Summary
This case was brought up by appeal from the Circuit Court of the United States, for the Eastern District of Louisiana, sitting as a court of equity.
The widow Pargoud and others, defendants in this, court, were complainants in the court below, and obtained a- decree in their favor,'from which the other parties appealed. They alleged, that a series of fraudulent transactions occurred,'commencing in 1813,, by which they had been deprived of their fair share of the estate of Claude Frangois Girod, whose heirs they were, and that the chief agent in this fraud was Nicholas Girod; a brother of the deceased Claude Frangois Girod, and also a brother of some .of the complainants, and relative of the rest.
Claude Frangois Girod was a resident of, the parish of Assumption, in the State of Louisiana, and died in the mopth.bf November, 1813, leaving a last will and testament, dated op the 3Qth of November, 1812, and a codicil, dated on the 4th of November, 1813, which will was admitted to probate, with the codicil, on- the 8th of November, 1813. He never was married, and left eight brothers and sisters, and the children of a predeceased sister. ' These surviving brothers and sisters., with the exception of Jacques, otherwise called Jacques Antoine Girod (who was excluded by the terms of the will), were the legal heirs of the deceased Claude Frangois Girod, each for the one eighth part of his estate and the succession ;• and the heirs and legal representatives of the said predeceased sister, the legal heirs by representation of their deceased mother, for the remaining eighth part of the estatg.
The proceedings in the case were exceedingly complicated. There was a bill, and an amended bill, and a supplemental bill, and another amended bill, and then another amended bill. Instead of pursuing the case through all these details, the simplest course will he to state-the charges in the bill, and the documents brought forward to sustain them.
The will of Claude Frangois Girod was as follows : —
. “ I, Claude Frangois Girod, the legitimate son of Frangois Silvestre Girod, deceased, and of the late Frangois, born Dubois, native of Thone, in Savoy, diocese of Geneva; province of France, and now a resident of the parish of Assumption; on Bayou Lafourche, in the State of Louisiana, being about sixty years of age, and desirous to die in the Roman Catholic and Apostolic religion, under which I have ever lived, with a-firm belief in the mysteries of our holy religion, do ordain this my last will or testament., in case,I should be overtaken by death, the hour of which I am uncertain of; and as it behooves all living beings to settle their temporal affairs, when they are in. the full enjoyment of .their health and reason, in order to avoid thereby the difficulties which arise when we are laboring under a dangerous disease, which takes from us the use of our reasonable faculties, and consequently deprives us of the understanding and memory necessary to the faithful , and peaceable settlement ol our family affairs, with awiew to avert from our heirs the difficulties always prejudical to- those that are absent. Now, therefore, trader these circumstances, I invoke the graee and clemency of . God, to whom I recommend my soul, when separated from my body ; and I wish and ordain, that the latter be buried among faithful Christians, with all the usual rites of our mother church, leaving with my. testamentary executors, herein after named, the performance of all pious works, such as causing, three masses to be said on my behalf to • my holy patron, as also funeral services.masses, &c., &c.
“ 1, I declare that the property I am now possessed of are theearriings of my labor and sayings, and consist of the following items, to wit: — Three houses and several lots situated in suburb St. Mary, above the city of. New Orleans, and one. in Chartres Street, now occupied by my brother, Nicolas Girod ; onemain plantation, whereon I reside, situated in -said Bayou Lafourche, with all the buildings, improvements, and appurtenances thereof*and being thirty-one and a half arpents front, together with the utensils, implements of husbandry, animals of all kind;- and one hundred and odd slaves of different ages belonging to me ; also, á quantity of lands situated in the different parishes of the bayou, the titles to whi’ch I hold in my possession ;.also, a certain sum of money is due to me, which I cannot ascertain at present, but which will be made to appear by the books and obligations in my power ; also, I am the owner of upwards of two hundred and seventy bales of ginned cotton, now in my stores; also, I declare that I am indebted unto divers persons-by obligations, and little by accounts, in a sum of about thirty thousand dollars.
££ 3. I give and bequeath to my parish of Thone, in Savoy, to have a solemn mass annually said on my behalf, and~to contribute to the repairs of said church, a.sum of two thousand dollars, such being my will.
“4., I give to the poor of my said parish, to be distributed among them so así to meet their most pressing wants,, a sum of one thousand dollars, such being my will. -
££ 5. I give and bequeath to the cousins, Dodos Gollié, of said parish, a sum of fiye hundred dollars, such being my will.
££ 6. Igive and bequeath to the brothers and sisters, Joseph Suard, senior, and Antoine Suard, junior, sons of Antoine Suard, deceased, since about thirty years, residing at Cluse, in Fonsigny (Savoy), the sum of two thousand dollars, such being my will.
££ 7. I give and bequeath to my distant relations of said parish a sum of five hundred dollars, to be -distributed among them, such being my will.
“ 8. I give and bequeath to the Charity Hospital of Thbne, in Savoy, a sum of one thousand dollars, such being, my will.
'“ 9. I give and bequeath to the children of my deceased sister, Frangoise, wife of Poidebard, without prejudicing their rights in and to my succession, the sum of two thousand dollars, to be divided between them by equal portions, such being my will.
“ 10. I give and bequeáth to my sister Teresa, wife of Quetant, without prejudice to her rights in my succession, a sum of one thousand dollars, such being my will.
“11. I give and bequeath to my god-daughter and sister, Rosalie, married at Talcire, her husband’s name being unknown to me, a sum of one thousand dollars, without prejudice to her rights in my succession, such being my will.
“ 12. I give for once to my brother James Girod, a sum of four thousand dollars, without any other rights or pretensions whatever in and to my succession, such being my last will.
“ 13. I give and bequeath to mybrother Claude, married, the sum of two thousand dollars, without prejudice to his rights in my succession, such being my last will.
“ 14. I give and bequeath to the parish of Assumption, for the church wardens in Lafourche, where I now reside, a sum of five hundred dollars, for contributing to the construction of a church, such being my will.
• “ 15. I give and bequeath to the mulatress Franjoise Vils, for the faithful services she has rendered to me at my house, during a long space of time, a sum of six thousand dollars, which shall be.para to her (after my death) one, two, and three years, such being my will.
“ 16. I give and bequeath to my god-daughter Franchise, a free colored woman, the daughter of Rosette, a negro woman, a sum of fifteen hundred dollars, such being my last will.
“ 17. I give and bequeath to the mulatress Belanie, wife of Colas Meillen, a sum of two hundred dollars, such being my will.
“18. I give likewise to her younger sister Polline, a sum of two hundred dollars, such being my will.
“19. I give and bequeath to my mulatto slave Dominic, who is a blacksmith and rum-distiller, his freedom, which he shall be put in possession of six months after my death, for his good and faithful services to me.
“20. I nominate for my testamentary executors th following persons, my brother Nicolas, who-is'my senior, and Jean Francois, my junior, the forme): being a merchant in New Orleans, and the second is a planter, residing at Washita, and in their-default, Mr. Phillipon, senior, merchant at New Orleans, to whom I give, by the present olographic testament, full power and authority as required by law to take possession of all my property present and to' come, to inventory, sell, and cause them to be sold, as'to him will seem best for the.heirs of all my brothers and sister's, present, and absent,'without intervention of-justice, hereby annulling and"dedaring void, all other testaments, codicils, and donations, mortis causa, and other acts of last will which I may have made previous to and to the prejudice' of the present, which is the only one I adopt as being my last will, in order that my heirs may inherit and enjoy my property with the benediction of Gód and mine, &c.
“ Done and passed on my plantation, at Lafourche, the 30th of November, 1812.
(Signed,) C. F. GIROD.
J’h Courrie, witness—
Saint Felix, witness.
“ Ne varietur-”
“ State of Louisiana, Parish of Assümption : .
“ Monday, the 8th of November, in the year 1813.
“ At the request of Mr. Nicolas Girod, I, F. Corvaisier, judge of this parish, did repair to the plantation of the late C. F. Girod, where a'bundle written over having been presented to me as the testament or last will of the said C. F. Girod, signed by him under date of the thirtieth of November., eighteen hundred and twelve, as also an open codicil signed by the deceased, in the presence of ¡Messrs. Prevot, St. Felix, and Francois Bernard de Deva, I proceeded. to the proof of said testament by swearing to that effect Messrs. St. Felix and J’h Courrie, witnesses to said testaihent, in the presence of Mr. Nicolas Girod, and. then proceeded to .open the. same.
(Signed,) N. GIROD,
J. L. COURRIE,
SAINT FELIX BECHE,
Justice the Peace.
F. witness.
F. CORVAISIER, Judge.
“ And by the opening of said testament we saw that Messrs. N’as Girod and F’ois Girod, brothers of the deceased, were appointed testamentary executors.
(Signed,) F. CORVAISIER, Judge;"
There were four inventories made of the property of the deceased, namely: —
November 12th, 1813. In the parish of Assumption.
February 3d, 1814. In the parish of Assumption.
February 18th, 181d. In the parish of Assumption.
February 26 th, 1814. In the city of New Orleans.
The amount of all these inventories was $ 124,594-45. In the fourth inventory was included the half of a house and lot at the corner of .S' Louis and'Chartres Streets, in the city of New Orleans, whereas the complainants alleged that the whole of it belonged to the deceased, and ought to have been included in the inventory.
The bill then charged, that the executors plotted and contrived to obtain pósséssion, for their own use; and benefit, and to the wrong and injury of their coheirs, of the entire succession and estate of their deceased brother, by virtue of the I following proceedings, which were charged with being illegal and fraudulent, namely : —•
. On the 19th of January, 1814, thé executors presented the following petition : —
g To the Honorable Fran’s Corvaisier, Judge of the Court of Probates of the Parish of Assumption, Lafourche.
“ The petition of Nicholas and Jean Francois Girod* both merchants* residing in the State of Louisiana, and testamentary, executors of thé late Claude Francois Girod, deceased, in the said parisb, humbly showeth : —
• “ That' their deceased brother* Claude Francois Girod, by his' testament dated, the 30th of November, 1812, has appointed them his testamentary executors and detainers of his estate, and, as. such, given to.them full power and authority to cause an inventory of all his property to be made, without intervention of justice, to sell or cause to be sold his property, in whole or in part, as to them will seem best for their own interests, and for those of the absent heirs named in said testament. •,
“ Wherefore petitionérs pray the honorable court to order, that the sale, of the movables* movable effects, and of the main plantation, as also, of the slaves of both sexes employed thereon, mid other lands adjoining'theréto, and making part thereof in the lifetime of the- deceased, be made at public auction, for cash, as consisting in part of perishable objects, and for the purpose of paying the debts o.f the succession, after the usual delays, advertisements, and publications required by law.
“ The 19th of January, 1814.,
(Signed,) N. GIROD, .
Testamentary Executor.
JN. FS. GIROD,
. Testamentary Executor.”
On the Í6th of February, 1814, the following bond was executed : —
“ Whereas, the honorable judge, Francois Corvaisier, thinks that he is not authorized . to sell the several properties situated in the parish of Lafourche, interior, as being without the jurisdiction of his said parish ; and whereas, we are desirous to remove all the liabilities which the said honorable judge might subject himself to, by selling, said lands in the same manner, , and at the same time, as those situated within his jurisdiction. Now, therefore, ■ as testa-. raentary executors of the late C. F. Girod, we do bind ourselves, by these presents, to protect and warrant, said honorable judge against all the troubles and difficulties which might be the Consequence of his thus selling the lands of the succession situated out of this parish.
“ In faith whereof, we, have signed these presents, to be by him used as of right. Parish of Assumption, the 16th of February, 1814.
(Signed,) JN. FS. GIROD.
JN. FS. GIROD, Executor.”
On the 18th of February, 1814, a sale took place, as evidenced by the following paper : —
“ State of Louisiana, Parish of Assumption, the eighteenth day of February, in the year 1814.
cc On the day and year aforewritten, upon the. request of the testamentary executors of the late C. F. Girod, I, Franjéis Corvaisier, judge of the said parish, did repair to tbe sugar-plantation of the deceased, and we there proceeded to the sale and adjudication-(as requested), of the property, both movable and immovable, belonging to the succession, to wit : — ”
(Then follows an enumeration of plantations, tracts of land, and personal property.!
