
    
      DONALDSON vs. RUST.
    
    One whose thing has been sold, as part of an ‘estate, has a claim against the curator for the price, and is not to be classed among the creditors of the estate.
    Appeal from the court of the parish and city of New-Orleans.
    Turner, for the plaintiff.
    The plaintiff was owner of a slave, and left him in the care and possession of Alsop. This is proved by a counter letter. As between the plaintiff and Alsop, he belonged to the plaintiff, and must be delivered, on demand. This is the nature and force of the counter letter, as established by this court in the case of Griffin’s ex. vs. Lopez, 5 Martin, 145.
    At the death of Alsop, this slave was in his possession, and was taken by the defendant, as curator of Alsop’s estate. At that moment, he formed no part of the succession. The heirs or the creditors of Alsop had no right or demand on this slave. Had the slave remained unsold, when the plaintiff made his appearance, on his return from Virginia, he must have been delivered by the curator to him.
    
      But he was previously sold by the curator, supposing him to be part of the succession. This act was prejudicial to the plaintiff, and gave no right to the curator nor to the heirs or creditors of Alsop on that property, nor could that sale deprive the plaintiff of his action, against the curator for the value of the slave.
    It is possible a purchaser, without notice of the plaintiff, might be protected in his purchase of this slave ; but if he should be so, probably that effect will result from the clause of the statute. Civil Code, 304. art. 221. But the right of the purchaser forms no question in this suit; he is no party to it. This is a suit brought by the true owner of the property, against the curator of the other contracting party. His right, therefore, to recover the thing, if in possession, or the value of it, if parted with, is not to be doubted. That value is to be ascertained, in the same manner as the value of other things when sued for; it is fixed by the proof of witnesses. In this case, that value is fixed at $1300, and the plaintiff is entitled, to judgment for that sum and his costs. The plaintiff’s claim to be paid by privilege, and he grounds his right on this simple, though undeniable principle : that the owner of the slave was entitled at the time the slave was sold, to have him in kind, and that right would have been enforced, but for his absence ; being entitled to the thing, its price can never be confounded with the mass of the . t succession. Had the slave passed into the hands of the heirs, instead of the curator’s, they must have surrendered him.
    Had they sold him, they must have paid his value.—The duty of the curator, before he parts with the property of the succession, is the same as that of the heirs, so far as it regards the payment of money, and the delivery of things to persons claiming them, by rights antecedent to the death of the ancestor or intestate.
    At the moment this suit was instituted, if the curator had not the slave, he had the proceeds, which represent the slave, and they belong to the plaintiff and not the mass of his creditors.
    Therefore, the plaintiff shall claim the payment of the price of his slave against the curator : not as a creditor of the succession but as owner of a property, which the curator has by mistake claimed as a part of the succession.
    The parish judge erred in not giving the plaintiff judgment for the price of his slave, tobe paid by the defendant as a privilege. He erred in supposing the plaintiff, to be a creditor of the succession of Alsop : he was not so at the time of his death.
    The act of the curator cannot make the plaintiff a creditor of that estate; he must be so (if at all) in consequence of some act done by the intestate—as by sale of the slave.
    But here, that was not the case, the slave was left by plaintiff with Alsop.for safe keeping ; Alsop died, and the slave remained—he was then sold, the property of the plaintiff.
    How then can he be made a creditor, and to be placed on the tableau for a distributive share ? I contend, the plaintiff is entitled to be paid the value of his slave, without any regard to the amount of assets or the claims of creditors—The slave formed no part of the assets of that estate, before he was sold ; therefore, his proceeds can form none, after the sale. The creditors had no right on the slave for the payment of their demands, nor can they have any on the proceeds.
    I contend, therefore, that the judgment of the parish court ought to be reversed, and that judgment be rendered for the plaintiff.
    
      Carleton, for the defendant.
    But two points present themselves to me in this cause. 1, Whether the court of probates, is not the only tribunal before which the plaintiff can appear with his claim, if any he has ? And 2. Whether he be a creditor at all of the succession of the deceased, and if he be, for how much, and whether he ought to be paid pro rata or by priviledge ?
    
