The judgment of the .court was pronounced by
SijDitL, J.
There is a motion by the .curator .of the succession to dismiss ¡the appeal in this case, on two grounds:
I. That the appeal w.as not made returnable to the place required by law. The judgment w.as rendered by the Probate Court of the parish of Madison, and the appeal was granted .on the 22d November, 1845, returnable to Alexandria. Alexandria was, at the time, the proper place to which to make the appeal returnable. By the 149th article of the constitution, appeals from the parish.of Madison were .directed to be returnable to New Orleans. This constitution was .adopted in convention, on the 14th May, 1845. But article 150 required that its adoption or rejection should be submitted to the vote of the people, on the first monday of the ensuing November; that the returns of votes should be examined by the governor and certain other officers, on the first monday of December ensuing; that, if there should be found a majority for its adoption, it should be the duty of the governor to make proclamation of that fact, “and thenceforth this constitution shall bo ordained and established as the constitution of the State of Louisiana.” This proclamation was made on tuesday, the second day of December, 1845. The constitution not having gone info effect at the date of the order of appeal, the objection is not well taken.
II. That the creditors whose claims have been opposed by the appellants, are aot made parties to this appeal, 'iliese ere liters never appeared in the court [470]*470below, never made any application to the curator to be acknowledged as creditors, and were absentees. The curator voluntarily placed the.n on the tableau for the protection of his own interests, as Montgomery’s surety, as will be more fully noticed hereafter. The curator is the real .appellee, and he is before us. The motion to dismiss is therefore rejected.
The opponets claimed to be creditors of the succession, and that they are so is not disputed in argument by the appellee. The whole of the proceeds of the property of the succession, .after deduction of certain expenses of administration, were awarded by the tableau to Wm. M. Taylor and James W. Gillespie, as mortgage creditors; the former for a claim of $5,000 and interest, and the latter for a claim of $8021 and interest.
The position taken by the curator, William Jenkins, is, that these debts are entitled to a mortgage preference, because they are covered by a deed of trust executed by Montgomery, in Mississippi, on certain slaves, of which those sold at the succession sale formed part, to a trustee in trust to secure Jenkins and another, and hold them harmless from all damages, costs and charges, and loss, for and on account of their liability as sureties of Montgomery, on a certain bill single, executed by William Montgomery, the deceased, together with William Jenkins and James Jenkins, in favor of Taylor, for $5,000, and on a certain promissory note made by Montgomery and William Jenkins, in favor of James Gillespie, for $8,021 24; that judgment has been obtained against William Jenkins on both claims; that upon one judgment a levy has been made on his property in Mississippi, and on the other a writ of error is pending. That this deed of trust was duly recorded in the parish of Madison.
We will now procoed to consider, in the order in which they have been presented by counsel, the objections made to the judgments rendered by the court below in favor of Taylor and Gillespie.
There is no proof in the record that Taylor is a creditor of Montgomery. It is shown by a transcript of a suit in Mississippi, that one Dillingham had brought suit on the bill single above mentioned, against Montgomery and William Jenkins, and obtained judgment against them for the balance due upon it. Upon this judgment a writ of error was taken, the result of which does not appeal'.
It is said that there is a variance between the debt to Gillespie, as stated on the tableau, and that shown by the transcript of the suits of Gillespie v. Montgomery and William Jenkins. In one it is stated as $8,021; in the other, the note sued upon is for $8,021 24. This would perhaps be too trifling a variance to be regarded, if it stood alone. J3ut there is a discrepancy in other respects between the note itself and that described in the deed of trust. The note is dated 26th January, 1841, and payable on or before the 26th January, 1842. The note mentioned in the deed of trust is described as dated the 6th February, 1841, and payable at twelve months after date. It would seem from the Mississippi record that the note sued upon had been given for the price of land, while that descz'ibed in the deed of trust is said to have been given for money loaned.
It is said that, even if the bill single and the note are those contemplated ia the deed of trust, yet the holders of those obligations are not the beneficiaries in the deed, nor have they claimed its benefit, but the curator himself has volunteered to place them on the tableau.
It is true the holders of tl'ose obligations have not appeared in the cause, but as we have come to the conclusion that this case must be romauded with in[471]*471structions to filo a new account and tableau, and they may perhaps avail' themselves of the opportunity which will thus be afforded for all creditors to- eome in, we do not think it proper to express now. a definitive opinion with regard to their rights. The opponents have made no objection to the form in which this foreign instrument was executed, and we have no evidence before us to show what right under it would accrue by the laws of Mississippi, to the creditors by reason of the security given by the principal debtor to his sureties.
