GODDARD'S HEIRS vs. URQUHART, 6 La. 659

Martin, J., delivered the opinion of the court. The facts of this case are as follow : John Almond died in the territory of Orleans, in 1805; leaving a daughter who lived in South Carolina, who was at first married to William Goddard, by whom she had a son Thomas F. Goddard; on the death of whose father, his mother married John Paisley. She being the sole heir of Almond, whose estate was administered by the defendant, who early in 1806 sold several slaves, part of the estate, to judge Prevost, and took his note at twelve months for the price.

Soon after Paisley came to Louisiana, and the defendant rendered him an account, which was examined and approved by the court, which ordered him to pay the balance and surrender all the notes and papers of Almond’s estate to Paisley. This being done the defendant was discharged from the administration and his bond cancelled. During the summer of the following year, the defendant by notarial act raised the mortgage he had taken on the slaves sold to Prevost, and acknowledged the receipt of the consideration of the sale as executor of Almond.

Paisley and his wife died soon after the discharge of the defendant, in the summer and fall of 1806. In 1830 Thomas F. Goddard, Mrs. Paisley’s only son by her first husband, and the grandson of Almond, brought the present suit for the recovery of five thousand and ten dollars, the J price of the slaves sold to Prevost. The defendant pleaded the general issue; and that he had long ago paid over all the monies and effects he had f . received on account of Almond’s estate; and finally opposed the plea of prescription.

The first jury could not agree on a verdict: a second found for the defendant.- An unsuccessful effort was made to set aside the verdict, but the District Court declaring itself satisfied with it, gave judgment accordingly. Thomas F. Goddard died pendente lite; his heirs came in and are the appellants from the judgment.

Their counsel has contended that it is clearly proved that the defendant received the money claimed, that there is not a tittle of evidence that he paid it, and it is in proof that the appellants are entitled, mediately through their deceased father, to the estate of Almond, their great grand-father: that the original plaintiff was born in 1794, and became of age in the month of November,4815, so that at the inception of this suit prescription did not bar the claim, and the action thereon: the promulgation of the Louisiana Code in the spring of 1825, having established the period of twenty years for the prescription of his claim as he resided oat of the state, and the code having abrogated all prescriptions not mentioned in the code itself.

On the part of the defendant and appellee it has been contended’, that this action is prescribed; that by the law of the 3d Partidas, tit. 29, L 22, thirty years is the period, the lapse of which operates the prescription of debts, but this was altered by the Ordenamiento Real, 3, 13, 3, promulgated in 1386; thirty years after the Partidas; and that all debts are by this last law declared to be prescribed by the lapse of ten years.

The 63d law of Toro, however, changed the period as to debts resulting from instruments importing a confession of judgment, leaving the period of ten years that of prescription as to the right of suing out execution in the via esoecutivia, and extending the period for bringing the personal action in the via ordinaria to twenty years, S/c. Gomez, in his commentary on the 63d law of Toro, expressly states that it does not repeal the law of the Ordenamiento Real, with regard to debts resulting from chirographery or private writings, which he says are still prescribed by the lapse of ten years.

When the 63d law of Toro was placed in the Recopilación, a clause was inserted that the period -of twenty years, is that of the prescription, notwithstanding the law of the Ordenamiento Real; a clause which the counsel considers as indicative of the opinion of the sovereign, that the law of the Ordenamiento Real, afforded the legitimate rule of decision in all cases before the law of Toro-, and that it is repealed in those cases only, in which the law of Toro operates, i. e. in cases of debts resulting from an instrument-importing a confession of judgment.

The counsel has contended further, that the notarial act by which the defendant raised the mortgage on the slaves is not as to the parties to the present suit, an instrument importing a confession of judgment; that it is res inter alios acta; that it proves merely rem ipsam, i. e. that the defendant-made the acknowledgment which the act contains, and may be used to establish that fact, hut the plaintiff’s must show, aliunde, evidence of their right to the money.

It has been further urged that although the full period had not elapsed for the acquisition of prescription, a few months more being wanting, the code has not deprived the defendant of the faculty of adding the time which had elapsed before its promulgation to that which has run since; reckoning each period according to the law in force at the time it ran; that when a new law alters the period of prescription, whether it makes it shorter or longer the time which elapsed before the change, is to be reckoned according to the former law and vice versa.

