
    
      LE BLANC & AL. vs. CROIZET.
    
    East’n. District.
    
      April 1816.
    Appeal from the fourth district.
    The plaintiffs, as heirs of Margaret Cheval, brought the present suit for the recovery of a portion of her estate, alleged to be in the possession session of the defendant, the universal legatee of her husband.
    Under the Spanish government, when the appeal did not suspend the execution, there was no necessity to procure the desertion of the appeal to the pronounced to give the judgment appealed from the authority of the thing judged.
    In the year 1750, Duval and Margaret Cheval intermarried, and by their marriage contract, made mutual donations, stipulating that the survivor should inherit all the estate of the other. This donation was recorded in 1768.
    Margaret Cheval died in 1779, without issue: an inventory of her property was made by the commandant of Point Coupee, the parish of their domicil, and delivered to Duval, to be enjoyed by him as an usufruct during his life, under a belief that the marriage contract did not preclude her heirs.
    Duval remained in possession till his death in 1783, without issue, leaving the defendant his universal legatee. An inventory of his property was made, and in conformity with the decision of the former commandant, who had declared Duval a mere usufructuary of his wife’s estate, the then commandant, with the acquiescence of Croizet, divided the estate, which had been possessed by Duval, into two parts, one which was delivered to the defendant, and the other was distributed among the heirs of Margaret Cheval.
    Thirteen years after Croizet being, as he supposed, better informed, and believing that Duval, under the marriage contract was entitled, as survivor, to the estate of his wife, in the fullest extent, brought his suit in the court of the Auditor in New-Orleans, for the recovery of the property, which had, under a misapprehension of his rights, been delivered to the heirs of Margaret Cheval.
    In the year 1802, the Auditor gave his dictamen in favor of Croizet, which, by the approbation of Governor Salcedo, became a definitive sentence. An appeal was prayed and allowed to the island of Cuba, but without a suspensive effect. Consequently Croizet was put into possession.
    The change of government prevented the prosecution of the appeal, in the island of Cuba, and the present plaintiffs brought the present suit as an original one.
    There was judgment for the defendant, and plaintiffs appealed. During the appeal he died, and his heirs were made parties.
    
      Livingston for the plaintiffs.
    The donation, in the contract of marriage is null because it was not recorded in the time and place prescribed by the laws of France. Ord. de Moulins, Declaration of May, 1645. It was not recorded till eighteen years had expired, while it ought to have been so within four months after its date.
    Duval, whatever may have been his right, has renounced it, by his acceptance of his wife’s estate as an usufructuary: and this renunciation was afterwards confirmed by Croizet, who distributed to the heirs of Mrs. Duval their share of her estate.
    
      Moreau for the defendants.
    The plaintiffs and appellants cannot be heard in their demand, 1. because it tends to destroy the authority of the thing judged: 2. because it is unjust and ungrounded.
    I. Its object is the recovery of monies paid under a final judgment, rendered against them, by a Spanish tribunal in 1802. This is inadmissible, because the judgment has acquired the authority of the thing judged.
    It is true, Louis Le Blanc, one of the present plaintiffs and appellants, appealed within the legal time, but he never prosecuted his appeal, nor did he produce the certificate which the law required : the appeal was consequently deserted, and the judgment remains as fully in force as if no appeal had ever been prayed.
    According to the Spanish law, the appeal which is not prosecuted by the citation of the appellee before the judge ad quem within the delay fixed by the judge, or, when he does not fix any, within the legal one, is considered as null. The judgment remains in full force and is afterward unappealable from. Partida 3 23, 23. Recop. de Cast. 4, 18, 2.
    The only variance between the Partida and the Recopilation is, that the latter fixes the delay at forty days, while the former allowed two months.
    Shall it be said that the appeal ought nevertheless to have its devolutive effect? No. The Spanish judge allowed this effect, on condition, as he expressed it, that the appellant should prosecute his appeal within forty days, warning the appellant, that if he did not produce a certificate of the citation of the appellee, within six months, the appeal should be considered as deserted.
    
      II. The appellants no longer contend, as for the Spanish tribunal, that the reciprocal donation, in the contract of marriage of Duval and his wife, ought to be reduced to the usufruct: confounding thus donations made at the time of the marriage, with the reciprocal donations, made during its duration—but they contend, first, that it is null, because it was not recorded in the time and place prescribed by the laws of France, under which the marriage took place : secondly, that if it be not null, Duval and his heirs have lost the right of availing themselves of it, by his acceptance of the succession of his wife, to be enjoyed in usufruct only, and by the assent of Croizet to the tradition of the property of Madame Duval to his heirs, and finally, by his long silence.
    1. As to the objection that the donation was not recorded, we are to resort to the royal ordinances and not the custom of Paris, because, according to the opinion of celebrated French jurists, ordinances and declarations of the monarch are paramount to customs. 1 Neron & Geroud, Recæuil des edits. &c. 1.
    It is true that the 58th article of the ordinance of Moulins required a record of donations inter vivos within four months from the date, in the district in which the property was situated and of the domicil of the parties, and pronounced the nullity in favor of the creditors and heirs of the donor, when this formality was neglected.
    It is true also that the declaration of May 1645, extended the necessity of a record, in the places in which the property was situated and of the domicil of the donor, to every kind of donation inter vivos without exception, within four months.
    It is also true that the edict of December 1702, excepts, from this formality, donations in a direct line by contract of marriage, i. e. by one of the ascendants of either of the parties.
    But the system was changed by the ordinance of 1731.
    The 26th art. of this ordinance provides, that "when the record shall be made, within the delay (four months) even after the death of the donor or donee, the donation shall have its effect, from the day of its date, with regard to all kinds of persons : and it may be recorded, after the expiration of the delay, even after the death of the donee, provided the donor be still living, but in such a case, it shall only have effect from the date of the record.” And this is observed in France, since the promulgation of this ordinance. Pothier, Donations 103, 107.
    
