
    No. 11,954.
    J. B. Vinet, Dative Testamentary Executor of the Succession of Alexander Weems, vs. Joseph R. Bres and James G. Richardson.
    Motion to Dismiss.
    Whore a vendor holding eight notes o£ $600 each, secured by special mortgage and vendor’s privilege, claiming that a third possessor of the property had assumed payment of the notes, proceeds directly against him, praying for a personal judgment for the amount of two matured notes, ashing for reóogntion of the mortgage as securing all the notes and for a sale for cash ¿o satisfy the amount due, and on terms of credit to correspond with the unmatured instal- ■ ments, defendants against whom judgment has been rendered in conformity to the prayer, is entitled to an appeal to the Supreme Court,when he denied in the lower court the existence o£ the assumpsit declared on.
    A judgment in favor of plaintiff on the issue raised would be res judicata against the defendants as to the existence of the whole assumpsit.
    
    On the Merits.
    Unless the appointment of an executor or curator is absolutely void, acts done by him in such capacity are binding and valid. Mere illegality of such an appointment will not vitiate acts done under it.
    Whether a stipulation pour autrui has been availed of by the third person for whose advantage same has been made is a question of fact which must be ascertained from contemporaneous and surrounding circumstances, and are not confined to the recitals of the act in which the obligations of the contracting parties are to be found.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
    
      Chretien & Suthon and J. C. Gilmore for Plaintiff, Appellee.
    
      R. G. Cobb for Defendants, Appellants.
    Argued'and submitted on the merits February 27, 1896.
    Opinion handed down March 23, 1896.
    Behearing refused June 25, 1896.
    On Motion to Dismiss.
    Plaintiff alleged that Alexander W. Weems was the owner of a certain body of land in St. Tammany parish; that on the 28th of'August, 1890, he sold the same to William L. Wooten for six thousand dollars, the price evidenced by ten notes of the purchaser to his own order, and by him endorsed in blank, each for six hundred dollars, maturing at different dates, which notes were secured by special mortgage and vendor’s privilege on the property sold.
    That on the 12th of January, 1893, Wooten sold the property to the defendants, Bres and Richardson, by act under private signature duly recorded in the parish of St. Tammany; that the consideration of this last sale was part cash and part the assumption by the purchasers of the last nine notes given by Wooten (the first note having been paid), and the assumption of all the obligations of Wooten as purchaser in the act of sale to himself from Weems; that defendants had paid the first maturing of the nine notes assumed by them, and that the remaining eight notes (which he annexed to his petition and made part thereof) were in petitioner’s hands and belonging bo the succession of Weems, all of which notes defendants had assumed and promised to pay and discharge to Weems and plaintiff; that two more of the notes had matured; that defendants neglected and refused to pay the same.
    Judgment was against the defendants, in solido, in the sum of twelve hundred dollars, with six per cent, interest from August 28, 1890, until paid, and ten per cent, attorney’s fees allowed by the act; recognizing the two notes sued on as bearing vendor’s privilege and special mortgage on the property described concurrently with the mortgage notes not yet due; reserving the right of plaintiff, or any or all holders of the unmatured notes therein, and recognizing the vendor’s privilege and special mortgage on the said property.
    At a later date defendants alleged by way of exception, first, that plaintiffs had shown no cause of action against them in his petition, and secondly they alleged that if the property, of which they admit possession, be bound for the payment of the notes attached to the petition, they denied any responsibility for the payment of the same to plaintiff.
    They averred that as third possessors of said property (the mortgaged property), they could not be sued by direct action, but plaintiff must proceed by the hypothecary action; that no notice had been given to Wooten, r.orto his representatives, demanding payment; nor had any notice or demand been made upon defendants prior to the institution of the suit, for which reason no cause of action had been shown, and the suit should be dismissed.
    
