
    No. 2389.
    Indiana Sloan, Wife, etc., v. Stevenson & May—Louisiana State Bank called in warranty.
    A contract oí sale of a lot of cotton is complato if tlio price has heen agreed upon and possession has heen given. In such a case the sale is considered as executed, and the administrator of the estate who has made the contract will not he listened to when he comes into court and asks that it ho set aside on the ground of an illegal consideration, such as Confederate money.
    from the Fourth District Court, parish of Orleans. Théard, J.
    
      Race, Roster <& R. T. Merrick, for plaintiffs and appellants. Clarke á Bayne, for defendants and appellees.
   Lodeling-, C. J.

The plaintiffs sue the defendants io recover forty-three hales of cotton or the damages occasioned them by the wrongful taking of said cotton for defendants’ use.

John A. Stevenson and A. H. May, who composed the firm of Stevenson & May, filed separate answers. Stevenson filed a general denial, and admitted that the forty-three bales of cotton aforesaid had heen purchased by one Green, who transferred them to him ; that forty-one hales of said cotton were delivered to him; that both lie and Green were agents for the Louisiana State Bank; and that the said forty-one hales of cotton, having heen accidentally shipped to Stevenson & May, were delivered by them to the said bank; and he called the hank in warranty. May denies that he had anything to do with the cotton, and reiterates the other allegations of Stevenson’s answer.

The Louisiana State Bank filed an exception and answer. The exception seems to have been abandoned. In the answer it is admitted that Green and Stevenson were the agents of the hank, in the purchase of the cotton, and that Stevenson & May had delivered the cotton to the bank, the rightful owner thereof.

The evidence satisfies us that on the nineteenth of January, 1863, the administrators of the estate of Sloan, E. A. Sloan and John McLaughlin, sold to J. J. Green, agent aforesaid, forty-three hales of cotton at twelve cents per pound in Confederate treasury notes; that the cotton was weighed, paid for, and marked in the name of the purchaser, thus J. J. G.,” and that the vendors undertook to take care of the cotton and to deliver it in good order at Augusta, on the lake, at their own expense, to said Green or his order, the said vendors not incurring any risk of fire of unavoidable accidents;” that some time afterward the bagging and ropes having heen cut by Confederate soldiers, and the cotton being in had condition was taken by the agents of Green or Stevenson off the Sloan xfiantation to an adjoining plantation, where it was rehaled and carried back to the Sloan place, to be taken care of; that the bagging and rope was furnished by Stevenson, and the cotton was rehaled by bis employes. This was in January, 1865, and in consequence of a letter written by John McLaughlin to •an agent of Stevenson informing him of the condition of the cotton, and suggesting the propriety of his getting bagging and rope to have the cotton-repaired. In the letter he expressed his readiness to haul the cotton to the place agreed on whenever required to do so. Subsequently when called on for the cotton, he refused to deliver it. However, after a considerable delay he did deliver the cotton, but instead of hauling the cotton without charge, as had been stipulated in the contract, Stevenson paid Mrs. Sloan S3 25 in gold per bale for the hauling. The cotton was shipped to Stevenson & May through error; it was delivered by them to the bank, and the bank had sold the cotton long before the institution of this suit.

Under this state of facts, the administrators and the heirs sue to recover the price of the cotton, on the grounds that the contract was null for the following reasons, to wit:

It was for Confederate money, it was between alien enemies, and it was a private sale of succession property.

It is proper here to state that the suit is brought in the name of the minor heirs of Hamilton Sloan, represented by their tutrix Eliza Sloan and Indiana Sloan, in their own right and by the administrators, Eliza Sloan and John McLaughlin, and that the succession was still under administration when the suit was instituted and tried.

The evidence shows that the contract was an executed contract before the institution of this suit; nay, even before the order of General Herron had been obtained. The written contract and evidence show that the cotton was sold by the pound, that it was weighed, paid for, -and marked with the initials of the name of the buyer; and that the sellers obligated themselves to keep and take care of the property for him, and to haul it to a shipping port, whenever required to do so. McLaughlin says in the act that the cotton is “now deposited on my plantation, and I am to take due care of the same and to store it in a covered building,” etc. And Mrs. Sloan signed the same act.

“An authority to talcc, when the thing sold is ponderous and present, has all the effect of an actual delivery.” But in January, 1865, the employes of the buyer took actual possession of the cotton (with the consent of the sellers), hauled it to another place and rebaled it for the buyer; and then returned it to the custody of McLaughlin & Sloan for safe keeping. As balers and depositaries of Stevenson, McLaughlin & Sloan could not question his title. 21 An. 596.

The question of duress is not important in this case, as, in our opinion, the contract of sale had been executed long before; and therefore, to pretermit the expression of an opinion as to whether there was or was not force, violence or threats used to obtain the possession of the cotton from the depositaries.

The contract being executed, the administrators will not be listened to in a court of justice, when alleging their own turpitude ana dereliction of duty. 3 N. S. 47 ; Mulhollen v. Voorhies; 17 La. 132, Gravier’s Curator v. Carraby's Executors ; 2 Rob. 271 ; John Y. Davis v. J. H. Caldwell et al.; 1 An. 176, Davis v. Holbrok ; 17 An. 261, Smidt v. Barker.

The heirs have no right to sue for debts or damages due to the estate while it is under administration, much less have they a right to sue a third party for damages caused the succession by buying from the administrators property at private sale. Their recourse is against the administrators and their sureties. C. C. art. 1058 (1051), 12 R. 41,323 $, 10 R. 457, Succession of Ogden; C. C. art. 1048 (1041) ; C. P. 976, 997.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.  