Whether the holders of obligatious mentioned in the deed of trust be entitled' to its benefit or not, there can be no doubt that William, Jenkins was a beneficiary under it. Its object was to hold him harmless against loss or damage by reason of his suretyship. Under such a contract, we are of opinion that he is not bound to wait till he has actually paid as surety. If he be legally liable as the surety, he is entitled to have the fund conveyed for his indemnity applied to the payment of the principal obligation, so as to effect his release. As the liability however is contested, we think the fund, now in the custody of the probate court, should be, pro tanto, withheld from distribution for a reasonable time, that the writ of error maybe disposed of in Mississippi, where the suit against him is now pending, and it may be ascertained whether he is legally liable, or not, on the bill single for $5,000, mentioned in the deed of trust. See Civil Code, art. 3026.
It is said that the deed of trust cannot have validity as a mortgage in this State, because the ages and nation of the negroes are not mentioned. The deed of trust states only the names and sex of the negroes. The counsel relies on article 3274 of the Civil Code, which declares that if the mortgage be of slaves, “ their names, sex, and, as nearly as may be, their age and nation, must be mentioned in the act of mortgage, that their persons may be more easily identified.” The point now raised, so far as our researches have gone, has never been decided.
Free access — add to your briefcase to read the full text and ask questions with AI
The judgment of the .court was pronounced by
SijDitL, J.
There is a motion by the .curator .of the succession to dismiss ¡the appeal in this case, on two grounds:
I. That the appeal w.as not made returnable to the place required by law. The judgment w.as rendered by the Probate Court of the parish of Madison, and the appeal was granted .on the 22d November, 1845, returnable to Alexandria. Alexandria was, at the time, the proper place to which to make the appeal returnable. By the 149th article of the constitution, appeals from the parish.of Madison were .directed to be returnable to New Orleans. This constitution was .adopted in convention, on the 14th May, 1845. But article 150 required that its adoption or rejection should be submitted to the vote of the people, on the first monday of the ensuing November; that the returns of votes should be examined by the governor and certain other officers, on the first monday of December ensuing; that, if there should be found a majority for its adoption, it should be the duty of the governor to make proclamation of that fact, “and thenceforth this constitution shall bo ordained and established as the constitution of the State of Louisiana.” This proclamation was made on tuesday, the second day of December, 1845. The constitution not having gone info effect at the date of the order of appeal, the objection is not well taken.
II. That the creditors whose claims have been opposed by the appellants, are aot made parties to this appeal, 'iliese ere liters never appeared in the court [470]*470below, never made any application to the curator to be acknowledged as creditors, and were absentees. The curator voluntarily placed the.n on the tableau for the protection of his own interests, as Montgomery’s surety, as will be more fully noticed hereafter. The curator is the real .appellee, and he is before us. The motion to dismiss is therefore rejected.
The opponets claimed to be creditors of the succession, and that they are so is not disputed in argument by the appellee. The whole of the proceeds of the property of the succession, .after deduction of certain expenses of administration, were awarded by the tableau to Wm. M. Taylor and James W. Gillespie, as mortgage creditors; the former for a claim of $5,000 and interest, and the latter for a claim of $8021 and interest.
The position taken by the curator, William Jenkins, is, that these debts are entitled to a mortgage preference, because they are covered by a deed of trust executed by Montgomery, in Mississippi, on certain slaves, of which those sold at the succession sale formed part, to a trustee in trust to secure Jenkins and another, and hold them harmless from all damages, costs and charges, and loss, for and on account of their liability as sureties of Montgomery, on a certain bill single, executed by William Montgomery, the deceased, together with William Jenkins and James Jenkins, in favor of Taylor, for $5,000, and on a certain promissory note made by Montgomery and William Jenkins, in favor of James Gillespie, for $8,021 24; that judgment has been obtained against William Jenkins on both claims; that upon one judgment a levy has been made on his property in Mississippi, and on the other a writ of error is pending. That this deed of trust was duly recorded in the parish of Madison.
We will now procoed to consider, in the order in which they have been presented by counsel, the objections made to the judgments rendered by the court below in favor of Taylor and Gillespie.
There is no proof in the record that Taylor is a creditor of Montgomery. It is shown by a transcript of a suit in Mississippi, that one Dillingham had brought suit on the bill single above mentioned, against Montgomery and William Jenkins, and obtained judgment against them for the balance due upon it. Upon this judgment a writ of error was taken, the result of which does not appeal'.
