THIBODEAUX's THIBODEAUX. In settling a community between a surviv the heirs of the ence must be had the situation of to at tween a surviving partner, and the heirs of the deceased, it is WESTern Dist. clear that reference must be had particularly to the situation September, 1840. of the affairs of the community, at the time of its dissolution; and between husband and wife, although the effects, reciprocally possessed by them at the dissolution of the marriage, are presumed to belong to the community, yet this presumption must yield to proof of the contrary; Louisiana Code, article 2374. In order to arrive at this proof, and to a fair settlement ing partner and of the rights of the parties to the community, it is necessary deceased, referto consider, 1st, the property which the spouses had at the particularly time of their marriage: 2d, That which they received or ac- the affairs of the quired during the marriage; and 3d, The property and effects community which they reciprocally owned and possessed at its dissolution. dissolution. No 7 Louisiana Reports, 221. We are unable to perceive what received of the weight the evidence of the amount of property, which the amount of property in possessurvivor possessed at the time of his second marriage or at sion, after the dissolution of the any other subsequent period, can have on the decision of this community, excause; if his estate had increased since the death of his first cept at the time; nor at the time wife, her heirs cannot set up any claim to it under the well of the second known rule of law, that the community ceases by the decease surviving partmarriage of the of one of the partners. The evidence was certainly irrelevant, ner. and the court below did not err in refusing to permit its introduction. On the merits, we are satisfied that the evidence fully justifies the defendant in his position; that there was no necessity for an inventory; the whole of the property he possessed was his; there were no acquests and gains; nay, it is even shown that he was worth four hundred dollars less at the time of the death of his first wife, than he was when he married her, and the plaintiffs have adduced no proof to the contrary. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs. the time of its evidence will be KEMPER'S HEIRS vs. HULICK. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. The allegation of ownership is necessary in a possessory action, in order to show the capacity in which the party claims possession of the property. Where the prayer of the petition shows it to be exclusively a possessory action, the defendant by setting up title, cannot turn it into a petitory one. This is a possessory action, in which the plaintiffs claim the possession of a negro man named Stephen, which they allege, they and their ancestor, Nathan Kemper, had been a long while in the quiet and peaceable possession, say, fifteen years; until the defendant, without their knowledge or consent, about the 9th of April, 1837, inveigled and enticed him. away from their lawful possession, and still retains him. They pray that the defendant be required to deliver up said slave, and pay them five hundred dollars in damages. The defendants excepted to the petition, and averred that the plaintiffs had, on or about the 13th April, 1837, instituted a petitory action against her, for the slave Stephen, and afterwards dismissed it; whereby they are prohibited from bringing a possessory action. The record of the The petition al The case was tried on this exception. former suit was produced in evidence. leges that "the slave Stephen was the property of Nathan Kemper, their deceased ancestor, and after his death, continued to be the property of, and in possession of petitioners, until the 9th April, 1837, when one Eliza Hulick, inveigled said slave from the plantation, &c." They pray that “Eliza Hulick be adjudged to deliver up the possession of the slave Stephen, &c.; and for general relief." The defendant joined issue, and avowed that said slave never was the property of Nathan Kemper deceased, or of the plaintiffs, but that her deceased husband, William Kemper, was the true owner for many years, and up to his death, and he was inherited by his minor son, her child, of whom she is the WESTERn Dist. tutrix. That said slave was in the possession of her deceased September, 1840. husband at his death, and has continued in her possession KEMPER'S HEIRS ever since. She prays that the plaintiffs' suit be dismissed. The plaintiffs voluntarily dismissed this suit the same year, and have since instituted the present one. The district judge gave judgment sustaining the exception, and the plaintiff's appealed. Splane, for the plaintiffs. Gibbons, for the defendant, insisted that the plaintiffs set up title to the slave, which, coupled with the prayer for general relief, would sustain a petitory action. This being the case, they must confine themselves to this action. It being the higher or greater one, the lesser or possessory action was merged in it. The judgment sustaining the exception was, therefore, proper. Morphy, J., delivered the opinion of the court. This is a possessory