Such appears to have been the practice under a decision of the Court of Cassation in France. Merlin’s Repertoire de Jurisprudence, Verbo, prescription. Sec. 1, sec. 3. The counsel has concluded that if the prescription was not completely acquired, the defendant might urge the long time which has elapsed between the time at which the debt, if ever existed, arose, and the demand; upwards of twenty odd years, as a presumption so violent that it may be considered as full proof that the debt never existed, or that it has been satisfied.

«on Spanish law, of debts on simple contracts resultgilphory or'pi-ivato instruraen: of writing is ten vato instrument years.

The Oivil Code O^486^wiitcii'prolions aee tu“y yrara, doel not repeal the previous praMnS’Sn™ contrae™ &””aftor a lapse of ten years. sSiíoolf °th¡ peraonaPitl°“ctions denccd by chiroinents, is tweuty years against out™™tUeMst»teS where the law is changed aster prescription begins to run, the time which clapsccl under tlio law preceding the alteration is to be preceding the aitag’to’ftaríaw^ ■“Slows "is tobo ing to the new law; and the timo acquired under acquired 'undoí tile “proportion ws to”the term oidandnewiaws! sonta ’action' hi ecription” unto istenyears] mid iuwi"g expired, and only five wanting, at the promulgafj S’g?a tIJpresoñTi'Ttions^ís aEitfes agamto IwU «uuNta months is rcquirthe prescription.

It has appeared to us that duty does not require from this court the reversal of the judgment appealed from. The -,,, . _ , counsel has shown that the prescription under the Spanish x x a ^aw’ debts on simple contract under private signature was years • and we cannot adopt the proposition of the counsel of the appellant that the Civil Code of 1808, art. 65, P* 486, restored the prescription of all debts to the original standard fixed by the Partidas, viz: thirty years. That

article shows indeed that that number of years is the longissimum tempus, after which all actions real and personal are prescribed; but it does not repeal prescriptions theretofore existing, although attached to a shorter length of time. it . - Under our present code the prescription which the defendant may avail himself, is that of twenty years. We believe we give a sound construction to our Code, in adopting the opinion of the Court of Cassation in France, which determines that in all cases in which the

article 2281 fbe Napoleon Code was not applicable, the time which preceded the change of legislation or altering the period of . prescription, should be reckoned according to the ancient A x iaw, and that which followed according to the new law. jn ¿{yjg manner, nine years and seven months having elapsed between the date of the act by which the defendant raised the mortgage on the slaves, and the promulgation of the Louisiana Code; and ten years being theretofore the _ p . . period of prescription, five months were required to com-ple*e the prescription; and as under the Louisiana Code, the plaintiff residing out of the state, the period of prescription is twenty years i. e., double what it was before, the plaintiff in the present case was bound by the lapse of ten months after the promulgation of the Louisiana Code, On the merits it appears that the jury might well infer from the great length of time, to which the demand was protracted, that the debt never existed or was paid.

The testimony in a certain degree, leads the mind to the first alternative. The note of the purchaser of the slaves, had been surrendered by the defendant. From the testimony it may be inferred he did not receive the amount. His signature was wanted to raise the mortgage, and the & & acknowledgment that he received the money, may have ° j j j been inserted in a clause of style.

All this raises a suspicion that the claim did not exist; and the improbability of its having existed for nearly the quarter of a century, forms in favor of a defendant of an irreproachable character, ever able to pay every fair claim against him, animo opibusaue ° 1 2 paratus, a very strong presumption which was entitled to great with the In an action on a notarial iustrument, executed by the defendant to a third party to raise a mortgage when he had surrendered up tiie debt for which the mortgage was given, but in which he aclcnowlegcs the receipt of the money; after a lapse ef twenty-three years before suit, a jury may well infer from this great length of time, corroborated by circumstantial proof that the debt never existed, or has been paid, and their verdict for the defendant will not be disturbed.

It is, therefore, ordered, adjudged and decreed, that judgment of the District Court, be affirmed with costs. t tll6