
    Guerin’s Heirs v. Bagneries.
    Heirship may be proved by parol evidence, -when it does not appear, or 5s not shown, there was a register of marriages, births and deaths in existence. The latter will not be presumed, as it must be positively proved, that such register does exist — 5 L. 387, and cases there noted.
    Parol evidence will be received to identify a slave which was inherited by the plaintiff’s mother from her father’s estate, and to show her possession of said slave as part of the inheritance.
    So parol evidence is admissible to identify property of a succession, accepted by an heir after having shown his right to inherit; orto identify slaves born on a plantation when the owner possesses by no written title.
    "Where the purchaser under execution is evicted, he is entitled to judgment over against the seized debtor and seizing creditor, on big warranty, hut under article 711 of the Code of Practice, he must first take outhis execution against the former, and on the return of nulla dona may proceed against tire latter. — O. P. 711; 11 R. 522.
    Appeal from the parish court for the parish and city of New Orleans.
    This is a petitory action. The plaintiffs who are the children and heirs of the late Madame Guerin, formerly Marguerite Ohauvin Delery, now [591] deceased, sue to recover a female slave named Oelestine and her daughter Fanny, which they allege they inherited from their deceased mother, and which are in the possession and claimed by the defendant Bagneries. He sets up title to said slaves under a marshal’s sale, made in pursuance of a judgment and execution in favor of A. & J. Dennistoun & Oo. against Louis Guerin, the husband of the plaintiffs’ ancestor. See the case in 13 La. Eep. 14.
    On the return of the cause to the parish court for further proceedings, the plaintiffs made proof of their capacity as heirs of their deceased mother, and proved by witnesses the identity of the slave Oelestine and her child named Fanny. They also showed by parol evidence that Oelestine had been given to their mother by her father Francois Ohauvin Delery, on her marriage with Louis Guerin, who retained possession of said slaves until her death. Afterwards being found in possession of Louis Guerin, they were seized and sold in execution by the United States marshal, which issued on a judgment obtained against said Guerin by A. & J. Dennistoun & Oo. and the defendant became the purchaser. All this testimony was objected to as inadmissible as not the highest and best evidence of which the case was susceptible.
    Dennistoun & Oo. and L. Guerin were cited in warranty by the defendant.
    There was judgment in favor of the plaintiffs decreeing them the slaves claimed, and costs of suit; and also in favor of the defendant Bagneries over against the members of the firm of Dennistoun & Oo. in solido, in their warranty for the sum cf $1300, as the price at which said slaves were adjudicated by the marshal to the defendant, on the 18th October, 1834, with 5 per cent, interest from said date until paid; and finally that they have a like judgment over against Lonis Guerin, also their warrantor. The defendant and warrantors all appealed.
    Preston, for the plaintiffs,
    insisted on the affirmance of the judgment.
    [592] Ganon, for the defendant,
    contended that under article 4A of the Code of Practice, the plaintiffs had failed to make out such á title to the slaves in question as would authorize a recovery in a petitory action.
    2. If, however, the plaintiffs should succeed in evicting the defendant, he is entitled to judgment over against both plaintiffs and defendant in the execution under which the slaves were seized, sold and purchased. Code of Practice art. 711.
    
      Th. Slidell, for the warrantors, Dennistoun & Go.,
    insisted that the plaintiffs had not made out such a case as would entitle them to recover against a title derived from the marshal’s sale. Code of Practice, 4A.
    
    2. He maintained that parol testimony was improperly admitted to prove the heirship of the plaintiffs and of their claim to said slaves by inheritance; and the will of their grandfather from whom their mother is said to have received the slave Oelestine, does not recite or make mention of any such slave, and this defect cannot be shown by parol testimony. There is also a discrepancy between the written and parol proof in relation to the plaintiffs’ claim.
    3. The judgment is erroneous as regards the warrantors under the article 711 of the Oode of Practice, and should be corrected and made conformable to it.
   Simon, J.

delivered the opinion of the court.

