Lecompte v. United States. 11 H.

D'Artigau of any thing. La Cours understood that Madame Lecompte obtained the land (what land is not shown) in exchange with D'Artigau, and even Prud'homme can say no more than that D'Artigau had a large concession, including the Prairie Lianacoco, and exchanged it with Madame Lecompte for the Tancock Prairie. Limits, specific quantity, certain descriptions, such as might constitute severance from the royal domain, are then wholly out of the question, so far as these or any of these requisites can be deduced from possession by D'Artigau; for he never had possession, and could, therefore, transfer no right resulting from possession to Madame Lecompte, or to any other person. We have already considered how far such a severance could be deduced from the order of the commandant at Nacogdoches.

In the next place, with regard to the possession of Madame Lecompte, or of those claiming under her, relied on as the foundation of title, it will be seen that this evidence is utterly inadequate to any of the purposes for which it is adduced. The utmost that any witness has been able to state on this point is a possession of the Prairie Lianacoco, forming, as is admitted on all sides, but a small portion of the claim insisted upon, and hence, not forming a description,

either as to quantity, locality, or limits, to direct in ascer[130] taining that claim. And even with respect to this prairie

itself, there is nothing to show its position, extent, or limits, or the actual occupation of the whole or of any specific part of it by the ancestor of the appellant. Upon this subject the record is singularly barren. The only fact we can gather from it, as indicating the extent of the occupation, is one which seems strongly to militate against a right coextensive even with this fragment of the entire claim. The fact here alluded to is the averment in the petition, that there is a single individual residing upon some portion of the land, who holds under the petitioner; but on what portion, or by what metes and bounds, whether within or without the limits of the Prairie Lianacoco, is left wholly to conjecture.

Upon the whole, therefore, we are of the opinion, that neither upon the isolated order issued on the 31st of July, 1797, by the commandant at Nacogdoches, nor by virtue of any fact or testimony adduced for the purpose of showing a right to the land claimed as resulting from occupation, settlement, or cultivation, or from any act of the commissioners, or any law of the United States founded thereupon, has the claim of the appellant been sustained. We therefore adjudge that the decree of the district court of the United States for the district of Louisiana, dismissing the petition of the appellant, be and the same is hereby affirmed.

17 H. 542; 2 B. 17.

McCoy v. Rhodes. 11 H.

JAMES MCCOY, Appellant, v. ZACHARIAH RHODES and his Wife, LUMINDA MONTGOMERY.

11 H. 131.

An answer, which admits the fact charged in a bill, that land was entered in the name of the respondent, but alleges it was paid for with the money of a third person, is not evidence of this last-named fact.

In Louisiana, a notarial act concerning immovable property, has no effect on the rights of third persons, until recorded in the proper office.

APPEAL from the circuit court of the United States for the district of Louisiana. The material facts appear in the opinion of the court

Butterworth, for the appellant.

No counsel contrà.

[ * 139 ]

* CATRON, J., delivered the opinion of the court. Mc Coy recovered a judgment against Rhodes, in a state court of Louisiana, for the sum of $1,546, on the 24th of February, 1840; and on the 7th of March following this judgment was recorded in the mortgage office of Concordia parish. The bill seeks to subject certain lands in the possession of Rhodes to satisfy the judgment. Three of the tracts were entered as United States lands, in the name of Eli Montgomery, but which the bill alleges were the property of Rhodes, and covered by Montgomery's title to prevent Rhodes's creditors from reaching them. This is directly [140] denied by the answer, and, there being no proof to the contrary, complainant must fail as respects these three parcels. The bill also seeks to subject a fourth tract, entered by Rhodes, December 6, 1839, in his own name, and conveyed to Montgomery next day, December 7, 1839. This deed was first recorded, in the proper office of Concordia, December 10, 1841; and is for the northwest quarter of section No. 29, T. 10, R. 10 east, containing 160

*

acres.

On the 10th of December, 1841, Montgomery conveyed the four tracts to Thomas J. Ford, who afterwards, November 2, 1842, rescinded the contract of purchase, and conveyed to Luminda Montgomery Rhodes, wife of Zachariah Rhodes. Rhodes and wife are the only defendants. In regard to the northwest quarter of section No. 29, they jointly answer and say:

"True it is that this respondent, Zachariah Rhodes, did, on the 6th day of December, 1839, enter, at the land-office at Ouachita, Louisiana, the northwest quarter of section No. 29, in township No. 10 of range 10 east, and that he took a receipt for $200.25, the price thereof under the laws of the United States; but these respondents aver that

McCoy v. Rhodes. 11 H.

the entry aforesaid was made by this respondent, Rhodes, for Eli Montgomery, of the State of Mississippi; that the said Eli Montgomery did furnish the money to pay for the same, and the same was actually paid for out of the moneys so furnished by the said Montgomery; and that the conveyance of the same to the said Montgomery by this respondent, Rhodes, as set forth in the said complainant's bill, was made to complete the legal title in his, said Montgomery's name, according to the original intent of all parties, and as equity and justice required; this respondent, Z. Rhodes, having only acted as the agent of the said Montgomery, and for his use, in making said entry, and paying the said money; and not with any view to cheat, defraud, or wrong the said plaintiff, as is falsely charged in said plaintiff's bill."

Respondents admit that the entry was made in Rhodes's own name, and was, when made, primâ facie liable to be seized on execution as his property; but then, in avoidance of this admitted liability, they allege that Montgomery's money was paid into the land-office, and that this was done in fulfilment of some previous agreement between Rhodes and Montgomery, by which an equity existed in the latter to have the benefit of Rhodes's preëmption right of entry, as an actual settler.

answer.

