5 Mart. (N.S.) 569 | La. | 1827
delivered the opinion of the court. The tableau of distribution filed by the syndics of the insolvent, was opposed in the court of the first instance; and the opposition being sustained, an appeal has been taken to this court, by the syndics, by the bank of the United States, the bank of Orleans, and the bank of Louisiana.
The claims admitted by the judge a quo, and which are now contested here, are:—
First. That of the children of the insolvent, who claim as privileged creditors, for the amount inherited by them from their deceased mother.
Second. That of John Jacob Astor, of Hew York, who avers that he is a creditor of the insolvent for the sum of $64,000, and that he has a privilege on 751 shares of stock of the bank of Orleans, which were pledged to him, and now make a part of the estate surrendered.
Third. That of Alexander Brown and Sons, of Baltimore, who also assert a privilege on bank stock, which they state was
We shall take them up in the order in which they have been already stated, and first as to the claim of the insolvent's children.
From the facts admitted by the parties, which admission makes the statement on this appeal, it appears: That Saul and his wife intermarried in the state of Virginia, on the 6th of February, 1794, their domicil being then in that state; that they remained there until the year 1804, when they removed to the now state of Louisiana; that they fixed their residence here, and continued this residence
The children claim the one-half of the property, as acquests and gain, made by their father and mother in this state. The appellants contend, that as the marriage took place in the state of Virginia, by whose laws no community of acquests and gains was permitted, the whole of the property acquired here belonged to the husband.
This statement of the matter at issue shews, that the only question presented for our decision is one of law; but it is one which grows out of the conflict of laws of different states. Our former experience had taught us, that question of this kind are the most embarrassing and difficult of decision, that can occupy the attention of those who preside court of justice. The argument of this case has this shown, that the vast mass of learning which, the research of counsel has furnished, leave the subject as much enveloped in ob
Until the discussion of this cause, it was generally understood by the bar and the bench in this state, that the question now agitated was well understood in our jurisprudence; and that from the period married persons from other states moved into this, the property acquired became common, and was to be equally divided between them at the dissolution of the marriage. We have not, therefore, been insensible to the argument so strongly pressed on us, that the question being already settled by the decisions of the tribunal of last resort in the state, the subject ought not to be opened again, and that the most important interests of society require, there should be a time when contested points of jurisprudence may be considered as at rest. But these considerations are not in this case of sufficient weight, to preclude a re-examination of the principles on which the doctrine already stayed has been established, A sufficient period has not elapsed to enable it to derive much authority from the acquiescence of others
The investigation we are about to make, will be best conducted by first examining our own statutes.
The old Civil Code provided; that every marriage contracted within this state, super induces of right partnership, or community of acquests and gains. Civil Code, 336. art. 63.
Our revised code repeats this provision, and adds another: that a marriage contracted out of this state between persons who after-
If the acquests and gains, in respect to which the present suit exists, had been made under the dominion of the law last cited, there would be an end to any dispute about their distribution; but the marriage of the insolvent and his wife was dissolved by the death of the latter, before that law Was enacted.
It has been contended, that as the article first cited, provides for a community of acquests and gains on all marriages contracted within the territory, it is an evidence the legislature did not intend there should be a community on marriages made without; inclusio unius, est exclusio alterius.
It would be giving too much weight to the argument contrario sensu, to adopt this construction. If the subject were one on which there had existed no previous legislation, it would certainly be fair to contend, that as the law maker has affirmatively declared, particular cases not enumerated should produce certain effects, this affirmative included the
It being clear, then, that our own statute furnish no guide for the decision of this question recourse must be had to the former laws of the country.
The positive regulations of Spain on this subject, are contained in two laws; one of the Fuero Real, and the other of the Partidas.
