
    LOUISIANA BANK vs. DUBREUIL.
    Appeal from the court of the parish and city of New-Orleans.
    The acts of a person, who is afterwards. interdicted, anterior to the suit for interdiction, will not be avoided if her insanity was not notorious.
    East'n District.
    March, 1818.
    The petition stated, that one Pacaud owed plaintiffs S2680, and by a notarial act bound himself in solido with the defendant, who mortgaged therefore a lot of ground. At the foot of the petition is the president’s affidavit, in which a reference is made to the notarial act, which is annexed. In this act the sum due is stated to be $3350.
    The answer of the defendant, who appeared, at the time of answering, to be under interdiction, on account of insanity, was filed by her curator. It denied the mortgage to be her act and deed, and averred that the defendant, at the date of the act, long before and ever since, was and is incapable of conducting her affairs, from imbecility both of body and mind:
    That the sums mentioned in the petition and mortgage, did not agree-that the notes mentioned in the mortgage, on which the sum was said to be then due, had long since been can-celled.
    The parish court being of opinion, that "the infirmities of the defendant did not operate in such a manner, as to incapacitate her from conducting her own affairs, since she understood the nature of the obligation she contracted, and referred to,” gave judgment for the plaintiffs, for $2680. The defendant appealed.
    
      The statement of facts shews that, on the date of the mortgage, Pacaud owed the plaintiffs on notes endorsed by Chew and Relf $3350, that these notes were reduced by subsequent renewals, on the faith of the mortgage, to that of $2680, claimed in the petition. The new notes being subscribed by Pacaud alone.
    alone. Broutin, the notary who received the mortgage, deposed that he knew the defendant in- distinctly, having seen her once or twice, at her house. He read the act to her; she appeared to understand what was said to her, and answered pertinently. She was in an easy chair, spitting continually, very old and speaking with great difficulty. She appeared to under- stand the act. He asked her whether she would become security for Petcaud, and in case he did not pay the bank, that she would: she answered yes. She observed to her daughter, that the house stood on Royal street. The mortgage was executed in her house-two witnesses were present: the deponent believes Pacaud was there; she lived with the latter in a house in the yard. Urquhart, the president of the bank, was not there.
    On the part of the defendant, several withesses were heard.
    Langoureux, deposed to his knowledge her for 50 years. In January 1814, she had fallen into imbecility, and had not more reason than a child of six&emdash;she was not in a situation to direct her affairs&emdash;she could not understand the meaning of an instrument read to her&emdash;she bad entirely lost the use of her reason, was fed with a spoon, and in a state of bodily and mental imbecility.
    Morand knew her for 45 years: for five years before January 1814, and ever since, she has continued in a state of infancy and imbecility: she was incapable of conceiving the meaning of an instrument that was read to her. Her appearance announces the state of her mind, perfect imbecility and childishness; she speaks with great difficulty, and slavers so as incessantly to require a servant to wipe her face, and cannot speak correctly on any subject.
    About two years ago, Pacaud called on this witness to endeavor to persuade the defendant to execute a money engagement for him; but he refused, answering she was not in a situation to enter into any engagement. She had seve- ral houses in town, and, before her imbecility, always sent for the witness to consult him about her affairs.
    Piat knew the defendant since 1814, and taught music to her grand-daughter; he attend- East'n d daily, and always saw the defendant in a state of imbecility-has sometimes spoken to her-she was treated like a child, and he thought her incapable of attending to her affairs.
    Misotiere knew the defendant for thirty years: about 181.3, she came to dwell at Pacaud's, who lived with her daughter, in the neighbourhood of the witness. She was then in a perfect state of imbecility. He does not think that she was, at the time, or has been ever since, at any time in a situation to understand the contents of an instrument, or to attend to her affairs. Pacaud did all her business, and told the witness so.
    Blache had seen the defendant very often during these five or six years-she was, during that whole time, in such a state of imbecility as not to be capable of comprehending the meaning of a mortgage, or any other instrument. He does not know that she had any lucid interval, but every time he saw her, she was in the same situation.
    The above, and the mortgage annexed to the petition, constituted the statement of facts.
    In the mortgage, Pacaud promises to pay the 3350 dollars, for which the premises are pledged, and which the defendant promises to pay in solido, at such a rate of interest and periods as the bank with require.
    Livingston, for the defendant.
    The parish judge erred in the conclusion he drew from the testimony, viz. that the infirmities of the defendant did not incapacitate her from attending to her affairs. The number of witnesses, who depose to the contrary, must outweigh the sole testimony of Broutin, the notary. if the defendant did not know what she was doing, she ought not to be bound, and the mortgage ought to have been set aside. Pacaud had the mother and daughter under his influence; and the notary is liable to the imputation of having a strong desire to support an instrument which he drew, and must feel a great reluctance to admit that he was, at least, imposed upon. The difference between the questions put to the defendant, her answers and the act, are evidence that the notary was mistaken as to the nature of the contract. If he erred in this, he might as to the sanity of her mind.
    The sunclaimed varies from that for which the obligation was given&emdash;this is for 3350 dol- lars&emdash;and the petition demands only 2680 dollars. This variance must be fatal to the action.
    Whatever mayonce have been due, or at VoL~. A3 least was due at the date of the execution of the act, has been paid, and is no longer due. This clearly appears by the absence from the hands of the plaintiffs of the notes, which were the evidence of the debt.
    Lastly, the defendant added her suretiship to that of Chew & Relf, who, as endorsers, were sureties to the plaintiffs for the sum due by Pacaud. Now, the plaintiffs could not render her situation worse, without impairing their claim against her. They have destroyed their claim by a novation. Their claim on Pacaud, if it still exist, is quite different from that for which the defendant bound herself: the former was secured by the endorseement of Chew & Relf, who are not bound for the latter. The defendant, when she became surety, knew that Chew & Relf stood between her and danger. Now, she stands aloof, and if she was compelled to pay, she would be without that recourse on Chew & Relf which was the inducement held out to her by Pacaud, when he solicited her to become his additional surety for the plaintiffs' claim.
    Moreau for the plaintiffs.
    It is contended that the defendant, the time she executed the instrument, which is the ground of the present suit, was in such a state of imbecility that she cannot be bound by it.
    It does not suffice, in order to avoid an instrument, to alledge and prove the imbecility of the person who executed it. It is true, that if the instrument has been executed since a suit for interdiction was begun it is null, when the sentence of interdiction has been pronounced. Civ. Code, 80. art. 15. Discours, &c. sur le Code Civil, id.
    
