
    
      RAPER’S HEIRS vs. YOCUM.
    
    No parol evidence of a promise to sell real property.
    The following statement of facts, was sent up the District Judge. Blaize Lejeune was £r(J(juce(j ag a wjtness for the plaintiffs and being sworn deposed : that in July last, being in w'ant of money he applied to the defendant to borrow ; the defendant answered him that he had none, but that probably Raper had, as he had Sold him a mulatto boy, which he then shewed, to the witness. He asked the price, for which he had sold the boy and Yocum replied that it was live hundred dol-1 ⅜ lars, and said that he was going to take the boy to, Raper, and should have done it sooner, but that the boy had been sick : that some days afterwards the witness saw the boy at Rapér’s house, and that his name was Bill.
    West. District.
    
      September 1814.
    James Roy, a witness of the defendant,
    deposed : that in July last, one Benjamin Fields held Yocum’s note for 3 550, and told Raper that if he would take up that note for him, he would let him have the boy; that Raper agreed to it, provided he liked the boy. That Yocum toolc? or sent, the^boy to Raper on trial. , That Raper, after trying the boy, was pleased with him and agreed to take him at five hundred dollars, and Yocum also agreed to let Raper have him for that price, and gave Fields his own note for fifty dollars, the surplus of the first note above the price of the boy, Fields being there present. That at the same time Raper gave Fields a horse by bill of sale, at $5 45, and paid him some money amounting together to fifty dollars, also an order on Mess. Louailliers for 8 100, and another on Mess. Toussaint and Marc, for one hundred dollars, that Raper, at the same time, gave to Fields his own note for twenty-three cows and calves, valtfed the witness thinks at ten dollars each, and had before furnished him with two beeves at ten dollars each. That Fields took all these notes and orders and left them and said that the note he held on Yocum was at the moment . . locked up so that tye could not get it,, it having Been by him given to Mrs. Yocum, the defen- *: • dant’s mother to take care of for him and she Bad gone out, but he said he would go to her and be back in a little time with the note and went away. That the witness then, at the request of both parties, drew off a bill of sale of the boy from Yocum to Raper, which he read to them twice over and each of them then took and read it and approved of it. That Yocum then said he would sign it, but would not deliver it till he got up his note, that Fields would soon be back ^vith it, when all would be completed, to which Raper agreed. That Yocum then signed the bill of sale but kept it. That Raper stayed till it was almost dark, waiting for Fields, but he did not return and Raper went away, without the bill of sale. That Mrs; Yocum lived at the place where they then were, but was gone abroad. That a few days afterwards the witness went with Yocum to Raper’s, to get the business compromised as he expressed it, and when there, Yocum told Raper he must take the boy home, on which Raper said to him “don’t take him, I’ll buy him any howand Yocum thereupon left the boy at Raper’s, that Fields was then at Yocum’s. That he drew the bill of sale on the 2d of August. That he afterwards saw Yocum and Fields together, when they were talking something about a note, that Fields has lived two years in Yocum’s * house, but is occasionally absent. That, Raper had the boy on trial a month, or six' weeks/ The plaintiffs’ counsel then shewed the order drawn by Raper on Toussaint which the witness identified.
    Benjamin Fields, the person above 'spoken of was then called by the plaintiffs
    —who swore that he never received any property from Raper nor any bill of sale of him. That he did receive from him some cash for work done, but never any on any other account, nor any note for cows and calves, nor any beeves that he recollects, that he did get several things from Raper, but paid him for them in work. That he never received a note for fifty dollars from Yocum, that he recollects. That he did receive from . Raper an order On Toussaint, but does not remember for what amount, nor what became of it, that he does not remember to have received any order from Raper, on Mess. Louailliers ; that he once held Yocum’s note for S 550, some time before the 18 of August last and that it was given for a race on the Bayou Pierre, that he thinks he has lost the note for fifty dollars, which was given him by Yocum about the first of last August. That he still holds Yocum’s note for ¾ 550 and has asked Yocum to pay it since last August; but he has not paid it, that he did once have this note in a trunk of old Yocum’s, which Was seldom locked and has had his papers there when it has been that no one in particular kept the key 1 r . ■ of the trunk that he knows of, that he does not recollect being at Yocum’s about the 2d of August . . ', last, nor does he know how to write and read but yery little.
    Baldwin, for the plaintiffs.
    The defendant complains of the decree of the District Court, ordering him to make and deliver a bill of sale for a slave, which he sold the ancestor of the plaintiffs, as prayed for in the petition.
    The question, presented for the consideration of the Court, is, whether parol evidence can be received of a sale of a slave, executed so far as the payment of the price, delivery of the property and signing the bilNof sale, or whether our courts, under the, existing laws can receive any parol evidence of such sale, the deed being destroyed.
    It will be attempted to be shewn, that such a sale is valid and that such testimony of its existence ought to be admitted.
    Previous to the enacting of the Civil Code, writing was not necessary for the perfecting of a sale of any species of property Inst. Justinian, lib. 3, tit. 23, 24, Febrero Librería de Escribanos, cap. 7, sec. 1, art. 19, Dig. lib. 19, tit. 1, De actionibus empti et venditi 55, Code, lib. 4, tit. 4,9, idem 17, 1 Domat 58.
    In the case under consideration, the price was agreed upon and paid, the slave delivered, and the bill of sale signed, and afterwards destroyed J by the seller. The suit in the District Court was not brought for the slave, for he was in the plaintiffs’ possession, but to obtain from' the defendant a bill of sale, to be made with the requisite solemnities. . The District Court decreed that this should be done and it is of this that the appellant complains.
    It is anticipated that two objections will be made to the principle of the decree.
    1. That the contract was by parol and therefore void, Civil Code 344, art. 2.
    \ 2. That the existence of the contract is disputed and no parol evidence can be admitted to prove it. Civil Code 310, art. 241.
    I. This was not a verbal sale : it was written and signed, though the instrument was not delivered to the purchaser. Delivery is not required by the statute. It is enough that it is reduced to writing, and signed by the party selling. It is not required that it should be taken by the purchaser ; nor is he obliged, if it was, to keep it : he may do so, and it is safest and most prudent that he should. The evidence of the sale does not rest alone on the statement made out, and sent up with the record, but also from an interrogatory put to and answered by the defendant. By which he was called- upon to say “If he did not 'sign, a of sale for the said mulatto bov, Bill, con- “ veving him to your petitioner ; and if he did “ not retain the said bill of sale from your peti- “ tioner and what he the said Thomas has done “with the same?” To which he answered “That having made a bargain with Raper for the “ boy Bill, he had made out and signed a bill of “sale of him, to be ready when Raper complied “ with his part of the bargain. That Raper never “did perform his part of the bargain, therefore, “said Yocum did not deliver him said bill of “ sale; and seeing some time afterwards that “ it was not R tper’s intention to comply with his “ bargain, said Yocum destroyed said bill of sale.” So much of the answer as goes to excuse the defendant ought not to be taken into consideration. The other part denies the fact sought to be disclosed by the plaintiffs. Now the question for discussion seems to be whether the title to the slave passed from Yocum ; for if it did, before he can succeed in his defence, he müst shew how he acquired a new one, as he cannot hold under that which he gave to another. What is a sale ? The Civil Code 344, art. 1, defines it to be “an “ agreement by which one gives a thing for a “ price, in current money and the other gives the “ price in order to have the thing itself.”
    Three circu instances concur to the perfection of said contract to wit, the thing sold, the price and the consent.
    