That part of the law of the Partidas which directly applies to the case before the court, is in the following words:—E dezimos, que el pleyto que ellos pusieron entre si, deve valer en la manera que se avinieron ante que casassen, o quando casaron; e non deve ser ombargado por la costumbre contraria de aquella tierra do fuesen a morar. Esso
Some verbal criticism has been exercised on this law. It is contended by one of the parties, that it only intended to provide for the gains made before the removal of the married couple; or, at all events, that the words used have the sense doubtful. By the other, that regulates all, whether made before or after they left the in the country which the marriage
If these provisions in the Partidas stood alone, they would admit of a more favourable construction in support of the ground assumed by the counsel for the syndics, than they can receive, when taken in connexion with the law of the Fuero Real, which is in the following words:—
Toda cosa que el marido y muger ganaren o compraren, estando de consuno, hayanlo ambos por medio, &c. Novissima Recop lib. 10, tit. 4, ley 1.
“ Every thing which the husband and wife may acquire while together, shall be equally divided between them.”
The codes in which these laws are found, were composed under the authority of Ferdinand the Third, and his son Alphonso the wise, nearly about the same time. The Fuere Real was published in the year 1255, The
We have then two statutes presented for construction, one of which, not in terms the most clear, directs that the custom of the country where parties contract marriage should regulate their rights, in respect to acquests and gains; and another which declares, that every thing that husband and wife may gain or purchase, shall be equally divided between them.
If the question, as to the true interpretation of these laws, now arose for the first time, we should hesitate what construction to put on them. Either taken singly, and according to the letter, goes the whole length for which each of the parties before us contends; but before examining them, to ascertain what conclusion we should come, to, if left to our judgment, unaided by the opinions of others, it is proper we should endeavour to learn what construction was put on them, in the country
Nothing can be more satisfactorily shewn, the opinion of the commentators on the statutes of Spain, in relation to this particular subject. From the time Gregorio Lopez published his work on the Partidas, in the year 1555, down to Febrero, in the year 1781 the writings of no jurist of that country have been produced to us, who treats of this matter, that does not declare, that the law of the Partidas, already cited, must be limited to property acquired in the place where the marriage is contracted, and that it does not extend to acquisitions made in another country, to which the parties may have removed, where a different rule should prevail. In the long list of writers, who have been cited in support of this
Trying the question, therefore, by authority, no doubt can exist, on which side it preponderates, in the country where the statute was passed. Admitting therefore, for a moment, that the letter of the law of the Partidas was violated, by the construction given to it by the commentators; that violation acquiesced in for centuries, by lawyers, courts, and the sovereign authority of the country, makes as much a part of the law of Spain at this day, as-if-the statute had been modified by the power in the state, in whom the right of legislation was vested. In looking into the laws of any country, we stop at the threshold, if we look no further than their statutes; and what we should see there, would, in most instances, only tend to mislead. In every nation that has advanced a few steps beyond the first organization of political society and that has made any pro
This jurisprudence, or common law, in some nations, is found in the decrees of their courts; in others, it is furnished by private individuals, eminent for their learning and integrity, whose superior wisdom has enabled them to gain the proud distinction of legislating, as it were, for their country, and enforcing their legislation by the most noble of all means:—that of reason alone. After a long series of years, it is sometimes difficult to say, whether these opinions and judgments were originally the effect of principles, previously existing in society, or whether they were the cause of the doctrines, which all men at last recognize. But whether the one, or the other, when acquiesced in for ages, their force and effect cannot be distinguished from statutory law. No civilized nation has been without such a system. None, it is believed, can do without it; and every attempt to expel it, only causes it to return with increased strength on those, who are so sanguine as to think it may
Spain, who was among the first of the European nations that reduced her laws into codes, and who carried that mode of legislation farther than any other people, early felt the necessity of a jurisprudence, which would supply the defects, and soften the asperities of her statutes. The opinions of her jurisconsults, seem to have obtained an authority with her, of which the history of no other country offers an example. So early as the fifteenth century, a law was passed, regulating the authority which belonged to the opinions of Bartolus, Baldus, Juan Andrea, and Abad. That law was, it is true, afterwards repealed by the first of Toro, and directions given that in case of doubt as to the true interpretation of the statutes’ recourse should be had to the sovereign himself. What was site practical operation of this last statute, our researches do not enable us positively to state. It does not, however, seem to have made much change in the practice of their courts; for in the year 1713, we find an auto accordado in respect to the laws that should be followed in the decision of causes; in which it is stated, as a great inconvenience.