“N- B. A Certain lot of ground situated at Donaldsonville, which, through error, was included in the original inventory, ¡has not been sold, because it does not belong to the succession, but to one F’se Wiltz,. a free woman of color. And the present sale being concluded on the. day and year aforewritten, we have closed these presents, amounting to the total snm of eighty-four thousand seven hundred and fifty-five dollars and forty cents; omissions and errors of- calculations excepted. And the witnesses, the last appraisers, and the parties interested, have signed, before the judge of the aforesaid parish of Assumption, on the 18th of February,. 1814.
(Signed,) JN. FS. GIROD, Testamentary Executor,
for self, and by procuration of his brother, Na’s Girod.
ETIENNE BOUDREAUY, witness.
JACQUES TERIOT, do.
h. RICHE, do.
P. L. LAURET, do.'
FS. CORRE JOLES, do.
Ordinary mark of PIERRE CANCIEL, do..
JUAN VIVES, do.
J. BERN’DO DE DEVA, do.
“ Before me, F. CORVAISIER, Judge.” .
On the same .day, namely, the 18th of February* JL814', the following judicial adjudication of the property was made, being in the nature of a deed : —
“ State of Louisiana, Parish of Assumption, the 18th .of February, 1814.
c No. 604. — Parish court.
Girod, and R. C. Caune, &c.
“ Petition, filed November 26th, 1814.
“ To the Honorable James Pitot, Judge of the Parish Court for the Parish and City of New Orleans.
“ The pétition of Nicolas Girod, of the said city and parish, merchant, showetb, that Claude Francis Girod, of Lafourche, was indebted to your petitioner in a large sum of "money, previous to his decease ; ‘that, hereto annexed is a detailéd account of the moAey due by his estate, at this time, to your petitioner ; which account, amounting to the sum of forty thousand five hundred and seventy-seven dollars and twenty cents, principal [and] interest, the executors of the said Claude F. Girod has refused to pay, though thereto frequently required. Wherefore your petitioner prays, that John'Francis Girod, now residing in the city of New Orleans aforesaid, one of the executors of the said Claude F. Girod, and R. C. Caune, the attorney appointed to represent the interest of the' absent heirs, may be cited to appear and answer this petition.
“ And your petitioner further prays, that they may be condemned to pay your petitioner the above sum of $ 40,577*20, with interest and costs.
“And your petitioner further prays all "such other relief as •the case may require, and to justice and equity may appertain.
“ Received .the annexed document, New Orleans, September 9th, 1816.
(Signed,) N. GIROD.
“ A copy thereof being annexed to the ¿ward of the arbitrators - in the premises.
“ Citation.
“ Mr.. J. F. Girod, Executor of C. F. Girod, and C. R. Caune :
. “You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto in writing with the clerk of the parish of Orleans, at his office at New Orleans, in ten days after the service hereof; and if- you fail herein, judgment will be given against you by default.
“ Witness the Honorable James Pitot, judge of the said court, this 26th day of November, in the year of our Lord 181
(Signed,) SAM. P. MOORE, Deputy Clerk.
“ Sheriff’s Return.
“ Served a copy of petition and citation on each [of] defendants, November 28th, 1814 ; returned November 2.8th, 1814.
J. H. HOLLAND, Deputy Sheriff.
“ Answer of J. F. Girod, filed November 29th, 1814.
“ To the Honorable James Pitot, Judge of the Court for the-Parish and City of New Orleans, the answer of Jean F. Girod* one of the testamentary executors Of the late C. F. Girod, to the petition of Nicholas Girod, humbly showeth :
“ That all and singular the items in the accodnts presented by said Nicholas Girod, in his said petition, must be proved, to justify, his claim against the succession of C. F. Girod, and for that purpose this.Tespondent prays this honorable court to order what shall seem the best for the common interest of parties, and • moreover to he hence dismissed with costs. .And, &c.
(Signed,) J. F. GIROD, Ex., Jr.
“ Answer of R. Game, filed November 29th, 1814.
‘¿.To the Honorable James Pitot, Judge of djp Parish Court, the. answer of Cl R. Caune, in his. capacity of attorney -representing the absent heirs of the late C. F. Girod, to the petition presented by Nicholas Girod, against the estate of the late aforesaid C. F. Girod :
“Your respondent denies all facts mentioned in the plaintiff’s
Ee tit ion, and he says that the plaintiff must be proven his claim efore court, , and prays the court to dismiss him, with costs of the siiit; in duty bound, your petitioner shall .fever pray,
(Signed,) R. CAUNE., Attorney.
“ Order appointing Arbitrators, Parish Court for the Parish and City of New' Orleans, November 27th, 1814.
' ‘¿ Present r the Honorable James Pitot.
“Nicolas Giros v. J. F. Girod, Ex. of C. F. Girod, and C. R. Caune, attorney for the. absent heirs.
“ Upon, motion of Alfred Heimen, esquire, of counsel for the plaintiff, it is ordered that F. Percy and F. M. Rouzan be appointed arbitrators in this case, to decide on the claim of. the plaintiff, ¡and in case of their not .agreeing, that the court appoint a third person as umpire. I do hereby certify the above.
“Th testimony whereof I have hereunto set my hand and affixed the seal of the said court at the city of New Orleans, the day and year first above written, áid of the independence of the United States the thirty-ninth.
(Signed*) SAM. P. MOORE* Deputy Clerk (swearing).
“ Personally appeared before me, one of the justices of the peace in and fqr die city and parish of New Orleaiis, Ferdinand Percy et F. M. Rouzan, of this city, who were duly sworn according to law as arbitrators as above named, that they, will exam-ine the accounts between the parties-with impartiality, and give the report according to law.
(Signed,) F. MEFFER ROUZAN.
F. PERCY, Jun.
- Subscribed and sworn to before me, at New Orleans, the 10th day of December, 1814.
(Signed,) J. L. LAPANSE, Justice of the Peace.
lC The undersigned arbitrators, appointed by a decree of the honorable the court of the city of New Orleans, under date of the 25th of November last, to verify and examine the accounts and demands of Nicolas Girod, a merchant residing in New Orleans, against the succession of the late Claude Francois Girod, his brother, who was a resident1 of the parish of Lafourche, in this State, said succession being represented by Jean Frang’ois Girod, one of the testamentary executors thereof, and C. R. Caune, attorney for the absent heirs, and to make a report thereon to said honorable., court, do declare, under the sanctity of the oath they have.taken, on die tenth of December instant, and which is hereto annexed, that after hearing the parties interested in this affair, and the witnesses by them introduced, after being sworn by John L. Laparge, a justice of the peace in this city, they, have proceeded to the examination ■ apd verification of the documents, titles, accounts, and books exhibited to them by the parties interested in the manner following, to wit.: — First, they have examined the sworn account produced by Nicolas Girod, on the 25th of November last, which consists of thirteen items, which the arbitrators have verified in the manner following.
The first item, amounting in capital to ‡ 1,602 for 801 . hides, which the said Nicolas had left in the stores of Claude Francois Girod, is established by thé declaration of Jean Francois Girod, who affirms positively that the said 801 hicfes had been left in the stores of said Claude Francois Girod, who disposed of the same for his private- account; the said Jean Francois Girod declares likewise, that two dollars was the price for hides in' 1794, and that he himself had purchased some at that price for his own account ... . . . • • $ 1,602 00
The second item, amounting in capital to $-1,500, is the produce of an account which Mr. Pierre Bousignes, then clerk of the house of Claude F. Girod, had collected and paid in the hands of said Claude F, Girod, as making part of the funds belonging to Nicolas Girod. Mr. Bousignes declared under oath, that he does not remember the precise amount of that sum, but that it must have been something like fifteen hundred dollars ; he recollects that that account was paid in before the lire of 1794, and that several cash payments fipW the private account of C. F. Girod were made out of the funds belonging to said Nicolas Girod. $1,500 00
The third item, amounting ip capital to $ 6,222-18, proceeds from the following remittances and. effects, to wit: Jean Francois Girod paid in specie to Claude Francois Girod, Nicolas Girod’s (interest, say two thirds in a shipment of furs made in March, 1795, on board the brig Jane, bound to Philadelphia, and amounting to $ 3,593-37, as appears from a copybook or register, marked A, No. 40, written by Guilhempan, and signed by the said Claude Francois Girod, which book or register has been produced by the. said-Jean Francois Girod, who further declared, .that the said Claude Francois Girod . was at that time authorized to settle the accounts of Nicolas Girod with this deponent, and that the said C. F. Girod has never rendéred to Nicolas Girod an account of this, transaction .... 2,395 .63
For so much paid by Jean Francois Girod to said Claude Francois Girod, for Nicolas’s interest, say two thirds in another. shipment of furs made in April, 1795, on board the brig L’Archedimoi, bound to Philadelphia, as appears from the aforementioned copy-book or register, marked A, No. 40. 432 ,75
For the amount of a barrel of wine, with which the private account of said C. F. Girod was debited on the 17th of Qctoberj 1795, but never since credited with, as appears from the aforementioned copy-book ^or register, . . • . 50 00
Amount of a bill of exchange drawn by Claude Francois Girod, on the 7th of April, 1796, payable eight days after sight, at New York, to his brother, Nicolas Girod, for $2,000, which he had received from Jean Francois Girod, for $2,000, which he had received from Jean Franpois Girod; said bill has never béen accepted or paid, as appears from the bill itself, which has been exhibited to us by said Nicolas Girod, . . . 2,000 00
For the half of the amount of twenty-six barrels of gunpowder, shipped in the month of April, 1796, on board the ship The Two Friends, bound to New York, and consigned to Th. Thebane, by Jean Franjois Girod? on joint account With Nicolas Girod. The proceeds whereof, amounting to $ 1,193*75, as appears from the copy-book aforesaid, were received,^as also the profits of said Th. Thebane by the said Claude Francois Girod, who never accounted'for them to the parties intere ted. This being established by the declaration of said Jn. F. Girod, . . . • . * - . • . #596 87
Amount of sundry merchandises belonging to Nicolas • Girod, and by Jean Francois Girod intrusted to Claude -Francois Giród, as appears from the copybook aforesaid, which was exhibited to us by said Jean Francois Girod, who declared that Claude Francois. Girod had never accounted for the merchandise to said Nicolas Girod, ... 210 06
Amount of sundry debts which Claude Francois Girod had undertaken to collect for account of Nicolas Girod, as appears from the statement produced by; Jean Francois Girod, and corroborated by the aforesaid copy-book or register A, 476 87
Amount of *a barrel of wine, sold to Mr. de Vanglne, by the said Jn. Fran§ois Girod, which was paid to said Claude Francois Girod, as is proven by a written declaration of said Jn. F. Girod in said copybook or register, ....... 60 00
The 4th item, amounting in'capital to $ 186, is established by the declaration of Jean Francis Girod, who affirms that it is within his knowledge that the articlest composing- said item Were delivered1 to Claude Francois Girod, who shipped them for Havana on his private=account, .... 186 00
The 5th item, amounting In capital to $ 651*50, consists of the net proceeds of the sale made by Claude Frs. Girod of 2 bales of blue drilling, shipped for New York in 1801, on board of the ship South Carolina, Stick, master, by Thibaut, for account of Nicolas Girod, and consigned to Claude F’ois Girod, as appears from book No. 1, which was exhibited to the arbitrators, who ascertained that- it was in the handwriting of Guilhempan, then the clerk and agent of C. F. Girod, ..... 651 50
The 6 th item, amounting in capital to $229*06, consists likewise of the net -proceeds of the sale of a cask of manna, shipped by Nicolas Girod when ,in New York, in 1797, on board of schooner Despatch, Clark, master, to the consignment of said Claude Francois Girod, as the whole vas made to appear by copy-book No. I, mentioned in the foregoing article, ........ $ 229 06
The 7th item, amounting in capital to $ 379*12, consists of a lot of merchandise, consigned by Jean Francois Girod to Claude Francois Girod, at the time of said J’n F. Girod’s departure for the United States in 1797, which said merchandises belonged to said Nicolas Girod, and were sold by said Claude Francois Girod, as appears from a waste or copy-book, in the handwriting of said Guilhempan, marked B,- No. 42, and produced by said Jean Francois Girod, ...... 379 12