      They admitted in answer the sale by Weems to Wooten, and that Wooten and his heirs and representatives were bound by the terms of the sale and mortgage, but they denied that there had been at any time before, or was then, existing any contract or agreement between Weems and themselves, and denied that they were then, or-ever had been, under any obligation to pay Weems or his heirs or representatives the notes signed by Wooten on the 28th of August, 1890; that there has been any novation of the debt contracted by Wooten on that day by the substitution of themselves for the original debtor. They averred that at the time of the contract between Wooten and themselves, Weems refused to novate the debt due him by Wooten, and he never during his lifetime accepted any stipulation for his benefit in any contract between themselves and Wooten; that, on the contrary, knowing the existence of such stipulation at the time it was made, as well as the contemplation of making it, prior to its being made, he failed, neglected and refused to acknowledge or accept the same; they averred that a reasonable time for deliberation upon and acceptance of the terms of whatever stipulation made for his benefit had expired long before his death, and that his legal representatives had no longer any right to claim the benefit of the same as against respondents, except as to the extent of the value of the property held by them, subject to the mortgage executed by Wooten in favor of Weems; they denied any privity between themselves and Weems arising from any contract or obligation entered into between themselves and Wooten, or that any obligation had arisen from any such contract from themselves to Weems, or his representatives, and they further denied any solidarity of obligation in any contract that they may have heretofore made with Wooten.
    The District Judge rendered judgment in favor of plaintiff and against the defendants, in solido, in the sum of twelve hundred dol - lars, with six per cent, per annum interest from the 28th of August, 1890, until paid, ten per cent, on the aggregate amount of principal and interest for attorney’s fees and all costs of suit, the whole with vendor’s lien, privilege and right of pledge on the property described in plaintiff’s petition. The judgment further recognized that the two notes sued on, and for which the judgment was given, were secured by vendor’s mortgage lien and- privilege and right of pledge, concurrently with the other notes given for the credit portion of the purchase price of said property and not yet due; decreed that the rights of any holder or holders of said notes not yet due be recognized as fully secured by said vendor’s lien, privilege and right of pledge as granted by the act of sale, and that said property be sold for cash, in the manner prescribed by law, to a sufficient amount to cover and pay the notes past due, with interest, attorney’s fees and costs, and for the balance on such terms of credit as were granted in the original act of sale and secured by all the security clauses and conditions recited in said act as to principal, interest, attorney’s fees fixed at ten per cent and costs.
    Defendants moved for and obtained an order for a suspensive or devolutive appeal.
    Defendants furnished a bond for $2600 as being for a suspensive appeal. The appeal was dismissed by the District Oourt as a suspensive appeal on the ground that the appeal bond was too small for that character of appeal.
    Plaintiff moved the Supreme Oourt to dismiss the devolutive ap - peal on the ground that the matter in dispute is, as to amount, below the appellate jurisdiction of that court.
    Appellants urge that “no question is raised by appellants as to the validity of the obligation of Wooten to Weems, the note or mortgage and vendor’s privilege securing their payment, nor is there any dispute by appellants of the right of plaintiff to proceed against his obligor personally, or against the property mortgaged via executiva for any part or the whole of the debt, and, of course, the amount claimed in such proceeding would fix the jurisdiction, but appellants do dispute and put at issue the right claimed by plaintiff in this case to sue them on a contract to which plaintiff’s testator was no party, and finally fixed by a judgment in this case their liability and indebtedness for the sum of four thousand eight hundred dollars, with six per cent, interest thereon from 28th August, 1890, whether the whole be due or part.
    “ Deciding judicially that they owe and are bound to plaintiff for a part of the debt alleged to have been assumed by the contract of 12th January, 1898, between themselves and Wooten, ex necessitate rei, would decide and adjudge them debtors personally to plaintiff for the whole amount of the alleged assumed indebtedness due and to become due, and this fact of appellants’ liability for the entire indebtedness of Wooten to Weems, established by the judgment appealed from, would, if sustained, become res judicata on this matter.
    “ It is appellee’s right to site and stand in judgment against appellants on a contract by the terms of which more than two thousand dollars is involved, which is denied by appellants, and this constitutes the matter in dispute and not the amount of the notes, either due or to become due, incident of the judgment determining the rights of the parties under the contract.”
   The opinion of the court was delivered by

Nicholls, C. J.

Defendants prayed that plaintiff’s demand be rejected, and that they be dismissed. They asked no affirmative relief; their prayer was purely defensive. There was no reconventional demand.

Only one judgment was rendered in the case.

It has been sometimes stated that the jurisdiction governing'a plaintiff’s demand is to be tested by that demand, and not by the defendant’s position before the court. Buisson vs. Staats, 9 An. 236; Gustine vs. N. O. Oil Co., 13 An. 510; Flood vs. Shamburgb, 3 N. S. 626; Succession of Hoover vs. York, 30 An. 754.

But defendants maintain that this doctrine has to be taken with limitations. They assert that though plaintiff’s present claim may be for a smaller amount than would properly fall under the jurisdiction of this court, yet it is dependent upon the existence and proof of the existence of a contract, which, as to its amount in its entirety, and as to its unpaid instalments, is within our jurisdiction.

