
    
      SKILLMAN & WIFE vs. LACEY & AL.
    
    West’n District.
    
      Sept. 1822.
    Evidence that a conveyance, which the act shows to be a sale, was not a sale, but a dation en paiement, is inadmissible.
    Appeal from the court of the fifth district.
    Brent, for the plaintiffs.
    The plaintiffs instituted this suit to obtain an order of seizure and sale of certain negroes, sold by M. L. Haynie, the first husband of Anne Sterling Skillman ; one of them to the defendant Lacey—upon which negroes she alleges she had a privilege and mortgage for her dowry, and property brought by her in marriage, the amount of which was ascertained by a decree of this court.
    The defendants alleged :
    1. That Lacey purchased said negroes from the deceased, in payment of materials furnished for a sugar-house, and for money paid to workmen for labour on said house, and that said buildings were afterwards sold with the plantation, for the benefit of said Anne.
    2. That the debts due to him, and for which the negroes were given, were of an higher and superior nature to the claim of the said Anne.
    3. That Haynie, during the marriage, had disposed of lands and other property to a sufficient amount to satisfy said Anne’s claim, and that she must first exercise her action of mortgage against said property.
    
      The petitioners denied all this, and the court gave judgment for the defendants.
    All the facts stated in the petition, as to Anne Sterling’s claim and the judgments in her favour, are proven by the records, made a part of the statement of facts.
    The widow had a mortgage upon all the property of her husband, for the amount of the property that he received for her, as a mortgage claim.—6 Martin, 14 ; Civil Code, 332, art. 53 ; Id. 334, art. 62; 3 Martin, 391.
    The judgment of the court, in cases where the wife sues for separation, goes back to the day of filing the petition, and binds his property.—Civil Code, 342, art. 93.
    I think I have shown to the court, that the petitioner’s claim is a mortgage upon the husband’s property, and that all his estate is bound from the date of his receiving the same; and also, that the institution of the suit for a separation, bound the property from the day of filing the petition. Having shown this, I will next refer the court to the time when Haynie acquired the negroes in dispute, and then to the date of his sale to Lacey.
    It is proven that the marriage took place in 1811, and that in the year 1813 he owned the negroes in dispute ; and by a recurrence to the records it will be seen, that they were bound for the estate received by Haynie.
    It will also be seen, that the suit for separation was instituted the 3d November, 1814, and recorded so as to give notice in St. Mary, where the defendants lived, on the 16th of the same month—from which time the law declares the same to be binding on all property. By turning to the deeds, from Haynie to Lacey, the court will see that the negroes were not sold until the 29th December, 1814—after the institution of the suit.
    According to every principle of law the negroes are liable to the plaintiff, and she had a lien upon them for the payment of her judgment—and I will next show to the court, that our proceedings have been regular.
    The property (negroes) being in the possession of the defendants, the petitioner must produce a copy of judgment against Haynie, upon which the court will order said negroes to be sold, if the defendants do not prefer paying the judgment. Civil Code, 460.
    The plaintiffs have done this, and the court must give her judgment—without the defendants have alleged matter in defence, which takes the present case out of the rules of law, which generally govern. It will be no difficult task to show, that the defence set up is unfounded in fact, law and matter.
    
