MARRIAGE. See HUSBAND AND WIFE. MINORS. I. Tutors and Curators of. 1. The surviving husband has, under the act of 25th of March, 1844, the usufruct of the community property during his life, but this does not entitle him to the administration which belongs to the tutor of the minor children. C. C. 1037, 1114. Succession of Brinkman, 27. 2. The court is not prepared to say that a tutor may not lawfully disclaim a title for his ward, when the claim is utterly without foundation, and the prosecution of it would involve the minor in expensive and fruitless litigation. Degruy v. His Creditors, 39. upon the advice of a family meeting. Hubbell v. Hubbell, 524. 10. He who pleads minority must establish the fact affirmatively. Frierson v. Erwin, 525. 11. Where a tutor neglects to give bond, it is his own fault, and cannot exempt him or his property from liability for his administration as tutor. Gonsoulin et al. v. Migues et al. 565. 12. A tutor owes interest on the balance due to minors from the day his accounts were closed. C. C. 353. Ib. 13. A mother who is turix of her children does not not owe interest on their shares, when the same is less than the value of the support and education of the children. Timberlake v. Brand, 715. II. Of Minors generally. 3. As a general rule under-tutors are 14. Where a mother of minor children without authority to receive and control deals with a person as tutrix in matters rethe assets of minors; but they have the lating to the estate, signs a receipt in her right to employ counsel, and stipulate the own name simply without adding as tutrix, necessary fee; to institute proceedings it will be presumed that she acted as tutrix against tutors to deprive them of their tutor-in signing the receipt. Dickason and Husship and to protect the property of minors band v. Smith, Administratrix, 196. from waste. Monget, Tutor, v. Tessier, 165. 4. A succession inherited by minors may be administered by tutors, and a tutor may relieve an administrator from the further administration of the estate. Hoover et al. v. Sellers, 180. 15. Where a family meeting is held under the act of 18th of March, 1847, for the emancipation of a minor, the tutor must be cited before the meeting is held. Gerald v. Gerald, 242. 16. Where a sale from a natural tutor to a minor child in payment of the amount due 5. Where a person has acted as tutor, to the minor is annulled, the minor is entiand has been recognized as such by the pro-tled to interest on the sum from the time it bate judge, and where it is shown that the records of the court are in a state of great confusion and dilapidation, it will be presumed that he was properly qualified although the usual oath and bond cannot be found. Ib. became due, unless it is shown by the adverse party that the fruits received from the property before the sale was annulled were equivalent to interest. Succession of Destrehan, 483. 17. Where a family meeting convened 6. A mere intermeddler with minors' after the second marriage of the mother of property is liable for the damages he causes minor children, recommend her as tutrix, the estate. But if his administration has it is for the court and not the family meetbeen beneficial, and he has fairly accounted,ing to prescribe the security to be given. he is not liable. Bird, Wife of Laycock v. Webb, Under-tutor, v. Webb, 595. Black et al. 189. 18. The mother should be trusted with the tutorship of her children if it be pos 7. The mode of calculating interest on the capital to a payment, and then deduct-sible. Ib. ing the payment on the aggregate of principal and interest until the next payment, however small the payments, or short the intervals between them, is not admissible in a tutor's account. lb. 19. A woman who marries a second time without the consent of a family meeting, loses all right to the natural tutorship of her children. Ib. 20. A sale under execution does not af8. If a tutor invests the minor's reve- fect a prior legal mortgage in favor of a nues once a year, and ouly when the sur-minor. Terrio v. Guidry, 598. plus exceeds five hundred dollars, he complies with the law. lb. 9. The code expressly provides that the expenses of a minor shall never exceed his revenues, without the authority of the court 21. The prescription of five years possession of a slave under a just title, is not applicable to a case in which a minor attempts to exercise upon the said slave a legal mortgage in favor of said minor. Ib. 22. The emancipation effected by the marriage of a minor does not qualify her to receive the appointment of administratrix. During minority she cannot bind herself for an amount exceeding her income. Briscoe and Wife v. Tarkington, 692. MORTGAGE. 1. Where it is proved that the mortgage debts have been paid, it is not necessary to make the mortgagees parties to a proceeding for the erasure of the mortgages. Andrew Erwin v. Bank of Kentucky, 1. 9. A mortgage bears on the estate but not on the gathered crops, unless the creditor has made a seizure before the crop is gathered. C. C. 457. Bonaffe & Co. v. Lane, 225. 10. The recordation of a decree rendering a foreign judgment executory in the office of recorder of mortgages creates a judicial mortgage. C. C. 3289, 3294, 3314, 3330, 3331. C. P. 545. Ib. 11. In a sale upon a first mortgage the purchaser holds the balance of the price subject to the subsequent mortgage. Scott & Dunbar v. Featherston & Amis, 306. 