
    
      THE PLANTERS' BANK & AL. vs. LANUSSE & AL.
    
    Appeal from the court of the first district.— 10 Martin, 690.
    Mere proof that the insolvent admitted the debt, nor even his written acknowlegement, will not establish it against his estate.
    Otherwise, if circumstances render it probable.
    The wife of the insolvent may vote, altho' she has not renounced.
   Porter J.

delivered the opinion of the court. This case has again come before us, on an appeal from the judgment of the inferior court, confirming the appointment of syndics.

The first question presented is, that the matters and things now in dispute have already been adjudicated on between the parties, and have acquired the authority of res judicata. The opinion, formed on the whole case, renders it unnecessary to examine this point.

East'n District.

July, 1822.

The next error is, that the opposition to the votes, should have been made before they were received by the notary, and in support of this 10 Martin, 59, has been quoted. The same reason which prevents the plea just mentioned from being decided on, induces us to refrain from entering into this. It may not, however, be improper to remark that the opinion of the court there, was merely intended to express the effect which a want of opposition to a vote before the notary public, had, as to the regularity of voting at all, and left untouched the right which each had, to make opposition before the court and have the facts, which they might choose to put at issue, tried in due course of law.

That opposition has been made here; the parties were at issue in the district court, and went to trial on it; we shall, therefore proceed to examine the different claims presented.

It is laid down as law, by the Spanish writers, and it has been decided by this court that in cases of insolvency, the acknowlegement of an instrument in writing, and confession of debt, on the part of an insolvent, is proof sufficient to establish the debt as against him, but not against the creditors ; for it is presumed to be fictitious, and made with a deliberate intention to elude these rights, and though it should appear by a note of hand, it does not prove its legitimacy; and for this reason he, who does not prove his debt by other means, ought not to be considered as a true and lawful creditor. Febrero, juicio de concurso, lib. 3, cap. 3, § 1, no. 33. 3 Martin, 707.

From this principle, it results that all claims given at the meeting, in this case, to which opposition has been made, and which are proved only by the production of the insolvent’s notes, and the oath of the creditors who hold them, must be rejected. Still less, can we admit claims that are established on weaker evidence; such as those which the witnesses do not speak from their own knowlege, but from hearsay.

On the part of Chiapella, Labatut and Tricou as syndics, there voted the following persons to whom no objection has been made, or whose right is clearly established, viz: Macarty, Chiapella, Labatut, Guidel and Malus; the amount of their debts, when added together, is $120,115 76 cents.

In favor of Chabaud and Percy, there are the votes of Old & Co., Habine, Gros, Dennistoun, Hill & Co., and Townsley & Co., which are either admitted to be correct, or have been substantially established: their aggregate amount is $17,616 69/100.

On the part of the syndics who had the majority, there were two claims against the insolvent’s estate, on which Caisergues and Madame Lanusse voted—they require a particular examination.

And first, as to that of Caisergues; he voted at the meeting for the sum of $24,520, declaring in his affirmation, that the debt due him was founded on fourteen notes endorsed by Lanusse, for the sum of $30,650, on which sum he had received from Tricou & fils, $6130. Before the trial was had on the opposition made, he surrendered to the persons last mentioned, all the notes on which he voted, and he was received as a witness to prove the amount due him, at the time the concurso took place before the notary. A bill of exceptions was taken to his testimony, but it has been abandoned before this court.

The notes produced in support of this claim were in number, nine. Six drawn by Tricou & fils, and endorsed by Lanusse for $14,000, three by Dutillet & Sagory to the order of Lanusse, for $9000, with his indorsement, together with protest made at the request of Caisergues.

We think this testimony is sufficient. The oath of the witness corresponds with the declaration he made when voting, that they were notes indorsed by Lanusse. There is a variance, it is true, between the description given by him of the papers delivered to Tricou, and those produced on trial, but that description is not stated in positive terms, nor can we believe him unworthy of credit. From the amount of the notes produced, there must be deducted $6130, which he states in his original declaration, he received on account of the obligations held by him. This leaves a balance due of $16,870, for which sum he is entitled to vote.

The next is the claim of the wife of the insolvent, which has been most obstinately disputed.

