Summary
IN error to the district court of the United States, for East Louisiana.
The defendants in error, Henry Franklin and wife, on the 23d of January, 1836, presented a petition to the district court of the‘United States', for the eastern district of - Louisiana, for the recovery of certain slaves, with their children, and also of certain stock and household furniture; which the petition alleged had been sold to him by Joseph Milah, by a bill of sale, duly recorded in the proper notarial office. The bill of sale was in the following words:
State of Louisiana, Parish of St. Helena.
Know all men,-to.whom these presents may come, that I, Joseph Milah, have this day bargained, sold, and delivered unto Henry Franklin, his heirs, executors,.administrators, and assigns, six negroes, namely: One' negro woman, named Neem-y;- one boy, do. John; one do. Sam; one do. Neis; one negro girl, named Harriet; one do. Jenny; together with all of my cattle, hogs, horses, household and kitchen furniture, for the sum of twenty-eight hundred dollars, to me in hand paid; tvhich property I do warrant and defend from me, my heirs, executors, and. assigns, to him, his, heirs, executors, administrators, and assigns, forever..
In witness wherpof, I have hereunto set my hand and seal, this 17th day of July, 1819.
his
(Signed) JOSEPH H MILAH,
mark.
Test:
Wm. M‘Michael,
Joée Ott, [L-. s.]
The condition of the above bill of sale is such, that the above mentioned property remain in my possession so long as I live; and, after my body'is consigned to the.grave, to remain-, as abovementioned, in the above bill of sale.
his
(Signed) JOSEPH |xj MILAH,
mark.
Test;-
Wm. M‘Michael,
Joel Ott.
(Endorsed.)
.1 certify the within to be truly recorded in register, in page 55, according to the law and usage of this state. In faith whereof, I grant these presents under my signature, and the impress of my seal of Office, at St. Helena, this 23d day. of July, 1819.
(Signed) JAMES M‘KIE, [seal.]
Joseph Milah died in July, 1834; and the petition‘claimed that the plaintiffs were entitled to the negroes, with their children, and the other property mentioned in the bill of sale; which, at the time of bringing the suit, were in-.the possession of the defendants; who held and detained them, and. have refused to deliver them to the petitioners.
•On the fifth day of February, 1836,:John and Letitia Zacharie answered the petition, admitting they were in the possession of the negroes mentioned jin the petition ;,.and they aver that Letitia Zacharie is in such possession, in- her capacity of tutrix of -her minor children; who are the lawful proprietors of them by inheritance, from their father, Joseph Milah. They deny that the bill of sale was ever signed by Joseph Milah; and, if-signed by him, it was done in.error, and through false and fraudulent representations of the plaintiff, and no consideration was given for the same; and the samé was fictitious and collusive, and intended to covér or conceal a disguised donation of the .slaves mentioned in the same; and was therefore null and void.- The defendants asked for a trial by a jury. Afterwards, by a supplemental answer, the defendants say, that, at' the time of the alleged sale, under private signature, Joseph. Milah had neither children of descendants actually living; and, since the same, the children of which Letitia Zacharie is the tutrix, have been born, and are now living.
On the trial, there was given in evidence by the plaintiffs, among other documents, an instrument exeeuted in South Carolina, Richland district, by Joseph Milah, on the 11th day of July, 18,05; by which Joseph Milah, under his hand and seal, gave a negro wench and a negro boy, and al-sp his personal property, to' Sarah M£G-uire. This .deed was regularly acknowledged; and was recorded in the Rich-land district, in South Carolina, on the 10th December, 1805.
The cause was tried by a jury, and a verdict was rendered for thé plaintiffs; on which the Court gave a judgment. The defendant took two bills of exceptions.
The first bill of exceptions was-in the following terms:
On the trial of this cause, the plaintiff offered in evidence an instrument in writing to his petition annexed, and bearing date the 17th July, 1819, and purporting to be executed by Joseph Milah by the affixing of his mark; and offered to prove same by the evidence of William M£Michael and Joseph Ott, whose signatures are affixed as subscribing witnesses, which instrument is made part of this bill of exceptions: the defendants objected to the introduction of said instrument and testimony on the ground, 1st, that being an instrument purporting to convey slaves, the same was null and void as not having been signed by the. vendor; and that no parol proof could be admitted to prove its execution. 2. That a mark is not a signature within the. provision of the laws of Louisiana, in relation to the conveyance of slaves. 3. That the instrument, containing a synalagmatic contract or mutual and reciprocal obligation, not being in the form of an authentic act, was invalid, because not made in as many originals as there were parties having a direct interest. 4. That the same was not signed by'the vendee. But the court overruled the objections.