It is most clear, then, that this interpretation, which limits the law of the Partidas, to the gains made in the country where the marriage
The appellants however contend, that, although such may be the construction given to the statute in Spain, that construction is no binding on the court, because this is a question of jurisprudence not peculiar to any distinct nation, but one touching the comity of nations, and embracing doctrines, of international law, on which the opinions of writers not living in Spain, are entitled to equal weight with those who professedly treat of her laws.
The strength of the plaintiff's case reals mainly on this proposition, and it is proper to examine it with the attention which its importance in the cause requires.
But though of importance, it is not of any difficulty. By the comity of nations, a rule does certainly exist, that contracts made in other countries, shall be enforced according to the principles of law which govern the contract in the place where it is made. But it al
If this be true, the question whether the opinions of foreign jurists shall control those of the country where the statute is passed, is at once settled. If the right of a nation to pass the statute, which will affect a contract made in another country, be admitted, the right cannot be contested to her to say, whether she has done so or not. She surely is the best and safest expounder of her own laws. And we repeat here, what we said a few days since, on nearly the highest authority to which we could refer: “That no court on earth, that professed to be governed by principle, would, we presume, undertake to say, that the courts of Great Britain, or France, or any other nation, had misunderstood their own statutes, and therefore, erect Itself into a tribunal, by which that misunderstanding was to be corrected.” 10 Wheaton, 159.
And if we did recur to the jurists of France and Holland for information, what would we get in place of the well established rules in Spain? Much to confuse, and little to enlighten us. We should find great learning and ingenuity exercised by some to shew, that the
With this view of the subject, we might conclude. But as it is always satisfactory for this court to feel, that the authority which governs it, is founded in truth, we shall proceed to examine the grounds on which the opinions of the Spanish jurists have been so strongly assailed. In doing so, we are led into an examination of the doctrine, of real and personal statutes, as it
Holland and France, appear to he the countries where the greatest number of these questions have arisen, and where the subject has excited most attention. The doctrine which they denominate that of real and personal statutes is not, as it might, from the terms used be supposed, confined to written and positive law; but is applied, also, to unwritten laws or customs, by which the state or condition of man is regulated—his contracts governed, or law property distributed at his death. It professes to furnish the rules which are to govern men in civil matters, when they pass from one country to another, and to distinguish and decide in all cases, where the law of domicil and that of origin differ; where the rules of the place of contract and its execution conflict; where the
According to the jurists of those countries, a personal statute is that which follows, and governs the party subject to it, wherever he goes.
The real stature controls things, and does not extend beyond the limits of the country from which it derives its authority.
The personal statute of one country, controls the personal statute of another country, into which a party once governed by the former, or who may contract under it, should remove.
But it is subject to a real statute of the place, where the person subject to the personal should fix himself or where the property on which the contest arises may be situated.
So for the rules are plain and intelligible, but the moment we attempt to discover from these writers, what statutes are real, and what are personal, the most extraordinary confusion is presented. Their definitions often differ, and when they are on their definitions, they dispute as to their application.
Bartolus, who was one of the first by whom
This distinction, though purely verbal, and most unsatisfactory, was followed for a long time, and sanctioned by many whose names are illustrious in the annals of jurisprudence, but it was ultimately discarded by all. D’Argentre, who rejected this rule, to real and personal statutes added a third, which he called mixed. The real statute, according to this writer, is that which treats of immoveables. In quo de rebus soli, id est immobilus agitur, and the personal that which concerns the person abstracted from things. Statutum personale est illud quod afficit personam universaliter, abstracte ab omni materia reali. The mixed he states to be one which concerns both persons and things.