12. A sale under a concurrent mortgage 2. Where the endorser of a promissory does not extinguish the other concurrent note has possession of it, notwithstanding mortgages. The sheriff has no right to rethere may be on it subsequent endorse-ceive the amount due on them, but only ments, it is prima facie evidence that he is the pro rata share coming to the seizing the true and lawful owner thereof; and if creditor, leaving the balance in the hands of the note be secured to him by mortgage, he the purchaser subject to the other concurmay proceed on it by executory process, rent mortgages. Ib. without accounting for the manner in which he re-acquired possession of it. Squier v. Stockton, 120. 3. A party who purchasers certain lots of ground from one representing himself as the agent of A., and who executes his notes secured by mortgage upon the property in payment therefor, when sued by A. on the notes and mortgage, is estopped from setting up the defence that the agent was not authorized to accept the mortgage for A. Ib. 4. A mortgage given on all the property held in common appertaining to the succession of a deceased person, is invalid, for the want of a proper description of the property subjected to it. C. C. 3273, 3274, 3275. Edwards v. Caulk et al. 123. 13. Where A. sells a plantation to B., who assumes to pay certain debts due by A., and gives a mortgage upon the property purchased, the mortgage is binding upon B. without any acceptance on the part of the creditors of A., so long as another arrangement between A. and B. be not made. Ib. 14. Where an order of seizure and sale issued for the payment in cash of one of the installments past due, and for the installments to become due, and before the sale a second installment fell due, for the payment of which a second order of seizure and sale was issued upon both orders being enjoined, the court dissolved the injunction, and decreed that the property should be sold for cash, all the installments having in the meantime fallen due. Wright 5. An order of seizure and sale by executory process, cannot issue upon a mort-v. Richard, 365. gage unless there be authentic evidence of 15. The article 990 C. P., which requires the acceptance of the mortgage by the mortgagee, C. C. 1794, 1796, 1803. Yates v. Phipps, 124. 6. Where the act of mortgage describes the land as containing six hundred and forty acres, the mortgagee will not be allowed to proceed to sell the property under an order of seizure and advertisement, describing the land as containing six hundred and forty superficial arpent. Wright v. Roussel, 126. 7. Where a bond in favor of a bank, secured by mortgage, was taken payable at the bank, it is not necessary that there should be authentic evidence of presentment and demand of payment at the bank, to entitle the bank to executory process. Posey et al. v. Bank of Louisiana, 187. 8. Recording a twelve months' bond in the mortgage office does not create a judicial mortgage. Perkins v. Bank of Louisi ana, 222. that property of a succession which is sold to pay debts should bring its appraised value, does not apply to a sale of property on which there is a mortgage for Citizens' Bank stock. In such case, the sale, if made fairly, will be maintained when adjudicated to the highest bidder. Succession of Haner. 437. 16. A sale made under a consent decree has not the effect of a judicial partition and does not affect the rights of mortgage creditors. Le Carpentier v. Le Carpentier, 497. 17. Where the prayer of the petition asks that the property be sold for cash to pay one installment, and the balance of the price on a credit to meet another installment not due at the time, and the last installment falls due before the case is disposed of, the court may order the sale to be made for cash altogether. Cleland v. Bideman, 564. 18. The principle that there can be no sale on a fi. fa. unless the price bid exceeds the amount of prior mortgages, does not apply to judicial mortgages. Settig v. Morgan. 574. 19. Our code contains no express provision upon the prescription of legal mortgages. Terrio v. Guidry, 589. ation of property for that purpose under certain circumstances, but in order to do so the power to carry out the guaranties and requisitions of the law must be complete in the corporation seeking to enfore the right. Municipality Number One v. Young, 362. 6. By the act of 8th of March, 1836, for the division of the city of New Orleans, the 20. Mortgages must be reinscribed with- centre of Esplanade street was made the in ten years, or parties who have in the boundary between the First and Third Mumeantime acquired rights upon the proper-nicipalities. The First Municipality has ty mortgaged will be protected against the not the right alone to expropriate private mortgage; and the pendency of an hypo- property for the opening of Esplanade thecary action to subject the property to the street. Ib. mortgage, does not exempt the mortgage from the necessity of reinscription. Adlé v. Anty et al. 631. 21. A creditor who has a judicial mortgage upon property cannot prevent the sale of the property upon a subsequent judgment. C. P. 301, 403, 710. Nor can the purchaser refuse to pay the price until the prior general mortgage is cancelled, especially when it appears the judgment debtor has other property sufficient to pay the debt. Young v. Municipality Number One, 736. NEW ORLEANS. 