• This case having been remanded for further proceedings (see 13 La. Bep. 17), the lower court, according to' the instructions of this court, permitted the plaintiffs to introduce parol evidence, to prove the execution of the act of settlement of the estate of Francis Ohauvin Delery, and to show that the slave Oelestine, by-them claimed, is the same that was inherited by the plaintiffs’ mother from her father. The_ defendant took a bill of exceptions, and judgment having been rendered in favor of said plaintiffs, said defendant and his warrantors appealed.

[593] The additional evidence adduced before the inferior court, establishes that the act of settlement was executed on the first of July, 1823 (day of its date), that the slave Oelestine claimed by plaintiffs, is the same that was given to their mother by her father at the time of her marriage with Louis Guerin; that said slave was then twelve or fourteen years old; that plaintiffs’ mother got possession of said slave in 1810, and kept her in her said possession until her death. That the plaintiffs are her heirs. That Oelestine remained in the possession of Louis Guerin and of the heirs of his deceased wife until said Louis Guerin failed; and that said slave has a child named Fanny. It is also shown that Oelestine is the same slave that was sold by the marshal of the United States; and is the same one valued in the act of settlement at $600.

This cause is now before us on its real merits, and we shall therefore proceed to examine all the various grounds upon which the defendant and his warrantors attempt to resist the plaintiffs’ claim, and endeavor to maintain the title which was transferred, to the said defendant by the adjudication made to him by the marshal of the United States. They contend:

1. That there is no competent proof of the heirship of the plaintiffs; as the only proper and legal proof of such heirship is the mortuary proceedings of their deceased parent.

2. That parol evidence was improperly admitted, of the slaves in question Inn i.:g been donated to plaintiffs’ mother, inasmuch as the will of Francois (Jhauvin Delery does not recite the names of any of the slaves therein stated to have been formerly given.

3. That Frangois Ohauvin Delery, by his will, mentions eight children as his heirs and universal legatees, whilst only seven are recited in the act of partition or settlement of his succession.

4. That all the heirs and parties to the act of partition, whose names are therein recited, did not sign it.

-, 5. That said act is an act under private signature, which never was registered according to law; and is not valid against Iona fide purchasers and creditors.

6. That the plaintiffs have not made out their title to the slave [S94] Gelestine ; and that the identity of the slave Fanny is not satisfactorily established.

I. The testimony introduced to prove the heirship of the plaintiffs was not objected to in the court below; and although it is true that the registers of marriages, births and deaths are higher and more proper evidence than proof by witnesses, yet the existence of the former will not be presumed, as it must he positively proved that such registers or other proceedings do exist. 11 Martin, 718 ; 8 Martin, N. S. 269.

II. This is one of the legal points which were the subject of the decision of this court reported in 18 La. Kep. 17; and we fully concur in the opinion then pronounced. It is obvious that the parol evidence complained of does not go to establish a title or a donation by parol, but merely to identify a slave which was inherited by plaintiffs’ mother from her father’s estate, and to show the fact of said slave’s having been put in her possession and kept by her as part of the inheritance. Such fact is independent of the act of partition and settlement which was subsequently passed between the heirs, as her said possession was far anterior to the execution of the said act, and commenced in 1810, at the time of her marriage with the plaintiffs’ father, who, after her death, became their tutor' and never had in himself any right or title to the property in dispute. It is true, that the will of Frangois Ohauvin Delery recognizes that he gave a female slave, valued at $600, to each of his married children, in advance of their shares in the succession en mancement d'hoirie, and that those'slaves are not named in the said will; but this does not constitute the real and only title under which the plaintiffs are entitled to claim the slaves in question; it is on their right of inheritance in representation of their deceased mother, to whom the slave Gelestine was delivered by her father in advance of her rights to his future succession, that their title is based, and in such a case, we understand that proof of the right to inherit, and of the identity of the property inherited, is all that can be re-[595] quired to show that the title of the author is vested in the heir. 12 Martin, 649. Indeed, it may often happen, that an individual who is legally called to the succession of. another, accepts it absolutely, and puts himself in possession of the property .thus inherited; without bein'g able to show any other written proof of his title but the ex parte inventory which he has caused to be made; and in such a case, if no inventory has been made (this is not necessary in all cases), how could he show his title to such or such specific property, if he was not to be allowed to prove by parol, after having established his right to inherit, the identity of the property inherited? In the case of slaves born on a plantation, how could the owner prove his title to them in any other manner but by parol, that is to say, by identifying such slaves as being born in his possession ? We think the defendant has carried his objection too far: the rule is that all sales (every transfer) of immovable property and slaves must be in writing; La. Oode, arts. 2255, 2415; and that parol proof of Ownership or title to such property cannot be admitted, unless the object of the evidence is to establish possession and that the plain~ tiff acquired the property by inheritance. It is clear then, that the rule is not applicable to the present case, and that the right of the plaintiffs to the slaves by them claimed being founded on their right of inheritance, the evidence by them offered was legally admissible. The circumstance of there being a will and an act of partition, in which the slave is not named, cannot affect their right of recovery, as without those acts, the plaintiffs would not be precluded from establishing the same facts.