It is said that there is a variance between the debt to Gillespie, as stated on the tableau, and that shown by the transcript of the suits of Gillespie v. Montgomery and William Jenkins. In one it is stated as $8,021; in the other, the note sued upon is for $8,021 24. This would perhaps be too trifling a variance to be regarded, if it stood alone. J3ut there is a discrepancy in other respects between the note itself and that described in the deed of trust. The note is dated 26th January, 1841, and payable on or before the 26th January, 1842. The note mentioned in the deed of trust is described as dated the 6th February, 1841, and payable at twelve months after date. It would seem from the Mississippi record that the note sued upon had been given for the price of land, while that descz'ibed in the deed of trust is said to have been given for money loaned.
It is said that, even if the bill single and the note are those contemplated ia the deed of trust, yet the holders of those obligations are not the beneficiaries in the deed, nor have they claimed its benefit, but the curator himself has volunteered to place them on the tableau.
It is true the holders of tl'ose obligations have not appeared in the cause, but as we have come to the conclusion that this case must be romauded with in[471]*471structions to filo a new account and tableau, and they may perhaps avail' themselves of the opportunity which will thus be afforded for all creditors to- eome in, we do not think it proper to express now. a definitive opinion with regard to their rights. The opponents have made no objection to the form in which this foreign instrument was executed, and we have no evidence before us to show what right under it would accrue by the laws of Mississippi, to the creditors by reason of the security given by the principal debtor to his sureties.
Whether the holders of obligatious mentioned in the deed of trust be entitled' to its benefit or not, there can be no doubt that William, Jenkins was a beneficiary under it. Its object was to hold him harmless against loss or damage by reason of his suretyship. Under such a contract, we are of opinion that he is not bound to wait till he has actually paid as surety. If he be legally liable as the surety, he is entitled to have the fund conveyed for his indemnity applied to the payment of the principal obligation, so as to effect his release. As the liability however is contested, we think the fund, now in the custody of the probate court, should be, pro tanto, withheld from distribution for a reasonable time, that the writ of error maybe disposed of in Mississippi, where the suit against him is now pending, and it may be ascertained whether he is legally liable, or not, on the bill single for $5,000, mentioned in the deed of trust. See Civil Code, art. 3026.
It is said that the deed of trust cannot have validity as a mortgage in this State, because the ages and nation of the negroes are not mentioned. The deed of trust states only the names and sex of the negroes. The counsel relies on article 3274 of the Civil Code, which declares that if the mortgage be of slaves, “ their names, sex, and, as nearly as may be, their age and nation, must be mentioned in the act of mortgage, that their persons may be more easily identified.” The point now raised, so far as our researches have gone, has never been decided. After a careful consideration, we are of opinion that the omission to state the ages and country of slaves mortgaged does not affect the mortgage with nullity. A difference of phraseology will be remarked between this article and that which precedes it, prescribing what is necessary in the description of “immovables,” by which is there meant landed property. We know that in the practice of notaries and parish judges, it has been very common to omit the full and complete description in sales and mortgages of slaves, which the appellants say is required on pain of nullity, This long practice and contemporaneous professional interpretation being not manifestly erroneous, is entitled to great weight. Immense amounts of slave property have been sold and mortgaged under descriptions of the same character as that now in question, and we should do great injustice, were we, in the interpretation of an ambiguous clause, to reject the popular acceptation.
The identity, however, is a lawful subject of enquiry. The appellants have a right to show that the negroes of like names, possessed, inventoried, and sold as the property of the succession, are not the same as those conveyed by the deed of trust.' The identity of name and the possession establish a case infavor of the mortgagee, which it is incumbent on the opposing creditor to disprove.
It is contended that the register of mortgages had no right to register the deed of trust which was not an authentic act, unless he was acquainted with the signature of tho parties, and agreed on his own responsibility to make the inscription on presentation of the original act, in which case it is said that the re[472]*472gister should certify such knowledge upon his record. The original deed was presented to the recording officer, and, as we said in the case of Ells v. Sims, ante p, 251, we do not consider it necessary that the register- should- certify on his record that he knew the signatures.
This transcript comes before us in a very imperfect form. None of the proceedings anterior to the filing of the tableau are transcribed,- nor are they noticed in the statement of facts.- We have not the inventory nor the procis-verbal of the probate sale, nor are we informed when the succession was opened. The opponents charged expressly that the tableau was filed prematurely; there is no evidence to contradict the charge, but, on the contrary, indications of an attempt to close the estate precipitately. We are unwilling to conclude creditors upon a showing so loose. We think a new account a-nd tableau- should be filed, so that all the creditors may have a fair opportunity to come in and be heard.
It is therefore ordered that the judgment of the court below be reversed ; that this cause be remanded with instructions to the court below to require a new account and tableau, to be filed by the curator, and for further proceeding» according to law; the appellee paying the costs of this appeal.-