
    Gravier’s Curator v. Carraby’s Executor.
    Where an exception is put in, at the argument in the supremo court, suggesting that the contracts between the parties to the suit are illegal, immoral and contrary to public policy, the court is bound to notice it, even without any plea; and in such cases no recovery can be had.
    So where it is shown by the evidence that the contracts and agreements sued on are of a character reprobated by law, no action can arise or recovery be had.
    On an application for a rehearing.
    This case comes np on an application for a rehearing.
    
      L. Janin, for the plaintiff,
    recapitulated the facts of. the case and urged a rehearing on the ground that the decision was erroneous, in considering the exception filed in this court as going to extinguish the cause of action. He then proceeded to show that the exception on file is not a peremptory exception founded on law, but simply a demurrer to the sufficiency of the allegations of the petition, and which could not be pleaded in the supreme court.
    2. That, even if the exception had been what it was supposed to be, if it had alleged that the contracts sued on were illegal, and gave no cause of action, it could not have been pleaded in the supreme court.
    3. That if the supposed exception had been pleaded in the inferior court, and at the proper time, it would not avail the defendant, because the evidence conclusively shows that it is not founded in fact.
    4. That the erroneous allegations in the petition having been made by the curator of an insolvent estate, on behalf of the creditors, cannot preju- [133] dice the heirs, as they were not the parties in interest until the estate was solvent, and the estate became solvent only during the progress, of the trial of the suit.
    5. That even the judicial confession of the curator of an estate could not defeat the rights of the heirs, he having no authority to make judicial confessions.
    6. That the party himself can' retract his judicial confession, if he discovers and proves that it was the result of an error of fact.
    The defendant does not say that the contracts which were in evidence are contrary to law. He says that the action, as set forth in the petition cannot be maintained, because the contracts, on which it is there said to be founded, are illegal.
    He objects, not to the case as made out, but to the case as stated in the petition.
    This is the exception so familiar in our practice, that the plaintiff shows no right of action on the face of the petition. In the common law it is called a demurrer, in the civil law a peremptory exception relating to form.
    
    Article 344 of the Code of Practice, says “ Peremptory exceptions, relating to forms, are those which tend to have the cause dismissed, owing to some nullities in the proceedings.”
    “ Such exceptions must be pleaded in limine litis, that is to say, at the beginning of the suit, and before answering to the merits.”
    
      “ After the defendant has pleaded to the merits, such exceptions shall not be heard, all nullities are cured.”
    This exception is always disposed of, before an inquiry into the merits; the only question presented by it, is the sufficiency of the allegations of the plaintiff to support the action; for the purpose of this inquiry, the allegations are assumed to be true, no evidence is ever admitted, and if the exception is sustained, the suit is dismissed, and the plaintiff is nonsuited, but he may commence his action again, though in a different form.
    [134] In the recent case of Martin v. MeMasbers, 13 La. Reports, 422, this court said: “ The answer avers that the plaintiff, from his own showing, has no cause of action.” “ The defendant’s exception was one of those which ax-e called peremptory to the suit; but not to the action. If it prevail, it did not impair the action, id est, the right of bringing another suit. Oode of Practice, article 1. But it destroyed or abated the suit, id est, the means to which the plaintiffhad resorted to avail himself of his action, leaving him at liberty to pursue his remedy in another suit. The defendant, therefore, had an incontestable right to have his exception considered, independently of any other matter of defence. The Oode of Practice, article 336, expressly requires the defendant to plead, in his answer, all the dilatory or peremptory exceptions on which he intends to rely, except as relates to declinatory exceptions.”
    A peremptory exception, founded on law, on the other hand, is a real defence on the merits; it assumes that the right of action had once existed, but had ceased to exist, because it is either prescribed, or has been destroyed, or extinguished. A peremptory exception, founded on law, always requires to be supported by evidence, and if well founded, results in a final judgment against the plaintiff, and destroys his right of action. Oode of Practice, 345, 846.
    It is thus not difficult to determine that the exception in question is a peremptory exception, relating to form, not one founded on law, and was not admissible in the supreme court
    If the defendant can no longer avail himself of such an exception, after having neglected to plead it before or with his answer, it follows that the insufficient or erroneous allegations of the petition can be cured by the evidence. Por this reason, this court has frequently decided, that although a party should mistake the nature of Ms right in his averments, still if he is entitled to relief, he will recover according to the evidence. Canfield v. McLaughlin, 9 Mart. 317; Bryan and Wife v. Moore, 11 Martin, 27; 5 Mart. 596, &c. &c.
    [135] The form of this exception is not accidental; the counsel who filed it, and who had tried the case in the court below, could have no more doubt than the plaintiff had himself, that the allegations in the petition, concerning the supposed illegality of the contracts, were contradicted and corrected by the evidence.
    It is therefore very clear, that the question whether the real and written contracts between Gravier and the Oarrabys had an illicit object, was not even before the court.
    
