Pedesclaux, Notary Public in and for the parish and city of New Orleans, duly commissioned, personally came and appeared, Richard Walter Long, of Tiffin county, of Tennessee, who declared, that in consideration of throe hundred and fifty dollars cash to him paid by William Charles Pope and Eliza Plight Pope, of this city, the receipt thereof is hereby acknowledged and acquittance granted ; he doth, by these presents, grant, bargain, sell, and deliver unto the said William Charles Pope apd Eliza Hight Pope, his wife, and to John Haggerty, their adopted child, and to the survivor of them, his or her heirs and assigns, (the said party being present, acknowledging possession and accepting,) a negro name Absalom, aged about fourteen years, of a copper colored, or grifl'e, a slave for life, the property of the said Richard Walter Long, as set forth in the annexed certificate, obtained from the requisite authority in Tiffin county, Tennessee; which certificate the said Richard W. Long now produceth and deposeth on oath before me, Notary, is true and genuine in all respects, and that the slave now sold is the identical slave, is warranted to be free from the vices and malidies prescribed by law, and also free from all debts, liens, mortgages and incumbrances whatsoever, as appears by the register of mortgages for the city, dated this day.

To hold the said slave unto the said purchasers and the survivor of them, their heirs and assigns forever; and the said vendor hereby binds himself and his heirs, to warrant and defend the said slave, unto the said purchasers, their heirs and assigns, against the lawful claims of all persons whomsoever.

It is understood and agreed by and between all the said parties hereto, that if the said John Haggerty (who is an infant of about the age of two years) should happen to die or be taken away by his own relations, or go away, or of his own accord or otherwise, go away-from the said W. C. Pope and Eliza PI. Pope, his wife, at any time before the decease of the survivor of them, the said W. C. Pope and Eliza PI. Pope, then and in such case said slave Absolom to go to the survivor of them, the said W. C. Pope and Eliza PI. Pope,' and the heirs of the survivor.

Done and passed in the presence of William Rondeau and William Henry Rondeau, witnesses, who hereunto sign their names with the said parties, and me, the Notary.

(Signed) Richard W. Long,
William C. Pope,
for self and Jorar Haggerty.
Eliza Pope.
W. Rondeau.
W. II. Rondeau.
H. Pedesclaux, Notary Public.1

*545If it be conceded that John Haggerty, the plaintiff, has shown a sufficient acceptance of the foregoing instrument, and that the condition mentioned in the act has been accomplished in his favor, there arises another difficulty in the way of his recovery. It is the stipulation of survivorship in the act. By the act, each joint tenant was bound to preserve for and return to the survivor one-third of the slave. If so, could any one of them defeat the rights of the others by a sale of his interest ? Could he provoke a partition by licitation, and thus defeat the right of the survivorship altogether ? Is not the kind of substitution and Jidei commissum contained in the foregoing act prohibited-by Art. 1507 of the Code ? Can a person, through the machinery of a sale, accomplish what he could not do by a direct donation inter vivos or mortis causa ? If the act of sale contains a disposition in contravention of Art. 1507, does it avoid the entire act, or will it be considered as containing a contract of sale as between the vendors and vendees, and a donation between the vendees themselves ?

With my limited means of research, I am not able to solve these questions in favor of the plaintiff, the suit being a petitory action. Had the decree been for one undivided third of the slave, or had the plaintiff been in possession of the property, defending himself against other parties, after this long period of time, the question might have admitted, perhaps, of a different solution.