The 8th item, amounting in capital to ‡ 813*82, consists of-the proceeds of the sale made by Claude Frs. of divers merchandises belonging to Nicolas Girod, which the latter had left in the hands of Jean Francois Girod, who delivered them in kind to Claude Francois Girod at the time of said J. F. Girod’s departure for the United States, in 1797 ; said merchandises are enumerated in a copy or wa&tebook in the handwriting of the late Guilhempan, marked B, No. 41, and likewise produced by the parties,interested, . . . . . . 813 82
The 9th item, amounting in capital to $ 899, consists of the net proceeds of twelve barrels of wine shipped by Nicolas Girod when in New York, 1797, on board the brig Success, Dinsmore, master, to the consignment of Claude Francois Girod, who sold the same, as was shown by the sales-book No. 1, aforesaid, ‘ « . . . . . 899 00
The 10th,item, amounting in capital to $ 489»63, consists also of the net proceeds of sale made by Claude F’ois Girod, of 498 sextains of cards shipped by. N’as Girod when in New York, in. 1797, on board of the brig Success, Bathbone, master, to the consignment of said Claude F’ois- Girod, as was shown by. the sales-book No. 1, aforesaid, ... ... 489 63
The 11th item, amounting in capital to ‡ 991*38, consists.also of the net proceeds of the sale made by C. F. Girod of 762 sextains of cards, shipped in 1795 by Nicolas Girod, then in New York, for. his account and risks, on hoard the schooner Active, Wilcox, master, and consigned to said Claude Frs. Girod, as appears from die sales-hook No. 1, aforesaid, • 991 38
The-12th item, amounting m capital to the sum of $ 13,901-94, consists of divers lots of merchandises, and jewelry belonging to N. Girod, which the said Claude Francois Girod. sent into' the provinces of the interior, and there sold, or caused to be sold. The accounts of those sales were never settled between Claude Francois and Nicolas Girod, which fact is attested by the declaration of Jean Francis Girod, and sevéral other witnesses, who testify that Claude Frs. Girod has. constantly avoided to render said account. The several articles composing thé present item are - enumerated and detailed in the aforementioned sales-book No. 1, which the arbitrators have ascertained to be in the handwriting of Guilhempan, . ... ... $13,901 94
The 13th item, amounting in capital to $ 6,574-30, consists of the balancé of an account between Nicolas and Claude F. Girod, adjusted on 1st August, 1813, by Mr. Phillippon, jr., who veas authorized for that purpose by the said Claude F. Girod. The arbitrators, after examining that account and the one preceding it, are satisfied that the articles mentioned in said accounts are foreign to the affairs which existed between the said Nicolafe and Claude Frs. Girod, ... . .. . , 6,574 30 #34,439 93
Secondly.- The arbitrators have examined and verified the account of' interests also making part of the claims of said Nicolas Girod, as follows, viz. i —
Interests on $ 1,602, amount of the first item of the account produced by Nicolas Girod, from November, 1794, to the date, hereof, making, in all, 20 years, at 6 per. cent, per annum, . . . . $1,922 40
Interests on ,$ 1,500, amount Of the 2d item, from the year 1794 to the date hereof, that is, 20 years, at 6 per cent, per annum, . -..... 1,800 00
Ditto, on $ 6,222-18, amount of the 3d item; the arbitrators have examined the eight parts whereof this item is composed, and found that the interests calculated. on each part amounted to $7,087*92, wherefore they have been of Opinion to leave the item as it was presented, . . ,. .. .6,657 31
Ditto, on the $ 186, amount of the 4th item, from January, 1797, to this day, making 17 years, 10 months, at 6 per cent, per annum, . . . . 199 02
Ditto, on $651-50, amount of the 5th item. The arbitrators . have reduced the amount claimed, to wit* $664 02, to $ 504-91,.because the interests ought to have been calculated only from the 1st of Janu-* ary, Í802, when the 2. bales of drilling shipped by Thibaut, were sold; — this gives i2 years and 11 months, at 6 per cent, per annum, . • . . . . $ 504 91
Ditto, on $229*06, amount of the 6th item. The arbitrators have verified the calculation, which they have found correct, . . . 233-58
Ditto, on $379-12, amount of the 7th item. The calculation was verified, and found correct, . 382 78
Ditto, on $813-82, amount of the 8th item. The calculation was verified, and found correct, . 817 90
Ditto, on $ 899, amount of the 9th item. The calculation was examined, and found correct, 876- 52
Ditto, on $489-63, amount of the 10th item ; after examination, found correct, 477 75
Interests on $991-38, amount of the 11th item ; examined, and found correct, 966 22'
Ditto, on $ 13,901-94, amount of the 12th item ; examined, and found correct, .... 12,998 30
Ditto, on $ 6,574-30, amount of the 13th and last item of the account presented by Nicolas Girod. The arbitrators, after examining the calculation, found that it fell short of what it ought to have been, but as the difference is trifling, and in favor of the heirs, they left the item as it was presented, . 493 06
Capital and interests due, after examination, .. $ 62,769 98
The arbitrators next proceeded to verify and examine the sums with which the said Nicolas Girod has credited the account he has produced, which sums amount, in capital and interests, to $22,351*89, and were found correct, .- . . . . 22,351 89
Balance in favor of Nicolas Girod, . . $40,418 09
“ So that the balance in favor of Nicolas Girod is reduced to $40,418-09 instead of $40^579-20, as claimed in his account, this difference being produced by the reduction made on the. interests of the 5th item of said account. The arbitrators, after haying examined and heard the declarations of Messrs. Pre. Bousignes, M. Pacaud, Joseph Guillot, and Jean Francois Girod, witnesses introduced by the parties, and sworn by John S. Lapauze, a justice of the peace, who positively assert that Claude Francois Girod has always refused to settle his accounts with his brother, Nicolas Girod,1 and after a scrupulous • examination of the books, accounts, titles, arid other documents which were produced in this affair, are of opinion that the sum óf foily thousand four hundred and eighteen dollars and nine cents, claimed by said Nicolas Girod, is lawfully due to him. In faith whereof, we have signéd the present award, that it may have its legal effect given to it.
“ New Orleans, this fourteenth day of the month of December, eighteen hundred and fourteen.
(Signed,) F. MEFFRE ROUZAN,
F. PERCY, Jun’r.”
“ On this, the twelfth day of the month of December j 1814, in the thirty-ninth year of the. independence of the United States of America, before me, one of the justices of the peace for the city and parish of New Orleans, personally appeared, as requested by the parties, Mr. Joseph Guillot, a witness in the case of Nicolas Girod v. Jean Francois Girod, one of the testamentary exeóutors of the late Claude Francois Girod, and Charles Robert Caune, attorney 'for the absent heirs, who, being duly sworn according to law, declared and said, that he has always been a friend of the Girods, and that some time in the month of July, 1813, the late Claude Francois Girod, being in town, came to deponent’s house, and requested him to call upon him in his room, saying that he had something to confide to him ; and that having repaired thither, said Claude Francois Girod communicated his intentions of preventing all difficulties after his death, saying that he was desirous to settle with his brother Nicolas, that he had been to church, where he had knelt before the Holy Virgin, beseeching her to assist him in terminating his affairs with his said brother Nicolas ; deponent, knowing' nearly all their affairs, asked him in what manner he intended to settle them; then the said Claude Francois Girod told'him, — Here are my propositions; I will sell my house in St. Louis Street for cash to my said brother Nioolas, with a view to settle with him, reserving, for the term of my natural life, the use of one of the back rooms of said house ; and if there be any balance remaining due to him, he will grant me a delay to pay the same ; — and he requested deponent to submit those propositions to Nicolas Girod’s consideration, which deponent did; but the said Nicolas Girod- answered him surely, No ; and added, that he requested deponent not to interfere in that affair, saying that he himself had made proposals to Claude Francois Girod, his brother.
“Deponent further says, that he.knows well that said affairs between Nicolas and Claude Francois Girod were never settled ; and he has signed with us.
(Signed,) JN. FRS. GIROD, Testhy Executor.
JOSH. GUILLOT.
N. GIROD.
R. CAUNE, Attorney for absent heirs.
“ Sworn to and subsc oed before me, at New Orleans, this 12th day of December, lol4.
(Signed,) JH. L. LAPANGE, Justice of the Peace.”
Order, 1.5th December, 1814.
“Nicholas Girod, v. -
Jean Francois Girod, Ex. of C. F.
Girod, and C. R. Caune, Att’y, &c.
“ Upon motion of Alfred Hennen, Esq., counsel for the plaintiff, and upon reading „and filing the report of- the . arbitrators appointed in this. case, it is ordered, tjiat the defendants - do show cause on Saturday next, the 17th instant, if any they, have or can, why the said report should not be homologated, and made the judgment of this court in the premises.’-’
Sheriff’s Return on Copy of the above Order.
“ Served copy of the within order on each of the defendants, December 15th, 1814.
(Signed,) J. H. HOLLAND, Deputy Sheriff.”
Order and Judgment.
“ It is ordered, that the report of the arbitrators be homologated, and made the judgment of the court in this case, and that the said defendants do pay to plaintiff^ in conformity to. the said award, the sum of forty thousand four hundred and eighteen ■ dollars and nine cents, with costs of suit to be taxed.
“ JVew Orleans, May 6th, 1815.
(Signed,) J. PITOT, Judge.”
“ I do hereby certify this to be a true copy of all the records, documents, and proceedings had in this case. Clerk’s [seal.] office of the Parish Court, New Orleans, January 10th, 1844.
(Signed,) ALFRED BODIN, Deputy Clerk.”
In the preceding March, Jean Franjois Girod had brought in an account against the succession, and passed it through a similar process, which resulted in a judgment in his favor for the sum of #8,253-20.
The bill of the complainants in the court below then charged, that nearly all the coheirs, having full faith and confidence in the honesty and integrity of Nicholas and Jean Francois Girod, did intrust them with their powers of attorney, authorizing them to. represent ..the interests of such coheirs in die settlement of the- succession ; in virtue of which the executors approved the account rendered by themselves. And that afterwards, by concealment of facts which they knew to exist, and were bound, as agents, to communicate, the said executors obtained from some of them an acquittance or transfer of ail claims against the succession.
The bill then recited that Nicholas Girod had died, in possession of all the real estate of Claude Frangois Girod except some parts which were mentioned as having been sold, all of which property thus remaining with Nicholas Girod the complainants claimed as the original coheirs of Claude Frangois Girod, and also an account of the rents and profits. All claim against the other executor, Jean Frangois Girod, was released.
Amongst the matters introduced in evidence was the following letter, which is inserted because it is referred to. in the opinion of the court; and was sent by Girod at the same time that he obtained from his two sisters the receipts which are mentioned in another part of this statement.
C{ JVfew Orleans, 27th May,-1817.
“ My sister Quetend : — To-morrow, our brother Jeap Frangois embarks for Havre ; from thence he will proceed home, for the purpose of delivering to each one of you what is coming to hi hi from the succession of our late brother, Claude Frangois. I assure you, that if I had not been anxious to protect the honor of this brother, every thing would have been absorbed in settlement of accounts with me, and by other debts ; besides, whether you have it now or later, the greater part cannot escape you ; — this is to be Understood of those who shall not cease to merit our friendship and esteem. Beware not to imitate the example of Jacques, who has for ever lost our regard by his iniquities toward our whole family. Hereafter, when I shall have, in some measure, recovered from my losses by. different bankrupts, I will send you some assistance from time to time. At present J. F. has orders to regulate his conduct towards you all by your conduct towards him. Farewell.
“ I cordially embrace you all.
“ Your brother and friend,
(Signed,) N. GIROD.
“ I have not time to write to you more at length, having much to attend to-before the departure of my brother.”
The original is indorsed: —
“ Recorded in consular book G, page 94.
“ Paris, 22d January, 1844.
(Signed,) LORENZO DRAPEZ, [seal.]
Consul United States.”
Proved and admitted in evidence, April 29th, 1844.