That defendant in the lower court put at issue the existence and validity of that contract; that, therefore, the “ matter in dispute ” for the purpose of appellate jurisdiction, is the amount involved in that of the entire contract, whose existence or validity is so denied, and the unpaid instalments. That although the plaintiff may not (in form) present as a matter for investigation by the court, the existence and validity of the contract, yet he, in fact, tenders that issue as part of his case, and that wheri defendants’ defence is visceral to the attack, the whole matter is thrown open for the court’s action.

'We have examined the following authorities bearing upon this point:

Peychaud vs. Weber, 25 An. 133; Lartigue vs. White, 25 An. 291 and 325; State ex rel. School Board vs. Cousin, 31 An. 298; Ellis vs. Silverstein, 26 An. 47; State ex rel. Holbrook vs. Judge, 24 An. 601; State ex rel. Lyons vs. Judge, 21 An. 66; Beirne vs. Gill, 34 An. 7; O’Hara vs. Succession of Davidson, 26 An. 76; State ex rel. Bobet vs. Judge, 42 An. 1084; Ready vs. New Orleans, 27 An. 170; Citizens Bank vs. Webre, 44 An. 335.

In the case at bar the plaintiff presented himself as the holder and owner of all the notes remaining unpaid, given by Wooten to Weems. He attached them to his petition; he asserted that defendants had personally bound themselves for the payment of all these notes due and not due through an assumpsit of the same, thought they only asked a present personal judgment for twelve hundred dollars.

In spite of defendant’s denial of the existence and binding force of this assumpsit, they were, by reason of the court’s holding it to be valid and binding, condemned personally to pay the partial amount now claimed.

We think the judgment rendered in this case, so far as the question of the assumpsit is concerned, would be res adjudieata in any future suit between the parties upon the remaining notes amounting to over three thousand dollars. Louisiana State Bank vs. Orleans Navigation Company, 3 An. 294.

The mere division of the purchase price, which defendants are claimed to have assumed, into instalments, did not break the unity or singleness of their own contract, considered from the standpoint of its.existence and validity. Nesom vs. D’Armond, 13 An. 294.

Defendants are not parties to the notes; quoad them the suit ia upon the assumpsit.

Should this motion for the dismissal of appeal be sustained, all issues raised below would be withdrawn from our consideration.. Should the appeal be maintained and there be any issue in our opinion not cognizable by us, we can so announce on the final decree.

We are of the opinion that the appeal should stand; the motion to dismiss is therefore overruled.

On the Merits.

Watkins, J.

This case is the same one we had before us, and the motion to dismiss which, for want of jurisdiction, we decided on the 16th of December, 1895, and we refer to our opinion thereupon for a statement of facts applicable to the merits.

I.

The first thing to be considered is defendant’s exception to the capacity of J. B. Vinet, public administrator of the parish of Orleans, to be appointed dative testamentary executor of the succession of A. W. Weems, Sr., deceased, his contention being that he had no power or authority conferred upon him by law to qualify or act as executor of said succession, and. that he had, consequently, no capacity to institute this suit and stand in judgment.

For this position he assigns as a ground that Weems had no domicile or residence in the parish of Orleans at the time of his death, or prior thereto, and that he had no property situated in said parish at the time of his death. That, on the contrary, he was, at the time of his death, a citizen and resident of the parish of St. Tammany, and had been for a great many years prior to his death, and that his principal establishment was therein situated. That he never had, nor ever acquired a domicile elsewhere, and his succession was opened therein by his death, and that same could not be lawfully administered in the parish of Orleans.

From the foregoing it is clear that the want of capacity alleged consists in the fact that the public administrator of the parish of Orleans could not be legally appointed dative testamentary executor for a succession of a deceased citizen and resident of the parish of St. Tammany, not that his appointment was in itself irregular, or illegal, as not founded upon a proper order of court or the like.

On this question considerable testimony was taken which, in the view we entertain of the legal questions involved, will not be necessary for us to consider, and that view is that unless the appointment be absolutely void his acts can not be questioned by a litigant in a court of justice.

In Succession of Dougart, 30 An. 268, it was said:

“As to illegality of the appointment of the executrix it is only necessary to say that the question can not be raised in this indirect :and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix vnntil her appointment is revoked in a direct action.”

In the matter of the estate of Altemus, 32 An. 364, it was said:

“It seems to be considered, and indeed we do not think it can be denied, that unless the appointment of administrator or curator is absolutely void the acts d ne by them in such capacities are legal and binding; for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decrees shall have immediate effect, and, therefore, regardless of the legality or the illegality of the appointment.”

