Bordelon v. Coco

Taliaferro, J. The defendant Coco, at a probate sale of succession property of the estate of Jean P. Bordelon, in February, 1863, became the purchaser of a lot of hogs at the price of five hundred dollars, and in conformity with the terms of sale executed with the other defendants two promissory notes each for one-half the price, and payable respectively in one and two years from the day of sale, with interest at eight per cent, per annum from maturity of each note. In 1866 the plaintiff, as administrator, brought suit to enforce payment of these notes, and the defendant set up in his answer that the stock purchased was not worth more than one hundred dollars in gold,- that Confederate money was the only currency used in this country, and that it was expected by all parties that these notes were to be paid in Confederate money, which was then worth only twenty cents on the dollar. 'The judge of the lower court gave judgment for $125 in gold, or its .equivalent in current funds, with interest, etc. From this judgment the plaintiff has appealed. There is error in the judgment, in this, that it recognizes the right of the parties to deal in and, consequently, give credit to an unlawful paper currency. It assumes that they contracted with especial reference to the discharge of the debt by the payment of this illicit paper issue, and thence proceeds to ascertain the value in gold, at the time of the contract, of five hundred dollars of that currency and finds the correlative value to be $125. This is not in express terms rendering — 672 — judgment for tlie payment of live liundred dollars in Confederate paper money, but it is in substance the same thing. If the parties contracted, the one to pay and the other to receive the debt in question in that issue, as the judge a quo by his judgment determines they did, the contract was null ab initio and the suit slioul 1 have been dismissed. This should have been done if such were found to bo the case; if not, judgment should have been rendered for the whole amount. Wo find ■no such array of facts in this record as leaves no reasonable doubt upon the mind that the parties contracted with reference to payment in the so-called Confederate money. There is nothing to warrant the conclusion that the administrator, acting as he did in a fiduciary capacity, agreed with the defendant to receive-payment in that currency. The terms of sale were fixed by the advice of a family -meeting, and they certainly gave no authority to the administrator to 'receive payment for the minors’ property in a worthless and constantly depreciating currency. If, as a witness stated, the administrator did on one occasion receive in payment a small sum under the cash limit, in paper of that character, it was at his own risk, as he was without authority to do so. There was no declaration made at the sale nor any intimation whatever given that the currency in question would be received in payment of the property of the succession. It may bo reasonably supposed that the parties acting in behalf of minor children looked through the vista of two years and saw in the distance the final explosion of the paper currency then in vogue, and in which oven then all conli-.dence was lost. One witness swore that in 1303 there was gold and silver in the country; that cotton was bought with gold, and that he refused to take Confederate money in payjpent of debts contracted before the war. The defendant executed his two promissory notes in conformity with the terms of sale, and bound himself to pay five hundred dollars to the estate in one and two years. If he bound himself under the’ belief that he was to discharge his obligation by the payment of valueless currency he wronged himself. There is nothing we find in the record that justified him in that belief. ' It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled avoided and reversed. It is further ordered that the plaintiff have judgment against the defendants in solido for five hundred dollars with interest on one-half of that sum at eight per cent, per annum from the thirtieth day of March, A. D. 1801, and like rate of interest on the other half from the thirtieth day of March A. D. 1805. The defendants to pay all costs of suit. — 673 — OPELOUSAS, .SEPTEMBER, 18tí9. C73 Francois Arceueaux et al. v. St Clair de Eenoit et al. No. G13. — FiíANCOis ArceneAux-et al.'*. St. Clair de Benoit et aí. The several act3 of the Legislature passed in 1SG4, 1865 and 1806, providing for the return of appeals to the Supreme Court, were enacted in the liberal spirit of reinstating the right oí appeal in all bases in which it ¿ad been lost or suspended by the disorganization of the courts and the utter confusion and derangement oí judicial proceedings consequent upon a state of war. These statutes should be construed liberally. Appeals granted since the first of September, 1800, end filed at the proper places of return, on or before the return day for such appeals, are in time, although the return he made subsequent to the first Monday of March, 1863, to which time the right of appeal had been extended by the act of December, 1865. The act of March 22, 1806, is, in its spirit, an extension of t ;e time beyond the first Monday of March, 18G0. A surrey under the Spanish Government, when Louisiana was a province of that Kingdom, not made in conformity with the forms and requirement of the order, and never approved or confirmed by the Spanish authorities, is merely an inchoate title. The land embraced by such survey passed by the treaty of cession to the United States as part of the public doraaiu, the title to which vestecl in the new sovereign. 