9 La. 512 | La. | 1836
delivered the opinion of the court.
This suit is brought by the plaintiffs, as heirs instituted by will, or universal legatees óf a free woman of color, who was
The facts of the case are as follows: Antoine Molinari, late husband of the defendant, previous to his marriage with her, lived in a state of concubinage with the testatrix, Roux, who in the testament by which she institutes the plaintiffs as her heirs, recognizes them to be her natural children; during the period of the concubinage, as above stated, the paramour con- N veyed to his concubine the property now in dispute, by authentic act, reserving to himself the usufruct of it during his lifetime. After his death, it remained in possession of the defendant, as tutrix of her children, unmolested, until the institution of the present action, for whom she claims the property as heirs to their father. In support of this claim, and in opposition to the title set up on the part of the plaintiffs, a counter letter, signed with the ordinary mark of the pretended purchaser, from Molinari, the father, attested by two witnesses, was offered and admitted in evidence on the part of defendant. In this instrument, the concubine' acknowledges that the deed to her was fictitious, and made without any valuable consideration given for the lot pretended to have been sold. The right of the plaintiffs to bring suit -under the will of their ancestor cannot be disputed, although an exception to this effect is found in the record.
The decision of the case depends mainly on the propriety of the opinion of the judge a quo by which he admitted the - counter letter in evidence, and the effect which that instrument must have on the claims of the parties, in pursuance of legal principles applicable to the subject. Its introduction was excepted to on various grounds: 1st. That an act under private signature is invalid,, unless signed with the name of the party in his own hand writing ; 2d. No parole evidence cap be admitted against what is contained in an authentic act; 3d. The testimonial proof of the signature of the two wit
r lv.,r ciny In the case of Dismukes et al. vs. Musgrove, 7 Martin, N. S., 58, this court entered largely into the consideration of the rules which prevail under the English jurisprudence and in several states of the Union, in relation to the evidence required to support an instrument under private signature, when the parties and witnesses were dead, or from other cause the testimony of the latter could not be procured ; .. , , . . . and it was then held, that in such a case prooí would, be required of the signature of the party, as well as those of the witnesses. We still adhere to the doctrine then established, although, perhaps, the rule presented is more onerous than that of the common law. ■ But when it becomes an absolute impossibility to prove the handwriting, or sign manual of the party to dn instrument, in consequence of his inability to write, must it be treated as a nullity in the face of evidence, and circumstances which are sufficient to convince every honest and disinterested man, (who attends to the testimony) of its truth and genuineness? We think not. In the present ° 1 case, the signature of both witnesses were fully proven, and that they were men of such honesty, and general uprightness of conduct, that they could not have been induced i0 lend their aid to a forgery. The circumstance of the mode of life of Molinari and his concubine, is such as to raise a presumption that the sale to the latter was fictitious. The price as stated in the pretended act of sale, was three thousand dollars, said to have been paid at the time of executing the deed. At the period when this transaction took place, it was much more difficult to raise money than at present; the country was then very deficient in capital, if compared to the present existing state of things. It appears to us, that it would require faith, unsupported by evidence, to believe that a person of the class, condition and conduct of the mother of the plaintiffs, had at any one time in her pos- . 1 i , , session, or at her command, the sum of three thousand dollars. In the case of Weis vs. Mainhaut, 4 Louisiana Reports, 121, the initial letters of a party’s name were held to be binding on him, and it appears to us that they do not
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.