The judgment of the court was pronounced by
Rost, J.
This case is a striking instance of the extent to which bad faith and ignorance can mystify truth, and involve in confusion and doubt the plainest questions of common right.
[260]*260George Deahl and Ferriby Smith were married, in April, 1834. In October of the same year, Deahl purchased from James Graham a plantation and slaves, for the sum of $30,000, which the act of sale states was paid at the time of the sale. It is shown, however, that James Graham received in lieu of money three promissory notes of $10,000 each, drawn to the order of Charles S. Lee, and endorsed by him and other persons. Deahl, to secure the endorsers, executed in their favor a mortgage on the plantation and slaves, which was duly recorded. The wife of Deahldied in 1836, before any part of the purchase money had been paid. No inventory was made, and her succession never was administered upon. Deahl remained in possession of the whole property as before, received the proceeds of the crops, and paid the two first notes given to James Graham. In June, 1841, the whole property which he possessed was seized and sold by the marshal, under execution, and adjudicated to R. Slaughter, who assumed to pay the encumbrances existing upon it at the time, in part payment of his bid.
Those encumbrances appear to have been: first, a sum of $11,636 68 cents, a balance due on account of the purchase, and covered by the mortgage given to the endorsers of the notes; second, the sum of $6,000, being the amount of a special mortgage in favor of Burke, Watt S,- Co., consented to by Deahl in the year 1840.
Slaughter died, in October, 1841, leaving the original defendant, Covington, his testamentary executor. The plaintiffs have instituted this action against him, alleging that they are the heirs at law of Ferriby Smith; that they have accepted her succession under benefit of inventory ; and that they are entitled to recover one undivided half of the property, existing at the time of her death in community with her husband George Deahl, and now forming part of the succession of Slaughter, the said property consisting of four tracts of land and twenty-seven slaves. The executor, Covington, having been removed from office, William Amonett was appointed dative testamentary executor, and the suit was continued against him.
The defendant generally denies the allegations of the petition, avers title under the marshal’s sale; the existence of the mortgage for $30,000 on the property; and also that the community owes George Deahl over $31,000, one half of which the plaintiffs are bound to reimburse. He finally alleges that, in case of eviction, he is entitled to recover the value of his improvements, which he assesses at $10,000. There is also a call in warranty against George Deahl and Francis I. Thompson, the creditor at whose suit the property was sold by the marshal.
Alvarez Fisk, having become the assignee of the mortgage debt mentioned as belonging to Burke, Watt 8f Co., sued the dative executor of Slaughter in the Court of Probates, and obtained a judgment under which all the slaves in his possession as executor, but two, were adjudicated to him, the said Fisk, who removed them to the State of Mississippi. He subsequently intervened in this s«it for the preservation of his rights.
William Amonett and one Benjamin Ft White purchased the unpaid note of $10,000, given by Deahl to Graham, and obtained from Miller, the first endorser on that note, a transfer of the mortgage given to secure tlio endorsement, and still affecting the property in the possession of Slaughter. Amonett and White obtained in the Court of Probates, a judgment against Amonett, as dative executor of Slaughter, on this note, with privilege and preference on the pro[261]*261perty in his hands. Under this judgment the land was sold at probale sale, in 1844, and adjudicated to Thomas W. Amonett, for little more than one fourth of its apprised value in the inventory of Slaughter. This purchaser intervened for the preservation of his rights.
We have only gone into the labyrinth of interventions, amend od petitions and answers, bills of exception, motions and agreements, which fill the record, so far as it was necessary to the view we have taken of the rights of the parties. The unnecessary confusion created by all this chicanery, is unprecedented. It became so intolerable in the court below that the judge, unable, as he supposed, to arrest the evil in any other manner, at last cried out in despair, to the incessant applicants for intervention : “ You cannot come in, the case is fulland, not recovering to the last his acknowledged powers of discrimination, gave judgment in favor of the defendant, and dismissed all the intervenors with costs.
The plaintiffs appealed, and the intervenors have asked that the judgment be amended in their favor. A motion to dismiss has been made on the ground that the appeal bond was made in favor of a person other than the defendant; the bond is in favor of the defendant and of the intervenors. The insertion of the name of Covington, for that of Slaughter, was a clerical error, which would not discharge the surety. The motion must be overruled.