In Cloutier vs. Lemée, Syndic, 33 An. 305, it was said:

“ Inquiries touching the legality of (the defendant’s) appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.” Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 611; Succession of Lehman, 41 An. 987.

On the foregoing authorities we are of the opinion that the defendant can not, in this collateral manner, attack the legality of the executor’s appointment, and that he has the undeniable right to institute this suit and stand in judgment, conceding for the argument that the testimony shows that his appointment was illegal on the ground stated.

If every party sued by a succession representative could litigate his capacity, its settlement might be indefinitely prolonged.

The judge a quo properly overruled the exception.

II.

The principal question for decision is whether, in the sale from W. L. Wooten to the defendants, on the 12th of January, 1893, the latter assumed the payment of the nine notes of the vendor, Wooten, and all of his obligations as purchaser of the property from the deceased

They deny that they incurred any personal liability for the- payment of those notes to Weems, the deceased, or to his executor since his death; and aver that they are third possessors of the property mortgaged to secure their payment, the enforcement of which can only be obtained in an hypothecary action. Or in other words, while they admit the binding force of the recitals of the deed under which they acquired the property, and that they became thereby bound for the amount of their vendor’s debt and mortgage as part of the price they agreed to pay therefor, they aver that there has not been at any time, nor is there now, any agreement on contract on their part “ to pay to the said Weems, deceased, or his heirs or representatives, the notes signed by W. L. Wooten, on the 25th of August, 1890,” etc.

They further aver that the stipulation of said deed did not constitute a novation of the debt by the substitution of themselves as debtors in the place of Wooten, the maker; and that during the lifetime of Weems they were never so considered, accepted or treated by him.

It appears from the act of sale that Wooten conveyed the proPetry to the defendant with full subrogation to all of his rights and actions against all previous vendors, for the price of six thousand seven hundred and ninety-nine dollars and fifty-six cents, of which the sum of five hundred dollars was paid in cash, and for the balance of said purchase price the said Bres and Richardson thereby assumed and agreed to pay nine promissory notes and interest thereon at the rate six per cent, per annum of six hundred dollars each, payable respectively in two, three, four, five, six, seven, eight, nine and ten years from the 28th of August, 1890, being nine of the ten notes given by the said Wooten as the purchase price of said land from said Weems, which notes are secured by mortgage and vendor’s lien on said land, and said mortgage and vendor’s lien were thereby kept in force and perpetuated until the full and final payment of said notes and interest.

The deed further recites that: “It is further agreed that the present purchaser shall have the same right (as that) given to said Wooten by the said Weems (of) calling in and paying any and all of said notes at their option, and at any time they may choose, on paying principal and interest accrued up to the time of such pay - ment or redemption.”

That act is one under private signature, and it bears the signatures of Wooten, as well as that of Bres and Richardson.

The parol testimony shows that this act of sale was executed immediately previous to the death of Weems, and that same was based upon the fact that Wooten had requested of Weems a ninety days’ extension of the payment of his second note, and that the defendants had consented to purchase the property at the price stipulated if the extension was granted. That Weems granted the proposed extension shortly previous to his departure from New Orleans, and the defendants having been notified of that fact accepted the deed from Wooten, and had it recorded just before Weems’ death. That immediately after his death Weems’ attorney called to see Richardson in reference to the matter, and expressed regret that the sale had not been perfected, and Richardson informed him that it had been completed, and furnished him the deed, as confirmation of the fact.

Objection was made by defendants’ counsel to the introduction of this testimony, on the ground that parol could not be offered to prove a state of facts at variance with the recitals of the act of sale. The judge a quo overruled the objection on the ground that this offer of testimony did not violate the rule of law invoked, because it was only intended to show that Weems was apprised of the assumption by the defendants, and had consented to extend the payment of the note, at the time past due, on the faith of it.

In thus ruling the judge committed no error. The obligations of the defendants to Wooten were incorporated in the act of sale, but Weems was not a party thereto and did not sign it. But being the holder of the notes and Wooten having applied for an extension of the one first falling due, Weems was interested to know his means of making payment when the extension should have expired; and what more likely than that he should have informed Weems of his intended sale to the defendants and of the terms of the same, and that Weems should have consented to the extension upon that ground.

The statement of Richardson was taken, also, without materially altering the force of the plaintiff’s evidence on that question.