She has attempted to establish it—by the last will and testament of her father—by the inventory of the property left at his decease—by an account current between her husband, and B. Macarty her brother, in their capacity of testamentary executors of her ancestor, J. B. Macarty—by sales between his heirs of different portions of the property descended to them—and by various deeds made by the executors aforesaid, in which they state the objects sold by them to have proceeded from the estate of her father.

To this it is objected.

1st. That she has not renounced the community of acquests and gains.—Second, that the books of her husband produced by her shew that only $45,000 were due, and that she must be bound by evidence which she has presented in support of her claim. Third, that the documents on which she relies are the acts of third persons and cannot affect or conclude those who were strangers to them, and that she cannot have the benefit of the whole price of the sale of the plantation and negroes to her brother, because it was in his possession and that of her husband for years before this transfer, and that no evidence has been offered to shew whether the great increase which has taken place in its value has proceeded from a rise in the property, or from improvements made by the community. In support of the presumption that it results from the latter, they rely on an act introduced by Mrs. Lanusse, which establishes that thirty-four negroes were purchased by Lanusse and Macarty, during the partnership, and placed on the plantation.

I. The renunciation of the community. This point, made by one of the counsel for the opposing creditors, was not much insisted on by the others. It seems to us that the general principle of our law is, that the wife’s property should not be made responsible for the husband's debts,—that the provision in the Civil Code, which requires her in case of his death to renounce within a certain time, is an exception to this principle—that it ought not to be extended beyond the case there put, and that the rule there contained in the 88th article, page 342 of the same work, which declares that in case of a separation of property she may accept, has a much stronger analogy to that now before us.

II. The introduction of the books of her husband, and whether the statement there made is conclusive of her rights? We think not. The general principle is as stated by the opposing creditors, but this case offers an exception to it. The account shews, that by an account regulated between the executors of her father, the sum of $45,000 was due to each of the heirs; which sum resulted in a great part from the sale of a plantation made by the executors to themselves. This evidence cannot, in our opinion, prove that sale, which from the nature of things, was impossible, and from positive regulations, illegal, 11 Martin, 292; the rule therefore relied on, must yield to the more imperative mandate of the law, which will not suffer a married woman to alienate her immoveable property without certain solemnities, among which is not enumerated, the introduction of testimony such as this, on the trial of a cause.

III. The most difficult question this claim presents is, whether she has made sufficient proof that any thing is due to her, and if any, how much. The property was paraphernal, and it is true that the husband is only responsible in case it come into his possession, and was enjoyed by him. Civ. Code 334, art. 61 and 62, Febrero, juicio de concurso, lib. 3, cap. 3, § 1, no. 49, par. 4, tit. 11, l. 17.

We have already seen that the simple acknowlegement of the debtor, or his signature to a note is not sufficient to enable a creditor to vote. Febrero, in the number next succeeding that cited in support of this doctrine (no. 34,) states, that when with this confession concur "otros adminiculos," other circumstances, which destroy the presumption of fraud, this evidence will be sufficient to make the persons adducing it considered as real and bona fide creditors.

These expressions, "other circumstances," leave a painful latitude to those who have to decide such cases. As to the claim of the wife, however, we have authority a little more positive. The author just referred to enters considerably in detail, respecting the evidence which she must produce in the concurso, and he states in his 7th and 8th conclusion, that when the confession of the husband is "adminiculada" it is full proof of the delivery of her dower. He declares by this expression " adminiculada" to mean among other circumstances, that which arises from the quality and condition of husband and wife—the promise of dowry preceding the confession of it—the proof of payment of some part of what is stated in the act of acknowlegement—the finding among the property of the husband, immoveables which belonged to the wife. Febrero, cinco juicios, lib. 3, cap. 3, § 2 no. 159 and 160.

The instances here put, from which the verity of the husbands acknowlegement is presumed are not exactly presented in this case, but it offers others equally strong. The condition of the parties,—the inventory of the father’s estate, which shews that he left a large property,—the acknowlegement of the executors that they received it,—various sales by authentic acts made by these executors, years before the failure of Lanusse could have been contemplated—the deed to Macarty for the plantation four years preceding the insolvent's application for a respite; all these are strong circumstances to support the truth of Lanusse's confession, made in a public act, that he received notes, and obligations, and real property in town to the amount of one hundred and thirty thousand dollars in payment for the one half of a plantation, the third of which was the property of his wife.