But the definition which he has given of a real statute, does not seem to have been so generally adopted: it was however followed by Burgundus, Rodenburgh and Stockmans.
Boullenois, who is one of the latest writers, attacks the definitions given by D’Argentre, and as he supposes, refutes them; he adds others which appear to be as little satisfactory, as those he rejects. He divides personal statutes, into personal particular, and personal universal; personal particular, he sub-divides again, into pure personal, and personal real. Boullenois, Traite de la personalite et de la realite des lois, tit. 1, cap. 2, obs. 4
Voet has two definitions, one that a real statute is that which affects principally things, though it also relates to persons, and the other, that a personal statute is that which affects principally persons, although it treats also of things.
This last mode of distinguishing statutes, which teaches us what effect a statute should have, by directing us to inquire what effect it has, is quite as unsatisfactory as the rule given by Bartolus, who judged of it by the words with which it commenced.
The rules given by Chancellor D’Agusseau, are perhaps preferable to any other. That, says he, “which truly characterises a real statute, and essentially distinguishes it from a
“The true principle in this matter is, to examine if the statute has property directly for its object, or its destination to certain persons, or its preservation in families, so that it is not the interest of the person whose rights or acts are examined, but the interest of others to whom it is intended to assure the property, or the real rights which were the cause of the law. Or if, on the contrary, all the attention of the law is directed towards the person, to provide in general for his qualifications, or his general and absolute capacity; as when it relates to the qualities of major, or minor, of father or of son, legitimate or illegitimate,
“In the first hypothesis the statute is real, in the second it is personal, as is well explained in these words of D’Argentre: “Cum statutum non simpliciter inhabilitat and ratione fundi aut juris realis alterum respicientus extra personas contrahentes, totas hanc inhabilitatem non egredi locum statuti.” Œuvres D'Agusseau, vol. 4, 669, cinquantequatrieme plaidoyer.
This definition is, we think, better than any of the rest: though even in the application of it to some cases, difficulty would exist. If the subject had been susceptible of clear and positive rules, we may safely believe this illustrious man would not have left it in doubt, for if any thing be more remarkable in him than his genius and his knowledge, it is the extraordinary fulness and clearness with which he expresses himself on all questions of jurisprudence. When he, therefore, and so many other men, of great talents and learning, are thus found to fail in fixing certain principles, we are forced to conclude that they have failed, not from want of ability, but because the matter was not susceptible of being settled on certain
These principles may be in part illustrated by one or two examples, that we presume will receive general assent.
The writers on this subject, with scarcely any exception, agree, that the laws or statutes which regulate minority and majority, and
Now supposing the case of our law fixing the age of majority at twenty-five, and the country in which a man was born and lived, previous to his coming here, placing it at twenty one, no objection could be perhaps made to the rule just stated, and it may be, and we believe, would be true, that a contract made here at any time between the two periods already mentioned, would bind him.
But reverse the facts of this case, and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a minor in the country where he resided; and that at the age of twenty-four he came into this state, and entered into contracts;—would it be permitted that he should, in our courts, and to the demand of one of our citizens, plead, as a protection against his engagements, the laws of a foreign country, of which the people of Louisiana had no knowledge; and would we tell them that ignorance of foreign laws, in relation to a contract made here, was to prevent them enforcing it, though the agreement
Take another case. By the laws of this country, slavery is permitted, and the rights of the master can be enforced. Suppose the individual subject to it is carried to England or Masssachusetts;—would their courts sustain the argument that his state or condition was fixed by the laws of his domicil of origin? We know, they would not.
These examples might be multiplied, but they are sufficient to explain the ideas of this court, that it is almost impossible to lay down any general rule on the subject ; and that even the personal statutes of one country may be controled by those of another.