On the 19th of January, 1830, Jean Francois Girod executed to his brother and co-executor, Nicholas, the following deed.
On this nineteenth day of the month of January, of the year eighteen hundred and thirty, and of the independence of the United States of America the fifty-fourth, before me, Louis T. Caire, a notary public in and for the parish and city of New Orleans,.duly commissioned and sworn, and' in the presence of the witnesses hereinafter named and undersigned, personally appeared Mr. Jean Francois Girod, junior, residing at Paris, in the kingdom of France, and now in this city, herein acting for himself and in his own right, of the one part, and Mr. Nicolas Girod, his brother, residing in this city, and herein acting for himself, and in his own right, of the other part, who declared that they own, in common, for a moiety each, several landed properties, and, among others, a sugar-plantation, situated on Bayou Lafourche, parish of Assumption, in this State, which they have for several years cultivated as partners, the said Nicolas Girod having the exclusive administration of the same, and being clothed with the necessary powers to that effect; but that from the date hereof the partnership between them is amicably dissolved, by consent of both parties.
“ And the said Jean Francois Girod moreover declared thai. sells, abandons, transfers,- and sets over, without any other warranty than that arising of his personal acts and deeds, but with substitution and subrogation to all the warranties which have been given to them by their original vendors, unto the' said Nicolas Girod, his brother, here present, and accepting purchaser, for himself, his heirs and assigns : —
“■ 1. The undivided moiety of a sugar-plantation, seven leagues, distant from the River Mississippi, situate on Bayou Lafourche, in the parish of Assumption, as it now is, or may be,- together with the undivided moiety of the improvements, slaves, animals, ameliora-tions, implements of husbandry, and all other óbiects or things whatever appertaining thereto.
££ 2. The undivided moiety of all the lands belonging to them in common, and situated on Bayou Lafourche.
££ 3. The undivided moiety of three islands lying at the mouth of said Bayou, and known as Timballier, Bross, and Caillon islands.
££ The whole of which had been acquired, on joint account, by the said appearers, by.purchase from the late Joseph St. Felix, ás per act executed before F. Courvaisier, judge of the aforesaid parish of Assumption, on the eighteenth of February, eighteen hundred and fourteen, the said St. Felix had purchased the same at the judicial sale of the property belonging to the succession of the late Claude Francois Girod, who in his lifetime had acquired the same by purchase from divers persons ; the said purchaser acknowledging that he is fully satisfied with the said titles, and declaring that he is well acquainted with the said plantation, lands, animals, slaves, and improvements, which are the subject-matter of this act, and requires nothing further.
££ But it is well understood and agreed upon, by and between the . parties hereto, that the sugar and molasses now on said plantation and in the sugar-house are not'1 included in this sale, and that the net produce thereof shall be equally divided between the parties.
“ And the said Jean Frangois Girod moreover declared, that he also transfers and abandons, unto the said Nicolas Girod, his brother, all and singular the debts due to said plantation, as also all such sum or sums as now are, or may hereafter be, due to said partnership or community, under what title, and for what reason or reasons soever, hereby giving unto his said brother full power and authority .to sue for and enforce the payment thereof, but without recourse against the transferer.
“ The present sale and transfer of debts are made and accepted by the contracting parties for and in consideration of the price and sum of seventeen thousand dollars, in payment whereof the said purchaser, Nicolas Girod-, has presently subscribed to the order of the said Jean Frangois Girod, his brother, three promissory notes, each for a like' sum of twenty-three thousand three hundred and thirty-three dollars thirty-three and one-third cents, the first payable on the first of March, eighteen hundred and thirty-one, the second on the first of March, eighteen hundred and thirty-two, and the ■ third on die first of March, eighteen hundred and thirty-three, with power and faculty, however, to postpone the payment of said notes, or of parts thereof, from year to year, by paying to the said Jean Frangois Girod, or to the holder of the notes" the payment whereof shall have been postponed, a yearly interest, at the'rate of eight per centum per annum, until final payment; which said notes, after being marked me vanetur by the notary undersigned, to identify them herewith, were handed over to the said Girod, who acknowledges the receipt thereof, and gives full and ample acquittance for. the same.
“ By means of the foregoing, but provided the aforesaid notes be paid, the said Jean Frangois Girod transfers and abandons unto the said Nicolas Girod all the rights of ownership whatever which he had, has, Or may have, in and to the plantation, lands, slaves, animals, implements of husbandry, in a word, in and to all the property which they owned in common, wishing that the said Nicolas Girod be seized of the same, and may enjoy, use, and dispose thereof, as of things to him well and lawfully belonging, from this day and for ever.
“ And the said appearers have furthermore declared, that by act before G. R. Stringer, a notary in this city, bearing date the fifteenth of May, eighteen hundred and twenty-nine, Mr. Nicolas Girod, acting for himself, and in the name and with the consent of his brother, sold to Messrs. Abner Robinson and Benjamin Bab lard a tract of land situated in the parish of Assumption, and belonging to the community aforesaid, for the price of fiftéen thousand' dollars, five thousand whereof were paid cash, and converted to the use of said sugar-plantation, and other property; that the t£n thousand dollars payable at one, two, and three years from the date of the act aforesaid belong to them for a moiety .each, but jhat the said Jean Francois Girod assigns to Nicolas-Girod his share of five-thousand dollars-in said debt, on condition that, the latter shall credit his running account with a sum of .twenty-five hundred dollars, as for money had and received, and without recourse to the assignor, who moreover transfers to said-Nicolas Girod, without exception or reservation any, all the rights, actions, privileges, and mortgages accessory to the aforesaid debt of five thousand dollars, being the transferer’s share in the price of the sale aforesaid.
“ And the notary undersigned having made known to the parties hereto article 3,328. of the new civil code of Louisiana, which reads as follows : — ‘ Eveiy notary who shall pass an act of sale, mortgage, or donation, of an immovable or slave, shall be bound to obtain from the office of mortgages of the place where the immoyar ble is situated, or where the seller, debtor, or. donor has his domicile, if it be of a slave, a certificate, declaring the privileges or mortgages, which may be inscribed on the object of the contract, and to mention them in his act, under penalty of. damages towards the party who may suffi r by his neglect in that respect,’ they, the said parties, declared, that, as tenants in common, they are fully aware of the state of things in relation to the immovables and slaves, object of this sale,' and that they do hereby, jointly and separately, relieve and free the notary undersigned from all liability pit .that subject.
“ Done'and passed in my office, at New Orleans, the day, month, and year first above written, in the presence of Messrs. Charles Darcantel and Jose Antonio. Bermudez,., witnesses hereto required,. and domiciled in this city, who have signed with the said appearers and me, notary, after reading hereof.
(Signed,) JN. FS.,GIROD.
N. GIROD.
CHARLES DARCANTEL.
J. ANTONIO BERMUDEZ.
LOUIS T. CAIRE, Notary Public”
About the 1st of September, 1840, Nicholas Girod died, in Ndw Orleans, leaving the following will: —
i£ Will of Nicolas Girod'. — Filed 30th January, 1841.
“ Ne varietur. New Orleans, 30th January, 1841.
(Signed,) J. BERMUDEZ, Judge.
. A due bill to the Mayor of New Orleans, for the ‘sum of ‡ 10(1,000-00, to be employed in the construction of a building called by the name of ‘ N,- Girod,’ in the parish of Orleans, to receive and comp, to the relief of the French orphans inhabiting the State of Louisiana, $100,000 00
A due bill to the treasurer of the Charity Hospital, $ 30,000 00
A due- bill to the president of the Catholic Asylum, 30.000 00
No. 4. A due bill to Mrs. Bouvard, born Poide bard, of Bordeaux, 100,000 00
5. Do. Mr. Vollier Poidebard, at Chamberry, . 30.000 00
6. Do. Mr. Joseph Girod, 100,000 00
7. Do. Mr. G. Montamat, 60.000 00
8. Do. Mr. A. Michoud, 50.000 00
9. Do. Mr. F. Grima, . 30.000 00
10. Do. Mr. Dejan* senior, 20.000 00
11. Do. Mr. D. Prieur, 40.000 00
12. Do. Mr. Chs. Claiborne, 15.000 00
13. Do. Mr. M’ville Marigny, 15.000 00
14. Do. Mrs. Widow Sabatier, 20.000 00
15. Do. Mr. A. Fournier, 20,000 00
16. Do. Mr. E. Rivolet, 20,000 00
17.. Do. Mr. E. Mazureau,. 20,000 00
18. Do. Mr. C. Gurlie, . 20,000 00
$ 710,000 00
“ I certify that the eighteen due bills, above mentioned, are, and constitute, my sole and last will.
“New Orleans, the 23dof December, 1837.
(Signed,) N. GIROD.”
Thé following is a specimen of one of these due bilis : -—
“ Good for the sum of fifty thousand'dollars, payable to Mr. A. Michoud, at the settlement of my estate.
50,000. No. 8. (Signed,) N. GIROD.”
All these legatees were made defendants to the bill.
In the course of the suit an injunction was issued against Antoine Michoud, the executor of Nicholas Girod, to prevent him from making any payment or distribution of thb funds received or to be received.
The defendants all answered; the principal answer being that of the legatees. They denied that Claude Francois. Girod enumerated in his will and codicil all the debts due by him, but averted that he owed other and much larger debts ; insisted that the authorization granted to the executors by the will, for the sale of the property, was legal; that no law of Louisiana, then existing, contained a provision by which a judge ex officio auctioneer was rendered incompetent, any more than any other auctioneer in the State, to sell any. property whatsoever* situated within or without the limits of his jurisdiction; averred that* as no complaint was made of the price of the property so sold by the. judged the circumstance that a portion of the property was beyond his jurisdiction was of no consequence, and the price thereof must be regarded as'fair, and the sale as having been duly made ; admitted the sales of property to St. Felix and Laignel, but denied that any retro-cession. of the property to the executors ever took place, inasmuch as no retrocession could take place between the parties, unless the executors had been previously the sole and exclusive owners of. the ■ property ; denied that any fraud or breach of trust was committed by the executors.
The respondents, in their answer, also admitted that the executors had placed themselves ' as creditors, in their account of the succession, but averred that they had a right lawfully and justly to do so ; that Nicholas Girod'was creditor by virtue of a final judgment of a1 competent tribunal, namely, the Parish Court of the Parish and City of New Orleans, rendered on the 6th of May, 1816 ; they further aver, that, this judgment has, for' upwards of twenty-six years past, acquired the force of res adjudícala, and cannot be. disturbed ; that the account presented by,the executors was duly homologated by the Court of Probates, "and- that judgment of homologation has also acquired the force of res adjudicóla. The respondents also deny that the executors, in placing themselves as creditors of the succession in their account, and in'ratifying that account under the power of attorney intrusted to them by their coheirs, abused the trust and betrayed .the interest confided to them for their own advantage, and to the wrong and injury of their constituents.
The respondents further denied, that Nicholas Girod, by means of false and fraudulent representations, or concealment, had induced the complainants to sign acquittances; averred that they were signed freely, after being well informed of all the cifcumstánces ; that Hyppolite Pargoud, the son of Madame Pargoud, had been in New Orleans, &c., &c.
The respondents inserted in- their' answer a number of family letters, from which they inferred that Nicholas Girod was a chari-. table man, and had -constantly been the supporter of his distant relations, and concluded by pleading prescription.
To these answers there was a general replication.
In the progress of the suit the following admissions were filed by the respective parties : —
Admissions of Plaintiffs.
u Pargoud v. Michoud.
u 1. Jean Francois Girod, senior, died, leaving a will in favor of Jean Francois Girod, junior, of Paris, and the share of the- complainants, M’mes Pargoud and Adam, in the estate of Claude Francois Girod remained as it previously was, to wit, one eighth. •
“2. The complainants will contest no portions of the account rendered by the testamentary executors of C. F. Girod to the Court of Probates in 1817, .except the individual claims of the said two executors, and .the-judgments''obtained on them. , " ’
“ 3. The heirs of Claude Franqois Girod,, with the exception of ' Nicolas Girod ..and Jean Francois Girod, junior, resided in Europe. “ 4. All the legatees of Claude Fran§ois Girod resided in Europe, except .the Parish .Church of Assumption, Framjoise.’'V^'iltz, Franjoise, the daughter of Rosette .Celan, the wife of Mellion, and Pauline and Dominick, who resided in-Louisiana. "
“5. The lots of which NicolaS'Gtrod' has made a donatiori ' to" the Poydras Asylum were, worth, at the time of said donation,' § 35,000, or thereabouts.