'Where a party having such inchoate title, with partial confirmation by the United States Government, and in order to obtain a further concession under His claim, enters into an agreement with contiguous proprietors by which they renounce their right to bacic concessions under the acts of Congress of 1811 and 1826, and he recognizes the full extent of their claims, he is estopped thereby, in an adjustment of boundary, from claiming limits which would conflict with those of the other party, under the pretense that his claim, under the original order of survey, has been fully confirmed by the United States. The action of boundary cannot be prescribed against. Civil Code, article 823. Gary cC Fournet and JDeBlanc é Ferry, for defendants and appellants. Taliaferro, J. In tliis case tliere is a motion to dismiss the appeal on the ground that it was not brought up in accordance with the provisions of the acts of 'the Legislature directing the manner of returning certain appeals; one of which acts was passed in 1864, and the other in December, 1885. By the act of 1864 it was provided that all appeals should bp returned to the Supreme Court at New Orleans. The act of December, 1833, directs that in all cases in which appeals have been granted from judgments of the District Courts of this State, at any time since the first day of September, I860, tbe appellants are granted until the first Monday of March, 1866. The point made by the appellees is that the appeal in this case having been granted on the twenty-ninth of September 1860, and the transcript not having been filed at tbe proper place for returning the appeal, on or previous to the first Monday of March, 1866, the appeal is barred. It is contended that tbo act of December, 1865, was specially enacted, extending the time for bringing up appeals, and the appellants not having availed themselves of'the act cannot now prosecute their appeal. In reply to tliis it is urged that by a subsequent law, the act of the Legislature of March 1866, .the time granted by the former laws wás extended. That act provides that “ all appeals which have been taken since the first of June, 1860, from the District Courts of this State and which are now; pending and which have.not. been finally — 674 — determined on their merits shall he heard and determined by preference, at the places designated by existing laws, provided, the records be filed on or before the next return day after the passage of this act.” We think a i>roper interpretation of these several acts authorizes the conclusion that the purpose of the law maker was, by liberal provisions, to reinstate the right of appeal in all case3 in which it had been lost or suspended by the disorganization of the courts and the utter confusion and derangement of judicial proceeding resulting from war in the country. The construction of tho acts of 1361 and 1365, contended for by the appellees, wo think too stringent and not in unison with the spirit of the legislation on tho subject. We are inclined to regard the act oí 1866 as an extension of the time for bringing up appeals, and we find that the transciipt of appeal in this case was filed within the time allowed by the act. Tho motion to dismiss is therefore overruled. Coming to the merits of the case we find it to be an action of boundary, involving from its character, to some extent, questions of title. The plaintiffs allege that they are the owners of several contiguous tracts of land which they designate by numbers and display their relative position in respect to tho defendants’ lands by maps and diagrams. They represent them as lying in township No. 8, south of range No. 5, east, in the southwest land district of tho State, and hounded on the west by the Bayou Vermilion, extending castwardly from the bayou the depth of forty arpents, where tlieir several tracts are bounded by the contiguous lands of tlie defendants, lying- oast of their hack liuoi. They allege their titles to these lands to he derived from regular confirmations by the United States government of Spanish grants. The answer is a general denial and an averment of ownership of tho lands in question. Tho defendants plead the proscription of ten, twenty and thirty years. They claim under an order of survey granted by Governor Miro to Madame Louise do Favrot on tho seventeenth, of March, 1790. In the year 1772, the Spanish government granted to Joseph Alexander Declouct a tract of land extending by diverging lines across tlie Bayou Teche forty arpents deep in a westwardly direction toward the Bayou Vermilion. In September, 1789, after tlie death of tho Chevalier Declouct, liis widow, Louise de Favrot, petitioned the government for a hack concession to the original grant, claiming an extension of tlie former tract forty arpents to tho Bayou Vermilion. We have already noticed tlie order granted by Governor Miro upon this petition. Tho order was executed by Gonsoulin, who appears to have been a surveyor of that time, on the twenty-fourth of April, 1796. This order of survey, it appears, was never returned or approved by the Spanish authorities. It seems never to have been proceeded with further than the location made by Gonsoulin. The title of the Spanish — 675 — government ivas never divested, and consequently it passed by tbe treaty of cession to tlie United States as part of the public domain. The title under the order of survey was only inchoate and imperfect and subject totlie future action of the new sovereign. 