From the various definitions already cited, it may be easily supposed, that a vast diversity of opinion existed in their application to the contract of marriage. Both in France and Holland, it has been a subject of great contention. The courts and parliaments, of different provinces, deciding it differently. Some of them considering the law which regulates the rights of parties in the country where the marriage takes place as real : some as personal.
But it is evident, the opinions of the greater number of those who think that on the dissolution of the marriage, the law of the place where it was contracted should regulate the rights of the spouses to the property possessed by them, is founded on an idea which first originated with Dumoulin, that where the parties marry without an express contract, they must be presumed to contact in relation to the law of the country where the marriage
It is particularly worthy of remark, that Dumoulin, the founder of this system, was of opinion, that the statute regulating the community was real, and that it was to escape from the consequences of this opinion he supposed a tacit contract, which, like an express one, followed the parties wherever they went. Such, at least, was the opinion which Boullenois entertained of Dumoulin's sentiments; and it appears supported by quotations which he makes from his works. Boullenois, Traite de personalite et de realite des lois. Obs. 29. p. 740, 757, 758.
Some of those who have adopted the conclusions of Dumoulin in regard to the marriage contract, treat the idea of a tacit agreement as one which exists in the imagination alone. But the greater number seem to have embraced it; and we are satisfied it is the main ground on which the doctrine now rests in France. So far, therefore, as great names can give weight to any opinion, it comes to us in a most imposing shape, but to our judgment it is quire unsatisfactory.
If such be the consequence where the statute is prohibitive, we do not see why the same result should not follow from a real statute, which regulates things within the limits of the country where it is in force. The reason
But without agreeing with those, who have treated the idea of Dumoulin as one purely of the imagination, we think that he gives to this tacit consent a much more extended effect than it is entitled to. That in supposing when parties marry, they intend the laws of the place where the contract is made, should govern them wherever they go, he begs the question; and that the first thing to be settled is, whether these laws do govern them wherever they go.
The most familiar way of treating this idea, of tacit contracts, being made in relation to the laws of the country where they are entered into, is to say, that the agreement is to be construed the same way, as if those laws were inserted in the contract. Now, supposing parties to marry in Louisiana, and that our statute,
It was evidently on this distinction the cases of Murphy vs. Murphy, and Gales vs. Davis heirs, were differently decided in this court. In the former, there was an express contract, that there should be a community of acquests and gains between the parties, even though they should reside in countries where differ
Having thus stated the reasons why this doctrine of a tacit contract, cannot be admitted by us to the extent pressed by the counsel, it only remains for us to examine, whether the law of the Fuero was a real, or personal statute. We consider it real. It appears to us to relate to things, more than to persons; to have, in the language of D‘Aguesseau, the destination
Upon reason, therefore, but still more clearly on authority, we think the appellants have failed to make out their case. We know of no question better settled in Spanish jurisprudence, and what is settled there, cannot be considered as unsettled here. The jurisprudence of Spain came to us with her laws. We have no more power to reject the one, than the other. The
We conclude, therefore, that a community of acquests and gains did exist between the insolvent, and the mother of the appellees, from the time of their removal into this state; and that the court below committed no error, in placing them on the bilan as privileged creditors, for the amount of those acquests which remained in their father's possession, at the dissolution of the marriage.
The pleadings in this case need not be set out. The question presented by them is, whether the plaintiff has a right to be paid in preference to the other creditors, out of the proceeds of seven hundred and fifty-one shares of the capital stock of the bank of Orleans, pledged to him by an act passed before a notary public, in the city of New York, in security for the sum of sixty-four thousand dollars lent to the insolvent, and Benjamin Morgan.
The instrument of writing, on which this preference is claimed, was executed in New York, on the - of November, 1822, and is in form a sous seing prive. To the execution of it there is one witness, George D. Cooper, who, we presume, is the same person who afterwards received an acknowledgment of it as notary public.
This acknowledgment is in the following-words:—“State and city of New York, ss. on the twentieth day of November, 1822, before me George D. Cooper notary public for the
Our code provides, “That the property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them rateably, unless there exist among the creditors some lawful cause of preference.”—C. Code, 468. art. 67.
