BRADFORD'S HEIRS vs. CLARK, 7 La. 147

Bullard, J., delivered the opinion of the court. The plaintiffs allege, that they are the heirs at law, of Nathan Bradford, deceased, who was at the time of his death, the owner of a slave named Wilson, worth seven hundred dollars. They further allege, that after the decease of their ancestor, the said slave came illegally into the possession of the defendant; that the defendant has a bill of sale for the slave, but that the same was given without consideration, or for less than one-half the value of the slave, and that it is

an act under private signature, and has never been recorded. It is further alleged, that after the death oí Bradford, the defendant agreed verbally, to give seven hundred dollars for the slave, by obtaining a credit for three hundred dollars, which he claimed as a debt due him by the estate, and for the balance of four hundred dollars, by conveying to tbe heirs, a negro woman of that value. They pray judgment for the slave and his services, and for general relief.

In an action of revendication for the recovery of a slave, by tlie lieirs, as iorming a part of the succession of their ancestor, against the defendant who holds the slave by written title from said ancestor, executed in his life-time, parol evidence is inadmissible to prove that the defendant directed the slave in (question to he inventoried as part of said succession, in order to make out plaintiffs’ title. Where parole evidence is offered with a view to defeat the defendant’s written title to a slave, it should be rejected as inadmissible.

There is no distinction as to the parties to them, between public and private acts not recorded, in relation to the title to slaves. Between the parties to a contract,

an act under private signature has the same force as a notarial act. They differ as to the mode of proof. An action of rescission for lesion, beyond moiety, does not nt sale of slaves. The defendant pleaded title in himself, and prescription. Tbe cause was submitted to a jury, whose verdict was in favor of the plaintiffs, and a judgment being rendered thereon, the defendant, after an unsuccessful motion for a new trial, appealed. The case comes before us, on a statement of facts, and several bills of exception.

One of the bills of exception, upon which the defendant’s counsel relies, was taken to the admission of parole evidence, to prove that the defendant directed the slave in question, to be put down on the inventory of the estate of Bradford, as forming a part of the property of the succession. The court allowed the evidence to go to the jury, notwithstanding the objection. We are of opinion that the court erred, and that the evidence was inadmissible. . The evidence goes to defeat the title of tbe defendant, and to vest the property in the estate.

Parole evidence of title in slaves, is expressly excluded by the Code, except perhaps in certain cases, of which this is clearly not one. A second bill of exceptions was taken, to the instruction of the court to the jury. The defendant’s counsel asked the court to charge the jury that in an action of revendication, where the defendant sets up a written title, from the ancestor of the plaintiffs, whether under private signature or by authentic act, the sale must he set aside, by direct action of nullity, and that it is not competent under the pleadings in this suit, to attack it as fraudulent or simulated.

And that such action between the parties or their heirs, is prescribed by one year. But the court instructed the jury, that there was a distinction between public and private acts not recorded; that in cases 0f public acts, they must be attacked by the direct action of nullity, for fraud or simulation, but that private acts could be attacked for fraud in the present form of action. We are unable to perceive the force of this distinction, or its application to the case now before the court. Between the parties to a contract,

an act under private signature, has the same force as a notarial act; they differ only as to the mode _ . . . , 7 1 ox proof. 1 he petitioners admit the existence of the sale, but ahege tliEtt it was made without any consideration, or for less than half the value of the property. The deed shows . , : , ,, ,.77 7 the price to be seven hundred dollars, which the vendor ac^Q0Wlec%es; had been paid. The petition does not allege fraud, and an action of rescission for lesion beyond moiety, <joes not ]je jn reiatjon to the sale of slaves.

Civil Code, p, 366, art. 114. and^símdaüon or lesion are not alleged, a juclgment disregard-ofSaa síaveenwiii be declared erroneous and be annulled and re- tbe prayer for general relief; ivhen shows an agreement of the defendant to pay a Unbalance of the price of a slave, the court will consider it-to give effect to and terminate the controversy tiesT^aithough askedforin the petition. 1 he record furnishes us with no evidence of fraud or simulation, and the judgment, disregarding the written title 0f the defendant, is in our opinion erroneous. r The subsequent agreement of the defendant, to pay four hundred dollars, as set up by the plaintiffs in their petition, *s Proved hy evidence admitted without objection.

This amounts at least to an acknowledgment on his part, that a part of the original purchase money, is still due to the plaintiffs, and which the defendant avowed his willingness to pay. The evidence shows, that about thirty dollars of that balance was paid. Under the prayer for general relief, we think ourselves authorised, to give effect to this agreement, and to terminate the controversy between the parties.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; and proceeding to render such judgment, askin' our opinion ought to have been given below, it is further ordered and decreed, that the defendant be quieted in his title to the slave Wilson, and that the plaintiffs recover of the defendant, the sum of three hundred and seventy dollars, with costs in the District Court, the costs of the appeal to be paid by the plaintiffs and appellees.