Fletcher v. Cavalier

The facts are stated in the opinion of the court, delivered by Martin, J. The plaintiffs state themselves to be the only legitimate children of James Fletcher, deceased, and, as such, his legal and forced heirs for four-fifths of his estate, and his testamentary heirs of three-fourths thereof; but declare that out of respect for his memory and regard for their mother, the undisputed heir for the other fourth, they have reduced their pretensions to their claims in the latter capacity, and demand from the defendants the restitution (with the fruits and profits) of three-fourths of two tracts of land, which they describe in the petition, now in the possession of the latter. The defendants severed in their answer; but all pleaded the general issue and prescription. The executors of Cavelier, senior, claimed title under Clarke; the vendee of the petitioners’ mother, averred Clarke’s, their testator’s and their own good faith, claimed the value of their improvements, and called the heirs of their vendor in warranty. Cavelier, junior, and Davenport, claimed title under Boisfontaine, the vendee of Clarke, the vendee of the plaintiffs’ [269] mother, and averring Clarke’s, Boisfontaine’s, and their own good faith, claimed their improvements, and cited Boisfontaine in warranty. Under the Natural fathers "° sue, may dis-any6 pfartU of their estate in fayor of their natural chil- The sale of minors’ pro-by pri. yate contract is absolutely void. Nelson’s heirs denied their possession of any land of the plaintiffs, bnt averred their ancestor’s title under a certificate of the land commissioners of the United States; they averred his and their good faith, and ignorance of the plaintiffs’ claim. Boisfontaine made title under a notarial act of sale from Clarke, and pleaded prescription. The curator of the heirs of Mary Clarke, the heir of D. Clarke, made title in the latter by a notarial act of sale from the plaintiffs’ mother and tutrix. He denied the plaintiffs’ right to sue ; averred a sale from the plaintiffs’ father to Canez, to whom Clarke was compelled to pay a large sum of money to induce him to relinquish his title. There was a verdict and judgement for the defendants, and the plaintiffs appealed. The appellees, in the inferior court, took great pains to contest the legitimacy of the appellants; but the restriction of their pretensions to a claim under the will, has rendered the examination of this circumstance perfectly useless, as the appellee’s counsel has admitted that the will is clothed with all the formalities required by the laws of the country at the period at which it was made, and that it was duly opened and proved before the competent tribunal. Admitting the marriage of the appellants’ parents was absolutely void, still they had capacity to take under the will, as their father had no other issue, and the 'Recopilación of Castille, 5,8, 8, allows natural fathers who have no legitimate issue, to dispose freely of all or any part of their estates, in favor of their natural ftiildron cunaren. As all the appellees (except Nelson’s heirs) claim mediately under the appellants’ father, through a sale from his widow and their mother, it is unnecessary, as far as the former are concerned, to inquire into the validity of his title. That „f mat these appellees rests on the sale of this woman to Clarke, .... , , , , .. . which has appeared to us absolutely void, as far as it [270] regards the appellants; it being the sale of their property, by tutrix, on a private contract or bargain, although ordered by a decree of the Superior Court of the territory, who, though authorized to order such a sale, could not, even if it had done it formally and expressly, dispense with its being made with all the formalities required by law for such sales. Partida, 6, 16, 18. Id. 5, 5, 4. Febrero, 3, 3, § 1. n. 68, a. 80. Francoise vs. Delaronde, 8 Martin, 625. Chefneau’s heirs vs. Saddler, 10 Martin, 726. Leonard’s tutor vs. Mandeville, 9 Martin, 489. Joyoso vs. Gauia, 1 Martin, N. S. 336. An alteration registry by era-“natural”Wand writing over it gitimate,” has preventing the registry from being used to establish the periodof birth, although the noraccounted bTóthCTwTse'if the document to establish the the'parties. °f These appellees cannot avail themselves of the plea of prescription, since the eldest of the appellants was born in March, 1797, and did not come of age till 1818: and they are residents of Y era Cruz. A suit for the land was brought in 1824, discontinued, and the present brought in June, 1827. The appellees, it is true, took several bills of exceptions to the evidence introduced by the appellants to establish the period of their respective births, i. e. copies of the baptismal registry. The objection was, that it was evident from these copies, that the registry had been mutilated or altered. The appellants had been baptized as natural children; the. word “natural” appears to have been erased, and the word “legitimate” written over it, and a note in the margin states this alteration to have been made in pursuance of a decree of the vicar general. The decree was not produced, and the authority of the vicar general to make it was denied, "We think the objection was properly overruled by the district judge. The registry was not mutilated, but altered, iu a Part which would have been important, had the document been offered to establish the legitimacy of the parties. ° J r Had this been the case, it might have been proper to inquire , 1 u into the manner in which the alteration was made, and the authority of the officer who ordered it; but the alteration has no effec fpreventing the registry from being used to establish the period of the births of the appellants, There was another bill of exceptions to the introduction °f evidence to establish the marriage of the appellants’ parents, [271] These bills we have „ „ The first are oí no and the titles of their father’s vendors, not deemed necessary to examine, moment, as we do not inquire into the legitimacy, and the latter are of no weight in this part of the