4 An. 99; 7 An. 546; 11 An. 142. In 1811 the United States confirmed a part only of this claim, viz: Sixteen hundred arpents bounded by parallel lines. Of the disposition made of the remainder we shall speak further on. The titles of the several plaintiffs are based on grants by the Spanish Government in 1781, with regular confirmations by the Board of Land Commissioners in 1811. These confirmations are for forty arpents in depth on each side of the Vermilion, the extent of the front lines varying. These several tracts, nine in number, lie contiguous to each other, and by a survey made about the year 1854, and approved by the Surveyor General of Louisiana, are shown to run back eastwardly from the Vermilion forty arpents. By this plot of survey introduced in evidence no confliction of these tracts is shown with ot.her.lands. It is however certain from the evidence, that if the survey of the back concession of Mrs. Favrot be extended forty arpents westwardly from the original grant to Declouet on the Teche, it must inevitably conflict with the surveys running eastwardly forty arpents from the Vermilion. It is this confliction of these claims, if both afe extended their full depth, that forms the gist of this controversy. The defendants undertake to show that this difficulty has long since been settled by the ancestors oi the present litigants. They show a formal notarial act executed on the sixteenth of February, 1802, before Louis Charles DeBlanc, civil and military commandant of the post of Attalcapas, to which Alexander Declouet was a party on the one side, and Louis, Pierre, Alexander and Francois Arceneaux, Francis Car-mouclie, Joseph Breaux and Jeau Guilbeau were parties on the other side. By this act the parties agreed to establish a division line to be marked by indicia ot a permanent character, and obviate-for the future all cause of dissension on the subject of their boundaries. The last named parties acknowledged that on the east side of the Vermilion their claims “would reach and extend on the lands of Declouet.” Along.the division line agreed upon, roads were to be opened through the swamp, and mounds of earth were to be thrown up. At that time no surveys had been made of the several tracts claimed by the Arce-neaux and others, but it seems that the back line of the Declouet claim would have reached to within about fourteen arpents of the Vermilion. The surveyor, who, under an order of court pending this suit in the lower court, made a survey, found no certain traces or remains of this boundary line established by the act aforesaid; but several witnesses testified to the existence of two or three mounds in the vicinity of the supposed location of the line of division. Upon the inventories of the estates of Frangois, Pierre and Toussaint Arceneaux, tracts of land — 676 — are described as having fronts on the east side of the Vermilion, and running fourteen arpents in depth. There is little room to doubt that there was a division line established-between the parties as the notarial act purports, and that it was placed at the distance of about fourteen arpents from the Vermilion. We shall now revert to the final action of the United States Government upon the back concession of Mrs.-Favrot and to the position of the parties at that time. After having' accorded to them after the change of government, by virtue of this incomplete title from the Spanish government, sixteen hundred arpents of land,.the heirs of Mrs. Favrot again made application for a further confirmation under this claim, and upon it a favorable report was made to the Secretary of the Treasury by the Register of the Land Office at Opelousas,, on the first of October, 1825, Register’s Report A, No. 63. The claim was confirmed by act of Congress on the sixteenth of May, 1826.. A plot accompanies1 the report showing the relative position of the back concession to Mrs. Favrot and the lands of the plaintiffs. The direction in which, the back line of the Favrot concession would cross the several tracts of the plaintiffs is shown by dotted lines. Other lines shaded in blue indicate two portions of the area embraced by the lines of the back concession, and which touch, but do not conflict with any of the plaintiffs’ lands. One of these portions contains 715.06 acres, the. other 235.60 acres, making together 974.04 acres. In 1820, the heirs of Mrs. -Favrot procured from the then owners of the several tracts belonging now to plaintiffs a renunciation of their rights to the back concession to their lands, accorded by law of Congress in 1811, and extended in 1820. And this renunciation was shown, in their application reported upon by the Register first of October, 1825, and is recited in the report. -It is in these words : -“We, the undersigned persons whose lauds front on the Bayou Vermilion and extend in depth to the.lands belonging to the legal representatives of the late Madame Louise Favrot, widow of Mr. Alexander Chevale.ur Declou.et, do hereby renounce expressly all right of .preference whatever which we might have under the pre-emption law of 1811, which has been revived by the act of Congress of the eleventh May of the present year; it being well understood by us and the neighbors in general that the lands back of our respective tracts was, or ought to have been embraced, in the concession made by Governor Miro to the said widow, of the. second depth of the laud which has been granted to her husband. For which reason we think it but just that the government of the United States do confirm the said heirs, etc., in their right and title to the said land, and we ask permission to recommend the renewal of the confirmation to them of the title to the vacant land lying south of the land of Mr. Jean Gilleau, and between the back lines of the land of. the said heirs and the left bank of the Bayou Vermilion, as an eguiva677 lent for the interference of our lands with those of the said representatives, as set forth in the plot. Parish of St. Landry, twenty-eighth December, 1820.” [Here follow the signatures of the parties.] The report also recites that the Pavrot heirs “ expressly disclaimed apy intention or wish to disturb their neighbors in their possessions, and therefore have confined their claim to those parts represented in the said plot by the lines shaded-with blue.” ’ The land claimed in the. application for confirmation was represented as containing “about nine hundred and twenty superficial acres, American measure.” This is less than the contents of the two portions of the ar.ea of the front concession before referred to, by 