We are of opinion that the evidence discloses the existence of negotiations between Weems and Wooten, with respect to the extension of the payment of the second note, which went to its maturity on the 28th of August, 1892, and the payment of which the defendants assumed in the act of sale from Wooten on the 12th of January, 1893, four and one-half months after its maturity.

A witness for the plaintiff distinctly states that “ when the second note came due (he thinks) there was an extension then. He (Wooten) concluded to sell out the island, and Richardson and Bres, who were friends of his, offered to buy the island if some short extension could be obtained on the note. Mr. Weems was willing, as these letters will show, which I offer, to grant this extension, and they made the purchase of the island and recorded the deed, assuming Wooten’s obligation under the mortgage and these unpaid notes, and Wooten went to the country and took fever or something and died up there. Shortly after Weems died.”

This statement makes it clear that Weems was still living when Wooten executed a title to the defendants, because Wooten’s signature is appended to the deed, and he subsequently died prior to the death of Weems.

If an extension of the second note had not been already agreed upon between Wooten, maker, and Weems, payee, with the knowledge and concurrence of Bres and Richardson, it is unlikely that Richardson should have employed the phraseology that he used in the act of sale which he prepared for the parties to sign — that is to say, that the sale was made in consideration of the sum of six thousand seven hundred and- ninety-nine dollars and fifty-six cents, of which five hundred and twenty-eight dollars and twenty-six cents was to be paid in cash, and the remainder to consist in the assumption of the payment of nine notes, one of which was then more than three months overdue.

Defendants’ counsel cites us to the following authorities as governing this branch of the case, viz.: Pothier on Obligations, No. 57; Story on Contracts, Sec. 130; Gravier vs. Gravier, 3 N. S. 207; Tiernan vs. Martin, 2 Rob. 523; Mitchell vs. Cooley, 5 Rob. 240; Wiggin vs. Flower, 5 Rob. 406; Citizens Bank vs. Miller, 44 An. 199; R. C. C. 1890, 1902, 1779, 2201.

Those decisions proceed upon the same line and are to the effect that stipulations pour autrui to be of avail must be accepted by the beneficiary; but they go no farther nor say anything more than is expressed by the Code.

It declares that “ a person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.” R. C. C. 1890. (Our italics.)

In our opinion the evidence satisfactorily shows that Weems consented to avail himself of the stipulation made by the defendants and that same is binding on them.

hi

Complaint is made of the judgment having been rendered against the defendants in solido, whereas their contract is joint. This complaint is well founded and the judgment should be amended so as to make it only joint.

Complaint is also made of the judgment that it decrees plaintiff to have a right of pledge, whereas there is nothing in the contract to justify it.

This complaint is also just and well founded and the decree must be amended in this particular.

It is therefore ordered and decreed that the judgment appealed from be so amended that defendants be decreed jointly to pay the plaintiffs’ demand instead of in solido, and so amended as to eliminate all recognition of the existence of plaintiffs’ right of pledge.

It is further ordered and decreed that the judgment be in all other respects affirmed, and that plaintiffs be taxed with the cost of appeal.

On Application for Rehearing.

Watkins, J.

This is a suit on two promissory notes of six hundred dollars each which bear date August 28, 1890, and went to their maturity on the 28th of August, 1893, and 1894, respectively; same being the third and fourth of the series of ten notes which William M. Wooten subscribed to represent the purchase price of a tract of land, and upon which the vendor retained a lien and mortgage to secure their payment.

The object of this suit is to recover a personal judgment against the two defendants in solido for the amount of the two notes, and the recognition of the vendor’s lien and mortgage upon the land purchased by them.

The averment of the petition is, that on the 12th of January, 1893, the original vendee, Wooten, sold the mortgaged property to the defendants for a specified sum in cash, and their assumption in the act of sale of nine of said series of ten notes, as well as all of his obligations to his vendor, Alexander W. Weems; and that, since said sale and assumption, said defendants had paid the first one of the said nine notes, the payment of which they had assumed; that is, the one falling due on the 28th of August, 1891 — an 1 have defaulted in the payment of the next two, which form the basis of the present action.

The defendants tendered, in the lower court, an exception that the plaintiff had no power or authority conferred upon him by law to qualify or act as executor of the succession of Weems, and consequently, no capacity to institute'this suit and stand in judgment ; and same having been overruled their answer was that they incurred no personal responsibility or obligation for the payment of the notes to Weems, the vendor and payee, or to his executor, and for that reason can not be sued and held personally bound for same.