      Now it is clear that upon the agreement to sell the fixing and receiving the price, the delivery of the property and the signing of the bill of sale, he was'no longer proprietor of the boy and he had no just pretence to claim him. It was immaterial then to Yocum, whether Raper ever received the sale or not, and as the title had passed from him, he could only acquire a new one by the same ceremony by which it was transferred. He, therefore, no longer owned the slave.
    II. Can these facts be held to be legally proven'by pároli without producing the bill of sale?
    No principle of law, or rule of proceeding, is better established or more, uniformly adhered to than this one, that the best evidence which the nature of the case furnishes must be produced, ;and that, when produced, it must be admitted : no authorities need be refered to, to establish this rule. Yocum destroyed the bill of sale, so that it could not bé produced by the plaintiffs. Under this rule, therefore, as well as under another one equally well established, that no one shall avail himself of his own wrong, evidence of the contents of the bill of sale and all the, circumstances attending it ought to be received. If so, more than enough is proven by the statement than is sufficient to justify the District Court in rendering and this Court in confirming the decree. Even admitting that Fields did not deliver Yoeum’s note, there is sufficient evidence to do away its effect, as to Raper, and to, shew, if true, that it proceeded from a collusion between Fields and Yocum to defraud him. Though this is immaterial, as Raper fulfilled his part of the agreement by paying Fields the 8 500. It did not enter into the contract, that Raper should undertake that Fields > should deliver Yocum’s note.
    Arguing then, as if the weight of evidence, is in favor of the appellees, is it such as can be admitted ?
    The doctrine in the Civil Code, tit. 6, chap. 1, does not apply to this case, as this was not a verbal sale.
    It comes under the 241 art. page 310. This article presents two questions. How are sales of immoveable property to be made. 2 How are they to be proven ? They are to be reduced to writing. This was reduced to writing and signed and, therefore, not a verbal sale. If the writing is lost, how are then its existence and contents . to be proved ? The expressions in the lattei* part of the article are strong and if taken by themselves and unaccompanied by any other in the code, or incorrectly understood, might be the cause of the greatest injustice and destroy the right of the appellees. But these expressions are to be contrasted with, and explained by, others in the code, and in the statutes. These are abundant in favor . of the appellees.
    