    Three circumstances are required to invalidate, on account of insanity, the acts of a person in the full enjoyment of his rights: 1. That the interdiction have been pronounced or provoked in his life time. 2. The existence of the cause of interdiction, at the time the act was executed: lastly the notoriety of the cause; because he who contracts with a man notoriously insane, cannot have acted in good faith; but if the cause, though already existent, was not notorious, the nullity of the act ought not to be pronounced; because in cases of doubt, the presumption is in favor of a person, in the possession of the plenitude of his rights. Society ought not to suffer from the neglect, of the friends or persons, who surround him, to provoke his interdiction, and they ought not to be be easily permitted to attack what they have tolerated.
    In this case, it cannot be said, that the defendant's insanity existed at the time of the execution of the instrument: that it was notorious.
    It is true the plaintiffs do not claim the whole amount, for which the defendant bound herself, in the instrument, and this, because their debt has been reduced by several payments.
    Pacaud bound himself to pay the debt for the security of which the defendant bound herself, viz. 3350 dollars, at such times and in such a manner, as the plaintiffs might point out. It therefore suffices for them to shew, that the sum now claimed is the balance of the original one, reduced at different periods, by partial payments. He was the drawer of the original notes endorsed by Chew and Relf, who must be presumed to have paid him the sum, for which they were drawn. These gentlemen by their endorsement, transferred their rights to the plaintiffs, to whom the defendant engaged to pay Pacaud’s debt, if he did not pay it. If at the maturity of the notes they had been presented, and the plaintiffs had had recourse on Chew and Relf, they could have compelled the plaintiffs to transfer to them all their actions, not, only against the debtor, but also against his sureties.
   Martin, J.

delivered the opinion of the court This court is of opinion that the parish judge erred in the conclusion drawn from the testimony. The weight of evidence being in favor of the position taken by the defendant's counsel, that the defendant was in the state of bodily and mental imbecility, which properly caused her to be interdicted : but the law has provided that “ no act, anterior to the petition for interdiction. shall be annulled, except where it shall be proved that the cause of such interdiction notoriously existed at the time, when the deed, the validity of which being contested, was made, and that the party who contracted with the insane person or lunatic could not have been deceived as to the state of his mind,” Civ. Code, 80, art. 45.

Here the existence of the cause of the interdiction at the time the mortgage was executed, appears to us to be proven; but the code requires also that we should have proof of the impossibility of the plaintiffs, who contracted with the defendant, being deceived as to the state of her mind.

Giving credit to all that is sworn by the witnesses on the side of the defendant, we may well yield it also to the testimony of the notary, which is not at war with that of the other witnesses-and, if his testimony is credited, he was deceived as to the state of her mind-if we believe that he was deceived, we cannot conclude that the plaintiffs could not be; and if the plaintiffs could be deceived, one of the circumstances required by the code, to authorize us to annul the act, is wanting. We cannot believe that the notary was not deceived, unless we believe that he colluded with some of the parties, and absolutely prejured himself-and all that the witnesses for the defendant depose may be believed, without the perjury of the notary being necessarily a fair consequence of it. We therefore, conclude, that we cannot declare the mortgage null.

The petition states the sum due by Pacaud, when the defendant mortgaged her property, to be 2680 dollars, which was the sum due at the time of the petition : but the mortgage is annexed to the petition, and a reference is made thereto in the oath of the plaintiffs, at the foot of the petition-so that it is impossible, at the foot of the contract, which is the ground of the suit. The variance between the sum of 2680 dollars, which was due at the time of the petition being file, and that of 3350 dollars, at the time the plaintiff bound herself, is not fatal.

The money due to the plaintiffs on certain notes, at the date of the mortgage, was as appears by the instrument, to be paid at such a rate of interest and such periods as bank would require-in bank language, to be reduced as stated periods of renewal by partial payments : in order to effect this, the original notes must have been intended by the parties to be replaced by others, representing the balance of the debt at each renewal.

Chew and Relf, the indorsers of Pacaud's note when the defendant mortgaged her property, could not be made liable to the bank, unless Pacaud's note were protested-they could not be protested without a demand of the whole, On the maturity of the notes. This demand was incompatible with the engagement Which the plaintiffs had taken, to designate the rates and periods, at which the amount of the notes was to be paid. How could the notes be paid with interest, if no delay was to be granted? The consideration which induced Pacaud to give the security, and the defendant to bind herself and mortgage her property, was the indulgence which they expected from the plaintiffs-which they have extended to the debtor, in retraining from an immediate an : absolute demand, of absolute payment at the maturity of the notes. A. consequence of this indulgence, is the discharge of the indorsers, which all the parties must have. contemplated, as the irresistible result of an act, in which they were all concerned.

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