
    Virginia Harper v. Albert Pierce.
    The vendor of a slave by a notarial act, duly recorded, having subsequently sold the same slave by act under private signature to a second vendee, in a suit by tho first vendee against tho second vendee to recover possession of tho slave—Held: That evidence having been received without objection to show that the vendor remained in possession of the slave down to tho date of the second sale, the testimony of witnesses was admissible to prove that the price of tho first sale had not, in fact, been paid, notwithstanding tho enunciation in the bill of sale to that effect.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.
    
      Mott & Fraser, for plaintiff".
    
      T. N. Peirce, for defendant and appellant.
   Buchanan, J.

On the 19th June, 1849, David Kinney sold, by notarial act, in New Orleans, to the minor Prieur Sidney Harper (otherwise called Sidney Prieur Harper), represented by his father Henry S. Harper, a mulatto boy slave named John, aged about eleven years, for the price of five hundred dollars, cash, to him in hand paid, the receipt whereof was acknowledged by the seller.

This act of sale was recorded in the office of the Register of Conveyances in Now Orleans, the residence of seller and purchaser, on the 25th April, 1850.

On the 9th May, 1850, the same David Kinney sold, by act under private signature, to Thomas J. Frisby, the same mulatto boy slave John, for the price of six hundred dollars cash paid.”

This suit was brought on the 29th November, 1855, by the mother and natural tutrix of the minor Sidney Prieur Harper, against a vendee of Frisby, to recover the mulatto boy John, as the property of said minor.

The defendant has cited in warranty his vendor Frisby; who has cited his own vendor Kinney ; who appeared and defended the suit, on the ground that the sale by himself to the minor Harper was without consideration and null and void. After Kinney’s answer filed, the defendant Pierce filed a supplemental answer, in which he specially denied that any consideration passed from the minor Harper to Kinney for the sale of the 19th June, 1849, and that the slave John was ever delivered under said conveyance; that the sarhe was simulated, fraudulent and ¡null and void in respect to the creditors of Kinney, and bona fide purchasers from JCisuiey for a valuable consideration.

Kinney subsequently withdrew his defence to the action ; acknowledged the justice of-plaintiff’s claim, and deposited in court the amount of the price received by him from Frisby for the slave John, with interest and costs to the day of deposit.

Judgment was rendered in favor of plaintiff against defendant for the slave, and in favor of defendant against Frisby and Kinney, as warrantors, for the price paid; reserving to defendant and Frisby their claims for hire and damages. The defendant alone has appealed, both as against plaintiff and the two warrantors.

The case is before us upon a bill of exceptions to the ruling of the district court, which rejected the testimony of two witnesses offered by defendant to prove that no price was paid for the slave John to Kinney as declared in the conveyance of the 19th June, 1849.

Evidence was received without objection that the possession of the slave remained in Kinney after the conveyance to Harper, and down to the date of the conveyance to Frisby; as alleged in the supplemental answer of defendant; and under such a state of fact's, the burthen of proof was thrown upon plaintiff to show that the sale was bona fide. C. C. 1915.

- The unity of the enunciation in the bill of sale, that the price had been paid, was expressly, put at issue by the pleadings. The defendant was not estopped from contesting the truth of this enunciation, in consequence of his title being derived from the same vendor ; for this is the very case provided in the Article of the Code above quoted. If, then, it was incumbent on plaintiff to sustain his deed by additional proof, under the circumstances, it was surely competent for the defendant to introduce proof contradicting that enunciation and supporting the presumption arising, in law, from the want of tradition of the thing sold.

The appellant has filed in this court a plea of prescription, based upon Article 3444 of the Code. But this prescription is suspended in the present case by the minority of Sidney Prieur Harper, who is not yet of age. C. C. 3488.

It is, therefore, adjudged and decreed, that the judgment of the district court be reversed, and that the cause be remanded for a new trial, with instructions to the judge not to reject the testimony of competent witnesses, to prove that the price of the sale from David Kinney to the minor, Harper, of the slave John, dated 19th June, 1849, was not in fact paid ; and further, that appellees pay the costs of appeal.

Spopford, J., took no part.  