      The 1st. sed- of the 26 chap, of the 1st sess. of the 'Legislative Council has. given the plaintiff in all cases the right of interrogating, the defendant and to which he is bound to answer,, provided the interrogatories do not tend to charge him with any crime or offence against any penal law. The Code 314 15, sec. 4, 5, has recognized and confirmed this right of the plaintiff and has made the answers of the defendant ahe best of testimony. This was the mode resorted to in the present case, and was one of the means by which the fact of the existence of the bill of sale was ascertained. The exclusion, therefore, of parol evidence by the said article must be taken at least with this exception of the mode of proof. But, it may be urged that the defendant’s answer is as much a written evidence, of the “existing” of the contract and: a great foundation for a decree: admitting, however,, that ⅛ may not be, still the other mode is open and adequate to the purpose of the appellees. Yocum confesses that the sale was written and signed by him, and afterwards destroyed, as is alleged, be-cause Fields did not deliver the note and because Rapef did not comply with his part of the contract. The question then is changed from a verbal sale, tov an enquiry whether Yocum was justifiable in destroying the writing. Leave the question upon this ground and the strength of evidence is irresistible in favor of Raper.
    But the doctrin'e of interrogatories- is equally c*ear- defendant is bound to 'answer, and the Court to proceed upon the testimony furnished by him, or in case of his refusal to answer to take the facts as admitted, and decree accordingly. Here the evidence was furnished ; and will or can the Court reject it ? An interrogatory may be put to avoid the effect of limitation and shall it not be admitted to prove the existing of a deed ? Judicial confession is the best of proof. Pothier on Obligation, part 4, chap. 3, see. 1, P'ebrero, 2 Part, lib. 3, chap. 1, sec. 7, art. 284. It may be remarked that the doctrine, concerning interrogatories, is on a subsequent page of the Code to the one first cited, which gives the construction of the statute in favor of the appellees. *
    In addition to this, the Civil Code 312, art. 247, has provided for this case, by admitting parol evidence where the title is lost “through a fortuitous event, unforeseen 'accident, or overpowering forcé” and makes sucha case ah exception from-the 24-1 art. in page 310. ’ The appellees are protected by this exception. The force, here spoken of, is not such as is required by the com-monjaw of England to protect common carriers, viz. the act of God, or the king’s enemies, because these terms are not known to our law and are not applicable to the subject, 2 Esp. N. P. Gould's Edition 245, 2 Jurisprudence 574, Dig. /. 48 tit. 6, Id. 1. 7, Code, lib. 9, tit. 12, P'ebrero Juicios, lib. 8, tit. 1, Civil Code 384, 414, 16. The term here used must be understood to mean such a _ _ _ ' forceas could not he resisted in the manner in which it was applied. No matter in what form ■ ⅜ ' i or shape it appears, no matter with what instrument, nor at what, hour it is effected, if it was such as could not be resisted, it was overpowering force. A feeble man, or a child could burn or tear a deed, in the presence pf the strongest individual, and vet it would be destroyed by an overpowering force, if it was not iri his power to prevent it.
    If, however-, the appellees should be considered not to come within the letter, they certainly come within the meaning of the exception.- It is providing the mean's of proving the existence, and contents of deeds by inferior testimony when the better is lost. The subject ⅛ proof to be admitted in- courts of justice. Now, no man endued with common reason would "contend that'evidence vvas a subject of robbing or theft. It never has, and from its nature never' can be considered property. It is the means of acquiring and holding of property, but not property itself. It must be considered then to mean by a fortuitous event and unforeseen accident, burning, mislaying, loss, &c. and by overpowering force a case like, the present, where 'the seller, after receiving tl;ie price and completing the contract, should destroy the instrument, without the purchaser being able to prevent it. -
    