7. Where, under the act of 3d of April, 1832, for the opening of streets, &c., the owner abandons a lot and claims the assessed value, and the proceedings are afterwards homologated, the property belongs to the corporation, which has a right to take possession of it, and the former owner is a judgment creditor for the value assessed. Boulat v. Municipality Number One, 363. 8. Where the Mayor of the city of New Orleans drew a warrant upon the Municipality Number Three, for the quota of said municipality, due upon interest coupons owed by the Old Corporation of the Mayor, Aldermen and Inhabitants of the city of New Orleans, and the warrant was pro tion of the original debt, and the Old Corporation remained liable. Goldschmidt v. Mayor, Aldermen, &c., of New Orleans, 436. 1. An ordinance of the municipality, pre-tested for non-payment, it was not a novascribing the place for landing masts, spars. &c., on the Canal Carondelet, is not upon its face in conflict with the Constitution, nor illegal; the power of regulating the public ways, and maintaining order and safety thereon, being in the municipality. Municipality Number One v. Kirk, 34. 2. The ordinance of the Municipality Number Two of New Orleans of the 12th of March, 1839, authorizing the treasurer to employ collectors of taxes, did not entitle the treasurer to the commissions allowed for amounts collected. They belonged to the persons employed. Thomas v. Municipality Number Two, 233. 9. Where a municipality of the city of New Orleans commences proceedings under the act of 1832, for the opening of streets, &c., and the commissioners warn a proprietor of a lot against continuing improvements which he had begun, and he is thereby delayed and damaged by the loss of rents he would have received had he been permitted to finish his buildings, the municipality is responsible to him for the damage sustained, in case the proceedings for open 3. The collectors of taxes cannot claiming the street be discontinued. McLaughcommissions for sums collected and paid lin v. Municipality Number Two, 504. over to the treasurer by the attorneys for the municipality, nor for sums paid directly by tax payers to the treasurer. Ib. 10. Where the Municipality Number One contracts with a paver, that he shall be paid a portion of the price by the proprie4. Where the municipality had agreed tors of the property fronting on the pavewith a contractor to make certain banquettes ment, and those proprietors refuse or neat a fixed price, one-third to be paid by the glect to make the payment, the municipamunicipality and the other two-thirds by lity is bound for the amount stipulated to be the front proprietors, and it having been set-paid by the contract. Cronan v. Municitled by a suit that the front proprietors were liable for only one-third, the municipality will be considered as a warrantor for the remaining third of the price, and held liable for that sum. Tournier v. Municipality Number One, 298. pality Number One, 537. 11. The municipalities of the city of New Orleans have the power of enacting ordinances to prevent nuisances, and to provide for the security of public decency. Municipality Number One v. Wilson, 747. 5. The act of 3d of April, 1832, for the 12. The ordinance of the Municipality opening of streets, authorized the expropri-Number One of August 6, 1846, to prevent nuisances, &c., is not identical with the act of the Legislature of March 19, 1818, against persons keeping a disorderly inn, gaming house, &c. Ib. NOVATION. Novation is not to be presumed. Lallande v. Breaux and Matherne, 505. NUISANCE. 13. The act of 27th May, 1846, providing that each of the municipalities should pay the expense of repairing, taking care of and guarding the prison of the city of New Orleans, is not unconstitutional upon the Gutters and drains in the city are intendground that it impairs the previous contracted to carry off the water which falls from between the Police Jury and the Munici- rains, or percolates through the ground, pality Number One. Haynes v. Munici- and they can be used by manufacturers as pality Number Two, 760. drains only when that use does not result in a nuisance. Municipality Number One v. Gas Light Company, 439. 14. The parish prison being situated in the First Municipality, became the property of that municipality by the act of March 8, 1836. Municipality Number One v. General Council of New Orleans, 761. NEW TRIAL. See PRACTICE. NON-SUIT. See JUDGMENT. NOTARY. 1. Where a notary has received money and notes deposited with him as the price of a sale by the purchaser, he cannot be compelled to return them unless the vendor be made a party to the suit. Dean v. Clark, 105. 2. Where an act of mortgage is passed before a notary acting instead of another who was absent, and the copy on which the suit is brought is certified by the latter who had returned, in the absence of evidence to the contrary, it is to be presumed that these officers have properly discharged their official duty in the matter. Squier v. Stockton, 120. OBLIGATIONS. 3. A stipulation between A. and B. for the benefit of third persons, even before their acceptance, cannot be annulled without the consent of A. and B.; and at any time before it is annulled, those third persons may signify their acceptance, and avail themselves of it. C. C. 1884, 1886. C. 3. The term of office of a notary appoint-P. 35. Bonaffe & Co. v. Lane, 225. ed before the adoption of the New Consti- 4. Where a stipulation has been made tution is limited to four years after its adoption. State v. Percy, 282. 