action, to which defendant excepted, on the ground that plaintiffs had heretofore brought a petitory action for the same property, which they had discontinued. This exception having prevailed, the plaintiffs appealed. Our only inquiry must be, as to the nature of the first suit. If it was a petitory one, the exception was properly sustained. Code of Practice, article 54. HULICK. On examining the first record, we cannot view it in any other light than that of a possessory action. After setting forth all the material circumstances required by the Code of Practice in possessory actions, the petition concludes with a prayer that defendant be decreed to deliver up, to plaintiffs, the possession of their slave, &c. In her answer, the defen- The allegation of ownership is dant sets up title. We have been at a loss to discover what necessary in a circumstance could have induced the judge below to consider tion, in order to the first suit as a petitory action, unless it be an allegation of show the capaci ownership, to be found in the body of the petition. allegation was a proper one in a possessory action. possessory ac ty in which the But this party claimed possession of the It was property. KEMPER'S HEIRS WESTERN DIST. necessary to state in what capacity plaintiffs had been in posSeptember, 1840 session of the slave, when disturbed. Code of Practice, article 47. The prayer of the petitioner, which determines the character of the action, shows this one to have been excluWhere the sively possessory; and the defendant, by setting up title, prayer of the pe- could not change it into a petitory one. Had the suit pro vs. HULICK. tition shows it to possessory ac be exclusively a ceeded to trial, all evidence of title would have been exclution, the defend- ded; because, in mere actions, recuperandæ possessionis, the ant by setting up fact of possession alone, is at issue. title, cannot turn it into a petitory one. It is, therefore, ordered, that the judgment of the court below be annulled, avoided and reversed, and it is further ordered, that the exception to plaintiffs' action be overruled, and the case remanded to be proceeded in according to law, the defendant and appellee paying costs in both courts. GILLET ET AL. VS. THEALL. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF LAFAYETTE, Where cotton is shipped to dry good merchants with instructions to be sold on the levee, if ten and a half cents per pound could be had, and if not, to store it, and the consignees immediately employ a broker to sample it, but not finding a buyer it is stored and soon after destroyed by fire: Held, that the consignees are not liable; although it is admitted the market price at the time, of the arrival of the cotton, was twelve and a half cents per pound. The consignees being dry good merchants, are considered as having used sufficient diligence by forthwith employing a cotton broker to effect a sale. This is an action on two promissory notes of the defendant, and a merchants' account. The latter admitted the execution of his notes, and the account was proved. He, however, averred that he had sent to the plaintiffs in New-Orleans six bales of cotton, worth four hundred dollars, which they WESTern Dist. had failed to place to his credit, and which he prayed might September, 1840. be allowed. The evidence showed that, on shipping the cotton, the defendant wrote to the plaintiffs to "receive it, and when sold to place the proceeds to his credit. As I gave ten cents for it here, says he, it must bring ten and a half cents at least in New-Orleans. If it will not sell for that price on the levee, have it stored until I give further instructions or come to town. Your young man told me you were shipping cotton to France, and probably it would be to your interest to take it at that price, as the quality is very good." A broker was employed to dispose of the cotton, who sampled it to be sold on account of the plaintiffs, but a sale not being effected on the levee it was stored, and soon afterwards burnt. It was admitted, that at the time this cotton arrived in New-Orleans, cotton was selling at twelve and a half cents per pound, and that this was good cotton and worth that price. The bales averaged 400 pounds each. The district judge allowed the set off; estimating the cotton at ten and a half cents per pound, and 400 pounds to the bale, it amouuted to two hundred and fifty-two dollars, which was deducted from the plaintiffs' demand, and judgment given for the balancce, from which the plaintiffs appealed. Voorhies, for the plaintiffs, insisted on the reversal of the judgment. The plaintiffs having acted as his attorney or agent, and conformably to his instructions, are not responsible for the loss of the cotton which was destroyed by fire, in the warehouse where it was stored. There is no evidence adduced by the defendant that the price limited in his letter could have been obtained for the cotton on the levee: he was bound to make proof of the fact; the plaintiffs could not prove a negative. It is only for his unfaithfulness, fault or neglect, that the agent is responsible. Civil Code, article 2972. GELLET ET AL. 78. THEALL. |