    But, how can the doctrine offeree be made t° aPR^y here, as the seller himself destroyed the deed ? And shall *he > be received to plead that the dtle was not destroyed by an overpowering force? And, therefore, the loss of it not to be justified by the appellees, the force which destroyed is not such as to entitle them to the benefit of párol* evidencie ? Can the appellant urge this against his own act ? This would be to let the owner of goods steal or rob them from the carrier and then present himself in court and say' that The carrier was answerable because they were not taken by the king’s enemies. The owner’s.default will excuse the carrier, 2 Esp. A* . P. Gould’s Ed. 247. But upon the principle here contended for by the appellant, the owner’s destroying the goods by force leaves the carrier answerable for their full amount, and the salutary ‘maxim, as old as jurisprudence itself, that no man shall avail himself of his own wrong, would no longer be in force.
    It is not thought necessary to call into the argument the decisions, in England and in the different states, upon the statutes of frauds and ■ perjuries, as this contract is considered to be a-complete performance.
    The consequences of a different application of this rule or a different interpretation of the law would be alarming. If no parol evidence is to be admitted to prove the existence of such contracts or to disclose, such transactions, what a door will it open to frauds? As in the case now under discussion, a sale may be mádfc and signed, the property delivered and the moment the r 1 J . . money is received, the seller may with impunity seize with violence arid destroy the instrument of conveyance : or if by accident, the bona fide < holder of real estate. loses his written evidence of title, the former owner upon ascertaining the fact may institute a suit and according to this doctrine must recover : because there is no written proof.
    If the office of a Parish Jüdge should be burnt, all the sales of real property there deposited, of which copies had not been taken, would be null, because the written evidence would be lost, and is the Court disposed to introduce all these calamitous consequences by their decision ?
    
      Porter, for the defendant.
    In this case, the /District Court has ordered the appellant, the defendant below, to make a conveyance for the nfegro claimed in the plaintiffs’ petition. , This decree has been rendered alone, on parol testimony and the answer of the appellant, tó the interrogatory propounded to him by the appellees in the Court below. , That judgment is conceived to be incorrect on two grounds.
    I. Because the evidence introduced shews that the contract entered into between the parties was on .a condition ; which condition remains yet' unperformed by the appellees.
    
      the parol evidence adduced to prove "• x. ' - ■ 1 /,- ■ the contract, cannot under our laws be received^ to establish u sale of this species of real property.
    I. The. evidence proves that Yocum agreed* to sell the negro to Raper, on condition that he would take up a note, which Fields held of Yocum for § 550 : to' this Riper consented, if he liked the boy and Yocum sent him on trial. The parties it appears afterwards met to pass the necessary writings for the property. The bill of sale was drawn up and signed by the appellant who declared, at the tittie of signing- it, that he would not deliver the boy to Raper until he received the note which Fields held of him, and for which he had stipulated to sell his negro. This note Raper, nor his representative, have never yet delivered to the appellant and .until they do, they have no right to call on' him to.make a title. If Fields has deceived them it ⅛ not our act and the note, for which the negro was sold, is vet in force against Yocum. ,
    • Th'e weight of evidence supports the above summaiy, Le Jeune’s testimony’is consistent with Roy’s : Yocum telling the former he had sold the boy, is fully explained by the latter witness, ' who'says indeed that Yocum had sold him : but ' then he adds the condition, and that condition remains yet unperformed. Le Jeune seeing him in possession of Raper, was the possession of the boy on trial. "
    