“■6. Nicolas Girod always .resided in Louisiana, and never went to Europe after his settlement in this city under the Spanish government., , • - . \
“7. - All-the letiers mentioned in the printed answer, from pp. 27 "to 38 inclusive, are admitted to be genuine, and the translations of' parts., thereof, in said answer, are admitted to be correct; but the “cbmplamants "will, require complete translations of them to be prepared, and' they reserve the.right-of ohjecting7 to. their admissibility on other grounds, if aqy they have. ...
£C,8. Hyppolite Pargoud was brought to Louisiana by his ,uncle, Jean Francois Girod, junior, and has resided with him in Ouachita, up to the year 1821, when said uncle went to Paris,
££ 9. The residence of M’me Adam, of M’mé Quetand, and of Jacqueline Poidebard, the wife of Joseph Rivolet, was at Thónes, .- in Savoy. '
££ 10. Thé age of Jeaii Francois Girod, junior, now residing at Paris, is seventy-two. He: is unmarried. Has no other heirs at law except the complainants, and some relatives of the same degree, or their legal representatives. He is on good terms with the complainants,.and he and Hyppolite Pargoud,.the attorney in fact of the •complainants, are intimate friends, and Antoine Michoud is his attorney in fact.
“11. The two acquittances of M’mes Pargoud and Adam, mentioned in the answer, and. since deposited in court, are admitted to be genuine, and the, said complainants were, in executing them, authorized and assisted by their husbands.
“ 12. Hippolyte Pargoud is a man of good business habits, attentive and intelligent. He visited his. family in 1827 and 1835, but at each visit stayed but a very short time with them. In 1837, he obtained a power of attorney from his mother, authorizing him to claim and recover her share in the estate of Claude Frangois Girod. It was shown to Antoine Michoud, to be by him. attested or legalized, as Sardinian consul, but it was not made use of. Hyppolite Pargoud demanded and obtained another, which was executed before a.notary public on the. 18th of May, 1840. From the time he received the first power, he made no secret of his intention of bringing a suit against his uncle Nicolas, and after receiving the second power, when making the inventory at Lafourche, where he was present, he said, that n there had been a will or testament made by his said uncle, hé would have sued his succession in the name of his mother.
“ 13. The letters which have beep heretofore deposited by the defendants in the hands of the clérk of the court are genuine, and all signed by the parties in whose names they are written. But the complainants reserve all other objections to their admissibility, and if they are admitted in evidence, they must be translated.
“ 14. The will of Nicolas Girod was not. known when the said inventory was made at Lafourche ; it was discovered to exist some time thereafter.
“ 15. By the laws of the Duchy of Savoy, Hyppolite Pargoud is a forced heir of his mother, Peronne Bemardine Pargoud, one of the complainants.
“ 16. Nicolas Girod was the eldest of the family. He was years old when he died.
“17. In November, 1833, Nicolas Girod made a present to IJhilippine Poidebard, his niece (widow Nicoud), of the sum of 3,240 francs, equal to $ 648 ; and in March, 1834, he made her another present of 22,000 francs, equal to $ 4,400, both which presents she received.
(Signed,). J. P. BENJAMIN, for complainants.”
And on the 29th of April, 1844, the following admissions of defendants were filed.
Admissions of Defendants.
“Pargoud v. Michoüd.
“ 1. Denise Philippine Poidebard, the. widow of Pierre Nicoud, died .in August, 1841, leaving three legitimate children, viz. Benoite Colline Nicoud,, Mauriee EmiKe Nicoud, and Jeannie Benoite Nicoud, the last of whom is a minor; Jean Berger is her tutor.. All ¿hese parties, as well as Louis Joseph Poidebard, never were in the United States.
“ 2. The allegations in die answer of Jean Firman Pepin, as syndic of Jean Francois Girod, jr., concerning the transmission óf . the latter’s interest in the subject-matter of this suit, are correct, viz.: that Pierre Nicolas Girod died at New Orleans, on the 1st of September, 1841, leaving a testament, by act, before Joseph' Cuvillier, notary public, of the 6th of February, 1841, by which he bequeathed all his property to the said Jean Francois Girod, jr., his brother ; the said Jean Francois Girod, jr., made a cession of property in the District Court of the First Judicial District, on the 25th of January, 1842 .; that theréby the interest of both Pierre Nicolas and Jean Francois Girod. jr., is vested in the creditors of the sand Jean Francois Girod, jr., and that said Jean Firman Pepin is the syndic of the said creditors.
“ 3. All the property described in the inventory of the estate of Nicolas Girod, as being situated in die' second municipality, is derived from the estate of Claude Francois Girod. Nicolas Girod never improved.this property, but leased it to John F. Miller, by two acts passed before L. T. Caire, notary public, on. the 9th of May, 1829, and the 3Qth of April, 1831 each of these leases is for the' space of twenty years, and for an annual rent of $ 3,000.
“ 4. The age of Jean Baptiste Dejan, ainc, is sixty-seven years, and that of Claude Gurlie, seventy-two years. The former is a native of New Orleans,- the latter has resided in New Orleans forty-eight years, and was intimate with Nicolas Girod as early as 1814.
“5. Nicolas Girod never cultivated or occupied any of the lands -mentioned in the bill as situated on Bayou Lafourche, except the plantation, but made levees on those lands.
“ 6. The Bouvard family resided, in 1813, and has ever since been residing, at or near Bordeaux, in France.
“7. The age of Etienne Rivolet, one of the legatees of N. Girod, is forty years. -He is not related to the Girod family, except, by his brother, who married Jaqueline PoicLebard, one of the nieces of Claude Francois Girod, the testator, and who is therefore his sister-in-law.
(Signed,) ■
MAZUREAU, for defendants.”
And on the 29th of April, the following was offered in evidence and. filed.
“ United States Circuit Court.
“ Widow Pargoud and others Vi Antoine MicHoud and others.
“ Admissions and Agreements between the Parties.
“ 1. Admitted that one Joseph Gaubuan, and one Gorrino, witnesses on thépart of 'the defendants, would, on being examined upon their oaths, declare', that it was to the perfect previous knowledge, and'with the consent and authorization of Jean Francois Girod, jr.., one .of the', testamentary executors of Claude Francois Girod, that Simon Laignel did bid and become the purchaser, at the Ímblic sale made by the register of wills, in the city of New Oreads, of" the faubourg and city property belonging to said Claude Francois Girod, after Ins death ; and further, that it was also to the perfect knowledge, and with thé consent and authorization, of said Jean Francois Girod, that afterwards the said Simon Laignel sold the same property to- Nicolas Girod, the co-testamentary executor of said Jean Francois.
y Nicolas Girod to the Female Orphan Asylum, with interest thereon from the time said donation was made ; with the rents and profits of the plantation and slaves, the house at the corner of Chartres'and St. Louis Streets, ■ and the property in Faubourg St. Mary, now. called thé Second Municipality, from the adjudication of 1814,'and at the rate which might reasonably, and with a proper administration, have been obtained for the same, it being understood, that from the years 18-29 and 1830, when the property in Faubourg St. Mary, or Second Municipality, still undisposed of, was leased to John F'. Miller, the .rents and profits thereon are.to be charged at the rate at which the rent was stipulated in the lease to said Miller.
ct And the said master shall credit the estate of Nieolas Girod in said account with the amount with which said executors credited themselves in their account of 1817, with interest thereon, except their aforesaid two personal claims of $ 40,418-09, and $ 8,253'20; with any payments that have been made on account of legacies left by the said Claude Francois Girod, with interest thereon ; and also with one half of the rents and profits of the plantation and slaves of Bayou Lafourche, up to the time when Jean Trancois Girod sold’ his ’interest in the same to Nicolas Gir°d, the plaintiffs having in their bill consented to .abandon the half of these rents and profits supposed to have been received by the said Jean Francois Girod ; and also with the actual cost in money to Nicolas Girod; but without interest, of the permanent improvements made by said Nicolas Girod, and still in existence, on the lot at the- corner of St. Louis and Chartres Streets, and on the lahds on Bayou Lafourche, deducting therefrom the value of the labor of the slaves of the said plantation,.and of the materials procured from the same, and making, also, proper deductions for the diminution in value of said improvements by wear and tear ; and all the interest to be charged in said account shall be so' charged at the rate of five per cent.
“ And the said master shall compute what amount of the balance so to be found against the estate of Nicolas Girod shall be paid to each of the plaintiffs, according to their declared proportionate interest in the estate of Claude Francois Girod, and said balancéshall be paid to. them, with interest, from the date up to which the master’s report may present a calculation of interest, unless, on application of the parties, the court shall otherwise direct; and said payment shall be made by the dative testamentary executors of Nicolas Girod, but of the funds of said-estate, m preference to any légacies. And for die better discovery of matters aforesaid, die parties are to produce before the said master, Upon oath, all books, papers, and. writings, in their custody or power, relating thereto, as the said master shall direct. And the said master shall, when necessary, examine said parties upon written interrogatories.
“ And it is further ordered, that the said dative testamentary ex* ecutors pay out of the funds of said estate the costs of this suit, which have hitherto accrued. And it is further ordered, that either parly, if so advised, be at liberty to apply to the court for a partition in kind, or by sale of the above-mentioned real estate of Nicolas Girod. And all further directions are reserved until the waster shall bring in his report.
“Decree signed, July 30th, 1844.
(Signed,) THEO. H. McCALEB, [seal.]
United States Judge,”
From this decree, the defendants appealed to this court.
The following is a synopsis of the argument of Mr. Eustis, few the appellants.
The facts necessary to an understanding of this case are few and not complicated ; most of them are admitted in the answer, and others are established by documentary evidence.
The action is founded on an alleg i purchase of the effects of the succession of Claude Girod by his’executors.
Claude Girod died in 1813, leaving a will made in 1812.
The sales complained off took place in 1814,.
The commencement of the adverse possession, and the uninterrupted, exclusive,, and notorious enjoyment of the revenues of the. .estates being fixed by the complainants’ own bill, we proceed at once, to the matters of defence which those facts "present, and which are set forth formally in the answer.
1. The first ground of defence is the entire wan,t of. equity in the complainants’ case, arising from the silence, acquiescence, and laches of the complainants since. 1814.
The principles on which courts of equity refuse their assistance to parties under circumstances like the present are familiar to the court. The most recent cases are the following:— McKnight v. Taylor, 1 Howard, 168 ; Bowman v. Walthen, 1 Howard, 193; Smith v. Clay, 3 Brown’s Ch. R. 640, n. ; Stearns v. Page, 1 Story, 215 ; Giles v. Baremore, 5 Johns. Ch. R. 550 ; Piatt v. Vat-tier, 9 Peters’s R. 417 ; Story’s Equity, §§ 1519, 1520, et seq.; Fonblanque’s Equity (last edition), notes to Book 1, c. 4, § 27.
2. The,-, allegations and evidence adduced by the complainants are no; Reasonably definite as to the time, occasion, and circumstances of the alleged concealment, misrepresentation, and frauds; nor is any account given of the time of the discovery. Of the fact of the adverse possession, it is not even alleged in terms that the plaintiffs were ignorant; die allegation of ignorance of the real situation, &c., is not sufficient for a court of equity to base its action upon. Stearns v. Page, 1 Story’s R. 215.
The -allegations of ignorance, concealment, &c., are expressly denied and püt at issue by defendants.
By the testimony of. J. F. Girod, J. M. Girod, Michoud, and Rivolet, receipts, &c., the fact of knowledge is put beyond a reasonable doubt.
3. The allegations of the complainants in their amended bill afford strong evidence that the relief sought by them will not be a matter of equity, but a speculation upon events. .
The will of the testator, Nicholas Girod;.and the large amount of legacies, was the cause of the suit, ,not the injustice and wrongs of 1814.
