The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-04-25
Supreme Court Of Louisiana.
Condensed Decisions-NEw ORLEANS, April %. 1s


When succession insolvent and the consideration of
notes held by one of the creditors and the genuness
bona fdss of his claim expressly put at issue by
another creditor, evidence be produced beyond
the mere notes themselves. The notes do make in
themselves conclusive proof of the debt apparently due
on them.
SUCCESSION OF HORACE WARREN; ON oppo.
s1rIoN OF WIN. DICKSON AND S. o. NELSON
Appeal from the Second District Court of Neuo Or.
ddas.. Per cur,am: As the succession oil Warren
is insolvent, and as the consideration of the notes
Of iha deceased held by the appellants and the
genuiness and bona fdes of their claim were ex-
pressy put in ISSUE it necessary for the appel
lants to prednce some evidence beyond the mere
notes themselves. In Sabatier ct al. u.s. Their
Creditors, it was held that in contest between
creditors of an insolvent, the notes obligations of
the lnsovent do not make in themselves conclusive
proof of the debt apparently due on them. They
must be supported by such additional evidence as
will satisfy the mind OF the Judge of the fairness
and business of the claim. We are not aware that
the opinion in that case has ever been questioned
and no argument has been adduced by the appel
lants ganst its correctness Judgment arffimed
at the appellants cost.
Holders of certificates OF entries of land under the laws of
the United States, like the holders of promssory notes.
must prove the endorsement, transfer and delivery
before they will be considered having the title thereto
JOHN ORIN TERRY Us. DUNCAN N. HENNEN
Appeal from the Fifth District Court of Ne,cO Orleans
RosT, In this case it was held that, without an
assignment proof of actual delivery the possess
sion of certificates of entries of land gives the
holder thereof no better title to them than he would
have to prOmissOry note, payable to the order of
certain party, held by him without endorsement
or proof of transfer and delivery; and that art.
26l2 C. c. presupposes that, when the title is not
transferable by delivery, and does not bear upon
its face evidence of the lawful possession of the
holder, proof of the delivery must be made. The
Judgment in favor of plaintiff was reversed and
plaintiffs petition dismissed with costs in both
Courts
In the sale of real estate where the vendor retains mort
the vendors privilege exists by legal presumption
which throws the burden of proof the party against
whom it initiates. and which will authorize the vendor
to resort order of seizure and sale, when the
dee does not comply with his obligations.
H. BAccHus, F. M. C. Us. M. MoREAU, F. NJ c.,
on Rule of II. BAccHUs Us. M. MoREAU, CAUBETT,
EFT AL. 4. Appeal from The Third Judicial District
Court, Parish Of Je6efson. ;. .sL1DELL, ].
Plaintiff had previously sold portion of tract of
land purchased from him by Moreau) under an
order of seizure and sale, granted upon mortgage
of that portion. Afterwards he obtained an order
lege upon the residue. After the second adjudica-
ton, which was made TO Mrs. Waggaman, he took
rule upon Caubett, a mortgager claiming under a
mortgage inscribed after the inscription of the
plaintiffs sale to Moreau, upon Fishe, the holder
Of subsequent judicial mortgage, and upon the
Sheriff, to show cause why the subsequent mort
cages should not be cancelled, a clear title given
to Mrs. Waggaman, and the proceeds of the sale
applied to the satisfaction of the plaintiffs claim
The District Judge dismissed the rule, and the
plaintiff has appealed.
The principal question in this case is whether in
the act of sale by Bacchus to Moreau the former is
to be considered as having relinqushed the VEN
doris privilege. The sale was of tract of land of
one arpent and three-quarters. The total price was
$1,000. The vendor acknowledges cash payment
of SS0n1. and the residue Mareau uiyas his
note for $1,000, paraphed for the purpose of denti
flying it with the act. The description of the
note is followed by a clause in these words -
" 1T pour dSsurer ie Placement du dit billet a sou
echeance, ainsi que de t0us tras ct intSrets hippo
eque secale est reserUe settlement sur trois quarts
darpent du cote den haut de Ia dite propriee, Fac
qnereur promettant ct s'obligeant de ne les point
at'ener on hypothequer an prejudice des presentes"
IL was held that if the act had contained no stipu
latIon OF mortgage, the vendors privilege, which
results by operation of law from the nature OF the
contract, and needs no express stipulation of the
parties &C. C. arts. 1883, 32l6) would have extended
TO the entire tract that the existence of the vend
ors privilege In the present is supported by
legal presumption, which throws the burden of
proof on the party against whom it initiates: that
the intention to renounce right esta hlisbed hv
law in a party's favor, should be clear: that the
remuneration should be express, it should result
by cogent implication; that mere doubt would
not suffice to deprive party of the benefit of what
the law presumes in his favor.
1t was also held that the enforcement of the
mortgage by an act of seizure and sale on the
mortgaged portion of the property could not operate
an implied remuneration Of the vendors privi-
ege; that the mortgage and the privilege are dis
tinct rights; that they may coexist, and that the
one does not exclude the other and that the enforce
ment of the mortgage did not conflict with the
privilege which still subsisted upon the residue of
he property afterwards sold. The Judgment below
was reversed and the plaintiff recognized az cred.
inr upon the proceeds Of the sale of the property
In question by privilege superior to the said Cav.
ben, who wss deersed 70 pay the costs