    The defendants contend, that Lacey purchased the negroes with materials furnished, &c. for a sugar-house, and for money paid and advanced for workmen, upon said house.
    In reply to this allegation of the defendants, I will observe that, even supposing the fact to be as stated by them, it does not affect the plaintiffs' lien upon the negroes; for, if Lacey did supply materials and advance money to workmen, to build the sugar-house, these things and acts might give lien upon the house, but certainly cannot destroy the plaintiff’s previous lien upon the negroes. But the fact is the reverse. The authentic acts of sale prove, that the negroes were sold to Lacey for cash; it is so stated in them, and no subsequent acknowledgment of Haynie, after the suit commenced, to favour Lacey the defendant, could destroy or take away the previous claim and lien of the plaintiff; and what he told the witnesses, cannot prejudice the rights of the petitioner.—To prove the fact, that the sales were for cash and not materials, &c., I refer the court to the deeds of sale, accompanying the statement of facts.
    Nor can the parol testimony of the defendants, as to the consideration in the deeds, be received to contradict the positive statement of the consideration being cash, as stated in the written instrument.—Civil Code, 310, art. 242; 6 Martin, 668 & 428.
    But, suppose that the parol evidence could contradict the written sales, the court will see, by referring to the testimony, that the account filed, for which Lacey says Haynie sold the negroes, was not exclusively for materials furnished, money advanced, &c. The account amounts to $1496 67, of which $526 are for sugar cane, hogs and corn—singular materials to build a sugar-house with! So that these items cannot be allowed to give any privilege. Now for the balance of account, which is $970 67, he charges about $306, for money advanced to workmen upon the sugar-house.
    Mr. Lacey has failed to prove this advance. But if he had proved it, he cannot claim the privilege or lien which the workmen had, except they had specially subrogated him in all their rights. The transfer of their claim, or the money paid to them for it, would not be sufficient. The subrogation must be special; there was none ; and for their claims he takes no privilege.—Civil Code, 288, art. 149-152.
    So much for the $306, which the defendant claims on account of workmen, and which deducted from the sum of $970, the balance due, after striking out the item for hogs, corn, &c. will leave only $664 in Lacey’s account for materials furnished by him for the sugar-house, and for which he has no lien or privilege.
    A privilege is a right which a creditor has over another creditor, whose claim or mortgage is older than the one who claims the privilege.—Civil Code, 468, art. 68 ; Id. 456, art. 29.
    Privileged debts are only funeral charges, law charges, medical attendance during the sickness of which the patient died, salaries of persons who lent their services for the year, price of subsistence furnished to a debtor during last six months, &c. &c.—Civil Code, 468, art. 75.
    
    Architects and other workmen, undertakers, &c., employed in working on the said buildings, have a privilege upon the same.—Civil Code, 70, art. 75.
    
    But in no place can the learned counsel for the defendants show where those who sell materials, for instance plank, &c., have any lien.
    
      In this case it is not proven that Lacey was the architect, undertaker, bricklayer or workman, upon the house; on the contrary, it appears that he was neither. I refer to the statement of facts. But should the court be of opinion that Lacey had a lien upon the house for the money paid by him to workmen, without any express subrogation, as well as for the materials sold by him—his claim is barred by prescription.—Civil Code, 488, art. 77.
    The defendants state, that the debts due them were of an higher and superior nature to those of the plaintiff, Anne Sterling. To this I reply, that she has shown that they were not, and that in fact the defendant has no lien whatever—but if he has, that the lien is only upon a certain piece of property, and not upon the negroes in dispute, to the prejudice of the petitioner’s mortgage upon them.—7 Martin, 400 & 632.
    On the third ground, I refer the court to 3 Martin, 390.
    