The release of the co-executor, J. F. Girod, .and their conduct towards him, point to the same conclusion. He is rich and alive. The chances of inheritance offer a greater benefit • than the result of litigation. They acquiesce, discharge him, and await his bounty, N. Girod is dead, and all their vials of wrath are opened upon , his grave.
4. The defendants rely upon prescription as a defence.
There is a marked difference between prescriptions and statutes of limitation. The former-create rights ; the latter merely reach remedies, .and in a very qualified and artificial manner.
. Prescription is a manner of acquiring property and of discharging debts by the effect of time. It is a title as much so as that of inheritance or sale is....Aliare on the same footing, and a court can no more interfere with rights under the one than under the others. Louisiana Code, 3421 ; Code of 1809, p. 482, art. 32.
By the civil law, prescription is a mode of extinguishing obligations, and is classed with payment, novation, S(.c. The obligation itself is extinguished in foro conscientice, as well as in foro legis. Louisiana Code, art. 2126 ; Code of 1809, p. 286, art. 134; Troplong on Prescription, c. 1,§§ 2, 31 ; Code Napoleon, 1234, 2219 ; Institutes of the Civil Law of Spain, p. 103, lib. 2, tit. 2, p. 108.
Under the civil law, from motives of public .policy, great weight in matters, of property is given to possession. The oldest legal maxims of which we have record establish the1 principles, which modern nations, so far from deviating from, have rather restricted. The policy has stood the test of experience and of tiine. Possession is at once the óbject, the attribute, and the proof of property ; hence'it forms the basis of a title, that bf prescription.
Nicholas Girod purchased and possessed the estates mentioned in the bill since 1814.
He acquired to their a complete title, by prescription, under the laws of Louisiana. His acts of conveyance were public -and authentic, and duly recorded in the proper offices; There are several articles of the Code providing prescriptions] which cover this case. Article 2218, and 204, p. 302, of the Code of 1809, provide, that in all cases in which the action of nullity or of rescission of an agreement is not limited to a shorter period.- by a particular law, that action' may be brought within ten years. In cases of error or deception,'the time of the prescription dates from the day on which either was discovered.. In this case, there was no. secrecy or concealment, and there could be no discovery, in relation to the fact of the sales to N. Girod. The property, was not kept concealed under the name of a third person, but in his own, and placed on the public records as belonging to him. The adverse possession alone was full notice to the complainants. It was sufficient to put them on the inquiry, and they had all the means of information to lead them to a knowledge of the facts, and in law are deemed consonant of them. Sugden on Vendors, 542 ; 1 Atkyns, 489 ; 1 Johns. Ch. R. 267 ; 2 Binney, 466 ; 15 Johns. R. 555; Willison v. Watkins, 3 Peters, 52; 10 Peters, 222, 223; 1 Howard, 196 ; see also the opinion of Pothier on prescription, as affecting absentees, Treatise on Obligations, No. 649; Institutes of the Civil Law of Spain, lib. 2, tit. 2, p. 108.
The only fraud in relation to the sales which can be pretended is, that the executors purchased at'the public sales. This fact, if it was so, is as apparent when the titles were put in their names as it is now.
But, if the only fraud in the sales arises from, the incapacity of the party'to purchase, the prescription of the article 3507 applies with great force. That provides that the action of nullity^ or re-, scission of contracts, testaments, or other acts for • the rescissions of partitions, &c., is prescribed by five years against persons living in the State, and ten years against absentees.
Is not the.agreement between J. F. Girod and.Me. Pargoud, of November 10, 1817, a contract, — an act ? Is it not, under,the decisions of our courts, a partition ? It is stated in the instrument, that it is for her share'in the succession reduced into movable ef-. fects, mobilise, turned into money. “ Whatever may be the. form of the act, it is well settled that every first settlement between heirs or partners, by which a state of indivisión is terminated, is in substance a partition,” say the Supreme Court. And an action to siet aside, on the ground of lesion and fraud,- an agreement by which six slaves were given in consideration of a relinquishment on the part of an heir of all her right and interest in the succession of her mother, in favor of her father-in-law, was held to be barred by the prescription of five years under this article 3507. See 3 Robinson’s R. 317 ; 14 Louisiana R. 22; 15 ibid. 517; 16 ibid. 252 ; Tippet and husband v. Jett. Here the court hold that even fraud is prescribed against under this article, without any reference as' to the. time of the discovery of it.
The prescription of actions for lesion, in contracts generally, .is only four years. Code, 1870. There is. another prescription which protects the defendants, — that of twenty years under a just title ; that is* a title by which property can be transferred. Louisiana Code, 3442 ; Code of 1809, p. 488, arts. 60 — 72.
After the 10th of November, 1817, the date of the receipt of the funds of the succession, in which it is stated that the property is mobilise, — converted into money, — there was nothing to impugn the justice of the title to the property sold, which could not be affected by any misappropriation of the purchase money. This would constitute a claim, and give rise to a personal action, whieh would not affect the title to the property, which must rest on the state of things in 1814. The heirs in Europe must be considered as being satisfied with the price the property sold for, and constituted themselves creditors for their respective shares. The complaint that they have been wronged out of tjie proceeds presupposes that the sales were made ; • and though it may- or not be true that they have been hardly dealt with, as the complainants allege, it by no means follows that the property was, in 1814, sold or purchased in bad faith. In matters- of prescription by possession, good faith is presumed ; bad faith, in a possession, must be proved. Art. 3447. On the form of the title, see Toullier, 8 vol., No. 508, 509, art. 3,453, et seq.; Merlin, Questions de Droit, verbo Mineur.
There is a statute on this subject which clearly points out the policy of the law, which is decidedly against stale claims, and reduces the prescription in previous sales to administrators, executors, &c. to two years from its passage, and recognizes their right to purchase in all cases in which they have an interest in the property sold, as heirs, legatees, or partners. This law is very important in the consideration of this case. . Laws of Louisiana of 1840, p. 123, No. 112.,, passed on the 28th of March, 1840.
5. The answer, contains an argument on the facts. The letters offered by defendants are found at pp. 200-215; the answers under oath from pp. 91 —101. The most important deposition, that of the co-executor, J. F. Girod, taken in Paris, at p. 139. It wasuoffered in. evidence by the complainants.
The complainants call upon the defendants to explain all the affairs of this succession, which was opened in 1813. The defendants are all strangers to them. They are the dative executors, appointed by the Court of Probates, .and not by the will of the testator and legatees. Vide the will.
Why did they not call upon him who alone could give them information, — upon N. Girod, in his lifetime ?
But they called upon J. F. Girod, the co-ex'ecutor of Claude Girod, and the alleged confederate in these marvellous frauds. Let his deposition speak. Does he say the sales were fraudulent, or - that his coheirs were wronged ? It is decisive of the case. One sentence alone closes it: — '
“ Then (1817) it was that N. Girod, who had settled the estate, handed me .a copy of the account rendered to the Court of Probates, and a copy of C. F. Girod’s testament, and it was on the faith of these-documents, presented to the heirs in Europe, that,I paid to-each of them and to the legatees what accrued to them.”
J. F. Girod was sent to Europe by his brother to pay the heirs who resided in Savoy. The act in the bill of complaint,' signed by Me. Pargoud, was- made at Annecy, in -Savoy. He met his brother, the priest, in 'Paris. He refused to examine the accounts in Paris. Vide his letter. The account on which the heirs were paid by J. F. Girod is'found at length at pp. 125 - 128 ; the will of Claude Girod, pp. 163, 164. In the account are stated the amounts due N.' Girod and J. F. Girod, namely, of $40,413-09, and of $ 8,253-20. These items are .-charged as paid, and the succession is credited with the proceeds of the property sold. The account is á settlement of the. affairs of the succession, on which the payment was made in Savoy, in 1817.
A strict examination of the evidence must result in the conviction of an entire want of evidence to establish any thing like fraud on the part of N. Girod.
There are some matters of law which it may be well to consider under this head.
a. By the will the executors were empowered to sell, without the intervention of justice, as to them should seem best for the interest of the absent.
b. -The executors were bound to cause the property to he sold. Code of 1809, p. 2.46, arts. 173, 174 ; p. 174, art. 128.
c. ' The heirs present had a right to insist on a sale for cash. Ibid.,p. 174, art. 129.
d. The law requires the estate to-be settled within the year, where it can be done. The possession of thé executor does not continue after a year and a day. Ibid., p. 244, arts. 1.66, 169, 173, et aí. ; 4 Martin’s R. 340, 609 ; Norwood’s case, 10 ibid. 723.
e. After a considerable lapse of time,-the presumption omnia. rite acta esse applies ; besides, by the law of 1834- (p. 123 of pamphlet acts), all informalities growing out of a public sale by a ' parish judge, or other public officer, are prescribed by the lapse of five years. 2 Robinson, 377 ; 16 Louisiana Rep. 554.
■/. But the executors did not sell; the'judge sold at public auction, and in the most public, fair, and formal manner.
Code of 1809, pp. 174, 127-129. The judge sells, not the executor or curator. ' The sale was complete without any act of the executors. 3 Martin, 592.
g. No decree of the court was necessary to authorize the sale. If there was,' one must be presumed after this lapse of time ; for the judge himself sold. But none was necessary. Commentary of Gregorio -Lopez on Law, 62, tit. 18, part. -.3, which treats of sales made by executors, and only requires them to be made at auction.
6. The decisions of the Supreme Court went.far beyond the law in" establishing incapacities to purchase at judicial sales under the old laws ; the legislative interpretation of 1840, before cited, puts this fact beyond question. . In interpreting the Spanish laws, the decisions of the Supreme Court of Louisiana’ are very unsafe guides, as. every one knows who has scrutinized them.
It is a great mistake to- supposé that, purchases 'made by an executor, at a public sale made, by a. .judge of tbe property of a succession, are absolutely null and voidi The inhibition is, at best, a matter of precaution, to prevent abu§e, and is. established in the interest-of the heirs, and for their benefit exclusively: The aúthorities cited by the complainants prove this beyond question. 13 Louisiana R. 396. This they may renounce or enforce, after a .reasonable time, according to their own peculiar views. Louisiana Code, art. 11 ; 7 Toullier, 562, et seq., 665, et seq.; Sugden on Vendors (ed. of 1834), 436: In all cases where a purchase is made by a trustee, it is optional with the cestui que trust to set it aside. Story’s Equity, §§ 322, 308. ..The cestui que trust has a right to set aside the purchase, and have the estate resold, if he choose, within any reasonable time, to dissent from the. purchase. 5 Vesey, 678 ; 13 Vesey, 600.
The purchase by a curator or trustee is malum, prohibitum, and not malum ire. se. 8 Toullier, § 517, p. 713 ; 2 Sugden on Vendors (edition of 1836),. 143; notes to page 125, No. 329. In Randall v. Ermington (10 Vesey, 428), the fact of the purchase was not clear, the possession of Ermington was-equivocal; but, in all cases where there is á continued public adverse possession, the party dissenting must apply within a reasonable time for relief; he must not lie by and speculate on events. 5 Vesey, 678 and 680 ; Newland on Contracts.
The court cannot permit the parties in this case to speculate on the chances of war. The appraisement, the basis of tbe mortuary proceedings, is not impugned, nor is the adequacy .of the price. The complainants'were satisfied with it, even in 1817. They have. waited until the growth of the country has given an increased value • to real property, and now ask the court, not to do justice,..but to accomplish for them a speculation. Had Louisiana been reduced to colonial vassalage, and enjoyed the advantages of negrophilism, or had the father of the floods, instead, of adding to the extent of the suburban estates, reduced, by its frequent abrasions, their extent and value, and burdened it with riparian works and charges, we should have been held accountable for the price, — at their option the thing or the price, as it is most advantageous to the claimants. What is this but a speculation on évents, which law and good faith repudiate ?
7. There has been a .ratification of the sales by receiving the price, or part óf it. This is what is called the voluntary execution of the contract of sales. The article 2252 of our Code, and 238 of the Code of 1809, p. 310, say it is sufficient that the obligation be voluntarily executed, to thro# the. proof, pf ignorance of the. party ratifying .on him who alleged it. Where there is an execution of the Contract by receiving the price, the party executing-'it is presumed to know any defects'or grounds on which it could be annulled, and 'ignorance of them .must be proved, which can be very easily done where there has been any misrepresentation „ or deceit. And if part of the price be received, the- remedy óf the party is by a personal action against the executor or trustee for any abuse of his function?.
