The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-04-13

u.skiDg the distribution among the heirs as afore-
said, the case Of Gex. administrator, VI. Z. To-
dered, was on appeal IN the Supreme Court, and
that In no capacity had he the right TO Withhold
from eaid 3. Turesud any sum to pay such Jads'
ment as might be rendered IN said suit, and ne
called In warrant the said Emile Tureaud, Who
filed q general denial to the opposition. defended
the administrator In his course Of distributing the
funds among the hers without taking cognizsnce
of any proceeding process instituted by the op-
popent. denied the right Of the latter, being no
creditor Of this succession to intervene In this
cause, and prayed that the opposition be dismissed
and the account be homologated.
The exception Was maintained and the oppo-
neDt appealed.
partition being made by the administrator and his
call upon all persons concerned to show cause
why his accounts Of administration and tableau OF
partition should not be homologated and the funds
distributed and paid accordingly. may make this
case one sui generis. and the question We are
called on By the parties to decide upon the excep
ton 10: Does the opponent under the law dis
close right of action or right to demand In
Of his judgment against one Of the heirs duly re-
corded before the sale for partition out OF the
portion OF the proceeds OF the immovsbe heredi-
tsry property In the hands Of the administrator,
and according to his said Judgment debtor
solution Of the primary question, whether
or not judicial mortgage attaches to the undi-
vided share Of an heir In the mortgagable pro-
perry of q succession.
Some doubt is cast upon this point 10 tho opin-
Se n 1SG q rs 81 SdS n s
VS.. DeBlanc, IL A. s64 but an examination Of
the case will show that the point was not decided,
nor was 1t directly presented.
The right Of coheir or coproprietor to create
q conventional mortgage on his individual share
OF immovsble property, has been frequently recog-
nized and enforced. See IL r. $50. A. $40, 8 A.
2l2, IL A. 236. 10 A. l67, c. C. 326s, ll3i. This
last article provides that the heir to whose share
an immovable or other thing susceptible of mort
gage has fallen, is not bound by the mortgages
which his co-heirs may have given on their indi-
vidusl shares OF the same previous to the parti-
ton /; and these mortgages are dissolved OF right
except upon the property which falls to the heirs
who have given the mortgages, II the property Is
susceptible of being mortgaged. Art. 1868 I'M
plies that one having right that Is suspended by
q condition, or may be extDguished in certain
cases, may agree TO q mortgage to the same con.
diton and liable TO the same extinction.
The court. after reasoning ct great length, and
citing authorities, decides as follows:
II is therefore ordered that the judgment ap.
pealed from be reversed, that the exception OF
the administrator, 1ureaud, be overruled, and
this cause remsDded to the lower court to be pro.
ceeded in according to law, on the opposition OF
l.. Gex. administrator OF r. Many, deceased
cost Of appeal to be paid by the sppellees.
BY ASSOCIATES JUSTICE WILEY.
No. l095-Jean NJ. Juillisrd vs.. P. Rogsy. Ap.
peal from the Fourth District Court Of New Or
leans. A. Derbes and A. NJ. VOORHEES, for sp.
pellapt. A. Robert for appellee.
plaintiff sues the defendant to recover the value
of 7s bales OF cotton, which he alleges the defend.
ant bought, as his agent, with his funds, aud af-
forwards illegally sold and appropriated the pro-
ceeds TO his own use. -. 1...-
The supplemental petition alleges that. in Jsnu.
airy, 1866, petitioner. by verbal agreement, sp.
pointed the defendant his agent to purchase cotton
for him In the parish Of Nachitoches, and that in
q few weeks thereafter, said Rogay purchased
said cotton from the person named in the original
petition, ~ account annexed, with funds which he
bad inrusted to him for that purpose.
The answer denies generally the allegations Of
the petition, and AYERS that the only transaction
the defendant ever had with him Was to sell him
lot OF cotton in February, 1864.
The court below rendered judgment In favor of
the defendant, and plaintiff has appealed.
Itsppesrs that the defendant Rogay was intro
duced to the plaintiff in this city 10 the early part
OF January, 1864, and sold him twenty-five bales OF
cotton, then on Soldiniss plantation in the psrich
Of Nschitoches. Rf aEf.E-k4.I
That about the same time the plaintiff gave the
defendant $4,000 in Confederate treasury notes to
invest in cotton for him in said parish. 1t appears
ING msSe ipvestmepts therein psroPe he knew IN,
plaintiff and having continued to purchase for
himself after he had received the funds Of the
plaintiff. Shortly after receiving said funds from
the plaintiff, he went TO Nstchitoches parish and
purchased some cotton. He returned and had a
settlement with plaintiff, paying him over three hun
dred dollars IN Confederate notes, and turning
over to him twelve bales Of cotton at Mrs. Mo
Tiers. at CSC. per pound, amounting to $500. He
also sold the plaintiff several other lots Of cotton
stored on different plantations 10 said parish.
The court, after reasoning the case, continues
If the egent bought cotton at SC. per pound, aud
accounted TO his principal in cotton ct CSC. per
pound, then he would have to give him thu differ
ence between the actual and pretended price paid
therefor.
The court cannot give Judgment against the de-
PENDANT for this difference in price without sane
tioning transactions in q currency, reProDated by
law. r-r..s. .s..r
However contradictory and absurd the two sfi-
davits Of the defendant may be, they do not salts
factorily establish the main position OF the plain
tiff that his agent sold him the Nc Tiers cotton and
the SoldiDis cotton, which already belonged 70
him, having been bought previously with his own
funds.
The cotton at Mrs. Meters was bought for
plaintiff and accounted for by his agent at CSC. per
pound.
The testimony of vslade and the admissions OF
the parties in the record prove that the twenty.
Eve bales on soldinis's plantation were purchased
by the plaintiff from the defendant at the time
they became acquainted. and before he had the
funds of the plaintiff. Plaintiff admitted be
bought from defendant the twenty five bales on
Sodnis's plantation In the fore part Of January,
1864, and paid him $l625 or whereabouts therefor.
In his annexed petition be oDy claims that he ap.
pOluttu tDe ueicnobnt us agent III Jtuutfy, looO.
We do not think the afidsvt of the defendant
sufficiently overcomes the aleg stions and admlss-
ions of the plaintiff to establish his previous
ownership Of the cotton. o.
Ii is therefore ordered that the judgment ap-
pealed from be affirmed with costs.
By associate JUSTICE ,. @. rALIApBRRo.
No. l7ss-Police jury Of the parish of Jefferson,
left bank, the heirs Of D. f. Burthe and Victor
Burthe. agents. Appeal from the Second Judicial
District Court, parish Of Jefferson. b. G. Elliott
for plaintiff, Victor Burthe for defendant.
This 10 an action to enforce the payment Of GER
tain taxes alleged to be owing the parish of Jeer.
son by defendants, who refuse to psy ell that Is
claimed Of them. They admit Indebtedness for q
portion Of the taxes demanded, but aver that they
are not legally bound to plaintiff for the taxes
assessed sginst them for the year 1862 and the
consecutive years to 1866 inclusive. The judy
ment Of the lower court exoRerated the defen-
dants from the payment Of the taxes for those
years. rendering judgment In favor OF the plain
tiff for the amount Of the taxes for the year 1861