The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1850-02-07

II IFUUTIE5
planant shall prove the identity Of Geronimo Des-
oranges with Jaeobus Desgranges Of the marriage
certificate. No judgment can Be- rendered by this
Court affecting property immense in value, unless
there Is absolute proof OF the first marriage of Des-
oranges. Suppose this suit in jactitasion OF
the marriage Of Zulime and Desgranges. would the
Court annu that marriage unless the pEeadings set
forth the name Of the first wife, otherwise how
could the defendant be prepared to maintain his
cause! All the decisions Of the ecclesiastical courts
in the books set forth specifically the date and place
OF the first marriage, and the name OF the first spouse
A marriage cannot be invalidated on account Of a
prior existing marriage, unless the names Of both
parties are proven. The justice and expedieney Of
this rule was fully elucidated.
The judgment of the County Court does not
tablish the fact necessary invaidate the marriage
Of Desgranges and Zulime, and does not invalidate
the marriage. If the invadity Of the marriage was
presented by the pleadngs, il mere collateral
fact The Judgment the Court Is damages OF $780,
In every State in the Union there are Courts hav-
ing exclusive jurisdiction Of the question OF mar
rage. Such exist in Spain, and in her colonies
and the Spanish laws continued in force in the
Territory Of Louisiana, until changed by the Legis
lative authority. He admitted that the change in
the government destroyed the ecclesiastical courts
but until the Legislature conferred the power Of
granting divorces no Court had the authority. For
several years the Territorial Council itself exercised
the power, and it was only after some considerable
time that the Courts invested with that power.
ButeEen if the Court had jurisdiction, the decree
in that record was on collateral fact. The Court
only discover from the record (the petition is
LOST that the defendant excepted to the jurisdiction
OF the Court on the ground that it had power to
affect the question Of marriage.
IL is not binding in law-their own witnesses
state the absence OF Desgranges. He had left the
country, he was represented by curator ad hoe.
There is nothing to show that he was present,
had notice, or that serious defence was made.
81
1t was proceeding carried for a particular
purpose; and even if Desgranges had been present,
yet the proof shows it was Judgment desired by
both parties and rendered by collusion DesgraDges
wished a judgment against himself, TO rid him of
broken contract and dishonored wife. She desired
it, and had desired it for years. that she might enter
into marriage, or, to take her own story, to
enable her to declare her private marriage. But we
reject this hypothesis. We say Desgranges had
left her in full confidence and harmony. He had
gone to France the agent of her family, to
for them an Inheritance.
He left a happy and honored home. While he
was absent sheswent to foreign country and gave
birth to child not her husbands. She left it to the
care of strangers and returned here. Both parties
wished the broken marriage to be annulled But
yet she had not reached the point of degradation
to declare to the world that she was the wife of
Clark Even in the trial of Desgranges for bigamy.
she maintains his innocence, she declares herself
his wife. Thus we show there is moral evidence
of the wishes of both the parties to obtain judg-
ment severing the hateful link.
Ii is true, a general rule, that marriage is gov
erued by the law Of the place where it is contract
ed but il has exceptions Story has been referred
TO but though he lays down tie general rule, yet
he shows exceptions. Both in France and Great
Britain The rule has It's exceptions. In Eagiand
they have disreearied The decree of the Scottish
Courts granting divorce, and held the second mar
riage nulity. Al the time Of the marriage OF
Clark and Zuime, both subject to the laws OF
Spain, being domieiliated in louisiana. They left
the soil of Spain 10 contract marriage. Why was
this Because the law of Spain oi bade the second
marriage until a deeree was rendered ca the first
and considered such a marriage as null In the
| Continental Courts, such second marriage made
| In foreign country, by citizens who emigrate only
to effect the marriage and avoid the prohibition
| of their own laws, in these courts sueh marriage
| is disregaTded. Such is the law Of Spain.
think have shown that no such marriage a.
| that of Zuime and Clark was ever contracted; ant
| second, that if it was, such marriage was invalid
But if valid marriage has been shown, and sh,
is the legal heir and such is entitled to the esa
of Clark, yet | will now show she cannot disturb
the poss essors.
Clark died in 1919. His will was probaled, mad
in 1911 in which he made his mother his universa
heir. At that time there was no preteuce Of AMI
| other heir than his mother. The defendants hold
ing under titles made by the apparent heir, in pos
session and without notice Of any outstanding heir
to be projected in law. The controversy grow
up in State governed by The civil and not by the
! common law | will show the Court marked dis
tinction between the two systems. TIE common
| law is unbending, and frequently the stern appli
cation of its legal principles operated most mon.
strous injustice. But the jusler and more liberal
practice Of the civil law gradually dlffused its h
| name influence into the common Law by the crea-
| ton of Ecclesiastical Courts Nc. Iayior here
| gave rapid sketch of the growth OF the chanceFy
| law in England.l The principle Of the common
law is cdUeat enptOr-the purchaser buys at hi
peril The civil law, on the contrary, protects the
| purchaser in good faith. Here he went into an
examination of the registry laws, which are only
the practical application of the civil aw.l This is
the universal principle of the civil lawit is adopt
ed in the Spanish and French law, ard recognized
by the French Courts under the Napoieon Code
Journal du PdlGiS, l843 sale Was made in
1916 by the apparent heir, and afterwards it was
proved that he was not the true heir; yet the sale
made by him was held valid. If more distant
heir takes possession and acts as owner, his acts
will bind the nearer heir when he does accept the
succession Of the ancestor; for this acceptance il
necessary TO invest the tile in the heir la the R0
man law, the general sale OF succession by the ap
parent heir is not good but when he sells paFtiCu
lar pieces OF property, his acts will be held valid
In the one instance he sells his pretensons as heir
in The other he sells piece of property as owner
He compared this 10 the transfer OF negotiable paper
He passed 10 the plea of purchaser for vaIu
able consideration, without notice. But il is saiC
that it is not in proof that the defendants have paiC
the purchase money, or are in possession. In refer
ence to the proof Of payment he said all the nota
rial acts Of sale contained receipts of the purchast
money. Ii is only in case charging fraud in the
transfer that there must be other proof The cause
though in the Chaneery Court of the United States
is to be tried on the soil of Louisiana, and TO b,
governed by its laws. The very principle of tn,
chancery law, the protection of the honest plir
chaser, was itself derived from the civil law. Bu
il did not also adopt the presumption of the civi
law, of good faith, but on the contrary it retained
the presumption Of the common law and require,
the purchaser TO plead and prove the payment
Now, for the first time, the Court of the Unite
States must decide, whether the presumption, IN
fundamental principle Of our law, is TO be abolishe
because, forsooth, the suit is brought the equit
side Of the Court.
"a discussion sprung up between counsel, no,
far the declarations in notaral act are proof as
third parties.
He now recuTred 10 the Patterson case. The fir
point is Tue acceptance Of the apparent heir Mr.
Clark was the constituted heir, and the only leg,
heir, known TO the world. She sent power of a
torney TO Reif and Chew, in which she recites h,
heirship both by the will and by law, and antho
lZes them to take possession and sell the propert
lie quoted the Code and several decisions Of ii
supreme Court OF Louisiana, to prove this act W.T.
sufficient acceptance He quoted Pothier q
SUGGESTIONS, and Toullier, that the sale Of part
the effects as heir was an acceptance. Now
lhe Patterson case it was assumed by the SupreH
Court That the estate was in the hands of the Exc
utors, and sold by them without the form of Law
But, IN TACT, they never bad possession as Ereci
t0fs. The will did not give them the seisia the
obtained thai possession as her agents, and not
Executors. The acts of sale are made by them q