      Thus, the record of Duval’s donation could regularly take place in 1768, since the donor and donee were still living.
    As to the place, the record was regularly made at Pointe Coupee, for the ordinance of 1731 requires, only, that it should be made in the domicil of the donor and in the place in which the property is situated.
    
      2. As to the alleged consent of Duval to accept his wife’s estate, as an usufructuary only, from which his renunciation is inferred to his right of property : it is clear that he was under an error, and non videtur qui errat consentire.
    
    3. As to the pretended renunciation of Croizet, inferred from his distribution of the estate of Mad. Cheval among his heirs, the same principle is equally applicable, and I will add a quotation from the digest. "If being sole heir, I believe you to be so in part, and I deliver to you a portion of the estate, it is clear you cannot acquire a title thereto by prescription, because you cannot prescribe against the heir, that which you hold as such, unless you hold it under some other cause or unless there has been some compromise about it.” ff 41, 3, de usurp. & usucap.
    
    
      Livingston, in reply.
    Our appeal was not deserted, and the judgment obtained in the Spanish tribunal, by the present plaintiffs appellants, has not passed in rem judicatam.
    
    I. It does not appear that there was any citation to bring the case from the judge â quo, to the judge ad quem. There must be a citation of the party, before the appeal shall be deemed deserted. 1 Cur. Philip. 103. n. 7.
    II. A judgment, once appealed from, does not pass in rem judicatam, nor does execution issue thereon, until further proceedings take place.
    Before a cause can pass in coza juzgada, there must be a petition to that effect, after the instance. 1 Elizondo 149.
    After an appeal, the appellee, if he wishes to confirm his judgment, and take advantage of the appellant’s not prosecuting his appeal, must apply either to the superior or inferior court, and in the superior court he is to obtain the process termed ahexotaria or contra majora. In the inferior court, he is to pray that the appellant be cited to shew within a certain time, what proceedings have taken on the appeal—if the appellant fails to appear, the appellee is to obtain a default, and insisting on his pretentions require that a delay be fixed for the appellant’s answer, and on notification of this, if the appellant does not appear, the inferior court will decree the execution of its judgment, 3 Febrero Cinco juicios, n. 4, 88. Nothing of this having been done, the judgment is still open to examination.
   Derbigny, J.

delivered the opinion of the court. We are called upon to revise, in this case, a judgment rendered by the tribunal of the Spanish Governor, in 1802. To shew that we have the necessary powers for that purpose, the present plaintiffs aver that they appealed from that judgment in due time, and that the appeal was pending, when the United States took possession of the country. The fact, as it appears on the face of the Spanish record, is that the appeal was claimed in the legal delay, and admitted with the restriction that it should not suspend the execution. Six months were allowed to the appellant to shew that he had prosecuted the appeal; in default whereof, he was warned that it should be declared deserted.

When the Spanish dominion ceased in this country, not only six months, but nearly one year, had elapsed from the date of the decree allowing the appeal, and during that period, it does not appear that the appellant took any step towards the prosecution of the appeal. Certain it is, he did not attempt to shew he had taken any.

The Spanish government was succeeded by that of the United States, at the end of the year 1803, and in 1810 the present plaintiffs instituted the present suit, the object of which is to obtain the reversal of the judgment of the Spanish court. We must therefore ascertain whether the appeal from that judgment is still open, before we hear him on the merits.

Appeals according to the Spanish law, were to be prosecuted within forty days at furthest. It was incumbent on the appellant to present within that delay to the judge â quo the necessary certificate from the court of appeals. If owing to some legitimate, impediment, he was prevented from making that application in due time, it was his duty to shew it. If he did neither, the judgment of the inferior court acquired the authority of the thing judged. Recop. de Castil. lib. 5, tit. 18, l. 2.

In cases, however, where the appeal had stayed the execution, it was required, in practice, that some step should be taken, on the part of the appellee, to cause the execution to go on. On his application to that effect, the appellant was summoned to produce the proceeding had on the appeal, and if he failed to produce them, the appeal was deemed deserted, and the execution went on. But, in cases in which the execution was not stopped by the appeal, it is obvious that no application on the part of the appellee was necessary, after the expiration of the delay, within which the appeal ought to have been prosecuted; for the appellee, who enjoyed the benefit of his judgment, had nothing further to ask. In such a case therefore the judgment of the inferior court, evidently acquired, by the operation of law, the authority of the thing judged; for, as the appellant, who had suffered the delay fixed by law to elapse, without making the necessary application, could no longer be heard, the suit was necessarily at an end.

There are indeed some Spanish authors, quoted in the Curia Philippica, part. 2, sect. 3, who are of opinion, that when application is made to a court of supreme jurisdiction, jueces supremos, in a case in which the appeal has not been prosecuted, within the time assigned to the appellant, such court ought nevertheless to take cognisance of the appeal, unless the time elapsed be very long. But, stretching this doctrine to the utmost extent, it will not reach a case like the present, where, after the expiration of the six months granted to the appellant, he suffered more than seven years, without mak ing any application to be relieved against the judgment of which he now complains, and, when at last he comes forward with his appeal, he does not even attempt to shew, as the law required, that he was prevented by some legitimate impediment to prosecute it sooner.

We are, therefore, of opinion that the suit could not be reversed: but, although we think that the district judge did err, when he considered the appeal as open and enquired into the merits of the case ; yet as the result of his enquiry was a judgment for the defendant, his judgment must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  