      Yocum’s answer to the i . ⅛ ' the declaration of the witness, he says he made a bargain tor the boy with Raper, and that he had made out a bill to be delivered, when Raper complied with his part of the bargain. This* answer, combined with the declarations of the witnesses, is conclusive as to this fact, and shews clearly the sale to have been a conditional one. Yhe plaintiffs’ counsel says, however, that all the latter part of Yocum’s answer to the interrogatories must be rejected. He cites no authority, to justify' this Court in doing so, on the contrary it is plain the whole must be' taken together.—Civil Code ,316, art. 254, Pothier on Obligations, part 4, chap. 3, sect. 4-, art. 2, no. 827, Febrero Cinco Juicios, lib. 3, cap. 1, § 7, no. 285, Curia- Phil-hfiica, vol. 1, p. 2, ¡¡.-no. 3.
    The evidence then clearly establishing that the appellees have not c9mplied with their part of the contract,-the judgment of the Court below-ought to be reversed. -
    II. All the evidence to establish the plaintiffs* title is by parol, and it .is submitted with confidence that this species of proof cannot be received, in this, country, to prove a sale of slaves.
    The Civil Code 344, art. 2, prescribes that the sale of slaves must be by public act or under private signature. That all verbal sale of them shall be null, and that no testimonial proof ' - - - / Qf them shall be admitted. And again the same ' ' ” authority,page 310, art. 341, says, that whenever the existence of such a covenant is disputed, testimonial proof shall not be admitted. These provisions cannot be made any stronger by. argu-jjient. However in the 4th. page of the same boofcr art. 13, it is declared, that in construing laws the letter must not be abandoned on. pretence of pdrsuing the spirit;
    These provisions are imperative on the Court, . and conclusive in this cause. Particular cases , of hardship may, and will, arise under all general regulations of this kind. But, it is better for society,, (so at,least our Legislature has thought) that these regulations should be rigidly preserved, * than that courts, under a pretence of doing equity, should establish their discretion as the boundary of‘ right, render the provisions of the law on this subject uncertain, and introduce those evils of perjury and fraud, which the supreme authority has seemed anxious to guard against.
    In England, several of. their most eminent Judges have lately regretted (and expressed that regret in strongterms) that their courts of equity ,' by their decisions, had broken in upon statutes „ similar to ours,. which, if rigidly followed would haVe had a most beneficial effect on society. 2 Vesey jun. 243, 3d. Vesey 486, 712. v
    , It is worthy of remark that the Spanish, government in this country had- a law of the same kind in force, previous to the passage of our Code, which required ah sales for real property to-be-in writing. Nay more, they w Te void if not passed before p Notary Public. American Law Journal 5⅛ The necessity of such a provision no doubt wgs . . obvious to both governments who in this respect established similar regulations. T-he plaintiffs en-deavour to escape from the force of the In cited from the Code, by ⅞-variety of arguments: some of them taking for a basis facts which are denied, and ■others, when the fact is clear, establishing principles which are incorrect," and it is hoped capable ,of being shewn so. _ ' ⅜
    It is said that the price was pdid and th?.sajfe* passed: but a reference to the evidence proves the -contrary.- - - ri r’ Y‘:
    It . is said the sate was perfect by the act of signing and that the appellant by destroying it has laid a ground for the admission of parol testimony. But, here again the- evidence is at war with the argument.- By it we an?-1 informed that Yocum expressly declared he signed the ’bill of sale, on condition that he was not to dfeíív.er it until' Hs note was given up.' Would it not if tbis.cjSjuld be held to be a completion of a ⅝⅞, and svouldit.not be-still more stfapge, if this Court should by iismpinjon declare that if A. exe^htg^jm. act Éous séing privé., which he .dedáfe#-he\viff{ retain in his bands, until he perty : that the' moment it is ¾⅜* under what condition, or no matter in what inten. , . , . ’ , . tion,it becomes without delivery a complete title to the vendee. The law is clearly opposed to ¡this doctrine. Febrero Librería de Escribanos, ^ap:. y, ^ ^ n0_ p95 Curia Phülipica, Commercio terrestre, tit¡ Venta, Mb. 1, cap. 12, no. 42, Pothicr on Obligations, p. 4, cap. 1, art. 2, § 1, no. 714, Civil.Code, 272, art. 68, ibid, 344, art. 5.
    
    If then, there was no title executed to Raper all arguments respecting the loss of it are fallacious. A tnan must be in possession of a title before he can lose it. '
    The answer to the interrogatories it is alleged takes the case out of the statute. That answer states, that the appellant “had made out a title to be delivered to Raper when he complied with his bargain.” No cottrt can decree a conveyance on that declaration : and the evidence, so far from contradicting, supports it.
   Bij the Court.

