Henderson v. Maxwell

Ludeling, C. J. The plaintiff claiming to he the owner of two lots-of ground, situated in the city of New Orleans, enjoined the sheriff from selling them under an execution against Nimms & Nixon. The defendant moved to dissolve the injunction on the ground that the bond was not signed by plaintiff or any one authorized to sign it,, and that tho sureties are not solvent. Subsequently they filed an answer, and the case was tried on the merits. It is of no importance now to consider the questions raised in the motion, for even if the allegations in tho motion be true, it is our duty to decide the question of title to the property, if the evidence in the record will enable us to do it, notwithstanding the defects in the bond. It has been repeatedly decided that, when it is manifest that the plaintiff would be entitled to another injunction, courts will not set aside the writ for irregularities, in the bond or affidavit. This view dispenses with tho necessity to notice the first bill of exceptions taken by defendant. The second bill was to the admission in evidence of the copy of the-will of Baker Woodruff; copy of petition for probate, and order probating the will; extract from the inventory, etc. These documents-were objected to, on the grounds that the whole record of the succession should have been offered, and not a portion thereof; that the portions [358] •offered were irrelevant to the issue; that such evidence is not the best .proof of title to real estate, and that it proves nothing. The district court correctly overruled these objections. Extracts from inventories or from procos verbal of sales, when duly certified, are admissible in evidence. Fletcher v. Dickson, 1 R. 413; 2 An. 386; 14 An. 141. It is not necessary that all the mortuary proceedings of a succession •should, be introduced to prove a fact or a date, which may be shown •by a particular document. Such a practice is abusive, and will not be •sanctioned. 1 R. 258; 4 R. 201; 5 An. 400 ; 6 An. 446. The evidence shows that the plairitiff received t'ae property in controversy as a legatee under the last will of Baker Woodruff, and that she has had the possession of the same, receiving tlie rents and revenues thereof for several years. The testator’s title to the property is clearly proved. It is therefore ordered that the judgment of the district court bo affirmed, with costs of appeal. - Rehearing refused.