De L'Homme v. De Kerlegand

Portee, J., delivered the opinion of the court. This action commenced by a petition filed in the name of Valcour Del’Homme, in which he styles himself curator of Louis De l’Homme, formerly of the parish of St. Martin. In this quality, the petitioner claims from.the defendant certain lands, slaves and cattle, which it is alleged he took possession of after the departure of Lewis De l’Homme, and which he refuses to give up. He also claims payment of a note of the defendant, executed in favor of the absentee for three thousand dollars; and ■finally, two thousand dollars, the damages alleged to be sustained in consequence of the illegal detention of the property. The answer sets up title to the property claimed in the defendant, by virtue of an act sous seing privé, deposited in the office of the parish judge of St. Martin, for safe keeping. It admits the execution of the note set out in the petition, but alleges it was paid and surrendered by the payee to the defendant, who tore it up; and that afterwards, some person collected such of the pieces as could be found, and pasted them together, for the purpose of laying a foundation for the present suit. It also alleges, that the debt evidenced by the notes, was after the same had been contracted, voluntarily remitted by the payee to the defendant; and, finally, it avers that Louis De l’Homme is now deceased, leaving neither legitimate ascendants nor descendants, nor debts due from his succession; that the plaintiff received his appointment after the decease of the person alleged to be absent, and is consequently without authority to represent him. Upon this answer being filed, the plaintiff presented a supplemental petition, in which he denied the defendant had any such conveyance from Louis De l’Homme, as that relied on [359] by him in his answer; and, further averred, that if any such wére in his possession, it had been obtained by fraud on the part of the defendant. To this allegation the defendant answered, denying the fraud, and averring that as this suit was not brought for the use of the forced heirs of the deceased, nor for the use of his creditors, it was not competent for the plaintiff to question the validity of the act, nor to offer proof of the several frauds by him alleged. The cause being thus at issue, several persons, among whom was the plaintiff in this suit, prayed leave to intervene, and be made parties. In the petition, they style themselves heirs of Louis He rilomme, whom they aver to be dead. They adopt the allegations contained in the petition as theirs, and pray for judgment in their favor on the facts therein alleged. They further state, that if it be true, as by the defendant alleged, that he has a sale from Louis He 1’Homme, the same is null and void, being made to the defendant for the benefit of his mother, as an indirect and disguised donation,-who for a long time previous tó the death of the donor, lived with him in open concubinage and adultery. The defendant objected to the right of these parties to intervene. The grounds of objection stated in the bill of exceptions are, that the interpleaders had no interest in the event of the suit; that their rights could, under no circumstances, be compromitted by it; that the petition of intervention would make an entire change in the issues joined between the original parties. The judge overruled the objections, and permitted the claim in intervention to be filed, upon which, .the defendant took a bill of exceptions. As the defendant is appellee in this court, and has not prayed the judgement below should in this respect be amended, it is unnecessary to decide the question which this bill of exceptions presents. On the trial, the defendant offered in evidence a writing, to which the deceased had affixed his mark in the presence of witnesses. The plaintiffs objected to the introduction of the [360] instrument, on the ground that the property conveyed by it, could only pass by a writing signed by the parties, and that a mark was not a signature in the intention of the law. The court overruled the objection, and permitted witnesses to prove the execution of the act. The plaintiffs excepted to this decision, and the principle of law involved in it, has been well and elaborately discussed; it is one, however, which the rights of the parties now before us, does not require us to pronounce an opinion on. Two inconmands, such as fied^ propertyj ven for6 the price of that not^be^cumulated m the same petition or action; the one excludes the other. case.thedefem dant may refuse to plead, until the plain-which ...one6'of the two demanas he in- . tends to proceed with; but omitting to joining0’ issue* d°eS "h* d°' Fendant of his tó^he^umuiation of two inmands at any stage^ of^the proceedings. it is a general rule, that ob-faction! Suk and are received by a joinder in issue; but when they affect the substance or merits, they cannot be cured by this course of pleading. [360] This suit, as has been already stated, is brought to recover certain property, and at the same time, enforce the payment of a note due by the defendant to the deceased. It appears vei7 clearly in evidence, this note was given in payment of Pr°perty sued for; and it is equally clear, that two such demands cannotbe cumulated in the same petition; they are inconsistent, and by an express provision of our law, the one exclu<jes the other. Code of Prac., Art. 149. The defendant might have refused to plead to the merits, . until the plaintiffs made choice as to which oí the two deman<is they intended to proceed with; he, however, chose to i0jn iSSUe on the allegations in the petition. But on evidence 0 ° being offered by the plaintiffs to prove the illegality and fraud of the sale, he objected to its introduction on several grounds, an(] one 0f which was, that the claim, to show the illegality 7 7 ° J of the sale, was inconsistent with the demand for payment of ,, ,. , t the consideration 01 that sale* ^ that opinion was the court below. In examining its correc^ness’ the first question is, whether the failure of the defendant to object in limine lites to the cumulations of the tw0 actions, deprived him of the right to do so in a subsequent stage of the proceedings. It is a general rule, that ohjections to form are waived by a joinder in issue on the merits; but in this instance, the defect was one which could not be cured by this course of pleading, it being one of substance; the law having said the one action precludes the other, it follows as a consequence, that judgement could not be on both, and therefore one or the other must be [361] abandoned, before judgement could be pronounced. But at whatever stage of the cause the objection is taken by the defendant, we think the plaintiff has a right to select which he will prosecute; in this case, the appellants, had they thought fit, might have chosen to contest the validity of the sale alone, and have brought the case upon the ground of the refusal to permit them to give in evidence to prove their allegations. But instead of doing this, they proceeded to put their case to the jury on the right to receive the amount of the note. Having done so, they cannot now-have the cause sent back to be tried on a demand, which is contrary to, and precludes that on which judgement was rendered. Adams vs. Lewis, 7 Mar. N. S. 400. But at whatever stage of the proceeding the objection is taken, the plaintiff has a right to select which demand he will pursue. This opinion renders it unnecessary to examine the validity of the instrument of writing under which the defendant claims the property, or to decide on the several bills of exceptions taken to the opinion of the court in regard to testimony offered, to shew the sale was fraudulent and without condition. The demand and judgement on the note covers, and cures all these defects. The jury found that the note was given to the payee in consideration of the sale, and that it was surrendered by him to the defendant, without any part of it being paid, except the sum of one hundred and twenty-five dollars; and that twenty cents damages be accorded to the plain tills. The court gave judgment in pursuance to this verdict. On looking into the record, we perceive the evidence fully justifies the conclusion to which the jury came in relation to the note. It was surrendered to the defendant, and this act on the part of the payee, extinguished the obligation. If the intention of the deceased was to make a donation to the defendant, the plaintiffs who are neither forced heirs nor creditors, have no right to complain of it. La. Code, 2126, 2195, 1480-3. But we cannot divine on what ground the jury gave damages in favor of the plaintiffs, and at the same time found a verdict, by which the defendant was entitled to [362] judgement on the merits. One or the other must be wrong, as we think the first was, the judgement must, in this respect, be corrected as the appellee has prayed. R is? therefore, ordered, adjudged, and decreed, that the verdict and judgement rendered in this case, be avoided, annulled, and reversed; and it is further-ordered, adjudged, and decreed, that there be judgement for the defendant, with costs in both courts.