8 Toullier, 508 - 510, 513, cit. Merlin, Questions de Droit, verbo Mineur.
The case of Rivas, relied on by complainants, contains -no new doctrine. The question there was, whether .the party had received part of the price of the plantation in dispute knowingly, that is, knowing that the money he received came from ‘the saie. The court, not being satisfied of the fact, 'bf course held that there was no ratification, but asserted the principle maintained in 8 Toullier, 519, art. 2252 of-the Louisiana Code.
The law never permits a person to mislead another by his silence, where, by the relations between them, he is- bound to speak. This property had been sold, the executors were the agents of complainants, the accounts were before them, the price which the property brought was laid before them, and if they thought proper to receive their portions, they certainly ratified the sales. Their claim for a further portion of the price remains to be considered. Story on Agency, § 255, and cases cited.’
The application of these principles to the payment and discharge in Europe, as explained in the testimony of J. F. Girod, requires no observation.
8. An examination of the articles-of the Code of 1809 cited by complainants, will satisfy the court that the parish judges of the place where the property was situated were competent to make the inventories, appraisements, and sales. Page 246, art. 174 ; page 174, art. 127 -129,
The French text of art. 127, cited, puts the matter beyond controversy, — le juge de 'la paroisse ou des paroisses¿ in which the deceased had property, hall make the inventory; and art. 128 provides, that the judge making the inventory shall make the' sales. The- art. -137, p. 178, refers to curators appointed by a judge. The executor is appointed by the will, and not by the judge.
It is not alleged in the bill or supplementary bills,'that the parish judges who made the inventories and sales acted without authority, except as to the sale of the land in the parish of Lafourche Interior by the judge of Assumption. Nor is it alleged that tfye Court of Probates of New Orleans was without jurisdiction as to the settlement of the. executor’s accounts and liquidation of the succession.
The only allegation as to the defect of jurisdiction of any of the courts is found in the amended bill, p. 102, in which it is charged that the Parish Court of New Orleans, which rendered the two judgments alleged to. be fraudulent, is incompetent. How incompetent ? By reason of what ? Query, for want of jurisdiction, or for want of proper parties ?
Questions of jurisdiction, under the old judicial system of Louisiana, particularly of the courts of probates, have been difficult- ; and, after this lapse of time, every presumption must be in favor of what has been done in courts of justice. 2 Robinson’s R. 377 ; Drenet’s case, 8 N. S. 705.
As to the undoubted jurisdiction of the court of the parish and city of New Orleans, which rendered the judgments . attacked as fraudulent, vide Tabor’s case, 3 Martin, N. S., 676 ; 6 Martin, N. S., 676; 8 ibid. 241 and 705;.7 ibid. 378. The Code of Practice, enacted in 1825, vested the jurisdiction in the courts of probate exclusively of all claims for money against successions.
The jurisdiction of the Court pf Probates of New Orleans, which homologated the executor’s account, not having been questioned in the bilk this court will not disturb its decrees. The jurisdiction existed rations materias, the creditors assented thereto; the succession- was solvent, and the vesting' of the jurisdiction in any other court by the articles quoted is merely a matter of implication, and by no means exclusive. Vide Tabor’s case, cit. 3 Martin, N. S., 680.
9. Respecting the effect given to judgments .homologating proceedings, tableaus, accounts, &c., vid. 6, N. S., 133, 654 ; 11 Louisiana R. 571 ; 7 N. S. 183, 433 ; 4 Louisiana R. 174. The settlement established by the judge in a judgment against a curator or executor. Code of 1809, p. 180, art. 145.
As to the appointment of a defensor to represent absent heirs in suits and vacant successions, vide 4 Martin, 666 ; 10 Martin, 17 ; 4 Louisiana R. 259 ; 6 Martin, N. S., 17 ; Seymour’s case, 9 Louisiana R. 79.
TO. Homologations, like other judgments, must bejannulled by a judgment of the court which rendered them. ■ 12 Louisiana R, 406.
Every judgment in Louisiana is subject to an action of nullity, •¡but it must be brought before the court by which the judgment was rendered. 1 Louisiana R. 21. Code of Practice, article 808, and notes.
If the cqurt would not give the party relief, then, and only then, can relief be sought before the courts of the United States. The doctrine established by this court in the Gaines case, concerning relief against the effect of a will, is similar in all' respects to that which is here invoked.
11: It appears that in the account filed by the executors in the Court of Probates of New Orleans, and exhibited, with the will, to the heirs in Europe by J. F. Girod, on which he made the payments to the heirs, were two sums with which the executors charged the succession of Claude Girod ; one was for $ 40,413-09, as paid to Nicolas Girod; and the other was for ‡ 8,258-20, paid to J. F, Gired The sums are stated to be by account annexed, approved by the judge. Vide Code of 1809, p. 180, article 145.
The complainants, acting uniformly on the principle of one course of conduct for the living and another for the dead, have discharged J. F. Girod, and seek to make N. Girod’s succession responsible for both debts.
It appears that the judge of the Court of Probates did not approve these accounts against the succession of Claude Girod until they had been litigated on, and settled judicially, in' a court of law. Judgments were rendered on each claim in the coúrt of the parish and city of New Orleans ; on that of N. Girod on the 5th Decern-' ber, 1814, and on that of J. F. Girod on the 6th May, 1815. On these judgments the vials of wrath are poured forth by the complainants. Réc. 163 — 182.
Recourse is had to conjecture, when nothing would have been easier than to prove any fact in relation to these judgments by J. F. Girod himself, who, so far from being interrogated concerning these debts, is providéd with a complete and full discharge.
The consequences and effect of this discharge, of the plaintiff.in one of the suits, and the recipient of the money and the defendant in the Qthér, will certainly have an important bearing on the .equity of- the complainants’ case ; and the absence of this proof, which is at hand, will show that they rely more on confusion and conjecture for success than on evidence.
The court, of the parish arid city of New Orleans had jurisdiction of the cases, as has been shown.
An objection has been made, that there were not proper parties. What prevented an executor, who had a disputed claim on a sue cession, establishing in ah ordiriáry tribunal, as the laws stood before the- Code of Practice ? The art. 137 (p. 248, Code of 1809) gives .the power of jane executor to represent the succession, where there are more than age executor who has accepted. Code; 1674 ; vide 3 Martin’s ft. 247. The appearance and answer of the defensor of absent heirs strengthens-the validity and fairness of the proceedings.
The judgments, being vali<j in point of form, must stand until they are annulled and declared void by a proper tribunal. 7 Martin, N. 5., 257 ; 11 Martin’s R. 607 ; 5 Martin, N. S., 664.
•These judgments are attacked as fraudulent. Unfortunately for the complainants, there is no circumstance by them even conjectured which may not have been removed by evidence.’'
The testimony and evidence on which these judgments were rendered is not before us ;, but let us take up that, in favor of N. Girod, which is the only one we have any interest in - maintaining, Bince the release of J. F. Girod.
Claude Girod was a trader, and left at his death various accounts, books, papers, &c., which were inventoried at his death.
' He had transactions with his elder brother Nicholas, who was a merchant in New Orleans. The witnésses examined by the arbitrators were Roussignes, Pacaud, Guillot, and J. F. Girod.
The Arbitrators, as will be seen by the reasons appended to each item, founded ‘their opinion on the testimony of witnesses, and the examination of books, documents, and vouchers.
It is complained that the case was referred to arbitrators ; — Was it not a case of old and complicated accounts ? 7 Peters, 625 ; 1 Martin’s Digest, verbo Accounts, 405.
Arbitrators, by our code, are to decide according to the strictness of the law. Louisiana Code, 3077, Code of 1809, p. 442, art. 12 ; Law of 1805, verbo Accounts ; 1 Martin’s Dig. 405.
The interest may well have been due. Suppose that C. Girod, in his books, charged interest on his accounts with his brothers ; was he not bound to allow it ?
The prescription may have been proved to have been interrupted by acknowledgment and promises. The interruption is proved positively by the testimony of Guillot. It was only in the case of Goddard and Urquhart, in 1834, that the. prescriptions under the Spanish law were established. In Lobdell’s case (7 Martin, N. 5., 109), the Supreme Court held, that the prescription of a promissory note, under the Spanish law, was thirty years. It is a mistake that Claude Girod says in his will that he leaves no debts but to the amount of ‡ 30,000. He says, I am indebted to divers persons by obligations, and little by accounts, in a sum of about $ 30,000. He may have meant to persons other than his brothers;;— to persons out of his fámily. Debts, especially old ones, between brothers, are lightly thought of by debtors ; but creditors have better memories.
The declarations* indefinite as these, in a man’s will* are bad arguments against the existence of a debt, and no proof at all.
Nor did N. Girod, in his petition for the sale of the property of Claude Girod’s succession in New Orleans, limit the legacies and debts to $60,000. He says, the amount of legacies and debts which it is necessary to pay without delay is that sum, or thereabouts.
Several of the persons who are parties to these suits are still living ; the respectable counsel for the' plaintiff is still at the bar, and the gentlemen appointed arbitrators were persons whose characters were of the highest consideration.
But this court will enter into no such inquiry in a matter in which the presumption is omnia acta rite esse.
•Supposing there were nó judgments, were not the amounts exhibited to. complainants, when the payments were made to them* and the will, with its contents, shown to them, and does not the claim for these amounts resolve itself into a personal action to recover money unlawfully retained, as they allege ? and is not an action of this kind prescribed by ten years, according to complainants’ own showing ? Goddard’s case, 6 Louisiana R. 660.
It is believed that the grounds of defence to this action are so obvious,, as to require little else from the. court than an examination and scrutiny of the facts. To aid in this examination, this summary has been prepared, and is respectfully submitted.
Assignment of Error.
The appellants assign for error in the decree rendered against them in the court below, —
1. That there is a total want of equity throughout die complainants’ bill, ¿nd hi the evidence adduced in support of it. .
. 2. That, under the evidence and allegations of the bill, the complainants have no claim in a court of equity, by reason of their long silence, laches, , and acquiescence in the acts complained of since 1814.
3. That the cause of action, as set.forth by the complainants, is barred and prescribed by lapse of time, under the laws of Louisiana.
4. That the disallowance of the sums of $40,418 and of $8,253, and the decree cóncerning the judgments for said amounts, is contradictory-and in violation of law.
5. That the agreements made by two of the complainants with the defendant in 18.17 are valid, obligatory, and conclusive upon-the parties ; that the ‘declaration of the co-executor, J. F. Girod, haB the same effect.
.6. That the discharge of J. F. Girod, the co-executor, destroys all claim in equity against the defendants.
relied upon the following points and authorities.
1. Although the will authorized the executors “ to sell the property, or caüse it to be sold, as to them would seem best for the. heirs of the testator, without the intervention of justice,” the Spanish law, then in force in Louisiana, yet required that the property should be sold at public sale, by order of court, and -after thirty days’ advertisement. Gayoso v. Garcia, 1 Martin’s R., N. S., 324.
2. A succession sale, made by the register of wills in the parish of Orleans (or by the parish judges in the country parishes, who there perform the functions of the registe^ of wills, Code of 1808, p. 182, art. 153), is null and void, if not preceded by an order of the Court.af Probates. . Elliott v. Labarre, 2 Louisiana R. 326.'
3. Probate sales, sheriff’s.sales, or judicial sales of any kind, can be: set aside by the parties in interest, and treated, as nullities, if the-formalities prescribed by law are not complied with. Psyche v. Paradol, 6 Louisiana R. 366.; McDonough v. Gravier’s Curator, 9 Louisiana R., and cases, there cited..