“These lawful causes of preference result from privileges and mortgages.”—C. Code, ib
“Among the privileges on moveables, the debt on the pledge which is in the creditor’s possession, is placed in the third rank.”—C. Code, 469. art. 74, No. 3.
Our inquiry then is, has that “lawful cause of preference been established here?”
The authority already quoted, has provided for the manner in which that arising from a pledge shall be created.
“The pledge is a contract by which a debtor
“The power invests the creditor with the right of causing his debt to be satisfied out of the moveable thing which is given as a pledge, by privilege and preference to the other creditors.”—Ibid 446. art. 5.
“This privilege shall take place against third persons only, in case the power is proved by an act made either in public form, or under private signature, provided that, in this last case, it should be duly registered in the office of a notary public, at a time not suspicious.” Ibid. art. 6.
The privilege mentioned in the preceding article is established, with respect to incorporeal moveable things, as moveable credits, only by an authentic act, or by an act under private signature received as aforesaid, and notified to the debtor of the credits given in pledge.”—Ibid, art. 7.
It is contended on the part of the appellees that the third persons, mentioned in the provisions of our code, are not the chirography creditors of the insolvent.
The appellants urge, that by the French text of the law, all creditors are embraced.
At the period our late Civil Code was adopted, the laws of this country were passed in both the French and English languages, and the act of the legislature which gave that work the force of a law, directed, that in case any obscurity or ambiguity should be found in its provisions, the English and French texts should be consulted, and mutually serve to the interpretation of each other.—Acts of 1808, cap. 29, sec. 5.
In applying the rule of construction, here established, to the cases contemplated by it, this court has held, that whenever the expressions used in the different texts, could be reconciled and made to harmonize each other, it was our duty so to interpret them. But that where they could not, such construction should be adopted, as would give effect to both.—Vol. 2. N. S. 585.
Thus in the case of Touro vs. Cushing,
And in that of Chretien vs. Theard, when the difficulty arose on an enactment which made adonne au vol in the French text, a ground of redhibition, and in the English, restricted it to robbery; we held that it was our duty to take the language in its most enlarged sense; because, in doing so, we have full effect to both clauses. Vol. 2. 582.
So, here, if the expressions “shall take place against third persons,” used in the English part of the law, limited the right of opposition to a particular class of creditors; the language in the French, which declared generally, that it should not take place, (n'aura lieu) would control them; because, by this interpretation we give effect to both.
But there is, in truth, no difference in the sense conveyed by the two texts. The words, third persons, in the English, must mean all the creditors, or they mean no person. In relation to a sale of immovable property, these
The appellants contend, that the instrument by which this pledge was created, is not an authentic act; that it has no more authenticity her than a sous seing prive, and that it was recorded at a suspicious time.
It becomes, therefore necessary to enquire what kind of act is meant by the code. In the sixth article of the title, in relation to pledge, (which has been already cited) it is required, that the pledge should be proved by an act in public form. This is rendered in the French text, by the words acte authentique. In the seventh, which relates to the species of pledge on which this contract has arisen, the English part of the law declares, it must be shown by an authentic act. This is given in the French, by the expression, acte public.
This enquiry is, however, of inferior importance; because the article of the code in relation to pledges of incorporeal things, directs, that they must be proved by a public act; and what such act is the code itself defines. C. code, 304, 217.
But it is said the French text, uses the words
The appellants contend, this is not a public act, because notaries public in New York, have no authority by the laws of that state, to pass or record contracts such as that presented by the plaintiff. To this objection, we think the appellee has conclusively answered, that as the laws of that state have not been produced or shewn to this court, we must presume in this
But this argument returns with fatal effect upon the appellee, when we proceed to examine the act produced; for we cannot refuse to the appellants the same presumption of similarity of laws which we extend to their adversary. The instrument by which the pledge is evidenced, would not be an authentic act in our state. It would be nothing more than one sous seing prive-by private signature: for it wants the number of witnesses essential to the former by our law. It is difficult, indeed, to say what it was intended to be when first made. It has the form of a private act; is without date, and is signed by the parties, and the notary as a witness. Afterwards, this notary, who was sole witness, declares that the parties appeared before him in his official capacity, and executed it; and he signs this declaration without any witnesses.
