7 La. Ann. 583 | La. | 1852
By the court :
This case is novel in its circumstances, and somewhat complicated, on account of the number of parties. The looseness of the transactions between the original parties, the fact that fictitious parties have appeared from the beginning of the business until now, that the litigation is approaching its termination, and that original parties, both nominal and real, are dead, may render it impossible to know exactly the rights of the litigants.
But as far as the facts are disclosed by the record, or perhaps ever can be, we think the district court has come to correct conclusions, and meted out substantial justice to all the parties. If, however, any injustice has been done to the appellant, of one thing we are certain, that it has resulted from the fact of his keeping his property in the names of other persons, we fear for illegal purposes ; a practice the more to be reprobated, because it is so common.
In 1834, Busfirod Jenkins, then residing in Kentucky, purchased Anderson’s Island, near Shreveport, and commenced its improvement as a cotton estate. For that purpose he purchased a number of negroes, particularly a lot of twenty-two, from William Oldham, for ten thousand dollars.
In 1836, he brought his family to Louisiana, and became a resident of the State. We may therefore dispose at once of a claim strenuously urged by the counsel of his widow, based upon the assumption, that the land and slaves thus acquired, belonged to the community of acquets which existed between her and her deceased husband. When persons, married elsewhere, acquire property after they come to reside here, it belongs to the community of acquets, but not that which the husband purchases before he becomes a resident of Louisiana.
There is nothing in the case of Cole’s Widow v. His Executor, adverse to this principle. 7 M. R. 41. In that case the husband voluntarily separated from his wife, and established his residence in Louisiana. The true ground of the decision was, that his residence was her residence, and that he might have required her to come to reside in Louisiana, if he had chosen. In this case, the husband did not come to reside in Louisiana, much less his wife, until after his acquisition of the land and slaves erroneously claimed as belonging to the community, in opposition to the fair interpretation of the 2370th article of the Code.
And yet a paper is produced on this trial, dated at Lexington, Kentucky, in 1835, signed by Jenkins, declaring that he owned the plantation and thirty slaves, in, partnership with Lewis K. Grigsby. The day after its date, it was assigned to Lewis Grigsby, of that State, the father-in-law of Jenkins, and father of Lewis K. Grigsby.
We believe that Grigsby, the son, was a partner in the plantation and slaves, from its establishment, and never ceased to be, notwithstanding the assignment.
The instrument shows that he was a partner. He tx-aded in slaves before 1834, and had means. Jenkins had but little means, and as has been stated, purchased 22 of the slaves from William Oldham, who was trading in partnership with Grigsby, in slaves. It seems probable that these slaves belonged to the partnership of Oldham and Grigsby, were put into the partnership with Jenkins, and settled for by Grigsby with his partner Oldham.
It is proved that Grigsby failed in 1834. He had a motive, therefore, for conducting the partnership in the name of Jenkins alone, and no doubt took the acknowledgment to which we have referred as a counteidettex-.
Notwithstanding the assessment, we do not believe his father ever had any interest in the property. It was a px-ivate writing, and there is no proof that it was ever delivered to the father. He never took possession of the property, or exercised any control over it. It is not shown that he ever paid anything for the assignment, and his heirs, he being dead, claim nothing under it, or ever heard of it. It is true, a suit to which we shall advert, was commenced in the United States Court in his name, for a settlement with Jenkins, but it was commenced, conducted and terminated, entirely by Grigsby, the son. It is true, that after Jenkins' death, a power of attorney was given by his father to one Freman, by which the latter sold the undivided half of the plantation and slaves to Wolfe. But Grigsby, the son, has had that sale declared fictitious by judgment.
For these x-easons, and evidence in the rbcoi'd not adverted to, we do not believe that Grigsby, the father, or Wolfe, his vendee, ever had any interest in the property, and that though the one, and the curator of the othex-, are nominal parties to this litigation, that they have no interest in it. The real parties to the suit, and owners of the property, are Lewis K. Grigsby, and his sister, Mrs. Jenkins, and her minor children; and we shall not complicate tho case by refex-ence to any others.
Jenkins and Grigsby established the plantation with slaves, in the name of Bushrod Jenkins, commencing in 1834, and wox’ked it in partnership until 1845. A suit was then instituted in the United States court by Grigsby against Jenkins for the partition of the property, and settlement of the partnership. But it was compromised, and the partnership extended indefinitely, by a notarial agreement, made on the 25th of November-, 1845.