The. sécond bill of exceptions' was taken to the admission in evi<Jence Of the, instrument executed in Richland district, South Carolina,, as a gift or donation of two slaves and certain personal property.
• Í. Because the plaintiffs in their petition claim to have a title to the slaves referred to in their petition by- virtue of- a bill of sale to Henry Franklin, one of the plaintiffs, under date of the 17th July, ,1819; and that they cannot offer evidence to establish title from any' other source than that therein stated.
2. Because there is no evidence of the identity of the person by whom this instrument purports to have been executed, with James Milah, under whom plaintiffs claim; nor of the slaves named in the petition.
. The defendants also moved for a new trial, on reasons filed;,which motion was overruled by the Court
• The defendants prosecuted 'this writ of error.
The argument for the plaintiffs in error, was as follows:
The court, in overruling the motion for a new trial, sums up the evidence; and shows clearly"the nature ,of the case, as established by the facts.
The judge states that it was proved on the trial, that the writing sued upon was executed when Joseph Milah was supposed to be on his deathbed. Then it was made mortis causa, and was intended to be a will, or to have the same effect. It contains the disposal of his negroes and furniture. The subscribing witnesses do not prove any money paid; and we know the mán was not trafficking in negroes and furniture, for money, on h'is deathbed. He was making a donation, mortis causa; and, as the judge correctly concludes* was disposing of his half of the community of acquests that had existed between him and his deceased wife, iq favour of her sister; as he might do by, the laws of Louisiana, having no chib' -en. But'by the laws of Louisiana then in force, as well as by the present code, “no.disposition, causa mortis, could be made otherwise than' by last will; alí other form is abrogated;” Civil Code of 1808, p. 226, ch. 6, see. 1, art. 81: and being a nuncupative testament, under private signature, should have been attested by five witnesses residing in the parish, arid accompanied by many formalities, all detailed at page 22.8 of the code; which are not pretended as tó the act of 1819, sued on. ,AU these formalities were essential to its validity, as well as that it should have been probated and ordered to execution. Same. Code, p. 242, arts. 153,157. The effect of a will, by the verdict and judgment, is given, to the' instrument; and yet it was utterly null and void as a.will.
But, as a will, it transferred only one-fifth, (though the judge thought one-half, from not adverting to the laws of inheritance,) of Milah’s half of the property to the legatee, donee or.vendee, by whatever-name she is called. The other four-fifths belonged to Joseph Milah’s two children, and forced heirs; of which he could not deprive them by will. Civil Code of 1808, page 212, articles 19 and 22. And yet, strange to think, the judge justifies the jury in giving the other four-fifths, or half, as he supposes, to the plaintiffs, on the ground of damages, in which.he concurs; although there is no claim for damages in the petition; • and although, if proved, (though he states it was merely argued,) it would not support a verdict' and judgment for title. The ground on which he supports the verdict for the other half of the slaves, is, that not the plaintiff and vendee in the title sued upon, but his wife inherited that from her deceased sister. The existence of all these facts, which were' offered in- support of the verdict, were inconsistent with it, and with the action; and clearly showed that the verdict was contrary to law.
' This evidence, and these considerations, were undoubtedly offered in lieu of a consideration for the bill of sale, that is, in place of the two thousand eight hundred dollars; but if. so, then the sale was simulated, and not real, as plead; but a disguised donation or testament, and therefore null,, not being made according to law.
The judge farther states, that it appeared that the act was made .to avoid the expense of settling Milah’s estate in the court of probates. This was not the consideration expressed, but an illegal, consideration; and one that ceased as soon as Milah recovered. For these ’•eaáons the act was null; Civil Code, article 1887; and remained a recordéd nullity; and peculiarly so, after the subsequent birth of Milah’s children. Old Code, page 224, article 74. Until now, fraudulently revived after his death, when orphans are left to contest that which, from shame, would not have been presented, had he been alive.