case. It is, therefore, clear, the appellants must recover from these appellees, since the title of the former was never legally divested, nor did the latter acquire any by prescription. This leads us to the inquiry into the title of Nelson’s heirs. From an examination of the plot of surveys they have produced and Fletcher’s deed, it appears that the land they claim is covered by Fletcher’s title. Their ancestor entered on it in 1809, and afterwards purchased a claim from Mons, on which he or his heirs afterwards obtained the certificate of the land commissioners of the United States. As these appellees do not claim mediately or immediately under the appellants’ father, who acquired in 1800, and the possession of Nelson in 1809, interrupted the prescription, the appellants have produced a notarial act of transaction duly homologated, by which Magdalin Cartier acquired the premises in 1797, her will, and the sale of her executor and heirs. These appellees took a bill of exceptions to the opinion of the District Court, who overruled their objections to the introduction of the will in evidence. These objections were that, 1. It was not shown that the notary did complete the will, without turning to other acts, nor is it stated that it was written in the words dictated by the testatrix. 3. She did not sign. 3. It does not appear that it was proyen, nor that letters testamentary issued. We do not think the District Court erred in overruling these objections. If the first objection has any weight, it refers to a mere relative nullity, of which the legal heirs could alone take advantage. The testatrix declared she knew not how to sign, and the will expressly states that the witnesses subscribed it at her request. An objection to a will which refers to a mere relative nullity can alone be taken advantage of by the legal heirs. Where the object is to establish that certain property made part of the estate, an extractfrom the inventory is proper evidence, and the whole need not he produced. Where oyer of a document is prayed, the party may decline to answer until it is produced, or he may amend his answer if the oyer was prayed after it was filed. Ancient titles are proper evidence when not opposedto a grant from the United States. The will is an authentic one, and required no proof. We are ignorant of any law prior to the code of 1808, requiring letters testamentary to issue. The appellees took a bill of exceptions to the introduction of an extract of part of the inventory of Magdalin Cartier, on the grounds that, 1. The whole was not produced. 2. That the document was irrelevant and nothing connected it with the title pleaded. 3. That it was not produced on the demand of oyer. We think the court did not err. The obj ect was to establish that certain property made part of the estate, and nothing required the whole inventory to be produced for this purpose. If the document be irrelevant, some time may have been lost in reading it to the jury. But this is not an evil that we can remedy. If the document was not produced on the prayer for oyer, the party might have declined to answer till it was, or amended his answer if the oyer was prayed after it was filed. The appellees further objected to the introduction in evidence of the deed of sale of Cartier’s executor and heirs, on the ground that it was not recorded in the land office west of Pearl River and east of the island of New-Orleans. We think the court did not err in admitting this deed. Had these appellees obtained a grant from the United States, they might, perhaps, have had their objection examined. 1 Mar. Digest, 330. But the commissioner’s certificate is not of equal dignity with a grant, though it may entitle the holder to one. The objection is based on an act of Congress which only prohibits the offering in evidence ancient titles where they are opposed to a grant from the United States, and the party claiming the benefit of this provision, should bring himself strictly within it. The objection to documents from the land office, as copies of copies, relate to evidence to support the title of those from whom Magdalin Cartier acquired. As we have not examined their titles, we do not notice the bill of exceptions thereon. A private act has no effect against third parties, except from the date of its registry, The posses.faith,is entitled the value of his. improvements. Nelson purchased in 1809, (December) a claim of Mars, who had had the land surveyed in the month of June, preceding; but Mars’s sale being a sous sing privé, must have fos his legal date, -as to third parties, that of its registry (June, 1811). In November, 1819, the commissioners’ certificate was obtained thereon. This title cannot prevail against the appellants, which . * dates from 1793; net tiler can prescription avail these appellees. Of the pleas of the parties called in warranty, but that of the curator of Clarke’s heirs, alleging a conveyance from the appellants’ father to Canez; this is admitted, but the appellants have met it by producing Canez’s retrocession by an authentic act. All the appellees and Cavalier, senior, Boisfontaine, and Nelson, appear to have holden in good faith, and are entitled to the value of their improvements. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed, and that the appellants recover from the appellees three undivided fourths of the land in the latter’s respective possessions; and that the case be remanded, with directions to the District Court to ascertain whether any part of the consideration received by the appellants’ mother went to the payment of any debt of their father, which they were bound to pay, and whether any payment was made by Clarke to Canez, which the appellants aredegally bound to reimburse, in whole or in part, ascertain the value of their respective improvements and their claim against the parties called in warranty, and give judgement accordingly; and it is ordered, that no execution shall issue for the appellants till they shall have paid the value of the improvements, respectively. The costs in both courts to be paid by the appellees.