Or, in other words, that they may be proceeded against by hypothecary action, but not by ordinary process or personal action.

On the trial this contention was rejected and judgment was rendered against the defendants, and same was affirmed by the unani - mous opinion of this court.

The propositions therefore which are presented for consideration on this appplication are: (1) Whether a judgment in this suit on the aforesaid notes would protect the defendants against further pursuit thereon by the creditors and heirs of Weems; (2) whether Weems, for whose benefit the assumption was made, had consented to avail himself of that advantage.

I.

On the exception, we cited a number of recent decisions of this court to the effect that the appointment of an executor can not' be attacked collaterally; that it can only be done by a direct action; that whether legally or illegally made, the appointment of an executor must be treated as lawfully made, until same has been judicially examined and annulled; that unless the appointment of an executor or administrator is absolutely void, acts done under it in such capacity are legal and binding; and it is elementary that mere illegality in the appointment of a fiduciary or public officer will not vitiate acts done under it. This is the universally accepted theory of interpretation. If parties litigant could at any time, as matter of exception or defence, raise the question of the simple illegality or relative nullity of an administrator’s appointment and traverse that issue by proof, the settlement of the successions would become practically interminable.

Certainly a litigant has no interest in that question, as he would be perfectly protected by the judgment pronounced.

On the contrary, he would have an interest in excepting to, the appointment as being an absolute nullity. There is no question of that. That was precisely the theory entertained in Grevenberg vs. Bradford, 44 An. 400, to which counsel has referred us in his application for rehearing, and in which we quoted Duson, Curator, vs. Dupré, 32 An. 896, and Simmons vs. Saul, 138 United States, 441, which are based upon the same hypothesis.

This rule obtains in other jurisdictions as well as in our own, as will be seen from an instructive opinion by the Tennessee court, Franklin vs. Franklin, 18 S. W. Rep. 61, in which it was held that if a court appoint an administrator upon insufficient evidence of the residence of the deceased “the appointment may be voidable, but it is not void.”

Counsel cites the ease of Moise, Tutor, vs. Life Association, 45 An. 736. That case is not pertinent, because it involved the legal right of a maternal uncle of certain minors residing in the city of New Orleans to receive appointment by the Oivil District Court as tutor for them and institute suit upon a policy of insurance against the defendant; and the court held that the appointee was without capacity to receive appointment or to stand in judgment for the minors. But the court, while thus holding, did not put its opinion upon the ground taken by the defendants’ counsel in this case, as will appear from the following extract therefrom, viz.:

We have no concern with the propriety of or validity of plaintiff’s appointment as tutor of the minors, nor with his right and power in that capacity to take possession of and administer the estate of their deceased parent, whose heirs they are, in this State.”
“ Guyol was domiciled and died in Kentucky, and so far as appears he left no property, real or personal, in this State. This policy of insurance is a mere non-negotiable evidence of a debt due by a New York debtor to a Kentucky creditor. The appointment by the insurance company of an agent in this State, through whom it may be sued, does not change the domicile of the company. Under no possible view can such a debt be said to have a situs, real or fieti-. tious, in this State.”

Applying to this, the principle announced in that case, the plaintiff had an undoubted right to take possession of the notes of Wooten, as the property of Weems, deceased, because they had been deposited in a bank of this city by Weems, for his personal account during his lifetime, and they there remained until delivered to the plaintiff as his executor.

The ten notes aggregated six thousand dollars in capital alone; and it is not pretended that he owned anything else of value at the time of his death. It is not claimed that Weems had at his death either heir or creditors.

The law declares that the place of the opening of a succession is fixed as follows, viz.:

1. “In the parish where the deceased resided, if he had a fixed domicile or residence in this State.

2. “ In the parish where the deceased owned inmovable property, if he had neither domicile nor residence in this State, or in the parish in which it appears by the inventory his principal effects are, if he have his effects in different parishes.

3. “ In the parish in which the deceased died, if he had no fixed residence, nor any immovable effects within this State at the time of his death.” Revised Civil Code, p. 935.

An examination of the evidence plainly shows, that Alexander Weems had, at the time of his death, “ no fixed domicile or residence in this State.” That he owned no immovable property in this State; and that the parish of Orleans is shown by the inventory, as well as by the parol proof, to have been the place where the notes given for his immovable property were situated, and which constituted “ his principal effects.”

It further shows that he did not die in this State, though he had made the city of New Orleans his abiding place previous to his departure from the State, and subsequent death.

