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Opinion of the Court.

of the company to pay the consideration of $25,000 absolutely and unconditionally. The collateral agreement of July 31, 1879, by which the individual corporators were not to be personally responsible for the consideration, would thus be rendered nugatory, as it was only intended to have effect in the event of the organization of the corporation.

Upon this state of facts, if proven to their satisfaction, the jury would have been warranted in finding a verdict for the plaintiff. It was error, therefore, in the Circuit Court to direct a verdict for the defendants. For this error its

Judgment is reversed, and the cause is remanded with directions to grant a new trial.

NORTON v. HOOD.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Argued December 14, 1887. - Decided January 9, 1888.

In a suit i equity by an assignee in bankruptcy to set aside transfers of land by the bankrupt, alleged to have been made in fraud of his cred-. itors, this court held that the allegations of the bill were not established.

BILL IN EQUITY. The complainant appealed from the final decree. The case is stated in the opinion of the court.

Mr. J. D. Rouse and Mr. E. H. Farrar for appellant submitted on their brief.

Mr. John A. Campbell for the executors of Frellsen, one of the appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 15th of February, 1862, Govy Hood, a planten residing in the parish of Carroll, in the State of Louisiana, made his seven promissory notes, payable to the order of the mer

Opinion of the Court.

cantile firm of Frellsen & Stevenson, of New Orleans, composed of Henry Frellsen and John A. Stevenson, for the aggregate amount of $39,019.49, all the notes bearing interest at the rate of 8 per cent per annum from their maturity respectively until paid, and being for the following several amounts and due at the following dates: October 15, 1862, $5273.33; November 3, 1862, $5291.11; November 17, 1862, $5307.88; December 3, 1862, $5327.77; December 13, 1862, $5338.89; December 20, 1862, $5346.66; and January 10, 1863, $7133.85.

The firm of Frellsen & Stevenson was dissolved in December, 1865, and the seven notes became the property of Frellsen. On the 2d of April, 1866, Frellsen commenced a suit in the Thirteenth Judicial District Court of the State of Louisiana, in and for the parish of Carroll, against Hood, to recover the amount of the seven notes, with interest, and the further sum of $300, with interest from March 24, 1862, alleged to be the amount of premiums paid on the insurance of Hood's ginhouse and machinery. A judgment was entered in the suit, in favor of Frellsen, on the 2d of April, 1866, founded upon a confession dated February 13, 1866, signed by Hood and accompanying the petition, in the following words: "I accept service of this petition and waive citation, and agree to confess judgment for the amount as above set forth, say, the sum of thirty-nine thousand three hundred and nineteen dollars and forty-nine cents, and interest and cost, as prayed for, with the understanding that no execution is to issue on said judgment for one year from this date, when, if I pay $3000 upon said judgment, there shall be a further stay of execution for one year more; when, if I pay one-fourth of the whole amount of the balance of said judgment, there is to be a stay of execution for one year more; when, if I pay one-third of the balance, there is to be a further stay of execution for one year more; when, if I pay one-half the balance, there is to be a further stay of execution for one year more; when execution may issue for the balance, it being understood that execution is not to be stayed if I fail to make any of said payments punctually."

Opinion of the Court.

The judgment was in the following terms: "It is ordered, adjudged, and decreed, that the said plaintiff recover of the said defendant the sum of thirty-nine thousand three hundred and nineteen dollars and forty-nine cents, with interest at the rate of 8 per cent per annum on $5273.33 of said amount from 15 October, 1862; and same interest on $5291.11 from 3 November, 1862; and the same interest on $5307.88 from 17 November, 1862; and same rate of interest on $5327.77 from 3 December, 1862; and the same interest on $5338.89 from 13 December, 1862; and the same interest on $5346.66 from 20 December, 1862; and the same interest on $7133.85 from 10th day of January, 1863, until paid, and all costs; and that there be a stay of execution on the judgment until the 13th February, 1867; when, if the said Hood pays upon the judgment $3000, there shall be a further stay of execution until the 13th of February, 1868; when, if the said Hood punctually pays one-fourth of the amount of the judgment then due, there shall be a further stay of execution thereon to the 13th of February, 1869, when if the said Hood punctually pays one-third the balance then due, there shall be a further stay of execution thereon to the 13th of February, 1870; when, if the said Hood punctually pays one-half the balance then due, there shall be a further stay of execution until the 13 February, 1871; when execution may issue for the balance; and it is further ordered, by consent of parties, that, upon failure of said Hood to punctually pay any of the instalments as stated, execution may issue for the whole amount of the judgment, or the balance then unpaid."