4. Under the Constitution and laws of the State, the appointment of a notary is for four years, and the person appointed has the right to hold the office for that term. Kelly v. Gilly, 534. 5. Where the deputy of a notary has made the demand and served the notice of protest, it does not disqualify him from being a competent witness to the act of protest. Delamare v. Kennedy, 749. 6. The reason for the law requiring two witnesses to notarial acts was, to create a check upon notaries so as to prevent their ante-dating their acts. 16. for the benefit of several third persons, it creates on the part of the debtor a joint obligation to them, and no one of them can avail himself of it without making the others parties, so that they may signify their acceptance or refusal. The stipulation is for the benefit of those who do accept. Ib. marriage to a woman, would be excused 5. A man who had made a promise of from a performance of his promise, if she was of unchaste character, or if her geneing that such reputation was well founded, ral reputation was bad, even without prov where he made the promise in ignorance of her reputation. Morgan v. Yarborough, 316. OBLIGATIONS.-PARTITION. 6. Reciprocal promises of marriage constitute a legal contract, and the party violating the contract is liable in damages. C. C. 1928. lb. 795 pelled by extreme necessity. Bird, Wife 3. The father of a natural child acknow- 7. Where several persons have signed an obligation in solido, they are, inter se, debtors each one for his share. Upon the pay-mons, 250. ment of the whole debt by one of them, that one is entitled to be subrogated to the rights of the creditor against the others; and so far as the creditor has impaired this right of subrogation he is barred from recovering. Ledoux & Co. v. Rucker et al. 500. 8. The time for completing commercial contracts is not limited to banking hours. A party has the whole business day to deliver or to pay. Price & Frost v. Tucker, 514. 9. Where obligations are made payable in Amsterdam in guilders, and the obligor fails to meet those obligations, the holder, who is compelled to exercise his recourse upon the obligor in this State, is entitled to recover the value of guilders in our money. Albert & Quertier v. Citizens' Bank of New Orleans, 720. OFFENCES & QUASI-OFFENCES. 4. It is not necessary that the time during which alimony should be paid for the support of a natural child should be stated in the judgment allowing the alimony. The time is fixed by law. C. C. 260. Ib. PARTITION. 1. The proceedings to effect a partition are not evidence against a married woman who was absent, and not a party to those proceedings. Fuselier v. Fuselier, 132. 2. Partitions between minors to be valid must be made in conformity to the order of court, and in the manner advised by the family meeting. Succession of Story, 208. 3. The heir who purchases property at a succession sale, has a right to keep it as a portion of the share coming to that heir; and it is legal in effecting a subsequent partition, to form a lot for that heir in which the indebtedness is included. C. C. 1265. lb. 4. In effecting partitions the law forbids the cantling of tenements, where it can be avoided. C. C. 1287. Ib. 5. There is no exception to the rule, OPPOSITION OF THIRD PERSONS. that in effecting a partition where there are See PRACTICE. PARAPHERNAL PROPERTY. See HUSBAND AND WIFE. PARENT AND CHILD. 1. Evidence of the acknowledgment of the mother is admissible to establish the filiation of the child; and the declarations of the mother, in relation to the maternity of the child, made at a time not suspicious, are admissible in evidence to prove the filiO' Blennis ation of the child. C. C. 214. v. Corri, 101. 2. Suits of children against parents are not to be encouraged, unless to redress clear and palpable injustice. There are services which parents render to their children, and which it is presumed they perform, until tho contrary appears, that money cannot repay. Filial duty should restrain the child from exposing the faults of its parents, or worrying them with litigation, unless com more than one minor interested, and all represented by the same tutor, a special tutor must be appointed for each minor. C. C. 1291. Ib. 6. A judge in ordering a partition, before referring the parties to a notary, should regulate it in the manner which shall appear to him most convenient and most advantageous to the interests of the co-heirs. C. C. 1259. lb. 7. The rule to be deduced, from the conflicting articles of the code for conducting partitions, is, that the lots should be drawn, so far as it is practicable, without depriving any of the heirs of their legal rights, or affecting injuriously the value of the property. Succession of Story, 209. 8. In all judicial partitions, the fact that the property cannot be divided in kind, must be made to appear by a report of experts. But a sale made under a consent decree has not the effect of a judicial partition, and does not affect the rights of mortgage creditors. Le Carpentier v. Le Carpentier, 497. 9. Where lands have been held in common, the action for partition is barred only by thirty years prescription. Davis et al. v. Wilcoxen, 583. |