      II. Even if the exception had alleged, that the contracts in evidence and now sought to be enforced, were illegal, it could not have been pleaded in the supreme court.
    “ Peremptory exceptions founded on law, are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because it is prescribed, or beoause the cause of action has been destroyed or extinguished.” Oode of Practice, article 345.
    The clear language of this article supposes that a cause of action once existed, and that it was subsequently destroyed. It does not apply to a case where no cause of action ever existed. The present is said to be such a case, and the law cannot be extended beyond its legitimate meaning. 1 Oarré, Proc. Oiv., p. 242, Edition de Bruxelles. .
    “ Peremptory exceptions, founded on law, may be pleaded in every stage of the action, previous to the definitive judgment, but they must be pleaded specially, and sufficient time allowed to the adverse party to bring his evidence.” Code of Practice, art. 346; See also art. 902.
    2. The high and somewhat dangerous privilege granted to peremptory exceptions, must be confined within proper bounds, and it will be conceded, that parties must be cautiously protected against surprise. Both the articles cited, speak of exceptions supported by the evidence in the record; the advantage which the defendant in this case might have taken of the erroneous allegations in the petition, was lost by his neglect to except to them in [136] the lower court, and by his allowing the introduction of evidence, and still more, by his introducing evidence himself, in contradiction of them. When evidence is offered on which a peremptory exception may be founded, the adversary is sufficiently warned; proof of payment, compensation, res judicata, &e., at once intimates the use for which it is intended; it may be resisted, if no special plea has been made, and by this resistance the party relying on it will be compelled to make a distinct averment. But how different are the circumstances of this case! Contracts now considered illegal are alleged in the petition, this is mot by a general denial, proof is furnished by the defendants, showing that the transactions were of unquestionable legality; the plaintiff recognizing his error, admits that the denial of the defendant is well founded, so far as it controverts the original illegality of the agreements; the whole evidence proves that with the exception of usury, there was nothing reprehensible in them, and now he is to be, not nonsuited, but finally condemned, because his ignorance of the information in the possession of the defendant, caused him to make an erroneous allegation. If this plea had been made in the inferior court, the plaintiff could at once have shown that his information was necessarily deficient at the time of the institution of this suit, and that the knowledge he subsequently acquired of Gravier’s business, in the course of his administration, the contracts produced by the defendant and many other circumstances, of which the evidence was at hand, enabled him to explain and retract his error. No case has, perhaps, ever been presented to this court, in which it was attempted to take a suitor by surprise in so glaring a manner. See case of Harvey v. Fitzgerald, 6 Martin, 549.
    The plaintiff therefore concludes, that the exception here spoken of, could not have been pleaded in the supreme court. 1st. Because its purport is not, in the [137] words of article 345 of the Code of Practice, that a cause of action, once existing, has, been destroyed by a subsequent event, and that, therefore, it is not a peremptory exception founded on law within the meaning of the Code, but a defence on the merits, which ought to have been pleaded in the answer. 2d. Because no evidence has been received in support of it.
    III. The facts of the case fully show, that there was nothing illegal, immoral, or contrary to public policy in Gravier’s dealings with the Carrabys, except the usury of the latter.
    And here the plaintiff is called upon to notice, with all due respect, the errors, concerning the facts of this suit, into which the court has fallen.
    The court says, “ It is not denied, that the pretended sale of lots and other property, by Gravier to the Carrabys, was for the double purpose of protecting the property against the pursuits of his creditors, and of securing the reimbursement of certain loans of money, and other advances, with usurious interest.”
    The plaintiff’s counsel begs leave to disclaim the fatal admission here attributed to him. The pretension that Gravier acted under the illegal motive stated by the court, was not set up in the court below; it is not mentioned in the judgment of the court of probates, which contains a full review of the facts; it rvas denied by the plaintiff’s counsel, at the first trial of this ease, and again in the brief filed by him on the second trial. In that brief, the cause of error in the allegations of the petition is stated and explained, though less stress was laid on it than at present, because the exception was considered harmless under the circumstances of the case. It would be difficult for the counsel to have made such an admission, with his present knowledge of Gravier’s business, and his familiarity with the record of this suit.
    ■Further on the court says: “The ultimate agreement (here the court alludes to the agreement of December 27,1823,) was, that the property should be sold by the Garrabys as theirs, and the price accounted for to Gravier, [138] over and above the amount of the advances in preference to judgment creditors. Would a court of justice have lent its aid to enforce such a contract to carry out the fraudulent intention of the parties ? ■ Could Gravier at that time have recovered damages from the Carrabys for the non-performance of such a contract? We think not.”
    The passage in italics is so imporant, that the whole decision of the court turns on it, and not one word of it, or any thing in the least resembling it, is to be found either in the agreement of December 27, 1823, or in any other part of the record. Ho portion of the written or oral testimony contains the least explanation of what was to be done with the balance of the property or its proceeds, after the Carrabys should have paid themselves.
    IV. The evidence, then, shows no illegal agreements, but contracts held to be illegal are alleged in the petition, and it has been said that this amounts to a judicial confession.
    . But those allegations were made in error, and under circumstances which deprive them of the effect desired by the defendant.
    The plaintiff begs leave to refer to the statement of the case at the commencement of this brief. Here he will only repeat that the suit was instituted on the 6th of February, 1835, and then the estate was insolvent. By the repeated efforts of the defendant, the trial was delayed until,the 27th of April, 1836. J. P. Lafon was offei'ed as a witness, and objected to by the defendant, because she was a creditor of the estate, and therefore interested in making it solvent (p. 88). But the court admitted hex’, because it was proved that she had a first judicial mortgage for her claim of $7000, and that, as to her, the estate was solvent, because the curator had sold certain property a short time previous, for $38,500. This shows, that after the commencement of the txfial the estate was still believed to be insolvent by both parties. In May, 1836, this court decided the case of McDonough v. Cramer’s curator, [139] 9 La. Reports, 541, and the property recovered in it was sold on the 15th July, 1836, and rendered the estate entirely solvent. In the mean time the trial of this case had been progressing, but owing to frequent and long interruptions, it was not concluded until the 28th of December, 1836.
    These circumstances explain perfectly the nature and purport of the plaintiff’s allegations. They were made by the curator of an insolvent estate, who is eminently the representative of the creditors. His rights and duties are entirely analogous to those of a syndic. Elliott v. White, 5 La. Reports, 324; Sail v. Mulhollan, 7 La. Reports, 389; Poultneys. Cecil, 8 La. Reports, 419. Oex'tain successions are administered’by syndics. 2 Moreau’s Digest, 438. According to article 1166, of the La. Code, “ when the succession is administered by a curator, the creditors are not permitted to appoint syndics under the pretext that the succession is insolvent, the curator supplying the place of syndic in this respect.”
    This was essentially a revocatory action, which, in the case of insolvency, can only be instituted by the syndic, (Civil Oode. article 1988; 3 La. Beports, 461; 6 Id. 83 ; 12 Id. 19,) and after the death of the debtor, by the curator of his estate. Vienne v. Boissier, 10 Martin’s Reports, 859 ; Sail v. Mullhollan, 7 La. Reports, 389. Ho single creditor would be permitted to institute it. But in this case five of Gravier’s creditors intervened, and joined the curator in the revocatory action. The claim was expressly based on the insolvency of the estate and on the right of the plaintiff, as the representative of the creditors, to set aside transactions entered into in fraud of them rights. Neither the plaintiff nor the intervening creditors then fancied that they spoke in the name of Gravier or his heirs, or that the latter would have the least interest in the issue. They, therefore, were under no necessity of being as guarded in the allegations by which they charged the defendant, as if [140] they had considered that their rights were only those which Gravier himself might have maintained. The suit could not have been instituted on the gx-ound of simple simulation, and the plaintiff could recover only in one of two cases, viz., if he could obtain from his adversaries a counter letter, or if be proved fraud upon third persons. His allegations had therefore to be framed so as to meet both contingencies, and in the character in which he then acted, they could not injure the estate, whether the one or the other of the supposed cases should be discovered to be the true one. It was, above all, necessary that they should be sufficiently comprehensive.
    