Hood having made default in complying with the terms of the judgment, a fi. fa. was issued by the court to the sheriff of the parish, on the 22d of July, 1868, to collect the full amount of the judgment, with interest until paid, "by seizure and sale of the property, real and personal, rights and credits, of Govy Hood, in the manner prescribed by law." On the 23d of July, 1868, Hood signed the following endorsement upon the fi. fa.: "I accept service of notice of seizure, after pointing out to the sheriff the lands described on the reverse hereof, in this case."

Opinion of the Court.

On the 5th of September, 1868, the sheriff made a return to the fi. fa., setting forth that he had received it on the 22d of July, 1868, and had, on the 23d of July, 1868, seized three plantations situated in the parish, and pointed out by the defendant, namely, (1) the Black Bayou Place, of 840 acres, (2) the Home Place, of 1500 acres, and (3) the undivided half of the plantation known as the Hood and Wilson Place, containing in the aggregate 700 acres; that notice of the seizure had been waived by Hood on the 23d of July, 1868; that, on the 25th of July, 1868, the sheriff advertised the property in a weekly newspaper named, published in the parish, to be sold on the 5th of September, 1868, for cash; and that he had sold the property on that day, at public auction, to Frellsen, for the sum of $24,210, that being two-thirds of the appraised value of the lands. On the 5th of September, 1868, the sheriff executed a deed, selling and adjudicating to Frellsen all the right, title, interest, and claim which Hood had to said property.

On the 23d of November, 1868, a second fi. fa. was issued by the court for the collection of the amount of the judgment, with interest, subject to a credit of $24,210. On the same day, Hood signed a waiver of notice of seizure and advertisement, except by posting in three public places from that date, and a consent that the property seized might be sold on the 5th of December, 1868. To this second fi. fa. the sheriff made return that he had received the writ on the 23d of November, 1868, and on the same day had seized certain described land, containing in all 1992.75 acres, and had, on the same day, advertised it to be sold on the 5th of December, 1868, by posting advertisement in three public places in the parish, and had, on the 5th of December, 1868, sold it, at public auction, to Frellsen, for $664.27, and credited that amount on the execution.

After receiving the deed of September 5, 1868, Frellsen entered into an agreement for the sale of his judgment and mortgage rights to persons named Dean and Pearce; but the transaction fell through, resulting in a suit brought by Dean and Pearce against Frellsen, which ultimately terminated in favor of Frellsen, and is reported as Dean v. Frellsen, 23 La. Ann. 513. After the agreement of Frellsen with Dean and

Opinion of the Court.

Pearce fell through, a written contract was made between Frellsen and Hood, on the 26th of October, 1868, in the following terms:

"It has been agreed between Henry Frellsen, of the city of New Orleans, and Govy Hood, of the parish of Carroll, Louisiana, as follows:

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"Whereas the said Frellsen did, on the 5th September last, purchase at sheriff's sale, under an execution issued upon a judgment obtained by him in the District Court of said parish against the said Hood for the sum of thirty-nine thousand three hundred and nineteen 4 dollars, with interest as stated therein, certain property belonging to said Hood, consisting of lands and plantations, as follows: The plantation on Lake Providence occupied by said Hood, known as the Home Place, and the plantation on said Lake Providence, known as the Black Bayou Place, and also the undivided half of the plantation known as the Hood & Wilson Place, and certain lots and lands adjoining, all which are described in the act of sale made by the sheriff of Carroll to said Frellsen and of record;

"And whereas the said Frellsen does not desire to speculate on the said Hood, or to take any advantage of him or his family, or to do more than to secure the balance due him on his said judgment, after crediting the same with the amount of the sale of the property on said lake, known as the Wilson Place, and sold under a mortgage and judgment held by said Frellsen against Geo. G. Wilson ;

"Now, the said Frellsen hereby stipulates and promises as follows: That he will sell and transfer the above named property to the said Hood, or to his assigns, without any warranty, however, of any nature, as to the title to said property or the encumbrances upon it, of all which said Hood is fully informed, upon condition that said Hood, or his assigns, as the case may be, punctually pay said Frellsen the balance due upon his said judgment, less the credit above stated, as follows: Seven thousand dollars on or before the 15th day of December next, and eight thousand dollars annually from that date for four years, and the balance at the end of five years from the 15th December next, and also all costs and expenses attending said sheriff's

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