The judgment appealed from is clearly wrong. The plaintiffs having proved that they are the heirs of Ferriby Smith, the title to one undivided half of the land and slaves purchased during the community, vested in them at her death. Slaughter only acquired by the marshal’s sale the right, title and interest of Deahl in the property, which was one undivided half of that portion of it which belonged to the community; the plaintiffs continued to be the owners of the other half, subject to the payment of one half of the community debts.
The purchase by Amonett Sy White of the note of $10,000, and of the mortgage by which it was secured, after these proceedings had been commenced, was the purchase of a law suit. Those claims were involved in this litigation; the extent of the liability of Slaughter under his assumption to pay the mortgage, depended upon the event of this suit; if the plaintiffs succeeded, his succession was only bound for one half of it, and the rights of the holders of the note and mortgage were, in relation to that succession, litigious rights. William Amonett, exercising his profession in the court under the jurisdiction of which those rights fell, could not purchase them, and acquired no title to them. Civil Code, art. 2422. The purchase took place before his appointment as dative executor; but he was executor when the judgment was rendered, and the facts that there was no defendant in the suit, and that he confessed a judgment in his own favor, when he had a valid defence to make for half of the claim, are conclusive against him. White, who joined with him in the perpetration of this fraud, is in no better situation. The probate sale to Thomas W'• Amonett is an absolute nullity, and the succession of Ferriby Smith is entitled to recover, as damages, from Amonett Sy White, one half of the rents and profits due since the adjudication, at the rate of $800 a year.
The claim of Fisk
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The judgment of the court was pronounced by
Rost, J.
This case is a striking instance of the extent to which bad faith and ignorance can mystify truth, and involve in confusion and doubt the plainest questions of common right.
[260]*260George Deahl and Ferriby Smith were married, in April, 1834. In October of the same year, Deahl purchased from James Graham a plantation and slaves, for the sum of $30,000, which the act of sale states was paid at the time of the sale. It is shown, however, that James Graham received in lieu of money three promissory notes of $10,000 each, drawn to the order of Charles S. Lee, and endorsed by him and other persons. Deahl, to secure the endorsers, executed in their favor a mortgage on the plantation and slaves, which was duly recorded. The wife of Deahldied in 1836, before any part of the purchase money had been paid. No inventory was made, and her succession never was administered upon. Deahl remained in possession of the whole property as before, received the proceeds of the crops, and paid the two first notes given to James Graham. In June, 1841, the whole property which he possessed was seized and sold by the marshal, under execution, and adjudicated to R. Slaughter, who assumed to pay the encumbrances existing upon it at the time, in part payment of his bid.
Those encumbrances appear to have been: first, a sum of $11,636 68 cents, a balance due on account of the purchase, and covered by the mortgage given to the endorsers of the notes; second, the sum of $6,000, being the amount of a special mortgage in favor of Burke, Watt S,- Co., consented to by Deahl in the year 1840.
Slaughter died, in October, 1841, leaving the original defendant, Covington, his testamentary executor. The plaintiffs have instituted this action against him, alleging that they are the heirs at law of Ferriby Smith; that they have accepted her succession under benefit of inventory ; and that they are entitled to recover one undivided half of the property, existing at the time of her death in community with her husband George Deahl, and now forming part of the succession of Slaughter, the said property consisting of four tracts of land and twenty-seven slaves. The executor, Covington, having been removed from office, William Amonett was appointed dative testamentary executor, and the suit was continued against him.
The defendant generally denies the allegations of the petition, avers title under the marshal’s sale; the existence of the mortgage for $30,000 on the property; and also that the community owes George Deahl over $31,000, one half of which the plaintiffs are bound to reimburse. He finally alleges that, in case of eviction, he is entitled to recover the value of his improvements, which he assesses at $10,000. There is also a call in warranty against George Deahl and Francis I. Thompson, the creditor at whose suit the property was sold by the marshal.