      Wilson for the defendants.
    M. L. Haynie was the proprietor of a sugar plantation in the county of Attackapas, but resided in Feliciana. The defendant, who was agent of Haynie, supplied various materials wanted for the building and repairing of the sugar-house, sustenance for the hands and cattle employed on the plantation; he expended money in payment of taxes due on it; he paid the workmen and labourers, and otherwise usefully disbursed sums on account of the establishment. M. L. Haynie conveyed to him three slaves, the consideration in the contract mentioned being a sum of money ; but the defendant alleges, that the real consideration was the materials, &c. previously furnished, and the money previously laid out for the use and benefit of Haynie, whose acknowlegment to this effect is proved. The wife of Haynie brought suit against him for a separation of property, and the restoration of her paraphernal estate. Before any decree was rendered therein, the husband died. The widow, who afterwards married Andrew Skillman and who is the plaintiff in this case, was, under the decree of a competent court, classified as a privileged creditor of the estate of Haynie for paraphernal property to a certain amount. In the exercise of this lien, the plaintiff brought suit against Lacey and Borell (Lacey’s vendee, who cites him in warranty) to obtain a sale of the three slaves, conveyed by Haynie, as property that was subject to her lien, and ought to be appropriated to the further satisfaction of her demand, which she alleged was not yet discharged. The plantation, already mentioned, had been seized and sold by the sheriff, under an ordinary execution, at the suit of Mrs. Skillman, and was purchased by her at two-thirds of its appraised value, namely, for the sum of 4450 dollars. Soon afterwards it was sold, by her, for the price of 8000 dollars.
    The defendant averring, that the plaintiff’s demand is one of strict law, whilst the strongest equity pleads in his behalf, repels the demand on various grounds.
    1. The estate of Haynie was not adequate to the discharge of the plaintiff’s lien; and if it did not sell for such a sum as would discharge it, the failure is imputable to the irregular and illegal proceedings of the plaintiff. The estate of Haynie, being a vacant one, and the curator subject to the duties imposed on the tutors and curators of minors, neither the whole nor any part of the property could be sold for a price below its appraisement.—Civ. Code, 176, art. 135; Id. 70, art. 59. The plantation was sold, not at probate sale, but by the sheriff, under an ordinary execution, at the suit of the plaintiff, and she became the purchaser thereof, at two-thirds of the appraisement, or for the sum of 4450 dollars. There is no reason to think that the appraisement was incorrect, or that one made under the auspices of the probate judge would have been different. The plaintiff, therefore, acquired the plantation at one-third less than its value; that one-third would suffice for the payment of the plaintiff, being at least equal to any balance due to her, and she ought not to have recourse upon the property of the defendant. Moreover, until the estate of Haynie had been legally and entirely sold, no discussion of the property could take place, so as to ascertain whether any, and what balance, might be due to the plaintiff.
    2. The defendant had a privilege on the buildings of the plantation of superior dignity to that of the plaintiff, whose demand is not for dotal but paraphernal estate—Curia Phillipica, 418, l. 25.
    It is stated, in the argument of the opposite counsel, that if such a privilege existed, it is barred by prescription: but this exception, although a formal replication was filed to the defence made, appears no where in the pleadings; and could it even avail, would not be admitted. But, in truth, the privilege of the defendant was extinguished by the conveyance of the slaves to him, that is, by an honest payment of the debt itself; and, if the plaintiff will take the slaves, she must admit our privilege to revive; which would give recourse against the buildings on the plantation, in the hands of the plaintiff’s vendee, who would have an action of warranty against the plaintiff, a circuity of action not to be encouraged.
    It is contended, that the defendant hath not proven the slaves to have been given in payment of his privileged claims; because the act conveying them, purports to be a sale or conveyance for a price in money, and that the parol evidence introduced to explain the real consideration, which was excepted to in the court below, cannot be admitted; and we are referred to Civil Code, 310, art. 242.
    The testimony taken, does not go to contradict, to add to, take from, or in any wise to impair the obligation itself. A sale is complete by the agreement for a sum of money, although, in fact, something different from money may be given ; non enim pretii numeratio sed conventio perficit emptionem, Contrat de Vente, p. 16, n.30.—What objection then can there be to offering parol evidence of a consideration, which, however different from money, does not alter, in any manner, the legal character of the contract itself; which, on the contrary, by establishing an admissible consideration, tends to establish the act itself. In 11 Martin, 620, it is decided, on the authority of Pothier, that the prohibition of parol evidence, against or beyond the contents of an act, does not extend to third persons. If the conveyance in question had been in reality a pure act of sale, but purporting to be a dation en paiement for materials, &c. furnished, the plaintiff would be permitted, by parol evidence, to explain the true nature of the transaction, in order to make her lien attach. May not the defendant then, in the opposite case, in a contest with the plaintiff, be indulged in such evidence, to protect a right recommended by the strongest equity?
    It is argued on the pad of the plaintiff, that even if parol testimony could legally be admitted to explain the real consideration given for the slaves, yet that it does not consist 
      exclusively of materials furnished, and other things, giving a privilege on the sugar-house; but if a part only were privileged, and the value of that part were not very disproportionate to the value of the slaves, the sale would be good—Contrat de Vente, n. 20.
    3. But whether the claims, which the defendant once had against Haynie, were privileged or not—whether the money and materials, &c. furnished by him regarded the sugar-house alone, or the plantation generally, it is proved, that a sum amounting to 1313 dollars 67 cents, was beneficially expended by the defendant for the use of Haynie, whereby the plantation was greatly ameliorated; that thus ameliorated, it was purchased by the plaintiff for two-thirds of its value, and shortly afterwards sold by her for almost double the amount of the purchase money; and the defendant is sheltered from the rigorous operation of the plaintiff's tacit lien, by a liberal and enlarged principle of natural equity. It is inequitable that any one should enrich himself at the expense of another.—Neminem œquum est cum alterius detrimento locupletari. Traité des Hypotheques, vol. 1, 33.
    If Lacey had been in possession of the plantation, the plaintiff could not have deprived him thereof by virtue of her lien, without first reimbursing him the expenses incurred by him concerning it. The plaintiff having bought it improved by those expenses, on the credit of her lien, without having indemnified the defendant, ought not to pursue other property in his hands, under the same lien, without making reimbursement; especially, if that property had been given for the purpose of reimbursement.
    4. Should the reasons given be of no avail, yet, the plaintiff cannot sustain the present action; because, having accepted the community of her late husband, she is precluded by the principle of warranty.—Traité des Hypotheques, vol. 1, p. 37.—The plaintiff hath accepted the community, because it does not appear that she ever renounced it, nor obtained any legal delay for deliberation. Renunciation must be made in the form prescribed by law, before a notary and two witnesses. Civil Code, 338, art. 76-84.
   Martin, J.