On this showing with regard to the law, as well as to the evidence, it certainly can not be affirmed that the plaintiff’s appointment was an absolute nullity; for the law provides that “no testament can have effect unless it has been presented to the judge of the parish in which the succession is opened,” etc. R. C. C. 1644.

II.

On the second proposition the contention of the defendant’s counsel seems to be directed at the impossibility of Weems having accepted the stipulations of a deed which he never saw after same was executed; while, on the contrary, the opinion deals with Weems’ previous knowledge of the transactions which led up to the sale, with the terms of which he was fully acquainted; and more particularly with the three months’ extension of Wooten’s second note, then overdue, upon the faith of which the transaction was based.

In counsel’s brief it is admitted that Weems left Louisiana in May or June, 1892; and died on the 18th of March, 1893 — never having returned to this State in the meanwhile.

It is further admitted — and the deed itself shows the correctness of the statement — that the act was executed and recorded on the 12th of January, 1893, two months prior to the death of Weems.

It is further admitted that Wooten died on the 30th of January, 1893, and the deed shows that he signed the same on the 12th of January previous.

It is shown by the record that prior to his departure from the State Weems executed a power of attorney in favor of Mr. J. C. Gilmore, authorizing him to attend to his business during his absence, and directing the cashier of the Hibernia National Bank to surrender to him the notes of Wooten then in the bank “should the first one, falling due August, 1892, not be paid at maturity.”

Mr. Gilmore states as a witness that at its maturity, on the 21st of August, 1891, Wooten requested of Weems an extension of his first note, and that same was granted, and the note was subsequently paid. He says that when the second note fell due he again applied for an extension. That “ he (Wooten) concluded to sellout the island, and Bres and Richardson, who were friends of his, offered to buy the island, if some short extension could be obtained on the note. Mr. Weems was willing, as these letters (exhibiting them) which I offer will show, to grant an extension, and they made the purchase from Mr. Wooten of the island and recorded the deed, assuming Wooten’s obligations under the mortgage and these unpaid notes,” etc.

The correspondence in the record shows that on the 28th of November, 1892, Weems wrote a letter to Gilmore, stating that he had received a letter from Wooten requesting a ninety-day extension on his second note, then past due, and that he had replied requesting him to call on Gilmore, “ as he had charge of his interest ” in Louisiana.

That on the 16th of December, 1892, Wooten wrote to Weems stating that he was temporarily embarrassed and unable to meet the payment of his note then past due, but that he “ had found a purchaser in Mr. J. G. Richardson and J. R. Bres, New Orleans, provided he (Weems) will extend the time of the payment of the note now past due by (him) ninety days from the 1st of December, 1892.”

He further states that he therewith enclosed an obligation from them to that effect; and he requests him (Weems) to send same back to “his attorney, Mr. Gilmore,” stating that they (Richardson and Bres) “will satisfy him as to his (Weems) interest in the matter,” and that they will assume payment of all notes held by (Gilmore) against the property.”

The enclosure is of the following tenor, viz.:

“ December 16, 1892.
W. L. Wooten, Esq., New Orleans, La.:
“ Dear Sir — We will take your half of the Shell Island or Weems’ island at the price offered, provided you secure the extension from Mr. Weems of the note now past due for the term of ninety days from December 1, 1892.
(Signed)
“Jas. G. Richardson.
“ Jos. R. Bres.”

Replying to the foregoing under date December 20, 1892, he (Weems) wrote to Mr. Gilmore as follows, viz. :

“ Yesterday afternoon I received the enclosed communication from Mr. Wooten; it will speak for itself. I addressed a letter to Mr. Wooten on the same day I last wrote you, requesting that he give me a full statement as to his expectations and ability to meet his note then due and the within is his reply. I will reply by the same mail as this, that I have placed the entire matter in your hands and will be satisfied with any agreement entered into by you as my attorney and counsel I shall have no objection to granting a further extension on the note if it does not lessen my security in the future * * * I leave the matter with you,” etc. (Our italics.)

Mr. Gilmore further states that “ acting under the instructions of Mr. Weems” he called upon Mr. Richardson just after the death of Mr. Wooten, which took place on the 30th of January, 1893, in response to a call which Mr. Richardson had previously made upon him, referring to an envelope that had been left on his table during his absence.

Being asked the date of this interview he said: “ I could not fix the date, but it was in the course of the negotiations.

“ An extension had been granted on the second note by Mr. Weems, and Richardson and Bres had signed these papers.”

