
    J. P. Watson v. J. James et al.—G. S Sawyer, Intervenor.
    Tho rulo, that parol evidence cannot be rocoived to contradict a written acknowledgment of indebtedness, is subject to exceptions, and in tho present caso it was held that, undor tho circumstances, such evidence was admissible.
    vVhoro it is evident that an instrument in the form of a conditional sale was intended hy the parties to be executed in the form, of a common law mortgage, it will not be regarded as a sale.
    One in whom the legal title to property in Louisiana is vested, subject to a trust created in favor of others by deed of trust executed iu another State, has full power to mortgage tho property.
    APPEAL from tlie District Court of the Parish of Madison, Farrar, J.
    
      J. H. Farrar and Snyder & Hynes, for plaintiff.
    
      Short t6 Parham and Sparrow, for defendants.
    
      York & Sawyer, for intervenor, appellant.
   Buchanan, J.

Three distinct suits are consolidated in this record, to-wit: a petitory action instituted by Watson against Jomes; an executory proceeding by Sawyer against Watson; and an injunction suit by James against Watson & Sawyer.

The first question for solution is, tho right of Watson to contradict his acknowledgments of indebtedness to Sawyer, contained in a receipt, two promissory notes and two authentic acts of mortgage. The receipt is for ten thousand dollars, the notes are for twelve thousand dollars each, and the mortgages are given to secure the notes.

It is admitted in argument, that these various evidences of debt grow out of the same transaction, to-wit, a loan of money made by the appellant, George S. Sawyer, to John P. Watson, in April, 1855. This money passed through the hands of one Britton, a banker in Natchez, by whom it was counted and delivered to Watson, and by whom the receipt for the amount so counted, ton thousand dollars, was written. This receipt was signed by Watson in Britton’s presence, as testified by the latter. It reads as follows :

“ Deceived from George S. Sawyer, ten thousand dollars in cash.
John P. Watson.”

Britton, examined as a witness for the appellant, Sawyer, under a commission, states that the amount expressed in the receipt, consisted of a certificate of deposit in the Citizens’ Bank of Louisiana, to the credit of George S. Sawyer, and endorsed by him, for six thousand dollars, and four thousand dollars in cash or certificates of deposit; and that Watson, at the time he received the same, deposited in the banking house of Britton, to the credit of S. McNeil, the sum of six thousand dollars, being the amount stated in tho Citizens’ Bank certificate of deposit.

We think it was competent for Watson to prove by parol, as he has done, that the true amount of Sawyer’s advance of funds to Watson was the six thousand dollars thus deposited to the credit of McNeil in Britton’s bank ; together with a farther sum of one hundred and thirty-eight dollars paid by McNeil for Watson, and eight hundred dollars paid Carroll & Pritchard by Sawyer, to the credit of Watson. The aggregate amount of these advances is six thousand nine hundred and thirty-eight dollars. Add twelve hundred dollars, which Watson admits, of record, to be due by him to Sawyer for professional services rendered, and tho true consideration of the note of Watson, favor Sawyer or order, payable at thirty days, for twelve thousand dollars, dated April 23,1855, and secured by snortgage before Miller, notary, is thus established to have been eight thousand one hundred and thirty-eight dollars. The note of like amount, dated June 4th, 1855, payable ten days after date, and secured by mortgage on slaves, by act before Beatty, notary, in Pointe Coupee parish, was a renewal of the other note. Both those notes bore interest on their face, at eight per cent, per annum, from date.

On the same day with the execution of the last of these notes, and of the mortgage to secure the same, to-wit, June 4th, 1855, and before the same notary, Watson executed what the counsel in argument call a conditional sale to George 8. Sawyer, of the same negroes thus mortgaged, (but which both the acts declare to be illegally in the possession oí James and wife, in the parish of Madison). The condition of this conveyance is, that if Watson, or any one for him, shall pay to Sawyer the sum of twelve thousand dollars, and interest, amount of Watson’s note to Sawyer of the 23d April, 1855, this sale shall be null and void, or else remain in full force.

The second question which this record presents, is, the effect of this conditional sale. The form of the instrument is that of a common law mortgage, and the evidence leaves no doubt upon our minds, that it was intended as such, when made, at least by Watson, and probably by Sawyer. It must be observed, that Sawyer was a Mississippi lawyer, and Watson a Mississippi planter, until within a few years past, as appears from the record.

But it seems strange, that they should have entered into a contract of this kind, having reference to a debt, (the note of the 23d April, 1855,) which had been extinguished by novation, as shown-by the declarations of this very instrument, which make mention of the note of the 4th June, 1855, and of the mortgage to secure that note, as having been executed previously, although on the same day.

Under these circumstances, we regard this pretended conditional sale of forty slaves by Watson to Sawyer, of the 4th June, 1855, and also the re-transfer or conveyance of twenty of the same slaves by Sawyer to Watson, of the 12th July, 1855, as mere nullities.

It remains to be determined, whether the mortgage of Sawyer, passed before Beatty, notary; the 4th June, 1855, be operative upon the negroes in the possession of the defendants.

