Succession of Dufour

7 La. Ann. 648

• Court: Supreme Court of Louisiana
• Decided: December 15, 1852
• Status: Published

Opinion

By the court :

Rost, J.

This is an appeal from a judgment dismissing the opposition of M. Barnett to the provisional tableau, filed by the curator of the succession of Dufour.

The claim upon which the opposition rests, bears date the 24th February, 1841, and the opposition was filed on the 27th May, 1852.

Why the prescription of ten years was not pleaded in bar of the action, is a mystery to us, although we are of opinion with the district judge, that this plea is not indispensable to the success of the defence. It is true that judges are not authorized to supply the plea of prescription; but, after the time required to sustain that plea has intervened, slight evidence of payment, or of the remission of the debt, as the case may be, is sufficient to satisfy the mind. The evidence in the record and the long silence of the opponent, raise a violent presumption, that the claim of the opponent for commissions was remitted when the sale was rescinded, and he settled with Dufour for the actual costs incurred in making it. The district judge acted upon that presumption, and we are unable to say that he erred. Davenport v. Labauve, 5 Ann. 141.

Judgment affirmed, with costs.