There is no proof in the cause of the facts above set forth by the That Montgomery furnished the money paid, and that the land was entered for his use under a previous agreement [141] are facts within the peculiar knowledge of respondents they are not responsive to charges made by the bill, but set up as an independent defence. In such case the rule is, "that a discharge set up in avoidance, coupled with an admitted liability, if the answer be replied to, as here it is, must be proved by the defendant."

This is the settled rule. Hart v. Ten Eyck, 2 Johns. Ch. R. 88 ; Napier v. Elam, 6 Yerger, 112.

As the respondents cannot make evidence for themselves, and thereby establish an equity in Montgomery, it follows that the defence must fail, so far as the equity set forth is relied on. Having disposed of this part of the controversy on the pleadings and want of proof, it becomes unnecessary to examine what bearing the act of June 22, 1838, c. 119, 5 Stats. at Large, 251, has on the foregoing facts.

The next ground of defence relied on is the conveyance made by Rhodes to Montgomery, of the 7th of December, 1839. It was recorded December 10, 1841. According to the statute law of Louisiana, no notarial act concerning immovable property has effect against third persons, until the same shall have been recorded in the office of

McGill v. Armour. 11 H.

the judge of the parish where such property is situated. In relation to third persons, the act of sale not recorded is considered as void.

For an exposition of the Louisiana statute, we refer to the case of Gravier v. Baron, 4 La. R. 239, and which has been since followed by the supreme court of Louisiana. The deed from Rhodes to Montgomery being a notarial act, it took effect on the 10th of December, 1841, against McCoy, the judgment creditor; and as the lien of the judgment, or judicial mortgage, attached the 24th of February, 1840, when the title was in Rhodes, the debtor, this deed is of no force as against the judgment, nor are the subsequent deeds founded on it; and, therefore, McCoy has a right to have the northwest quarter of section No. 29 sold.

Some supposed difficulty exists on the head of jurisdiction for want of parties, Eli Montgomery not being before the court. We do not deem him a necessary party to this suit; he has no interest in the land, and no right to contest the validity of the judgment against Rhodes. And, in the next place, we are of opinion, that all necessary parties were before the circuit court according to the fortyseventh and forty-eighth rules of chancery practice published by us in 1842, as the bill alleges that Eli Montgomery permanently resided beyond the jurisdiction of the court; which was not contested by plea, nor was any objection made below against proceeding to a final decree for want of parties.

*For the reasons stated, it is ordered that the decree dis- [142] missing the bill be reversed, and that the cause be remanded to the circuit court, there to be proceeded in according to this opinion.

PENELOPE MCGILL, Plaintiff in Error, v. JOSEPHINE H. ARMOUR.

11 H. 142.

An action at law will not lie in the circuit court of the United States for Louisiana, to recover a judgment de bonis propriis against an administrator, founded on a debt of the intestate, and alleging mal-administration, or what would amount, at the common law, to a devastavit.

THE case is stated in the opinion of the court.

Butterworth, for the plaintiff.

Benjamin, contrà.

M'LEAN, J., delivered the opinion of the court.

A writ of error to the circuit court of the United States for the district of Louisiana brings before us this case.

[*151 }

McGill v. Armour. 11 H.

A suit was commenced by the plaintiff in the circuit court against the defendant, on a claim of debt amounting to the sum of $7,510, with interest, which James Armour, husband of the defendant, in his lifetime owed to the plaintiff. He died, having executed a will and made the defendant his executrix. She filed her petition in the probate court of New Orleans, and was duly authorized to act as executrix. At the decease of her husband, it is alleged, a large amount

of property came into her hands as executrix, which she used [* 152 ] for her own benefit, * and neglected to pay the debts of the estate. And it averred that a misapplication of the funds has made the defendant liable in her individual capacity, and the plaintiff prays that she may be condemned to pay the above sum, &c.

The defendant demurs to the petition, on the ground that it is not sufficient in law to charge her, for want of parties, and that the matters are only cognizable in chancery. And she answers that she has fully administered, having made a full inventory of the property of said succession, and used all proper diligence to collect the debts, and disposed of the property in obedience to the order of the court; made reports of her acts, and presented a formal tableau of distribution, which was duly approved and homologated by the probate court. That the estate proved to be insolvent, and that the defendant is a creditor, recognized as such by the proper tribunal, and is entitled to a preference, &c.

At the trial the suit was dismissed, at the plaintiff's costs.

This was a procedure at law under the forms adopted by Louisi ana, and the question is, whether it is maintainable. The plaintiff demands a judgment de bonis propriis, against the defendant, no other step having been taken, or notice given, before the commencement of the present action. At common law, an executor or administrator is not chargeable on a devastavit, until a judgment shall be obtained against him. He is bound to defend himself by legal pleading, and can have no relief in equity. If he suffer judgment by default, it is an admission of assets, and also if he file a plea in bar which he knows to be false. So if he pleads only the general issue, and has a verdict against him. If he plead plene administravit, and on this plea assets are found to be in his hands, he is liable only to the amount of such assets. 3 Bac. Abr. Executors, M.

Estates by the law of Louisiana are administered under the special orders of the probate court. By the Code of Practice, art. 984-988, no creditor is permitted to bring suit without first presenting his claim to the administrator. If the claim be admitted by the administrator in writing, it is filed among the acknowledged debts of the succession.