Warren v. Childress

Supreme Court of Louisiana

Warren v. Childress

23 La. Ann. 184

CourtSupreme Court of Louisiana

DecidedMarch 15, 1871

DocketNo. 3168

StatusPublished

This text of 23 La. Ann. 184 (Warren v. Childress) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warren v. Childress, 23 La. Ann. 184 (La. 1871).

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Opinion

Howell, J.

The only question for decision in this case is whether an interruption of prescription is proven. Plaintiffs offered the follow-lowing document to show the interruption:

“Big Bend, Louisiana, October 11, 1866.

Hessrs. Warren & Crawford, How Orleans:

Gentlemen — I hereby obligate and bind myself to furnish you the first mortgage note, when my place is sold, for the sum of five thousand dollars, being for the payment of the indebtedness of my late husband, W. B. Marshall, to your house. If the property is sold on time, the notes will draw eight per cent, interest from the date of sale or the execution of the notes. ANN E. MARSHALL.”

On this document was a memorandum at tiie time it was signed, showing the said indebtedness to consist of three notes, corresponding-with those in suit, and an account, the amount of each being specified. To its introduction the defendant objected on the grounds that it was at variance with the obligations in plaintiffs’ petition; that it was offered and accepted by the parties to it as a compromise; that it was a personal obligation binding on Mrs. Marshall only and in nowise affecting the succession of her husband, and can not be used to bind the succession or interrupt prescription running in its favor. The judge overruled the objections for the reason that Mrs. Marshall was i»t the time administering the succession as tutrix, and the document was admitted to prove that plaintiffs had presented their claim and [185]*185obtained its acknowledgment before prescription accrued. We think the ruling correct. The document contained a direct acknowledgment of the debt of the succession, and was not offered to fix any personal liability upon the defendant. In the case of the succession of Yarborough it was held not to be essential that such acknowledgment should be upon the evidence of the claim or a paper annexed to it, provided it be.in writing.

The judge sustained the plea as to the open account and overruled it as to the notes, and gave judgment for the latter. In this there is no error.

Judgment affirmed.

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Howell, J.

The only question for decision in this case is whether an interruption of prescription is proven. Plaintiffs offered the follow-lowing document to show the interruption:

“Big Bend, Louisiana, October 11, 1866.

Hessrs. Warren & Crawford, How Orleans:

Gentlemen — I hereby obligate and bind myself to furnish you the first mortgage note, when my place is sold, for the sum of five thousand dollars, being for the payment of the indebtedness of my late husband, W. B. Marshall, to your house. If the property is sold on time, the notes will draw eight per cent, interest from the date of sale or the execution of the notes. ANN E. MARSHALL.”

On this document was a memorandum at tiie time it was signed, showing the said indebtedness to consist of three notes, corresponding-with those in suit, and an account, the amount of each being specified. To its introduction the defendant objected on the grounds that it was at variance with the obligations in plaintiffs’ petition; that it was offered and accepted by the parties to it as a compromise; that it was a personal obligation binding on Mrs. Marshall only and in nowise affecting the succession of her husband, and can not be used to bind the succession or interrupt prescription running in its favor. The judge overruled the objections for the reason that Mrs. Marshall was i»t the time administering the succession as tutrix, and the document was admitted to prove that plaintiffs had presented their claim and [185]*185obtained its acknowledgment before prescription accrued. We think the ruling correct. The document contained a direct acknowledgment of the debt of the succession, and was not offered to fix any personal liability upon the defendant. In the case of the succession of Yarborough it was held not to be essential that such acknowledgment should be upon the evidence of the claim or a paper annexed to it, provided it be.in writing.

The judge sustained the plea as to the open account and overruled it as to the notes, and gave judgment for the latter. In this there is no error.

Judgment affirmed.

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Bluebook (online)

23 La. Ann. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-childress-la-1871.