ERWIN ET ALS. vs. ORILLION, 6 La. 205

Mathews, J., delivered the opinion of the court. It is moved on the part of the appellee, to dismiss this appeal, on the grounds that there is no statement of facts, or any thing equivalent, and that an assignment of errors of law, apparent on the record, was not made and filed in due time. An assignment of errors was not made in the manner directed by the Code of Practice, see art. 897; for none was filed within the time limited by that article. Consequently, if there be no statement of facts, nor certificate of the judge or clerk of the court below, as required by law, the appeal should be dismissed.

In the present instance, a statement of facts, properly so called, is out of the question; it is not pretended that any was made, in either of the modes prescribed, and the record contains no certificate of the judge a quo, in relation to the facts of the case, in pursuance of the 586th

article of the Code of Practice. This

article seems to require a certificate of the judge, when the testimony produced in a cause has been taken in writing, declaring that the record contains all the evidence adduced by the parties. But the

article 896, (by implication) gives power and authority to the clerk of the lower court, to certify the record as containing all the testimony adduced. The ai tide immediately preceeding, (very properly) denies to the Supreme Court the exercise of its jurisdiction, except so far as it may have knowledge of the matters argued or contested below.

The object of an appeal being to correct the errors of the inferior tribunals, both in relation to the law and facts of a case, an attempt by the appellate court, to reverse the judgment rendered in the first instance, by an examination of the entire cause, without a moral certainty that all the matters contested upon were before it, would be vain and absurd.

It seems, therefore, to have been the intention of the legislature, in the various acts passed, relative to the manner of bringing appeals, to facilitate them as far as might be consistent with the certainty of all the matters in litigation, being fairly and fully exhibited to the Supreme Court. The laws passed on this subject have been somewhat multifarious, (and as is too apt to the case, without great precaution on the part of the legislature, when many laws are enacted, touching the same subject matter) they have the appearance in some degree, of confusion and contradiction.

At the organization of the Supreme Court, by the act of 1813, it is believed that only one mode was pointed out for bringing a cause fully before the appellate tribunal, which was by a statement of facts, made out by the parties, and in the event of their disagreement by the judge of the lower court. By a subsequent act, either party might require the testimony adduced to be taken in writing, to serve as a statement of facts on the appeal. Their was also another law, authorising the judge to certify the record, as containing all the facts when the entire evidence consisted of written documents.

Thus the law on this subject stood, until the adoption of the Code of Practice, and in it many of the former rules have been retained. The decision of the present case, depends, however, mainly on an

interpretation of the various articles of this Code, which treat of the manner of bringing up appeals, particularly those relating to the direct modes in which the faults of a cause are to be made known to the appellate court. There is an apparent discrepancy between the articles 586 and 896. The former seems to require a certificate of the judge to verify the record as containing all the evidence adduced in a suit, whilst the latter impliedly gives the same force and effect to a certificate of the clerk. These laws are to operate in pari materia-, and according to one of the rules of

interpretation, effect must be given to both, unless palpable absurdity would result from such

interpretation, or the laws themselves be positively contradictory, in which event the first would be abrogated by the last, according to the maxim that Leges posteriores priores contrarias abrogante But in the present instance, these articles of the code are not absolutely contradictory in their provisions, nor would any gross absurdity be the consequence of considering them both in force; t° give full effect to both, seems to us to be in accordance with the intention of the legislature, to'facilitate the re-examination of causes in the Supreme Court, so far as may be consistent with proper certainty in transmitting the facts. articles 586 nouXioiutoiy ed so as to givo full effect to both The certificate of the cleric alone, that the record contains a copy of all the documents on file, a transcript of all the proceedings had, and all the testimony adduced,authorises the Supreme Court to examine a, case on the merits In the case now under consideration, we have the certificate of the clerk, that the record contains a copy of all the documents on file, a transcript of all the proceedings had, and all the testimony adduced, &c., which in our opinion renders it necessary for us to examine the cause on its merits.

The suit is brought by the widow and heirs of Joseph Erwin, against the defendant, to recover from him the price1 of one half of an undivided tract of land, sold by their ancestor. The widow sues as tutor for some of her children, who are stated to be minors, the other heirs appear to be ... , . , . , . fairly represented m court, and all accepted the inheritance ^lejr under the benefit of an inventory.

The plaintiffs obtained judgment in the Court below, from which the defendant appealed. it seems that the appointment tor^^oesraty where Tsucoesf by heirs “hoPme aii of full age. tion e ÓfTiáw is inadmissible, mother admYnif tatotowhfch“oM by ?Iw.ady ff-ven The answer does not deny the capacity of the plaintiffs as heirs, hut an exception is pleaded to their right to prosecute the action in its present form.

The succession having been accepted with the benefit of an inventory, the defendant contends, that it cannot be legally administered, unless by an 'administrator appointed for that purpose, in pursuance of certain provisions of the Louisiana Code, found in

chapter 4,

section 3, relating to the benefit of an inventory and the delays for deliberating. The articles which treat of the appointment of an administrator, are from 1034 to 1040 inclusive: . They seem to require the appointment of an a succession is accepted adjmhistftttoffin every case where * •- i wí%. benefit of inventory. That such an officer must be appointed' when-. tints heirs are of full age, under every cireümstance, without regard to the manner in which the inheritance js thrown on them, is most probably true.

