Flanner v. Lecompte

23 La. Ann. 193

• Court: Supreme Court of Louisiana
• Decided: March 15, 1871
• Docket: No. 3159
• Status: Published

Opinion

Howe, J.

The injunction obtained by plaintiff should be maintained in part, viz: as to the undivided half of the tract of land about to be sold by defendants, which belongs to the succession of Eleazar L. Hyams. The mortgage note held by defendant, Lecompte, was clearly prescribed before the written acknowledgment made by Samuel M. Hyams, executor, in January, 1866. The executor had no authority to renounce an acquired prescription. 21 An. 373.

The note, as to the other maker,-Samuel M. Hyams, seems to have been kept alive by repeated acknowledgments, so that prescription as to him was never acquired.

There is no force in the objection of plaintiff to oral testimony to prove these acknowledgments, it appearing that at the time of trialS. M. Hyams was also deceased. The Statute of 1858, page 148, prohibits the reception of such testimony “ against a succession.” This contest is between two creditors, their claims, respectively, against the succession having been closed some years ago by judgmeiit. Nor can the objection of plaintiff to the testimony of Mrs. Mary E. Hyams, the widow of S. M. Hyams, as to acknowledgments by him, be maintained. She was not testifying for or against her husband, but in behalf of one creditor against another.

It is therefore ordered that the judgment appealed from be reversed. It is further ordered that there be judgment in favor of plaintiff, perpetuating the injunction issued herein, so far as to restrain the sale by defendant, Lecompte, under his judgment, of that undivided portion of the tract of land, described in the petition and .exhibits, which belongs to the. succession of Eleazar L. Hyams. It is further ordered that in other respects the said injunction be dissolved j that the defendants pay the costs of the lower court and the plaintiff those of the appeal.