Alvarez Fisk, having become the assignee of the mortgage debt mentioned as belonging to Burke, Watt 8f Co., sued the dative executor of Slaughter in the Court of Probates, and obtained a judgment under which all the slaves in his possession as executor, but two, were adjudicated to him, the said Fisk, who removed them to the State of Mississippi. He subsequently intervened in this s«it for the preservation of his rights.
William Amonett and one Benjamin Ft White purchased the unpaid note of $10,000, given by Deahl to Graham, and obtained from Miller, the first endorser on that note, a transfer of the mortgage given to secure tlio endorsement, and still affecting the property in the possession of Slaughter. Amonett and White obtained in the Court of Probates, a judgment against Amonett, as dative executor of Slaughter, on this note, with privilege and preference on the pro[261]*261perty in his hands. Under this judgment the land was sold at probale sale, in 1844, and adjudicated to Thomas W. Amonett, for little more than one fourth of its apprised value in the inventory of Slaughter. This purchaser intervened for the preservation of his rights.
We have only gone into the labyrinth of interventions, amend od petitions and answers, bills of exception, motions and agreements, which fill the record, so far as it was necessary to the view we have taken of the rights of the parties. The unnecessary confusion created by all this chicanery, is unprecedented. It became so intolerable in the court below that the judge, unable, as he supposed, to arrest the evil in any other manner, at last cried out in despair, to the incessant applicants for intervention : “ You cannot come in, the case is fulland, not recovering to the last his acknowledged powers of discrimination, gave judgment in favor of the defendant, and dismissed all the intervenors with costs.
The plaintiffs appealed, and the intervenors have asked that the judgment be amended in their favor. A motion to dismiss has been made on the ground that the appeal bond was made in favor of a person other than the defendant; the bond is in favor of the defendant and of the intervenors. The insertion of the name of Covington, for that of Slaughter, was a clerical error, which would not discharge the surety. The motion must be overruled.
The judgment appealed from is clearly wrong. The plaintiffs having proved that they are the heirs of Ferriby Smith, the title to one undivided half of the land and slaves purchased during the community, vested in them at her death. Slaughter only acquired by the marshal’s sale the right, title and interest of Deahl in the property, which was one undivided half of that portion of it which belonged to the community; the plaintiffs continued to be the owners of the other half, subject to the payment of one half of the community debts.
The purchase by Amonett Sy White of the note of $10,000, and of the mortgage by which it was secured, after these proceedings had been commenced, was the purchase of a law suit. Those claims were involved in this litigation; the extent of the liability of Slaughter under his assumption to pay the mortgage, depended upon the event of this suit; if the plaintiffs succeeded, his succession was only bound for one half of it, and the rights of the holders of the note and mortgage were, in relation to that succession, litigious rights. William Amonett, exercising his profession in the court under the jurisdiction of which those rights fell, could not purchase them, and acquired no title to them. Civil Code, art. 2422. The purchase took place before his appointment as dative executor; but he was executor when the judgment was rendered, and the facts that there was no defendant in the suit, and that he confessed a judgment in his own favor, when he had a valid defence to make for half of the claim, are conclusive against him. White, who joined with him in the perpetration of this fraud, is in no better situation. The probate sale to Thomas W'• Amonett is an absolute nullity, and the succession of Ferriby Smith is entitled to recover, as damages, from Amonett Sy White, one half of the rents and profits due since the adjudication, at the rate of $800 a year.
The claim of Fisk cannot be viewed as a community debt. Glcndy Burke, a partner of the firm of Burke, Watt & Co., testifies that, in 1840 and 1841, after the date of the notes held by Fisk, his firm received from Deahl crops of cotton more than sufficient to pay them; and the circumstance that, instead of applying their proceeds to the payment of the debt, they saw fit to pay them over to Deahl, and to give him personally credit for the notes, clearly amounts to [262]*262a novation, by which the community would have been discharged, if if: was over liable, a fact not made certain.
It is proved that only fifteen of the slaves purchased by Fisk belong to the community. These he must return, in order that a partition may be effected between him and the plaintiffs. He must moreover account to the succession of Ferriby Smith, at the rate of $350 a year-, since the date of his purchase, for one half of the assessed value of the hire of said slaves.
