Stowers v. Succession of Blackburn

Howell, J. This is an appeal from a judgment rendered on default against the succession of D. F. Blackburn, deceased, and Mrs. C. A. Blackburn, in. solido, for ,$10,000 with eight per cent, interest from first' of January, 1860, on the following note: “$10,000. On. the first (1st) day of January ,(1861) eighteen hundred and sixty oné, wc, 6r either of us promise to pay L. E. Stowers, Ten Thousand Dollars, with ten per cent, interest from the first day of January next for, money .loaned. “D. F. BLACKBtJRN, “C. A, BLACKBURN. “December 19, 1850. ' “ On tbe first day of January, 1862,1 promise to pay L. E. Stowers the above sum, Eleven Thousand Dollars, with ten per cent interest. “C. A. BLACKBURN. “ (Endorsed), Lake Providence, La., December 13, 1865. I acknowledge the within note to ho correct. “C. A. BLACKBURN.” ' Service was accepted as follows: ■ “I acknowledge service of the foregoing petition and note sued on and Citation, as' executrix and in my individual capacity, this September 11, 1867. "• “C. A. BLACKBURN.” The prescription of'five years is pleaded in this court and is urged only on behalf of the Succession, on the theory that the acknowledgment made on the thirteenth of December, 1865, was made by Mrs. Blackburn individually, and the suggestion that she has gone into bankruptcy.- ■■ ' Bo'th -parties admit that the- promise, written at the foot of the note, was the individual assumpsit by tbe widow of the note sued on, although for a different sum and payable at a different date, and the question is, whether- or not tiie acknowledgment on the thirteenth of December, 1865, interrupted prescription as to tbe succession, represented by Mrs. Blackburn as executrix. To sustain the affirmative, it must be beld, both that tlie obligation sued on is not a solidary one, and that Mrs. Blackburn did not make said acknowledgment as executrix. ’ First.- — It is- not shown that she ivas bound in solido ás maker Of tbe note and hence her liability for the debt can rest -solely on her SubSe [128] quent promise to pay. But It is contended, and we think successfully, that this promise does not create the solidarity contemplated by the' Code, in determining the effect of an acknowledgment by one of the' co-debtors in solido. Solidarity exists, by the Code, when several persons bind themselves towards another for the same sum, at the same time, and in the same contract. It cannot be presumed. There being no priority nor reciprocity between the promissqrs, nor express stipulation of solidarity in this case, the defendants are pot debtors in solido, and consequently tho acknowledgment of thirteenth of December, 1865, if made by Mrs.- Blackburn individually, did not interrupt prescription as to the succession. C. C. 2072, 2077, 2086-7-8, 2092, 3517; 12 JR. 183; 15 A. 168. It is unnecessary to decide whether or not the executrix could create a solidary obligation against the succession. Second. — The question whether she made the acknowledgment as executrix is one of inference, and upon the pleadings and evidence before us, is one of considerable doubt. As the plaintiff might have adduced evidence on this point or otherwise shown an interruption of prescription, if tho plea had been filed in the lower court, we think the ends of justice will be subserved by remanding the cause as requested by the appellee. We cannot disturb the judgment as to Mrs. Blackburn, as upon the admission of counsel she is in bankruptcy. It is therefore ordered that the judgment of tho District Court against the succession óf D. F. Blackburn, deceased, be reversed, and tho cause as to’said succession be remanded upon the question of prescription; costs of appeal to be paid by appellee. Mr. Justice Wyly recused.