delivered the opinion of the court. At the January term 1819, of this court, Mrs. Skillman (then widow Haynie) recovered judgment against the curator of her former husband’s estate, and was directed to be classed as a mortgage creditor. Her object, in the present suit, is to obtain a writ of seizure and sale of certain negroes, sold by her husband to Lacey, and one of them by the latter to Borell, the other defendant, who brought him in as his warrantor. 6 Martin, 41.

They resist the claim, on the score of there being other property of the estate in the hands of the curator, or the plaintiff herself; and they allege, that Haynie did not sell the negroes to Lacey, but gave them in payment for a debt, for which the latter had a privilege on a plantation of said Haynie, which has since been sold on an execution, at the plaintiff’s suit, for $4450, being the two-thirds of the valuation, and which she afterwards sold for $8000, and on which Lacey claims a higher privilege than the plaintiffs.

There was judgment for the defendants, and the plaintiffs appealed.

Our attention is first called to a bill of exceptions, taken by their counsel, to the opinion of the district court, overruling his objections to the introduction of parol evidence, to show that the negroes were not sold, but given in payment, in contradiction to the written proof which results from an act of sale.

If there were no writing, evidencing the manner in which Lacey acquired a title to these negroes, parol evidence could not be received, to establish what the defendants seek to prove, a datio en solutum, or giving in payment, i. e. a covenant, by which these slaves were given to Lacey in payment, or discharge of his privileged claim—Civil Code, 310, art. 241—the law imperiously requiring such a covenant to be reduced to writing, and forbidding, in case it be disputed, the admission of parol evidence to prove it.

But an act was here drawn to preserve the evidence of the conveyance of three slaves by Haynie to Lacey; and this appears thereby to be a contract of sale. Evidence that what the act shows to have been a sale, was not a sale, but a dation en paiement, is evidence against what is contained in the act; and the law has said, such evidence must be written, and parol evidence must not be received—id. art. 242.

The district judge, in our opinion, erred in admitting parol evidence to this effect.

We are bound, therefore, to disregard all the parol evidence, thus illegally received ; and the defendants are thereby deprived of any means of supporting their assertion, that the slaves were not sold, and that the plaintiffs are bound to respect their privilege.

The other ground of defence does not appear less unreasonable. There is no evidence of any estate of Haynie, to which the plaintiff is bound to resort, before she comes to the slaves mentioned in the petition. There has been no waste of the property of the estate, that can be imputed to her.

In the year 1816, it appears, she purchased at a sheriff’s sale the plantation of her late husband, which had been seized to satisfy a judgment she had obtained. This judgment, not being appealed from, and indeed being no longer appealable from, must be considered as res judicata, and such as could be legally executed; it is not urged, that any of the formalities which the law prescribes were omitted.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed ; and that a writ of seizure and sale issue, as prayed for. The costs in both courts to be paid by the defendants and appellees; and that the defendant Borell have his remedy against the defendant Lacey, if the slave by him purchased be taken and sold in pursuance of the writ of seizure and sale, and that he have his costs against Lacey, in both courts. 
      
       Porter, J. did not join in the opinion, having been of counsel in the cause.
     