But the judge charged the jury, and the counsel of the plaintiff? now argued for the same thing, that, regarding the instrument sued. on as a donation, although, by the. Old Civil Code, page 224, article 74, the law in force at the time, it was revoked by the subsequent birth of children; yet a subsequent law, article 1556 of the New Code, made the donation revocable ohly; and the last law is to govern the case. Then, in a donation upon condition, the legislature can dissolve the condition without the consent of the donor. It is only necessary to state the proposition to have it rejected; and to induce this high tribunal to instruct the inferior tribunal, to instruct the jury-more properly. But the article 1556 of the New Code, revokes the donation up to the disposable portion; which, in the present case, there being two legitimate children contending for their inheritance, is one-half of the estate. New Code, 1480. The donation is not revocable, but revoked to that extent.
These reasons of the judge, the parol testimony adverted to, the written testimony on .file, the pleadings, exceptions, and grounds for a hew trial; all show conclusively, that the private act of 17th July, 1819, was not a real transfer of slaves for two thousand eight hundred dollars, in hand paid; and, therefore, the verdict declaring it so, was contrary to law and evidence: and the new trial should have been granted by the inferior court, and must be granted by this Court. Indeed, the whole proceeding shows such confusion in the minds of the court and jury, as to what they were trying; that sub-, stantial justice requires that the case should be remanded for another trial. They reyived an old donation and will, that were dead letters; converted the act of sale sued on, into a will, though against the very letter of our law; and yet administered the laws of inheritance, and act of testament upon Milah’s succession;- and, in doing so, made a medley of the laws of Louisiana and South Carolina: and still could not deprive the children of the last fourth of their paternal inheritance, without taking an account in equity of the rents and. profits of the slaves, and enforcing it by trespass on the case.for damages.
The admission of the act sued upon in evidence was opposed; and •being admitted, exception was taken thereto. It is liable to three legal objections:
1. It was not recorded in the office of the parish judge of St. Helena, where it was made,, and where the parties lived. The law of Louisiana, in force at the time, declared “That no notarial act concerning immoveable property, (and slaves were immoveable property,) shall have any effect againstthird persons, until the same shall have been recorded in the office of the parish judge, where such immoveable-property is situated.” See 3d Martin’s Digest of the Laws of Louisiana, page 140. Mrs. Milah and her children are, as to this transaction, third persons as to Milah; because she married him, believing him the owner of the slaves in his possession, and there was. no recorded outstanding title.
2. The contract was synalagmatic. Milah .was bound to keep the' slaves, that they might be delivered.at his death; and Franklin to .grant the enjoyment to Milah during life, and even to pay the price, if it had not in reality been paid. Yet it was not made in two ori-. ginals, which the law, in force at the time, positively required, on pain of nullity; it being a writing under private signature. Old Code of Louisiana.
3. The mark of Milah is made to' the instrument, and not his signature. This objection rests upon our peculiar law, which declares ■“That all sales of immoveable property, or slaves, shall be made by authentic act, or under private signature.” A verbal sale of any. of these things shall be null, as well for third persons, as for the contracting parties themselves; and the testimonial proof of it shall not' be admitted.- Civil-Code, article 2415. And in. defining acts under private signature, our code declares; that it is not necessary that tho¿e acts be written by the'contracting parties, provided they be signed, by them. Article 2238. : It is thought, under uniform decisions in France, upon a similar article, that the .words signature, and signed, do not embrace a mark; and this interpretation is the more reasonable, as it is so easy to have the contracts of persons who cannot' sign, made before a notary; and it is so’ important with regard to the im- • moveable property, and the slaves of a country.
Exception was also taken to the intrpduction in evidence, by the plaintiffs, of a title to part of the slaves, and from which the others descended, dated in Richland district, state of South Carolina, on the 11th day of July, 1805. ' The objection is based upon the universal ■rule, that the evidence in a cause must correspond with the allegations. 1st Starkie on Evidence, 386; 8 Martin’s Rep. 400; 3 Martin’s New Series, 509. The plaintiffs set up no such title in their petition. It is true, the judge states he admitted it only as rebutting .testimony to the parol evidence, as to fraud; especially as evidence had been given of a previous disposition of the property. The idea of the judge is not very clear; but it is very clear that a title has been admitted in evidence, against which the defendants had no opportunity to prepare to defend themselves; and that much more than a rebutting jeffect was given to it, since, in the'charge to the jury,-and in .overruling the motion' for a new tr.ial; ,as appears by the judge’s reasons, it was constantly'stated, that although, a donation of slaves is ■not absolutely, but only contingently, translative of property in Louisiana; yet, by the laws of South Carolina, he had an absolute right to donate the whole .of his slaves.
For all which reasons,-the plaintiffs in error pray that the judgment may be reversed, and the cause'remanded to be tried again.