But it has been urged that in this act of sale there is an acknowlegement that Lanusse and his wife received the sum of fifteen thousand dollars, and it is contended, that there is no proof that any part of this was given to him. To this, it may at least be answered, that it is as strong evidence that he received the money as that she did. Taking it most strictly, it establishes that one half was received by each; $7500 by the husband in payment of that part of the plantation which belonged to the community, and the same sum by the wife for that portion which belonged to her;—and so we will consider it.

Lastly, it has been pressed on us that the thirty-four negroes put on the plantation must have augmented in the same proportion with the whole, and in this position we concur. Making this addition to the original cost, there must be deducted the sum of $16,660, which added to the $7500 already stated will leave a balance of $66,962 33/000, for which she was legally entitled to vote. As to the objection that there may be still further deductions to make for other ameliorations of the husband, the same argument would destroy every other claim, as there may be also set-offs against them.

So that on the whole, we will have notes for Labatut, Chiapella and Tricou, to the amount of $203,832 76/000, and this gives them the majority, admitting the Planters’ Bank to have proved their whole demand.

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

Seghers,

on an application for a re-hearing.

In the enumeration of the votes in favour of Chabaud & Percy, the court has omitted that of I. & I. D. Forcade of Bordeaux, who voted for $5194 45 cents, by an attorney in fact, whose powers are on record. Their claim is founded on an account current, likewise on record. It is true that the claim is not supported by the deposition of the witness; but, independently of this deposition, the claim rests on the confession of the debtor and his signature to the account, with which concur other circumstances, which destroy the presumption of fraud. The document, no. 12, shews that this claim proceeds from the sale made by Lanusse of a whole cargo, consigned to him by Forcade, and in which he was interested for one-half, and Forcade for the other. This fact, it is believed, destroys every presumption of fraud: it was not contested at the trial before this court, nor was there ever an objection raised, by any of the adverse counsel, against this claim.

The court has likewise omitted the vote of N. Cox, final syndic of Dutillet & Sagory, for a claim of $10,780. A similar vote was given for Messrs. Labatut and Lachiappella, by D. Bouligny, provisional syndic. Before the notary, and before the court below, both parties claimed the benefit of that vote; which, of course, implies the acknowlegement of the truth of the claim. There was nothing else at issue between them on this subject, than the authority of the voters: on this head we refer the court to our first argument and the document no. 10.

A small error of calculation has been made in adding together the claims of Old. $700; Habine, $13,491 75 ; Gros, 1617 66; Dennistoun, Hill & Co. $428 28; Townsley, $480—which make the aggregate sum of $16,717 69 cents, instead of $16,616 69. If to this we add the claim of the Planters’ Bank, as it is admitted by the judgment of this court $179,084 05, and the two votes above mentioned of Forcade and Cox, we will have a majority in favour of Chabaud & Percy.

According to the principle “ that all votes given at the meeting to which opposition has been made, and which are proved alone by the production of the insolvent’s notes, and the oath of the creditors who hold them, must be rejected,” the vote of Caisergues could not be received. There is no evidence of any consideration having ever been paid for the notes produced in support of his claim; the signatures to those notes are not even proved. His own deposition is the only one introduced on this subject, and he is silent about those particulars. Nothing is adduced to destroy the legal presumption of fraud. It may, perhaps, be observed that this objection was not raised at the trial before this court; but the principle was first invoked by the adverse party, and it must, therefore, the more strictly apply to their own case and to every branch of it—at all events, the observation would only apply to the six notes, amounting together to $14,000, and the objection would remain in full force as to the three others, amounting to $9000, which would reduce his vote to $7870, instead of $16,870—for which this court has admitted it.

An omission and some mistakes are thought to have taken place in settling the amount for which the vote of Made. Lanusse is admitted by the judgment.

^1st. The court has omitted to deduct from her claim one-third of the $8000, which have been paid to, or rather less received from the heirs of Prevost, by the transaction, which is in evidence sub littera, K.

2d. The court has comprised in their calculation of this claim a sum of $500, which is alleged to be a present made to Made. Lanusse by her grand-mother, and whereof there is no evidence on record.

