The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-15
SUPREME COURT DECISIONS.

prsme Court were delivered yesterday, foil
bench present: fEHffHF .NfI#
BY ASSOCIATE JUSTICE W. W. HOWE.
No. 144s-Gustaye Dubrocs vs. VIM s. Pike !;
David N Barrow VS.. VIM s. Pke-Pitot 4 Bright
for plaintiffs and appellants; Morgan & New for
deienoants and appelees Appeal from the
| Fourth District Court of New Orleans.
The plaintiff sues 10 recover the sum of &c.,
152 81 With interest from September 18th, 1868,
| upon the ground that he was q partner with the
defendant and others in certain purchases and
sales OF sugsr from September 20, 1862 to Sep
TENDER IA, 1868. That large profit was made
and declared upon the books of the firm that
the share Of the plaintiff, being the sum men
toned above, was credited to the defendant for
plaintiff, and that the defendant withdrew from
the firm these funds Of plaintiff and has since re-
| tanned Them.
macs OF testimony appears in the record, and
| numerous questions have been raised by counsel,
| but the view which we have taken OF the case
makes ii necessary to consider but a single point
| Ii clearly appears that the whole transaction was
conducted in what were called Confederate notes.
| The sugar was purchased with these notes, it was
sold fer them, and it even appears from the tesii
mony of Crutcher, one of the parties to the
| alleged partnership, that the amount thus real
| lied In Confederate notes at the time
OF the trial of this case still in possession of
| Crutcher Co., by whom the sales were made.
Even II we admit, therefore, the tsuth of the
| anegauoDs OF the plaintiff as to the partnership
| and the profits. we cannot lend our aid to settle
| disputes in regard to such transactions and 10
avice iheir apparent gains. H. A, Is, 10 A. l6l.
We think this question not only firmly settled in
| our jurisprudence, but rightly settled. But If
| there were doubt as TO the correctness of this
series of decisions we think this court canBot now
enforce the matters of contract disclosed ia this
case. By article l27 of our present Constitution
| all agreements, the consideration of which was
confederate money, notes or bonds, are declared
to be null and void and 1t is directed that they
enforced Of Sfata
We think the case at bar is within this prohibi
tioD for the business of the alleged partnership
was TO acquire and divide Confederate notes. and
The foundation of the action is the averments that
the defendant has received snd retains, the share
Of profits accruiDg to plaintiff
The judgment of the court a quo was in favor of
defendant.
It is ordered and adjudged that the same be
affirmed with costs in both courts.
BY ASSOCIATE JUSTICE W. W. HOWE
No. lsi7--Joseph H. Wilson vs. Shroeder &
Schrieber and Jacob Zoelly. Hornor Il Benedict
for appellant; Julien Michel for appellees Ap-
peal from Fifth District Court of New Orleans.
This is an action against the defendants, Shroe-
der Schrieber, as makers, and Zoelly as indorser
of promssory note.
Judgment having been given against them. an
soidO, the defendant Zoelly alone has appealed.
The appellee moves to dismiss the appeal on the
grounds:
FIRST. That the defendants Shredder & sehrieber
have not been made parties; and
Second That the appeal taken on the 22d day
OF May, 1868, was made returnable on the fifth
Monday OF June following, when il should have
been returnable on the first Monday Of Hovember,
1868.
AS to the first ground, il is true that In many
cases of Judgment in sOlido this court has decided
that the Judgment debtor who appeals must make
his co'defeDdant an appellee. The principle Is
that such co-defendant who does not appeal ia
Interested to maintain the judgment, in order to
MAINTAIN bis recourse for contribution against the
appellant. But in this case there is no pretense
that the note was made for the accommodation of |
the iDdorser. but on the contrary, so far as we
can perceive, the Endorsement was made for the 4
accommodation of the makers. The makers,
therefore, can have no recourse for contribution
against the appellant, and have no interest in the
maintenance of the judgment.
We cannot see that the second ground cons,i. |
tutes any reason for Diminishing the appeal. The |
statute Of 1864, invoked by counsel was repealed |
by the statute of 1866, and has not been revived
by the statute Of 1867. &C. c., 49,
The motion to dismiss ID therefore denied.
BY ASSOCIATE JUSTICE W. G. WILEY.
No. l446-Marquise de la Villa Palma, vs.. /
Abat d Generes ct al, appellees. = Appeal |
from the Third District Court of New Orleans.
A. and NJ. VOORHEES, for appellant. G. D1four for |
Abat Generes, and L. Castera for E. F. Mioton |
sppellees.
Plsintitf, the purchaser of three lots, subject to
a special mortgage with pact de non dliendndo,
sues to annul subsequent sale under the fore
closure of said mortgage.
The sale was made under executory process
and the three lots and Improvements were sold in |
block, although appraised separately, and al
though described in the act of mortgage as separ-
ate lots. Plaintiff vendor, A. Costa, had mort
gagged these lots prior to selling them to her, and
defendants had become the owners and holders of |
the mortgaged notes under which the sale was
made. contrsdictorily with q curator dd hoe rep
TesentiDg the mortgage debtor, A. Costa. who
was an absentee. The appraisers were duly ap-
pointed by this curator dd hoe and the mortgage
creditors On the day OF sale. They appraised two
of the lots together at $500 and the third lot by
Itself at $1,000, making the total amount of ap.
praisement $500. The curator Gd hoe gave the |
sheriff Eo instructions whether to sell the property
in block or separately, and the same was sold by
the sheriff in block under instructions of the sez-
ing creditors counsel, for the price and sum of
$3675 cash.
On the trial in the lower court there was judy
ment in favor Of defendant, and against plainuif.
Plaintiff has appealed.
The various grounds of nullity set out in the
petition are all abandoned by tn plaintiffs coun-
sci in the argument before this court, except the
position that the sale is null, because the lots
were sold in block by the sheriff, and not sepa-
rstely.
We concur with plaintiff that the insertion in
the act of mortgage of the pact de VOn dIieadndo
does not invest the mortgage creditor with the
right to disregard the forms of law in making the
forced alienation of his mortgage debtors prop
erty. We think the non alienation clause springs
from the agreement of the parties and not from
prohibitory law, based upon motives of public
policy forbidding the transfer of property so
The advantage of this clause ia to
save the mortgage creditor the necessity of re-
sorting to the delays of the hypothecary action.
He can proceed to enforce the mortgage directly
against his mortgage debtor without reference to
the transferee of that debtor.
But still the trsDsferee is subrogated to his ven-
doris rights by virtue of the purchase and his suf-
fcient interest in the object of the contract of
mortgage TO cue to annHl the sale if the forms of
law have not been complied with by the mott
gage creditor of his vendor in making the forced |
sale. But from a careful examination of the law
and the evidence in this case we cannot concur
" it'll plaintiff that the sale is null because the lots
The property sold in block for
much larger price than its sppraisement which |
was made separately. There is no evidence that
the bystanders would have bid q greater price IL |
the Cfering had been made separately.
But what right has this plaintiff to complain of |
the sale Of property which she only held subject
to the rights of her vendors mortgage creditors?
With the non-ahenstinn clause she could not ex-
pect TO be made party to the sale. She occu.
pied no better position than her vendor, and the
sale was made contradictorily with him, through |
the curafor nd IOc ann0inted nv the conrf nd |