MILES vs. HIS CREDITORS. WESTERN DIST. Sion of it in April, 1836. In consequence of this last contract, September, 1840. Daniel paid Vanhille the amount of the two instalments, and on the 23d of March, 1837, obtained from the latter, a conventional subrogation to all his rights of mortgage. It is to be remarked, that the six months had expired before the installments became due, and Miles had not, within the time specified, made any transfer of the property to Daniel, in compliance with his contract. In the mean while, Daniel continued in possession of the property for some time, and afterwards rented it to another person. In May, 1836, Miles sued his creditors, a syndic was appointed, and in November following, his wife having sued him for a separation of property, the liquidation of her rights was cumulated with the suit for a surrender, and her said rights were subsequently settled, contradictorily with her husband's creditors, in the judgment appealed from. It is contended by Daniel that, by virtue of his conventional subrogation, he is entitled to recover interest, at ten per cent., on the sum of fourteen hundred and thirty-eight dollars, by him paid to Vanhille, from the maturity of the installments. On the other hand, the plaintiff avers, that Daniel having enjoyed the use and revenues of the property, represented in part by the sum due him, has no right to claim interest; and as she has to exercise her action of mortgage on said property, she insists on Daniel's obtaining strictly what may be due him out of the price thereof, and no more; considering that the balance of said price is to go to the satisfaction of her claims. The court below, as far as regards the issue between these two persons, gave judgment in favor of Daniel, for the amount of the payment made to Vanhille, with ten per cent. interest, from the maturity of the installments, &c., and ordered the property to be sold, to satisfy the mortgage and privileged claims of both parties. From this judgment, allowing interest, the plaintiff appealed. We are not ready to decide, that Daniel is entitled to have the benefit of both the interest on the amount by him paid to Vanhille, and of the use, enjoyment or rent of the property, to the prejudice of the plaintiff. In whatever light we con MILES vs. HIS CREDITORS. sider the contract between him and Miles, it is immaterial to WESTERN DIST. the determination of this question; said contract was the on- September, 1840. ly cause or origin of his possession; and when he obtained the conventional subrogation from Vanhille, he was not ignorant that Miles having made a surrender of his property to his creditors, in which the property in question was included, he could no longer make him a good and valid transfer of it, free from all liens and encumbrances, as Miles had obligated himself to do, within six months; nay, the six months had expired before the installments became due; and as the contract was perhaps then at an end, it would have been easy for Daniel to withdraw from the property, and to make his contract with Vanhille entirely independent and distinct from his original contract with Miles. If, on the contrary, Daniel intended to maintain his first contract, although he was aware that the property could no longer be transferred to him, free from liens and encumbrances, and particularly from the plaintiff's legal mortgage, or in other words, if he considered himself the vendee of the property, under Miles' promise of sale, there was no necessity for a conventional subrogation, as a legal one would have been sufficient to protect him in not paying to Miles' syndic more than the seventeen hundred and fifty dollars he had agreed to pay. However it is, the parties stand before the court, as Miles' mortgaged creditors, their rights are to be determined as in a concurso, and if so, it is a well recognized rule, that in a contest between the creditors of an insolvent, relative to the justice of their claims, they are all plaintiffs and defendants, and each may dispute the claim of the other, not only in relation to the validity and preference of their respective rights between each other, but has had the use also upon any legal ground which the debtor himself could and enjoyment of the property have used to defeat their claims. In this case, had the con- mortgaged, he cannot demand test existed between Daniel as creditor and Miles as debtor, interest on the has there is very little doubt, but that the latter could have sucprice he paid, in case of cessfully resisted the demand of interest, on the reconven- an eviction untional plea of use and enjoyment of the property mortgaged; gage. nay, he might perhaps have obtained a reduction of the principal. Why not so the plaintiff, who is particularly interest In a contest between the ven dor and vendee, where the latter der the mort WESTERN DIST. ed in reducing Daniel's claim, and for whose exclusive beneSeptember, 1840. fit the reconventional plea can only now be used? We think the district judge erred, in allowing Daniel the interest by him claimed, on the amount paid to Vanhille. MILES HIS CREDITORS. test between two So, in a con- It is, therefore, ordered, adjudged and decreed, that the judgcreditors, of the ment of the District Court, so far as it relates to the interest proceeds of mort claimed by Daniel, on the sum by him paid to Vanhille, be gaged property, in the hands of annulled, avoided and reversed; that said Daniel do recover a syndic, to be allowed their re- only (exclusive of his other claims,) the principal, out of the price of the property ordered to be sold, to satisfy his and had paid a part plaintiff's claims, and, that said judgment, in all its other of the price, was in possession, parts, be affirmed; the appellee paying costs in this court. spective claims: the vendee, who and had the uses, but gave up the property, cannot claim interest; which is satisfied by the use and enjoyment of the property. THIBODEAUX'S HEIRS vs. THIBODEAUX. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ST. LANDRY. In settling a community between a surviving partner and the heirs of the deceased, reference must be had particularly to the situation of the affairs of the community at the time of its dissolution. No evidence will be received of the amount of property in possession, after the dissolution of the community, except at the time; nor at the time of the second marriage of the surviving partner. This is an action by the legitimate heirs of the deceased wife of the defendant, in right of their mother, in which they claim an amount, say fifteen hundred dollars, alleged to be part of the community property existing between their late mother, and the defendant, their father, as her half of the community existing at her death. They allege, that at the death of their mother, there was no inventory taken, and that the defendant has since intermarried with another woman, and refuses to settle with them; and that he estimates his separate property which he brings into the second marriage at THIBODEAUX'S HEIRS three thousand dollars. They insist that the estimated WESTERN DIST. amount is not the real one; that there was community pro- September, 1840. perty at the death of their mother, their half of which was worth at least fifteen hundred dollars. They pray that a settlement take place, and that the defendant be condemned to pay over whatever amount be ascertained to be actually due. The defendant pleaded a general denial, and averred that, in 1831, he intermarried with the plaintiff's mother, all of whom, except the youngest, were born out of wedlock. That he brought into marriage five thousand dollars, and their mother nothing, either at the time or during marriage. That during marriage, there were no acquests and gains, but, on the contrary, losses; and the deceased left no property. That on his second marriage, in 1836, he brought in property valued at three thousand dollars; and that, whatever may have been the actual value, it was all his separate property. He prays that the plaintiff's demand be rejected. There were several witnesses examined touching the amount and character of defendant's property during the marriage, and at the beginning of second. The judge of probates was of opinion the plaintiffs showed no community property existing during the first, or beginning of the second marriage. There was judgment for the defendant, and the plaintiffs appealed. Linton, for the plaintiffs. 1. The plaintiffs, the offspring of defendant's first marriage, having been legitimated by a subsequent marriage, have the same rights as if born during marriage. Louisiana Code, article 219. 2. The court below erred in permitting the defendant to contradict, by evidence, his marriage contract with his second wife. It is a notarial instrument, and the recital and acknowledgment that he brought so much to the second marriage, was binding upon him in favor of the heirs of the first. Louisiana Code, articles 2233-4; Starkie on Evidence, vol. 3, p. 1020. vs. WESTERN DIST. Voorhies, for the defendant, said there was no evidence in September, 1840. the record explaining or contradicting the marriage contract with the second wife of the defendant. It was the plaintiffs who attempted to introduce it, but it was properly rejected. THIBODEAUX'S HIERS 28. THIBODEAUX. 2. The only question at issue is, the amount of the community property. It is shown, that community commenced with the marriage, and terminated with its dissolution; consequently, it was only competent for the plaintiffs to show the property owned, by either of the parties, at the time it was contracted, that received while it continued, and that existing when it was dissolved by the death of the wife. Louisiana Code, 2369–70; 7 Louisiana Reports, 221; 9 Idem., 538; 10 Idem., 25; 3 Martin, 119-20–21. Simon, J., delivered the opinion of the court. The object of this suit, is the settlement of the community alleged to have existed between the defendant and the plaintiffs' mother, and the recovery of whatever sum may be found to be due said plaintiffs in right of their said mother. The petition does not specify any particular property belonging to the community, and the plaintiffs' claim appears to be predicated solely on an acknowledgment made by defendant in his marriage contract with his second wife, that his estate consists in sundry property estimated at three thousand dollars. Defendant avers in his answer, that when he contracted marriage with plaintiffs' mother, he had property to the amount of five thousand dollars; that his first wife brought nothing into the marriage, nor did she receive any kind of property during said marriage, either by inheritance, donation, or otherwise. He further states, that far from there being any acquests and gains, his own estate had diminished in quantity and value, so that, at the time of the dissolution of the marriage, there being no property in community, there was no necessity for any inventory. On the trial the plaintiffs attempted to show, by witnesses, the amount of property which the defendant had at the time of his second marriage, and the evidence having been objected to, was rejected by the court. In settling a community be |