3d. In deducting $7500, for one-half of the $15,000, paid cash by B. Macarty, as stated in the act of sale to him by Mr. & Mrs. Lanusse, the court grounds this proportion on the part of the plantation which belonged to the community, and on that which belonged to the wife. In this it is thought there is error: one-third of the plantation descended to Made. Lanusse, from her father; one-sixth was bought, by Lanusse, from Edmond; thus their proportions were from two to one, and therefore their shares in the $15,000, must be $5000, for the community, and $10,000 for Mde. Lanusse; which increases the deduction, of the sum of $2,500,

4th. By the same deed of sale, sub littera I, Mr. & Mrs. Lanusse acknowlege to have received, jointly, an additional sum of $25,000, in a house and its dependencies, situated in New-Orleans. This is clearly a remploi for so much; and as there is no evidence on record that the husband disposed of the house, his wife has no claim on him for her proportion in that amount; she must still be considered as the owner of the two-thirds of that house, and her claim must consequently be reduced in that proportion; that is, for the two-thirds of the $25,000, the price of the same.

5th. The court allows a deduction from her claim of $16,660, for her proportion in the thirty-four negroes put on the plantation by Lanusse, calculated on the price of the sale to B. Macarty. Here we must be permitted to urge again an argument set forth in our observations, and which seems to have been overlooked. The claim of one-third or two-sixths of Madame Lanusse on the plantation and slaves, does not extend further than to what descended to her from her ancestor. To prove in what it consisted, she brings forth the inventory in which the slaves are designated by their names. It is in evidence, by her own documents, that many of them were sold and accounted for by the executors—many may have died between the date of the inventory and that of the sale to B. Macarty. The presumption is, that they have been replaced by the partnership of Lanusse & Macarty. Of this, it is true, we have no evidence, nor could we procure it, but we need none. The deed of sale to B. Macarty sufficiently evinces the fact. There 130 negroes are sold, and it is there stated that they descend partly from the father of Madame Lanusse, and come partly from purchases made by Lanusse and Macarty. It was then necessary to establish the number descending from the father, to compare their names with those of the inventory, and by this comparison it will be found that 70 only of that description remained at the time of the sale. Hence, it follows, that the 60 others belonged to the partnership of Lanusse & Macarty, and thus, that the court, in deducting the proportion of Madame Lanusse in the value of 34, made an omission of 26, in whose value she owes also her proportion. The sum of $16,660, allowed for the 34, gives an average of $490 for each, which, for the 26, makes a supplementary sum of $12,740; which sum being deducted from the one found by the court, to wit: from $66,962 33 cents, leaves a balance of $31,889, to which, we believe, the vote of Madame Lanusse must be reduced.

PORTER J.

delivered the opinion of the court. If we were to admit the claim of Fourcade, because it is supported by other circumstances, we would be obliged also to admit that of Tricou & sons, and others in favor of the appellees, which would make the balance against the appellants still larger.

The vote of the definitive syndic for Chabaud & Percy, cannot be received, because the provisional syndic voted for Labatut and Tricou. It is an admission between those parties as to the amount, but it certainly does not conclude other creditors.

The error in the addition of $107, does not vary the result as the majority was established by more than 7000 dollars.

The bill of exceptions taken in the court below to Caissergues’ evidence, having been withdrawn, he was a good witness; especially under the declaration made by him on oath, that he had no interest in the matter in dispute.

The proportion of madame Lanusse in the sum of 8000 dollars, which formed the subject of the compromise with the heirs of Prevost, entered into our calculation, and was deducted.

We did not take into view the donation from the grand-mother.

The construction put on the receipt was a strictly legal one; it was given by husband and wife, jointly; and if we even yielded to the construction of counsel, there would still be a majority for appellees.

The title to the house was made to the husband by the wife’s consent; he accepted it, and thereby became accountable for the price.

We refer to the opinion for our understanding of the law on the question on whom the burthen of proof was thrown as to the improvements—if, in truth, any such were made. We do not think that it was the duty of the wife to furnish evidence of them. She satisfied the terms of the deed from herself and husband to Macarty, which states that the slaves descended partly from her father, and were partly purchased by Lanusse and her brother, when she produces a bill of sale of thirty-four negroes, put there during the partnership, and gives credit—if she had proved 20 more, the same objection could be still made—that there might be some more.

Seghers for the plaintiffs, Mazureau for the defendants.

There is not any thing offered which was not considered; for we thought the equity of the case, with the appellants, and the appellees only prevailed from the strength of their legal rights.

The rehearing is refused. 
      
       Mathews, J. was prevented by indisposition, from attending.
     