      J. As to the first point by referina: to the civil . . 1 J ° code, it will appear that the court of probates and no other court can have original cognizance of this cause. The defendant is curator to the vacant estate ofJohnAIsop, deceased, appointed by the judge of that court. He can pay no debt due by the succession until “ he has previously obtained the authorization of the parish judge by whom he has been appointed ; that authorization, shall even be necessary, in case there were money enough in hand, to discharge all claims on the estate ; but should there not be sufficient property to satisfy all demands, it shall be his duty to cause the parish judge, to regulate the classes of the priviledges and mortgages, and thus to establish the rank in which the creditors shall receive payment.” Civ. Code, 178, art. 137.
    In the following article, the curator is required to give public notice of the authorisation or sentence of the judge, which settles the rank in which the creditors must be paid, and by art. 139, this payment wilt accordingly be made after ten days notice. But “ if any opposition is made to the payment as ordered, the parish judge by whom the authorisation of making payments and the classing of priviledges has been made, shall determine in a summary way, on the merits of the opposition, saving the right of the parties, to bring an appeal from such judgment to the superior court.” That is, to the supreme court by a late act of the legislature.
    Hence, it plainly appears, that the plaintiff ought first to have gone into the court of probates with his claim, if any he had The law so declares it, and it is reasonable it should. The administration of vacant estates is confided to such persons, as that court may, in its discretion, select. They are responsible for their administration to no other judge ; he alone, can call them to an account, and hear and discuss claims against the succession of the deceased, or settle the rank in which they shall be paid If any other court could hear the claim of a creditor discussed, it could, likewise, settle the order in which he should be paid. This might contradict the decision of the court of probates, upon the same claim, or the rank in which it might decree the claims of all the different creditors should be paid. This is an inevitable consequence, unless every creditor of the deceased could appear, at the same time, before the supreme court; this they cannot do, unless by appeal from the final account rendered by the curator before the court of probates, where they must have all appeared in the first instance.
    There is necessarily a gradation of priviledges among the claims of the creditors of every per-deceased. This to any one, without first hearing them all discuss» y ° ed : otherwise manifest injustice would be done t0 some of them. Their claims must then all accumulate, as in cases of bankruptcy, in one court only, where they can be all alike heard and discussed, and that court is none other than the court of probates. The curator may be, at this moment, before that court, rendering an account of his administration. The claims of all the creditors may be finally determined and paid, before judgment is rendered in this case. What then would it avail the plaintiff to have a decision in this court, after the estate had been paid away under a final sentence of the court of probates, settling the rank of claims against the succession of the deceased ? And if he be in time with his judgment, he must, nevertheless, go with it into the court of probates, by whose order alone he can obtain payment.
    II. It is admitted by plaintiff’s counsel that the purchaser of the slave, at the sale of him at auction by the curator, is protected by that provision of the code, which declares that counter letters can have ho effect against third persons. Civ. Code, 304, art. 221.
    If then the plaintiff has no right, whatever, to the slave, has he any claim for his value, and how much ? The slave was conveyed, as it is agreed in the statement of facts, from Donaldson to Alsop by an act, regularly executed before a notary public for value received. Alsop then, whatever might have been his private agreement with Donaldson, appeared to every third person, as the true bona fide proprietor of the slave. From the possession of that property, he probably derived some consideration, among those wi'h whom he transacted business. Would it then, be acting in good faith towards third persons, to take from them this security, upon which they may have been induced to credit him ? Domat, after declaring that counter letters can have no effect whatever, against third persons, puts the following forcible case.
    Ainsi, par exemple, si un pére, mariant son fils, luí donnait en faveur de ce mariage, ou une somme d’argent, ou une terre, ou une charge, prenant de lui une contre-lettre que le don ne vaudrait que pour une moindre somme, ou que le fils rendrait sur la terre, ou sur la charge quel-que somme, dont ils seraient convenus entr’eux ; cette contre-lettre n’aurait aucun effet á l’égard de la femme, et des enfans qui naítraient de ce mariage, ni des autres personnes tierces, qui pourraient s’y trouver intéressées, comme des créanciers de ce fils. Car cette convention serait une infidélité, qui blesserait les bonnes moeurs, et la foi due, non settlement á la femme et á ses parens, qui n’auraient pas consentí au manage avec les conditions de cette contre-lettre, mats a toutes les personnes que cette fraude pourrait regarder. Et il est de l’interest public de répri-mer le mauvais usage que peuvent faire les particulars de la facilité qu’ils ont dans leurs families, de colluder entr’eux, pour tromper par des pareils actes. JJomat, 1, 3, 6 § 2, 15.
    But if the court should think, that the plaintiff is entitled to take any thing by his counter letter, how much shall it be ? Certainly, he cannot pretend to any thing more than the sum for which the slave sold : since he admits, that he was regularly and legally sold at public sale, by order of the court, as a part of the succession of the deceased. This is too plain to be contested. And for this sum, he must come in pro rata, with the other creditors, at the final settlement of the account, before the court of probates : unless his counter-letter can give him some secret and unjust preference, over the rights of third persons But he contends, that he has a priviledge upon the estate of the deceased, for 8 1300, the estimate value of the slave at the time of the trial ! And as he sold at auction, for only 8 965, the plaintiff, then claims to be paid, 8 335 out of the succes. sion over and above what the slave sold for ; that is 8 335, out of the other creditors.
    