Such an instrument, if executed within this state, would neither be an authentic, or public
It was, most probably, from a conviction of the law being so, that the appellee caused the instrument to be recorded in this state. This recording was made in due form; but the appellants insist it was not made at a proper time.
Our code, after declaring that acts under private signature, duly registered, are sufficient to establish a preference on the thing pledged, adds, as a condition; provided this recording is made at a period not suspicious.
We are now called on, for the first time, to affix a meaning to these words, not suspicious; and some little difficulty is created by the indefinite terms in which the prohibition is couched. It was clearly, however, the inten
As, therefore, the object of the law was to prevent those, who had not previous to the time prohibited, obtained a privilege, from obtaining one by their own act, we know of no other rule to adopt than this:—that, at whatever period the debtor could not give a preference o any of his creditors by an act of his, the creditor cannot, in relation to this contract, acquire one by having an instrument which gave him none, recorded. We must either adopt this conclusion, or say the law has no meaning whatever ; which would be contrary to every rule that governs courts in the interpretation of statutes: it being their duty, if possible, to give the statute effect, and not to consider it made for no purpose. The meaning attached by the appellee to these expressions, would
Applying these principles to this case, we think the recording was made, to use the language of our law, at a suspicious time. It was enregistered on the 31st January, 1826, in a notary’s office in this city. It makes a part of the admissions of the parties on record, that nearly two months previous to this recording, the insolvent had made application to the banks for time to pay his debts; declaring his inability to comply with his engagements—that the request had been refused—that suits had been commenced against him before the act had been enregistered; and that, he shortly after claimed the benefit of a cessio bonorum.
Repeated decisions of this court, founded on the laws of Spain, have settled, that a preference cannot be given by a debtor to one of his creditors, in what is called tiempo inhabil. That, where there exists an inability to pay debts, and a cession of property follows soon after, the debtor cannot make any change in
It was urged on the court, that there was an acknowledgment on record, that the instrument was executed in New York; and that this must be understood to mean the act was executed according to the laws of New York. But we are clearly of opinion, that no such inference can be made from this fact. The admission of the execution of an act, in our understanding, means nothing more than that the instrument was signed according to its purport, and dispenses with any proof. But it proves nothing more. There are many acts made and executed contrary to law in every country. It is also plain to us, that the admission was not contemplated to have this effect at the time it was made. If such had been the meaning of the parties, it was unnecessary for the appellee to have followed it up in the statement, by obtaining another admission from the
It was also contended, that this case came within the principle on which this court has decided, that an act of sale of immoveable property sous seing prive, followed by delivery, was good against creditors, unless they were injured by it. But the cases are quite dissimilar. In respect to the latter, our code declares that the sale by private signature, passes the property to the buyer. It does not, of course, make a part of that which is transferred by the insolvent debtor to his creditors. When they came forward, therefore, to take it from the purchaser, they came to assert a right given by positive law alone; and it was held that our legislation did not authorise this claim, unless they had been injured by the transaction. But in this case, no ground can be found on which the court could take that position. The contract of the pledge did not transfer the property. It passed by the cession from the debtor to his creditors, and made a part of the effects surrendered to them; and it is the appellee who claims a preference on it.
The third case, that of Brown and Son, comes entirely within the principles of law just applied to that of Astor, and must receive a similar judgment.
It is therefore ordered, adjudged and decreed, that the judgment of the district court so far as it respects the claim of the children of Joseph Saul the insolvent, be affirmed with costs; and so far as the same confers a privilege on J. J. Astor, and A. Brown and Son,