      V. Even the judicial confession of a curator could not destroy the substantial rights of the estate he represents. It will be proof when not shown to be contrary to the truth, but when the evidence exhibits a different state of facts, it must be disregarded. This distinction is believed to be both practical and required by justice; and it may even be affirmed, though it is not necessary to decide it in the present case, that a judgment rendered in consequence of the judicial confession of a curator, administrator, tutor, syndic, &c., would not he binding upon the real party in interest, if he could clearly show error or fraud in the admission. For such legal agents have no authority to make judicial confession.
    Article 2270, of the Civil Code, says, that the judicial confession is the declaration which the party or Ms special attorney in fact makes in a judicial proceeding. This article is a copy of article 1356 of the French Code. Such legal administrators are not the special agents of the parties whom they represent ; they have none of the powers for which a special mandate is required according to article 2966 of the Civil Code. He only can make a judicial confession, who has power to alienate the object intended to be affected by [141] it. In France, an attorney can make no admission of facts in the pleadings, unless he has a written power to that effect, 10 Toullier, 400, and in its absence, the admission may be retracted by the party without showing that it was erroneous. It is well known, that even an executor cannot waive the plea of proscription. Lafon's heirs v. Sis executors, 3 FT. S. 716; 6 Cond. Reports, 649. And in the case of Ashcraft v. Flint, 4 La. Reports, 498, it was decided, that the curator of an estate cannot confess judgment and consent that particular property shall be seized under an execution issued in consequence of that judgment. “ The plaintiff was a minor at the time this sale took place, and his property could not be alienated in the manner it was attempted here. The curator had no authority to discharge a debt due by the succession, in any other manner than by a sale under the authority of the court of probates. Sad he confined himself to the mere aclenowledgment of a debt, and suffered execution to run in the ordinivry' way, Oj question might be raised whether the act was void or voidable.”
    It will be observed that the curator spoken of was the curator of an estate, and that the property of a vacant estate cannot be disposed of in any other manner than the property of minors.
    VI. The judicial confession when made by the party himself, may be retracted, if it is proved that it was made through error of fact. Oivil Code, 2270 ; French Oode, art. 1356. And in this case the error of fact is proved by the whole evidence, and more particularly by that introduced by the defendant. The cause of the error has already been sufficiently explained.
    The plaintiff will only add, as an apt illustration of the policy of the law, that in Rome and in Spain, a party was relieved against an erroneous admission, even if he did not discover it until after the appeal. Part 3, tit. 13,1. 5, and Gregorio Lopez, note 5.
    [142] For these reasons the plaintiff prays that the decision of this court may he reviewed, and that judgment may be rendered, amending the judgment of tho probate court, according to the plaintiff’s prayer on file.
   Bullard, J.