      
      Turner, in reply,
    It is well known, that the 7 court of probates has no power to decide on the rights of persons—it issues no process—has no juries—it only regulates the affairs of estates, amongst those whose rights are acknowledged.— Our right to this slave, or to his value, is disputed—it must, therefore, be ascertained by the judgment of the ordinary courts—those only, which can be approached in the ordinary way, by-petition, &c —the suit was, therefore, rightly brought.
    The rule, quoted from Domat, is not, in fact, the rule, but an exception ; as will be seen by what he lays down in the same section, and the two preceeding ones, — 15. Domat. 1, 3, 6, 2, 13
    Nor does the exception apply to this case—■ the contract of sale, and the counter letter, affected not the rights of third persons.
   Mathews, J.

delivered the opinion of the court. The plaintiff states himself to have been the owner of a certain slave, named and described in the petition, and that being about to leave the city of New Orleans, he made a bill of sale of said slave, for the purpose of having him better protected, during his absence, to a certain John Al-SOp WR0 died before his return, and that the slave fell into the hands of his curator ; and was sold by him, as making part of the estate—-thaj he never received a consideration for the slave, and that the feigned purchaser gave, at the time of the transfer, a counter letter, shewing the property still to remain in the plaintiff. He concludes with a prayer, that the defendant be decreed to reconvey the slave, and, if that cannot be done, that judgment may be rendered for the price.

It appears, from the statement of facts, that the feigned sale to Alsop was made by an authentic act, and the statement of facts also establishes the principal allegations in the petition.

On the part of the defendant, it is contended, that as the legal title of the slave was in Alsop, at the time of his death, the sale made by his curator, according to the provisions of the law, gives a clear and indisputable title to the purchaser, under said sale, and consequently no decree can be made for a re-conveyance.

It is further urged, on the part of the defendant, that the plaintiff has no right to recover the price of said slave, belonging to him, as the rep. resentative of the thing sold: but can only be considered in the light of any other creditor of the deceased, to be paid, according: to the rank and privilege of his claim.

1 he judgment of the parish court being for the defendant, the plaintiff appealed.

It is clear that, if the slave had remained unsold in the possession of the curator of Alsop’s estate, he would have been bound to reconvey him, according to the stipulation, in the counter letter. For, the feigned sale, as between the original parties, did not destroy the light of property of the seller. But, after the sale and transfer, in administering the estate of the deceased, in whom was the legal title, to a bona fide purchaser, the plaintiff has no longer a right to recover the thing sold, because the fair purchaser cannot be affected by the private and concealed agreement, which existed between the parties to the fictitious sale.

Notwithstanding the plaintiff’s right, to recover bark the slave, is thus lost, we are of opinion that it would be contrary to justice and equity^ to suffer the estate of the intestate to be increased, by the price of a thing which did not belong to him. Under the circumstances of this case, the price, in the hands of the curator, represents the slave and ought to be paid over to the plaintiffr

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled avoided and reversed, and this court, proceeding ⅜ .... ° to give such a judgment, as in their opinion ought to have been given in the parish court ; it is ordered, adjudged and decreed, that the plaintiff and appellant recover from th¿ defendant and ap-pellee the sum of 8967, with legal interest thereon from the judicial demand, being the proceeds of the sale of said slave, by the register of wills. 
      
       DeubignYj J. did not join in this opinion^ being prevented from attending by indisposition.
     