54.04 acres. The plaintiffs.hold that these acts of the defendants conclude them against any further claim under the order of Survey granted in 1790 by. Governor Miro as a back-concession to. Mrs. Pavrot; that they have, acknowledged the plaintiffs' claims, to their full extent, by obtaining the plaintiffs’ renunciation, in 1820, of their right of preemption to. their back lands — a renunciation made for the benefit of the.defendants — and by limiting their claims to the lands represented on tlje map by the lines shaded with blue. They further contend that the defendants, by the act of Congress .of sixteenth'May, 1826, have been accorded all the land they prayed for, and should not be allowed now to claim, by a third extension of the old order of survey, an additional quantity of more than- a thousand acres to be taken from the lands of the plaintiffs. A retrospect of the attitude and claims of the parties may now. not be out of place. And first we will look at the order of Governor Miro of seventeenth March, 1790. That order is as follows: “New OeleaNS, March 17, 1790. “The surveyor of this province, Don Carlos Larcau, Trudeau, will establish the party upon the second depth of land- which- is solicited and described in the widow’s memorial, it being well understood that the second depth shall not exceed forty- a-rpents, being vacant and not causing any prejudice to the neighbors, lie will extend his proceedings in continuation hereof, signing the same -with the aforesaid neighbors, and he will remit the same to me in order to provide the person interested with a title in form.’ (Signed) ESTEYAN MIRO.” This order is clear and explicit. It contains conditions that the lands to be surveyed shall be vacant, and that the survey shall cause no prejudice to the neighbors. The grants to the -plaintiffs’ ancestors were made in- L781, nine years before the above ord.er of .Governor Miro, It is not shown that the plaintiff’s lands were surveyed at that time, nor that they might not have been located elsewhere on the Vermilion. The recommendation indorsed upon Madame Favrot’s petition states, that'the adjoining lands, except the front, belonged to the king’s do. — 678 — main. The survey of Gonsolin was not made until April, 1796. Six years afterward the parties entered into the compromise before the notary. In the absence of anything shown to the contrary it is not unfair to presume that these grants had a fixed place for. their location. At all events Declouet recognized them, and the Locus in quo was not questioned pr disputed. It may then be a matter of some doubt whether the location of the back concession was made upon vacant land or “ without prejudice toHho neighbors.” However this may be it is not now important to inquire, as the claimants of the lands on theYer-milion waived and yielded a portion of their lands in order to preserve peace and amicable relations with, as it may possibly have been, their more wealthy and influential neighbor. It is worthy of note the manner in which the United States government has dealt with this order of survey. It seems to have carried out, in every respect, the conditions fixed by Governor Miro. The original order does not direct the extension of the diverging lines, a rather unusual mode, under the the Spanish Government, of locating surveys. The order declares that the second depth shall not exceed forty arpents. The confirmation of the sixteen hundred arpents in 1811 gave that quantity within parallel lines, although in the rhomboidal form. Next we see that the report of the Register’s No. 63, letter A, shows a disclaimer on the part of the applicants to disturb other parties or interfere with their limits, and also to show a formal renunciation by the persons having adjacent lands, their right to enter their back lands, by preference. The quantity, represented to be about nine hundred and twenty acres, was thus, as it clearly appears, confirmed by the act of Congress of May, 1826, under the belief and intention that the confirmation was to injure or interfere with the rights of no other person. The lots or sections numbered 44 and 108, and marked “ Louise De Favrot, Register’s Report A, 63,” on the map marked J, introduced in evidence, gives the quantity of land claimed under the application forming the subject of that report, and leaves entire and free from conflietion the lands of the plaintiffs. We think the law and equity of the case are with the plaintiffs, and that the defendants, from the course they have pursued in pressing a second confirmation upon the Government, have estopped themselves from claiming any portion of the plaintiffs’ lands under the order of survey. This being an action of boundary, the plea of prescription does not apply. The judgment of the lower court, with some amendments in the designation of boundary, should be affirmed. It is therefore ordered, adjudged and decreed that the boundary between the lands of the parties be and the same is hereby established as follows, to wit: Beginning on the Bayou Vermilion at the southwest — 679 — corner of the tract of Joan Gilbeau, and running thence southeast-wardly along the lower side line of said tract to the extremity of said line the depth of forty arpents more or less; and thence northwardly following around the end'linos successively of the several contiguous tracts as sho-wn by the line shaded with blue, to the point where the said line intersects the upper or norther^side lino of the tract of Joseph Breaux at the northeast corner of said tract; and thence westwardly along said side line to its extremity on the Bayou Vermilion. The lines, ■ corners, etc., hero designated, are given as the same appear upon the map marked J, introduced in evidence in the case. It is further ordered that the defendants pay costs in both courts and it is further ordered that the judgment of the lower court, as thus amended, be affirmed.