The four lots of land sold by Graham to Deahl, in 1834, are described in the act of saleas being nos. 53, 54, 55, and 56, in township no. 15, of range no. 13 east. It appears that there was no lot bearing no. 56 on the plat of survey of that township, and that the lot intended to be conveyed was no. 52. After the death of Ferriby Smith, Graham,, by a notarial act passed between him and Deahl, recognized the error, and conveyed to the latter no. 52, in execution of the previous contract, and for the consideration therein stated. This act intended to give effect to the original sale by correcting an error in the description of the property sold, did not take lot no. 52 out of the community. The circumstance that Graham acquired a perfect title to that lot, after 1834, cannot affect theunghts of the succession of Ferriby Smith; the title when acquired, inured to its benefit.
Slaughter appears to have purchased the property in good faith, and is entitled to be paid for the useful improvements made by him. We will allow, as an ample compensation for those improvements, the crops of 1842 and 1843, received by his executor after the institution of this suit.
The succession of Ferriby Smith, is entitled to one undivided half of lots nos. 52, 53, 54 and 55, and of the two slaves, Doctor Gilbert and Hannah, in the possession of the succession of Slaughter. It is also entitled to one undivided half of fifteen of the slaves in the possession of Fisk, and to the damages due by Fisk, Amonett and White; but, as it is proved that the community which existed between Deahl and his wife is largely indebted, those assets must be sold to pay those debts; and, as the joint owners of the land and slaves have not asked a division in kind, the decree of the court will-be that the property be sold to effect the partition.
The plaintiffs allege themselves to be beneficiary heirs. On this allegation they are not entitled to the possession of the property, and, before their residuary rights can be ascertained, the succession of Ferriby Smith must be regularly administered.
For the reasons assigned it is ordered, that the judgment be reversed; that the succession of Ferriby Smith recover from William Amonett and Benjamin F. White, insólido, the sum of four hundred dollars a year, from the 3d of July, 1844, until paid, and from Alvarez Fisk, the sum of $350 ayear, from the 5th of August 1843, until paid. It is further ordered that William Amonett, dative testamentary executor of Robert Slaughter, surrender in execution to the sheriff, lots nos. 52, 53, 54 and 55, in township no. 15, of range no. 13 east, in the land district north of Red River, and that a writ of distringas issue if necessary against the executor personally to enforce this decree. It is further ordered that Alvarez Fisk surrender in execution to the sheriff, the fifteen slaves whose names follow: Peter, Albert, Julia, Catherine, Lucinda, Lucy, Abram, Fanny, Leach, Sally, Peter, an infant, Bob, little Maria and her child; and that a writ of distringas issue if necessary to enforce this decree. It is further ordered, that the sheriff proceed to advertise and sell the property surrendered, in the manner [263]*263pointed out by law in casos of partition; that one half of the nettproceeds of the sale be paid over to the succession of Ferriby Smith; that one half of the nett proceeds of the property surrendered by the succession of Slaughter, be paid over to his executor ; and that one half of the nett proceeds of the slaves surrendered by Fisk, after deducting therefrom whatever he may owe the succession of Ferriby Smith under this decree, be paid over to him. It is further ordered, that the improvements made by Robert Slaughter on the land, be cornpensated with the crops of 1842 and 1843, received by his executor. It is further ordered, that the rights of the succession of Slaughter, against the succession of George Deahl, and also against Francis 1. Thompson, by reason of their warranty, be reserved. It is further ordered that, in order to carry this decree into effect, this case be remanded, withdirection to the District Court to appoint an administrator to the succession of Ferriby Smith according to law. It is further ordered, that the administrator thus appointed represent the succession in the execution of this decree ; and that, after payment in due course of administration of one half of the debts of the community, which existed be. tween George Deahl and Farriby Smith, he be made to account to the plaintiffs, in equal shares, for any balance in his hands.
It is further ordered, that the interventions of Thomas W. Amonett, and of Rogers, be dismissed at their costs; and that one half of the costs in both courts be paid, in solido, by William Amonett and Benjamin F. While, the other half to be paid in equal sharos by Alvarez Fisk, the succession of Slaughter, and the successions of Ferriby Smith. It is finally ordered, that the rights of the succession of Ferriby Smith to the slaves, Doctor Gilbert, and Hannah, be reserved.