In speaking of the second extension on the condition that they (Bres and Rifchardson) would assume the payment of the series, he says:

“ Hearing from Mr. Weems that he was willing, I called upon Mr. Richardson and said that the extension is granted; but, I said to him, I see that Mr. Wooten is dead, by the papers. I then said, now he could pass no transfer; and he said, Oh, yes; we have passed a transfer before he went to the country, and it has been sent over and recorded.’ ”

Mr. Gilmore then said: “ Weems was satisfied with the condition, and seeing that Woofew was dead he was better satisfied than ever. * * The conditions of the letter of Richardson and Bres that this extension would be allowed was granted, and Richardson said that they had executed the deed before he (Wooten) left the city.”

On being interrogated as a witness, Mr. J. G. Richardson supplemented the statement of Mr. Gilmore, and- filled a gap in the testimony which he had left open, as-will appear from following, viz.:

Q. “I wish you to state that conversation between Mr. Gilmore, as agent for Mr. Weems, and yourself and Mr. Bres, in regard to matters that you have heard Mr. Gilmore testify to.”
A. “ Mr. Gilmore called at the office in answer to that letter that is there from Mr. Weems, giving an extension of time of ninety days on that note then past due; and he called, and Mr. Wooten was present, and he stated that it was all right — the extension,” etc. * *
Q. “ Was anything said by Mr. Gilmore to you when reference was made to the making of this sale by Wooten to yourself, with regard to having a notarial act passed?”
A. “Yes; when he first called he said that whenever we got ready to come over to his office that there was a notary there, and we could prepare the deed, which I did not do. When we got ready to make the deed I wrote it myself.”

Intermediately, between the conversation which was related by Mr. Richardson and that related by Mr. Gilmore, the deed was executed by Wooten and accepted by Richardson and Bres, and Wooten had died; but Weems was still alive, and Gilmore was his duly authorized and acting agent.

Richardson and Bres entered into possession of the property, and, subsequently, when the ninety days’ extension had expired, Mr. Richardson went to the bank and saw the date it would expire and on that day he paid the note.

The foregoing testimony was not quoted in our original opinion in extenso, but its substance only was stated. It furnishes full and complete proof that Wooten obtained a ninety days’ extension of his second note, at the time past due, on the express condition that Richardson and Bres should purchase the mortgaged property and assume the payment of Wooten’s nine notes — the one extended amongst the number. That Richardson and Bres executed an obligation to that effect, and it was forwarded to Weems, on the faith of which he granted the extension. That notice of this extension was subsequently given to Richardson and Bres, in the presence of Wooten, by Mr. Gilmore, as the agent of Weems. That immediately after that interview Richardson prepared the deed and it was signed by himself, Bres and Wooten and recorded. That subsequently it was discussed by Richardson and Gilmore; and when the extension had expired the former paid the extended note. The personal liability of the defendants is clearly established beyond the peradventure of a doubt; for Mr. Weems was living at the time of these transactions and Mr. Gilmore was both his agent and attorney.

Not only does the proof show Weems’ previous knowledge of the transactions which led up to the assumption of Bres and Richardson, but his possession of the written obligation to that effect. It shows that not only did Weems specifically agree to grant the extension to Wooten upon the faith of Richardson and Bres’ personal obligation, but due notification of Weems’ acceptance of their proposal was given by Weems to Wooten in writing, and to his agent, Gilmore; and same was personally communicated by Mr. Gilmore to Bres and Richardson in the presence of Wooten.

It shows that with full knowledge of these facts, and with direct reference to them, Mr. Richardson wrote the act of sale, which Wooten signed and he and Bres accepted; and that his action, in this respect, was subsequently approved by Mr. Gilmore, as agent, during an interview between Gilmore and Richardson.

. All these transactions occurred during the lifetime of Weems; and subsequently Richardson paid the extended note.

But there is another view of this case that is perfectly conclusive, as to the right of the plaintiff to recover, and it is that'the proof disclosing that the defendants had accepted Wooten’s proposition, and had actually purchased che mortgaged property and assumed the payment of his notes, it was within the power and competency of either Weems personally or of his agent, attorney or executor to accept said assumption and enforce the same, so long as same remained unrevoked, or not annulled by the defendants — conceding for the argument that the proof is not complete of his previous acceptance of the stipulation pour autrui defendants had made in his favor. And such subsequent acceptance is fully evidenced by this suit.

Our conclusion is that, in any view that can be taken of this case, the judgment should remain undisturbed.

Rehearing refused.  