It is proved in this case, by oral. evidence, that a contract was entered into, between Thomas Yocum, the defendant now appellant, and Henry Raper, the conditions . of Which were that if Raper would take up a certain note Of $ 550, subscribed by the appellant in favor of a certain Benjamin Fields, he the appellant would sell him a mulatto boy. In consequence qf this agreement it appears that Raper .pawk Fields in sundry articles the price agreed Upon between him and the appellant, to wit, S'500, and that the amount of the note in rields!s hands being'more than the purchase money, the appellant gave Raper his note for the balance. It fur: ther appears that the appellant had prepared a bill of sale of the mulatto boy and signed it; but that he never delivered it, alleging that Raper had not complied with his part of the Contract, and that he has since destroyed that papef. Fields having riot surrendered the note which Raper was to take up, Raper, who had paid the Cull price of the mulatto boy, brought the present suit tó compel the appellant to make him a legal and complete title to that slave. As to the possession Raper seems to have had it since the bargain -was entered into.

Two questions arise in this case ; one of law, and that is, whether a verbal promise, to sell that kind of property for the alienation of which the laws require a written act, can ever be -recognised and enforced by a court of justice ; the other of faet, to wit, whether Raper had complied with his engagement, so far as to enable him to call Upon ' the appellant for a performance of his. ⅜ - ⅛ . •< ⅜, „

I. The language of the law (Civil Code 344,/ art. 2,) vyith respect to the sale of immoveables and slaves is :. “all verbal sales cf any ’ “things shall be null, as well for t!ürdÉeñs¿N&|Í&a% for the contracting parties themseives, and the ° 1 ⅜ “testimonial proof of.it shall not be admitted.” In the same chapter speaking of the promise to sell ; “ a promise to sell amounts to a sale, when there “ exists a reciprocal consent of both parties as to “. the thing and the price thereof; but to have its “effect, either between the contracting parties or “ with regard to other persons, the promise to “ sell must be vésted with the same formalities as “are above prescribed 'm art. 2and 3, concerning. ‘f sales,;in all cases where the law directs that the “safe he committed to writing.” Civil Code 346, * art. 9.

Nothing can be more positive than this prohibition of- our laws, ever to recognise as valid a verbal sale or a verbal promise to sell an immoveable or a slave. Witnesses offered to prove such a contract cannot ever be heard. Yet we are Galled upon, in opposition to this provision, to listen to that; testimonial proof, and to decide upon the merits of that'verbal contract, under pretence that we may, in certain cases, soften the rigour of the "law. But surely, if such power can be exercised* Jby courts of justice, it never can go the length of 'declaring that lawful which the laws have said shall be illegal.

In this case, however, it is alleged -that the contract was not entirely verbal, because, according to the appellant’s own confession, he had ytfepafed;,a bill of safe, ready to be delivered to the intended purchaser, as soon*as he would fulfil ... , . the stipulated condition. But this paper was only the consideration to be given for the compliance of- the other party with his engagement. It was not the instrument of the contract. That contract was never reduced to writing. We have ⅛-only from the mouth of the witnesses. 'They1 inform us that an agreement was entered into, between the appellant and Raper, the conditions of which were that if Raper would take up a certain note of the Appellant, the appellant would. make him a bill of sale of a certain slave. Whether the appellant did or did not prepare that bill of sale ready for delivery, as the case might be, is not the question. The contract itself, which this court is called upon to enforce, was only-verbal, and therefore' not such as the laws can recognise. ' •

II. Finding ourselves under the necessity of reversing the judgment on that ground, it is hardly of ány use to inquire into the other question, to wit, whether Raper complied with his engage-1 ment so far as to authorise him to^ call on the appellant for a performance of his. npbtt this we cannot help observing that, however fair the conduct of Raper, and however Suspitious that of the other party may appear, Raper has not. executed that which he had. engaged todo, to Wit, taking up the note of the appellant. The °f the appellees is certainly a hard one ; but their present suit to compel the appellant to the speétóc performance of his promise, must fail on this ground, as well as on the other.

It is,therefore, adjudged and decreed that the "judgment of the District Court be reversed, and that judgment be entered for the appellant with costs.  