Stokes v. Forman

12 La. Ann. 671

• Court: Supreme Court of Louisiana
• Decided: August 15, 1856
• Status: Published

Opinion

Buciianan, J.

The plaintiff purchased a slave at the succession sale of* Eeville .Forman's effects, and gave his notes for the price, secured by special mortgage upon the slave. At maturity the notes being unpaid, suit was brought via exeeutiva and the slave was seized. Plaintiff now enjoins the sale on the' grounds, 1st, That he is entitled to plead in compensation, the share of huswife (who had been the widow of Eeville Forman,) in the community of ac-quests and gains formerly existing between her and said Forman.

2d. That there was no proof of the notes having been demanded of him, at the place where they were made payable.

I. In the case of Fhibodeaux’s succession, 10 Ann. p. 653, it was held that the-administrator of a succession could not compensate the unpaid price of a purchase of succession property, against the share coming to the wife of the’ purchaser as an heir of the succession. The converse of the proposition is here presented, and must receive the same solution. It is evident that to effect compensation the quality of debtor and creditor must be united in the same person, which is not the case before us. Again, the two debts must be equally liquidated and demandable, which is not shown in the present instance.

As to the necessity of proving presentation at the place where the note is payable, as a prerequisite to recovery against the maker, this cannot be considered an open question since the case of Ripka v. Pope, 5 A. 61, in also 5 Ann. 188, Ibid, 720, 3 Ann. 90, Ibid, 131.

The appellee has asked for damages for a frivolous appeal, and we think him-entitled to them.

It is therefore adjudged and decreed, that the judgment of the District court be affirmed, with eighty dollars damages for this frivolous appeal, and- costs in-both courts.-