The duties and responsibilities imposed by law on an officer of this kind, are similar to those of curators of vacant estates; so also are his powers. But in cases requiring the appointment of tutors, we are of opinion that a just

interpretation of the articles of the Code under consideration, will lead to a different result. A tutor duly appointed, or one on which the office devolves by the operation of law, represents the minors under his care in all civil acts, and has the administration of their estates. See La. Code, art. 327. Now any other

article of the Code which provides another administration for an estate to which one is already given by law, necessarily involves inconsistency, and would lead to confusion and useless expense. An

interpretation of laws producing such , conse(luences> would imply a most palpable absurdity m the ^aws themselves, or want of wisdom in the

interpretation# The apparent incompatibility between the

article 1037th of „

Article 327, of Satetodasucc”stutor hLWakeady ion, by virtue of réfeíf “to'estates which may de«end ws wards during ««¡¡r minority, under '“uaoHty ministration, coilect and sue for necessary to snch collection, debts due to the succession. when ostate is accepted, oftavlntory'and ai”e0°f ¡uu kage, 2^,°1teSoSa ministration of un2 debts dueto°thé heirs of mi age and the tutor of the minor heir* should concur. the Code and that last cited, we think admits of reconciliation in a way to give effect to both. The

article last cited t n i _ provides, that “ if all the beneficiary heirs be minors, then tutors or curators can claim the preference- for the administration,” &c. This provision of law certainly does not relate to a succession of which a tutor has already the administration, by virtue of his tutorship. It must therefore.have reference to estates which may descend to his hands during their minority, and ought not to be considered as having any influence on an estate, the administration of which is imposed i on him in the legal exercise of his functions as tutor, and 0 1 such administration he has and must exercise in pursuance of the provisions of the

article 327. His right under author ity of general administration to collect and sue for, if necessary, to such collection, debts due to the succession cannotif ^ be fairly questioned.

A case like the present, when-part of be of full age, and part minors, presand seems not to be provided for by laV. and seems not to be provided for by laV. ' 1 An estate accepted under the benl;(JlA^ allnlrveiitoAy, should be administered as an entire thipg for ihfi of creditors and heirs, until partition batoHÍcre. ^No 'oyvepf the heirs who may have attained the ag^&fissto|6myj nor indeed the whole of them, in their capacity of heirs, have a right to the administration of a succession, without authority derived from competent power; and where they are united with co-heirs who are minors, and consequently under the protection of a tutor, it appears to us to be the most reasonable and beneficial course that could be adopted, to leave a succession thus situated to the administration of the tutor until partition.

But as the heirs of age are not represented by the tutor in the event of suits to recover debts due to the succession, they should concur in the prosecution of such suits, as has been done m the present case. The evidence fully establishes the claim of the plaintiff, and there is no evidence on the record to show that the defendant is m danger 01 eviction irom the land by him , , p -1. . 1 . , . . purchased, or ox disturbance m his possession. where a mortfpm the mid ivacertain etraot°f of ■quent “partition does not alter the nature and effect of mortgage.

The evidence of the case shows, that the ancestor of the plaintiffs sold the remaining undivided half of the tract of land to Lewis Rosamond Orillion, who thereby became a tenant in common with the defendant of the whole tract; and that the two purchasers holding in this manner, made a partition, by which a specific portion was assigned to the first purchaser, &c. The court below decreed the mortgage reserved on the undivided half sold to the defendant, to bear entirely and exclusively on the portion which had been specifically allotted to him by the partition between the joint tenants.

The mortgage was reserved on an undivided half of the whole tract, and could in this manner alone have been enforced had no change taken place on the tenure of the defendant.

The change in this respect, which results from partition above stated, cannot, in our opinion, alter the nature and effects of the contract of mortgage; it affects an undivided moiety; but as the defendant transferred by partition the half of his undivided portion to his co-tenant; as x , _ in i to this part of the tract the latter must be considered as a third person, and in order to enforce the mortgage on it, pursuit should be made as required by law in such cases. We think the court below erred in this part of its judgment.

The judgment was rendered for two much; no credit having been given for one thousand dollars paid to Mrs. Erwin, one of the defendants; but as a remittitur was entered for this amount by them, the error might be considered as cured, and would not alone require the judgment to he reversed. The error, however, in relation to the decree of seizure under the mortgage must be corrected. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled.

And it is further ordered, adjudged and decreed, that the plaintiffs and appellees do recover from the defendants and appellants the sum of five thousand dollars, together with interest at the rate of six per cent, per annum on one thousand dollars, from the 1st day of April, 1828; like interest on one thousand dollars from the 1st of April, 1829; same interest on one thousand dollars from the 1st of April, 1830; same interest on one thousand dollars from the 1st of April, 1831; and the same interest on one thousand dollars from the 1st of April, 1832, until the whole sum of five thousand dollars be fully paid off, &c.

And it is lurther ordered, adjudged, and decreed, that one undivided half of the lots designated as Nos. thirty-two and thirty-three and constituted an undivided half of the entire tract sold by the ancestor of the defendants, to Joseph Orillion and L. R. Orillion, and which lots are now in the possession of the defendant, be seized and sold under the mortgage reserved. Reserving the right of the plaintiff to prosecute their mortgage on one half of lots Nos. 30 and 31, in the possession of L. R. Orillion, or in the hands of any third possessor according to law.

It is further ordered, adjudged, and decreed, that the whole amount of this judgment shall be credited by one thousand dollars, tobe deducted from the aggregate of principal and interest due at the date of the receipt; say the 20th of September, 1831, and that the appellees pay the cost of this appeal.