For the defendants in error, in the printed argument of Mr. Preston, it was said:
The plaintiffs below, Franklin and wife, sue to recover from the defendants below, but who are plaintiffs in error, certain slaves, with their increase, in"a bill of sale mentioned .in, and' annexed to their petition. The defendants, Zacharie and wife, disclaim title in themselves, but set it up for the children of the wife, as heirs of one Milah. They answer that-they do-not know if Milah, their ancestor, ever made the bill of sale; and, if he did, that it was. simulated,-arid intended to cover a disguised donation; and that this.donation became' null and void, by the subsequent birth of the children of Milah.
The first question presented by the bill of exception? of the defendants, is, as to -the admissibility of. the bill of' sale of the slaves from Milah, in evidence. The execution of it by Milah, by affixing his mark thereto, he not being able to write, was proved by the subscribing witnesses; and the court admitted it to gó to the jury.*
The denial of the executiob of the bill' of sale of the slaves, by Milah, must be considered, as waived, .by the subsequent and inconsistent' plea, that it became null and void, by the birth of children. See Arnold v. Bureau, 7 Martin’s Reports, 291; Nagel v. Mignot, 8 Martin’s Reports, 493-4. But if, notwithstanding the inconsistency of the pleas, it was necessary to prove' the execution of the bil1 of sale, it has be.en sufficiently done by proving, ,by the subscribing witnésses, that Milah affixed his mark thereto. For a sous seing prive act of sale, with the mark of the vendor, is sufficient. It is not requisite that' he should sign his name, to make it valid. This question, which has been raised in Louisiana by quotations from French.writers, has réceived a judicial decision, since the trial of this case, from the supreme court of the state of Louisiana. Tagiasco et al. v. Molinari’s heirs, 9 Louisiana Reports, p. 512. “ The force and effect to be given to instruments, which have for signatures only the ordinary marks of the parties to them, depend more upon fules of evidence, than- the dicta of law, relating to the validity of contracts- required to be made in writing.”
“The genuineness of instruments under private signature, depends on proof; and, in all cases; when they are established by legal evidence, instruments signed by the ordinary mark of a person incapable of writing his name, ought to be held as written evidence.”
• “ The rules of evidence by which courts of justice, have been governed in this state, since the change of government, have'been, borrowed, in. a great part, from the English law, as having a more solid foundation in reason and common sense.”
-. “According to.the rules of evidence, as adopted-in this.state, the ordinary mark of a party to a contract, places the-evidence of it on. a footing with all private instruments in writing.” This case hah since been confirmed by that of Madison v. Zabriskie, 11 Louisiana Rep. p. 251.
. The next question is raised by the exception taken to the charge of the court to the jury. The judge charged the jury ..that a-donation, under the form of an onerous contract, is not .void; and in this he is supported by the decisions of the supreme court of Louisiana. Trahan v. M'Manus, 3.La. Rep. 209; Homes et al. v. Patterson, 5 Martin’s Rep. 693.
The defendants required the judge to charge, that, by the article 74, page 334, of the old civil code of the .territory of-Orleans, a donation became absolutely void by the subsequent birth of children; and -it was in force and to. 'govern in this case. ’ This he refused, because that code was repealed by the act of the legislature of the state of Louisiana, 13th March, 1838, page 66. And the present code of Louisiana, article 1556, enacted in 1835,'revokes donations only up to a certain extent, and under certain circumstances;-and this last article, 1556,.of the Louisiana code, should apply, because the children were born subsequent to its enactment. There is, then, nothing, erroneous in the charge of the judge, nor in the admission of evidence; and the. judgment should be affirmed.
The defendants below, present two other points of objection to the legality of the judge’s decision, in the court below. First, for admitting the plaintiffs to give, in evidence, a deed of gift for the sarde ■property to plaintiff’s wife, in the year 1805; and, secondly, for admitting a testamentary bequest of the same property, in favour of plaintiff, and wife, in 1834, to be given in evidence: it being argued' •that this title by gift, was setting up a different title from the one declared on; and that the will, making .the bequest, was not duly executed: but the judge pverruled the objections, and admitted the evidence, not as titles, but to rebut the plea of a fraudulent conveyance;. and to show that Milah was uniform in his determination, from 1805 to 1834,'to pass this property, after his.death, to the sister of-his first wife, with whom he received this property, and who died • childless: that sister and her husband being now the claimants of the property, against the children of a second marriage.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