We have seen that John P. Watson was indebted to George S. Sawyer for money lent and professional services; and that, to secure the payment of the said debt, he mortgaged, on the 4th of June, 1855, forty slaves, described as belonging to Watson, but illegally detained by James and wife. This mortgage was duly recorded in the parish of Pointe Ooupée, the domicil of Watson. The next day after its date, to-wit, on the 5th of June, 1855, Watson instituted this petitory action in the parish of Madison, against James and wife, and sequestered the slaves so detained by them.

In his petition, Watson asserts title to the slaves in himself, in virtue of a judicial sale made to him at public auction, by a Commissioner in Chancery, at the door of the Court House of the County of Jefferson, State of Mississippi, on the 9th of February, 1848, in execution of a decree of the Court of Chancery for the Southern District of the State of Mississippi.

The defendants, James and wife, answered, pleading that the title of the slaves sequestered was in themselves; that those slaves had been conveyed to the plaintiff, Watson, in trust, for the defendant, Mrs. James, in the State of Mississippi, under an agreement made and entered into between the parties; which agreement was annexed, as part of the answer.

This instrument is entitled : “ Memorandum of an agreement made and entered into the loth February, 1848, by and between John P. Watson, of the parish of Pointe Coupee, in the State of Louisiana, of the first part, and Joshua James and Mary H. James, of the county of Jefferson, in the State of Mississippi, of the second part.”

It stipulates that, whereas Watson did purchase the slaves sequestered and other property, at a judicial sale in execution of a judgment against James and wife, in the Court of Chancery in Mississippi, and did receive a conveyance for the same from the Commissioner of said Court, and did satisfy the judgment against James and wife by a certain draft and five certain promissory notes of said Watson; and whereas James and wife were indebted to Quitman & McMurran in the sum of $250 ; now the said Watson agrees to hold all the property thus conveyed to him, and its- fruits, upon the trusts, for the interests and purposes, and under and subject to the powers, provisions, limitations, declarations and agreements, hereinafter declared, that is to say :

First. 'The rents and fruits of said property to be applied to the payment of the costs and charges of administration-; to the payment of the draft and notes given by Watson to the judgment creditor of James and wife, as aforesaid, and of all interest, costs and charges thereon; and to the payment of the debt to Quitman & McMurran.

Second. The said Watson shall have the lawful title of the property, and may, at any time sell the whole or any portion of the same, on such terms as ho may deem expedient, and apply the proceeds to the payment of any of the above specified debts and charges; provided the surplus of said proceeds be re-invested in other real or personal estate, to be settled upon Mrs. James and her children, as hereinafter provided.

Third. The said Watson to have “ full and absolute power of control, management and disposal, by sale, exchange, and removal out of this (Mississippi) into any other State, of all or any part of said real and personal property, at any and all times, before full payment of all the debts and charges aforesaid.

Fourth and lastly : “ Upon trust that after the payment and satisfaction of all of said costs, charges, expenses, draft, notes, debt and interest, the said Watson, his heirs and assigns, shall, by good and sufficient assurances, settle and convey all the above described real and personal property, with the avails and increase thereof, which may then be held by him and undisposed of, as herein before provided, “ upon and to the said Mary H. James, for and during her natural life, so that she may take, enjoy, and dispose of the clear income and product thereof to her own separate use and benefit, until her death; and after her death, upon and to her children then living, and the descendants of such as may then be dead, to take as purchasers, and according to the statute of descent and distribution of the State of Mississippi, to bo had and held by said children and descendants, their heirs and assigns, forever.”

This instrument, capnot have the effect of avoiding a Louisiana contract made by Watson, as owner of slaves which were, at the time of making such contract, had been for many years previously, and still remain within the territorial limits of this State.

The title of the judgment debtors, James and wife, in the slaves sequestered in this suit, was acquired by Watson, at the judicial sale of the 9th February, 1848, for a bona fide price paid by him.

The agreement of Watson with those judgment debtors, made on the 15 Hi February, 1848, six clays after the said judicial sale, did not divest the title out of Watson; still less, did it reconvey the title to James and wife. On the contrary, all the attributes of ownership, the powers of administering, of removing, of alienating, are reserved to Watson. There is not, in this agreement, even a contemplation of a prospective or contingent conveyance of the property by Watson to James and wife; but merely of an eventual settlement, and by another trust deed, of the fruits of the property, upon Mrs. James during her life : the ultimate beneficiaries being the children of Mrs. James who shall survive her, and the descendants, surviving her, of those of hér children who shall have died before her.

The power of alienation in Watson, necessarily included the power of mortgaging the negroes in question.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as it regards George S. Sawyer, the appellant, be reversed ; and it is further decreed, that the appellant, George S. Sawyer, recover of the appellee, John P. Watson, eight thousand one hundred and thirty-eight dollars, with interest at the rate of eight per cent, per annum, from the 4th June, 1855, until paid, and costs in both courts; and that the slaves specified in the act of mortgage passed before William Beatty, Notary Public in the parish of Poinle Ooupée, on the 4th June, 1855, being the same slaves sequestered in the suit of John P. Watson v. Joshua James and wife, and also seized under executory process in the suit of George S. Sawyer v. John P. Watson, in the District Court of Madison Parish, be seized and sold to satisfy this judgment.

Land, J., absent.  