4. The actqf the legislature of Louisiana,, of March 10, 1834, by which certain irregularities in judicial sales are. cured by the lapse of five years, applies only to'irregularities in the advertisements. Morton v. Reynolds, 4 Louisiana R. 28. , McCluskey v. Webb, ibid. 206. And even so far as tire statute is applicable to . the facts of this case, it cannot avail the defendants, because it was not pleaded,
5. By the civiriaw, as well as by the law of chancery, an executor cannot purchase the property of the estate which he administers. Harrod v. Norris’s Heirs, 11 Martin’s R. 298 ; Longbottom’s Ex’r v. Babcock et al., 9 Louisiana R. 48 ; Scott’s Ex’rs v. Gorton, 14 ibid. 114, 122 ; McCluskey v. Webb, 4 Rob. R. 201 ; 1 Story’s Eq. Jurisp. 315 ; Prevost v, Gratz, 1 Pet. C. C. Rep. 368 ; Wormley v. Wormley, 8 Wheat. 421 ; Case Abeel, 1 Paige, 397 ; Davoue v. Fanning, 2 Johns. Ch. R. 252 ; Rogers v. Rogers, 1 Hopk. 525.
6. The judgments" obtained by Nicholas Girod for $ 40,418'09, Mid by. J. F. Girod for ‡ 8;253'20, were the result of the fraudulent contrivances disclosed by the evidence. It is well settled, that chancery will relieve collaterally 'against frauds in judgments. 1 Story’s Eq. Jurisp, § 252 ; 2 ibid. § 1252; 1 Maddock’s Ch. Pr. 300 ; Mitford’s Eq. Plead. 266 ; Brashear v. West, 7 Peters, 616 ; Pratt v. Notham, 5 Mason,, 103 ; Garnett v. Mason, 2 Brockenbr, 213 ; Marine Ins. Co. v. Hodgson, 2 Cond. R. 526 ; Bateman v. Willoe, 1 Sch. & Lef. 205 ; Winthrop et al. v. Lane, 3 Dess. 323 ; Irby v. M’Crae, 4 Dess. 429 ; Barnsly v. Powell, 1 Ves. sen. 289.
7. Even without fraud, these judgments could not be binding upon the heirs, for they were not parties to them, and the executors did not represent them or the estate, in these proceedings.- These were indeed judgments without parties. Co-exeputors are' bound jointly andijseverally. Code of 1808, p. 248, art. 177 ; 2 Story’s Eq. Jurisp. §§ 1280, ,1281. . One of them may act for all. (Same article of the Code Of 1808.) They are considered in law'as one person. 2 Williams’s Executors, 620. Hence, if one confess the action, judgment shall be given against them all. Ibid. 621. And they cannot sue one another, if they have accepted the trust. Ibid. 685, 818.
8. Though the attorney of the absent heirs was made a party to these suits, the judgments are not binding on the heirs. The duties of such -an attorney are merely conservatory, —he never represents the estate. In cases of mere neglect, and free from fraud, judgments obtained contradictorily with the attorney of the absent heir have been treated as nullities. Stein v. Bowman, 9 Louisiana R. 282; Collins v. Pease’s Heirs, 17 ibid. 117. As a general rule, the courts disregard entirely judgments opposed to parties who were not cited or not properly represented. Psyche v. Paradol, 6 Louisiana R. 366 ; Marchaud v. Gracie, 2 ibid. 148.
9. The homologation of the account of 1817 is not res judicata. It appears, from the petition of the executors, and from the order thereon, that the heirs were not at all represented in this proceeding'; the executors themselves preferring to represent them. An attorney was indeed appointed to represent the three heirs of the .Poidebard family, who had not sent their powers of attorney to the executors, and who were, together, entitled to one sixteenth of the estate. But they; also, will be relieved from the effects of the homologation qn account of the fraud of the executors, and the neglect, if not worse, of the attorney of the ábsent heirs.
10. The proof of fairness, in dealings between trustee and cestui que trust, lies upon the former. 8 Cond. Ch. R. 495 ; 1 Story’s Eq. Jurisp. § 218.
11. By the civil law, a purchase, by an executor of the property, of the estate administered by himself is radically null, and cannot be cured by prescription. His possession as executor is called* jn that system of jurisprudence, a “ precarious ” possession ; by ho act of his own can he alter its character.; he cannot sell to himself ; notwithstanding an attempted purchase, the law considers his possession as the precarious possession of an executor, and a precarious possession cannot prescribe by any lapse of time. Macarty v. Bond’s Administrator, 9 Louisiana R. 355 ; McCluskey v. Webb, 4 Rob. R. 201 ; Montamat v. Debon, 4 Martin’s R., N. S., 152; Troplong on Prescription, Nos. 509, 517 ; 1 Vazeille on Prescription, Nos. 148, 149 ; Pothier’s Treatise on Possession, Nos. 64 - 66.
12. If any prescription was applicable to the purchases of the executors,' it would be the prescription of thirty years, which protects purchasers in bad faith. Code of 1808, p. 486, art. 66; Code of 1825, art. 3438, 3465 ; François v. Delaronde, 8 Martin’s R. 629; Troplong on Prescription, Nos. 905-907, 915, 918 ; 21 Duranton, Nos. 352-354.
13. The prescription of ten and twenty years relied on by the defendants, that is, of ten years between present, and of twenty years between absent persons, can be pleaded only by those whose possession was acquired, —first, honestly ; second, by virtue of á just title ; third, by a title not defective in form. Code of 1808, p. 486, art. 67 ; Devall v. Choppin, 15 Louisiana Rep. 566; Code of 1825, art. 3442, 3445, 3449-3454.
But this prescription was not pleaded by the defendants.
14. The only prescription which the defendants plead in their answer is the prescription of the action of nullity (p. 81. of the answer). ' This is a .prescription of ten years, established by art. 204, p, 303, of the Code of 1808, which is literally the same as article 2218 of the Code of 1825, and article 1304 of the Napoleon Code.
The answer rests this prescription on the receipts given in 1817 by Mme. Pargoud and Mme. Adam, representing two of the five branches of heirs on whose behalf this suit has been brought.
The terms of the law show that this prescription applies only to áctions of nullity or rescisión to set aside an “ agreement.” This is not an action of nullity, but an action of revendication, or petitqry action, which, as has been seen, is barred only as. between absent persons by the prescription of twenty or of thirty years, according- as the purchaser was in good or in bad faith.
The receipts were not “ agreements,” but an acknowledgment of the receptión of a sum of money, which the executors represented as- all that, was coming to those two heirs from the succession.
Even if.these receipts were “ agreements,” in the sense of the article, the fight to set them: aside would be barred only by the term of ten years “ from the discovery of the fraud.” The evidence shows that the complainants had pot the slightest knowledge of the fraudulent acts now proved,-before 1837.
15. Th¿ defendants also contend, that these two receipts imply a ratification of the acts of the executors. The definition and attributes of acts of confirmation and ratification are given in article 238, p. 310, of the Code of 1808, which is a literal copy of article 1338 of the Napoleon Code, and which was retained in the Code of 1825 as article 2252.
But no ratification or' confirmation exists in this case, because,—
1st. The original sales, being absolute nullities, are not susceptible of ratification. If it was the intention of the injured, party to sanction them, nothing less' than a new sale would have been required to accomplish this object. Acts infected with a, radical nullity cannot be ratified ; they must be made anew. - Solon, Théorie sur la Nullité, vol. 2, pp. 262, 292, 294; 296, 301, 321, 327, 328, 373 et seq., 406 ; Troplong on Prescription, n. 905 - 907.
2d. If considered as an express ratification of its fraudulent sales and judgments, the receipts are inoperative, for they do not contain, in the words of the law (Code of 1808, p. 310* art. 238), “ the mention of thé motive of the action of rescission, and the intention of supplying the defect on which that action is founded.”
3d. If considered as a tacit ratification, all the authorities concur that all the facts and circumstances must be fully and completely known, and . that the act relied on as a tacit ratification can be susceptible of no other interpretation. Rivas’s Heirs v. Bernard, 13 Louisiana R. 175, and authorities there cited; Copeland v. Mickie, 17 ibid. 293 ; 2 Solon, p. 370 ; Perrin, Traite des Nullités, p. 350.
16. The defendants also rely, in their printed argument, on the prescription of five yegrs, . established hy.art.. 3507 of the Code of 1825. ' This prescription was not pleaded by them'. Had it been, the answer would bq, that it applies, in terms, to “ contracts, testaments,-and other ¿bts,” like art. "204, p. 303, of the Code of 1808 ; and that it does not extend to cases of fraud, which are exclusively provided for in the last-mentioned article.
17. If the case be tested by the rules of cháncery-, the resale would be the same.
In chancery, a purchase by a trustee can be cured by lapse of time.
■ • The cases on this subject are nowhere better reviewed than in Kane o. Bloo'dgood, 7 Johns. Ch. Rep. 90. But the statute of limitations begins to run ofily from the open disavowal of the trust.
In this case, the possession was not known to the heirs to be adverse to the trust, except from the time when they were informed that the sales to Laignel and St. Felix were simulated. Until then', they believed the executors to be, as the executors pretended ..themselves to be, bona fide purchasers from Laignel and St. Felix, who, it was believed and represented, were themselves serious purchasers from the estate.
The. courts of the United States, sitting as courts of equity, apply the statutes of limitations of the respective States. 6 Peters, 291 ; 16 Peters, 455, 495 ; 11 Peters, .369, 393, 406.
When the statute limits not at law, the same length of time is not a bar in equity. Boone v. Chiles, 10 Peters, 177 ; Cook v. Ankam, 6 Cond. Rep. 287 ; Baker v. Whiting, 3 Sumner, 486.
“ In a case of trusts of lands, nothing short of: the statute period which would bar a legal estate or right of entry would be permitted to operate in equity as a bar of the equitable estate.” Judge Story, in Baker v. Whiting, 3 Sumner’s Rep. 486.
It has been seen that no other prescription but that of thirty years wouldj by the law of Louisiana, bar the action of revendication.
Nothing is better settled, in the law of chancery, than that, in cases of fraud, the statute of limitations does not beginito run until a full discovery of the' frauds practised. Boone v. Chiles, 10 Peters, 223 ; Aylward v. Kearney, 2 Ball & Beat. 476 ; Murray v. Palmer, 2 Sch. & Lef. 486 ; Hovenden v. Lord Annesley, 2 Sch. & Lef. 632; Bond v. Hopkins., 1 Sch. & Lef. 413 ; 1 Hovenden on Frauds, 480 ; Croft v. Adm’rs of Townsend, 3 Dess. 239 ; Wamburzee v. Kennedy, 4 Dess. 474, 485, 489 ; Randall v. Errington, 10 Ves. 423.
And vague rumors, and reports, do not constitute that kind of knowledge of the fraud which will give course to the statute of limitations. Flagg v. Mann, 2 Sumner, 491, 551, 563 ; Irby v. M’Crae, 4 Dess. 431; Randall v. Errington, 10 Ves. 423 ; 11 Louisiana R. 139 ; Conway v. Williams’s Adm’r, 10 ibid. 568 ; Tyson v. McGill, 15 ibid. 145.
The acquiescence' and ratification of two of the complainants is attempted to be inferred from their receipts. .These parties assuredly knew nothing of the frauds of the executors when they signed the receipts, and acted with blind confidence. In equity, as long as the injured party does not know the. full extent of his rights, and that the transaction is impeachable, any act done by him subsequently will not amount to a ratification or confirmation- As long as the dependence of the cestui que trust upon the trustee and the fiduciary relation continues, an alleged ratification will always be scrutinized with the utmost jealousy; and a party possessing only imperfect information cannot be held guilty of- laches. . 1 Story’s Equity, § 345 ; Butler v. Haskell, 4 Dess. 651, 709 (where the principal cases are. reviewed); Murray v. Palmer, 2 Sch. & Lef. 486 ; 1 Hovenden on Frauds, 152, 484 ; Purcell v. McNamara, 14 Ves. 107, 120 ; Cole. v. Gibbons, 3 P. W. 293 ; Brooke, Ex’r, v. Gally, 2 Atkyns, 34 ; Cole v. Gibson, 1 Ves. sen. 507 ; Taylor v. Rockfort, 2 Ves. sen. 281 ; Roche v. O’Brien, 1 Ball & Beat. 230; Morse v. Royall, 12 Ves. 364 ; Wood v. Downes, 18 Ves. 120.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