delivered the opinion of the court.

In this case the plaintiff’s counsel has asked for a rehearing, and has urged several arguments in support of it. We have kept the case under advisement a long time, and maturely considered the arguments adduced, and now proceed to state the reasons why we think the application should be overruled.

The counsel for the plaintiff does not controvert the general principles laid down by the court, as applicable to cases such as this was supposed to be, but he does not admit that the exception set up by the counsel for the defendant, is such a peremptory exception as may be pleaded in this court. We think this difficulty may be easily disposed of. The exception certainly suggests to the court that the contracts between Gravier and the Oarrabys were “illegal, immoral and contrary to public policy.” If that be true, this court is bound to notice it without any plea, as was done in the case of Mulhollan v. Voorhies, 3 Mart. N. S. 46; and consequently it is useless to inquire whether the exception be such as the party has a right to plead in this court, according to the Oode of Practice.

Two supposed errors in matters of fact are pointed out in the opinion of the court. The first in that part in which it it is said, that “ it is not denied that the pretended sale, &c., was for the double purpose of protecting the property against the pursuits of his creditors, and of securing the reimbursement of certain loans of money and other advances with usurious interest.” The counsel treats this as if we took it as an admission on his part; such was not the meaning of the court, unless the allegations in the petition may be regarded as his admissions. On the contrary he demonstrated to us clearly that the contracts were not really sales, but intended to secure loans on usurious interest, and it is also shown that attempts were made on the part [143] of judgment creditors to make that property liable, but failed except as it relates to some land in Attakapas. The deputy shoriff at that time, Holland, testified that there were numerous executions against Gravier in his hands ; that a part of the property was actually seized, but released by order of Mr. Moreau, the plaintiff’s attorney, on the exhibition of the act of sale to the Oarrabys. The contract therefore admitted to be simulated was used to baffle the pursuits of creditors. The Oarrabys still insisted on their right as apparent on the public act, instead of permitting the residuary interest of Gravier, according to the counter letters, to be sold. The parties appear to have understood each other.

The counsel further complains that the final agreement of the parties was not correctly stated by the court. We said that it appeared the property was to be sold by the Oarrabys as theirs, “ and tho price accounted for to Gravier over and above their advances in preference to judgment creditors.” It is true that the judgment or rather the letter of Gravier does not expressly state this preference; but the very object of this suit is to compel the representatives of the Oarrabys to account for the balance after paying what was really due to them,'long after the judgment creditors had boon successfully resisted under color of these simulated contracts. The inference that tho parties intended that Gravier should receive the surplus in preference to other creditors, does not appear to us illogical.

Admitting therefore that all the allegations in the petition are not supported hy the evidence, and that the case is to he decided according to the probata, and not the allegata, yet enough, is shown by the evidence to satisfy us that the contracts and agreements were of a character reprobated by law, and out of which no action can arise.

The rehearing is therefore refused.  