Jenkins was mux'dered in 1846, and the partnership first extended, dissolved by his death. Thomas M. Gilmore was appointed his administrator, and has
It establishes: 1. That Jenkins and Grigsby had owned in joint partnership a plantation and slaves, in the parish of Caddo. 2. That a suit had been instituted hy Grigsby, for a partition of the partnership property, and whatever balance might be found due to him. 3. Jenkins acknowledges that Grigsby is the owner of an undivided half of the plantation and slaves which are described, and conveys him a title. 4. It is disclosed, and Jenkins acknowledges, that Grigsby is the owner of one undivided half of his interest in the town of Shreveport. 5. It is provided that the plantation and slaves shall be kept together, and worked in partnership, for the mutual expenses of the joint owners, the expenses of the plantation to be paid out of the proceeds of the crops. 6. ‘Jenkins is authorized to sell the lots in Shreveport, provided the proceeds, shall be applied to the payment of the debts, which are particularly enumerated in the agreement. 7. They are declared to be the debts of Jenkins, but are to be paid out of the partnership property, or the revenues arising from the same. 8. The debts are then enumerated, and it is again stated, that they are debts previously owing by Jenkins, but to be paid out of the revenues and proceeds of the property.
This agreement indicates, that the name of Jenkins, as connected with the debts, is used, as it had been from the establishment of the plantation, to represent the partnership. 2. That the enumerated debts were partnership debts. And 3, to be paid out of the revenues, and in default thereof, the proceeds of the sales of the partnership property. And, as it is impossible to believe that Grigsby would consent that his revenues should be used, or his property sold to pay debts he did not owe, we are forced to conclude, that they were debts due by him as a partner. And then the exemption contained in these words: “ without making Lewis Grigsby personally bound for the same in any manner whatsoever,” applies appropriately, as it does literally, to Lewis Grigsby, the father, in Kentucky, whose name the parties were using fictitiously in a partnership, in which he had no interest whatsoever.
This then is a*partnership, to be settled, like any other, between Grigsby and his sister, representing her minor children.
The agreement, of which we have extracted the substance, shows sufficiently that they were equal partners in the plantation, slaves and property in Shreveport. No stock account or books being furnished, and neither party pretending to have made, or that the other received advances, their equality of interest in the partnership, and in its losses and profits, is easily presumed. Code, art. 2836. The agreement fixes likewise, with reasonable certainty, the partnership debts to be paid out of the partnership property ;• and the creditors having become
There are some discrepancies between the amounts of the debts, as stated in the agreement, and the amounts established by the creditors. The statements in the agreement were merely descriptive of what debts were to be paid, and not intended or reasonably expected to be precisely accurate. The discrepancy is so great as to the claims of Kohn, Daron 8f Co. and J. J. Jackson, that we would be disposed to yield relief, but for the conviction, as repeated so often, that they were debts of a partnership carried on in the name of Bushrod Jenkins, of which Lends K. Grigsby was the secret partner. There is no reason to believe that Jenkins intended to deceive, in stating the debts of the partnership of which he had been the manager. Thus the discrepancy in the case of Kohn, Daron 8f Co., which is much the largest, grew out of the accumulation of interest, that moth of estates, as may be seen at page 682 of 5 Ann. The judgment against him, mentioned in the agreement, did not bear interest, and he probably thought himself exonerated from interest.
There is still less reason for objecting to the debt of Burne and Burnside, because evidenced by a bill of exchange, while it is stated in the agreement to be a note, or the debt of Dick and Hill, because proved by a note, whilst the agreement describes it by a bill of exchange. Neither of the parties were subjecting themselves by the agreement to the debts of the other, but both were fixing what were partnership debts, to be paid out of the partnership property, and without which Jenkins would not have made titles to Giigsby, entered into the compromise, or continued the partnership, but have compelled the partner to establish rights with the same exactitude which the latter now requires.
The same observations apply to the claim of Stinson. And under the circumstances, the debt of Lee is sufficiently proved. It was acknowledged in the agreement as a small balance of account, but sued for by virtue of a note for two hundred dollars, bearing ten per cent interest. The attorney who brought the suit was well acquainted with Jenkins ; says that it was a note on Bushrod Jenkins, and that it had been lost or mislaid. The advertisement of its loss was admitted. No question was made as to the signature, or we have reason to believe, it would have been more expressly proved by Mr. Lawson, the attorney, so well acquainted with Jenkins.
As the record showed that Gilmer, the administrator, had eight thousand dollars in his hands, proceeding from the revenues of the property, there is no reasonable objection to the decree of the court, directing its appropriation to the debts specified in the agreement, though neither party appears to have specially demanded it. If he has now, or should hereafter have, other funds of the partnership, a like distribution may be made, with which the present does not interfere. The costs of a large record like the present, should not be thrown on the appellees, for unsubstantial reasons. *
The judgment of the district court is affirmed, with costs.