III. The defendant ought to have shown, that the eight children mentioned in the will, were in existence at the time of the death of the plaintiffs’ ancestor, in order to establish this point.

IV. The view we have taken of the second ground, renders the examination of this question unnecessary: the act of partition of settlement objected to cannot add any thing to the plaintiffs’ right, nor. can it affect it; it serves [596] only to show that the plaintiffs have, by collation, accounted to their co-heirs for the value of the slave inherited by their mother.

V. The art. 2242 of the La. Oode is not applicable to this case: the der fendants cannot pretend to be creditors of the plaintiffs’ ancestor, nor can they maintain to have purchased the slaves in question from the same person and under the same title. Moreover the plaintiffs and their mother had been in possession of said slaves since 1810, at which time Oelestine was really delivered to their said mother; whilst the act complained of was only executed in 1828.

VI. From the evidence adduced by the plaintiffs, we are of opinion that they have completely made out their case, and that the slave Fanny has been satisfactorily identified to be the child of the female slave Oelestine.

"With regard to the judgment rendered by the lower court in favor of the defendant Bagneries against his warrantors, we think it is correct, except that the interest on the amount of said judgment should run from the 27th of November, 1884, and not from the 18th of October previous, and that instead of ordering the said amount to be first recovered of the creditors, said judgment should have been in conformity with the 711th article of the Godo of Practice, to wit, “ if the purchaser has been evicted from the thing adjudged to him, on the ground that it belongs to another person than the parly in whose hands it was taken, he shall in that case have his recourse for reimbursement against the seized debtor.and the seizing creditor; but upon tho judgment obtained'jointly for that purpose, the purchaser shall first take execution against the debtor, and upon the return of such execution, no property found, then he shall be at liberty to take out execution against the creditor.” It is thus perfectly clear, that the defendant must first proceed against Louis Guerin, and that he cannot take out his execution against Dennistoun & Oo. until from the return of the first writ it is ascertained, that no property has been found to satisfy the claim.

It is therefore ordered, adjudged and decreed, that the judgment of [597] the parish court be affirmed with costs, with this modification: that Zénon Bagneries do recover of Louis Guerin, Alexander Dennistoun,' John Dennistoun, William Wood, Robert Dick, William Oraig Mylne, and Murray Mercies Thompson, in solido, the last named six persons composing the firm of A. & J. Dennistoun & Oo., the sum of thirteen hundred dollars, with five per cent, interest per annum thereon from the 27th of November, 1834, until paid, and the costs of this suit in the lower court only; and that the execution of this judgment be stayed as against A. & J. Dennistoun & Oo. until the return of the execution, which is first to be issued by said defendant against Louis Guérin according to law; the costs in this court to be borne by the defendant.  