ANDRUS ET AL. vs. CHRETIEN, 7 La. 318

Bullard J., delivered the opinion of the court. The plaintiffs sue as owners, by purchase at sheriff’s sale, of a debt, alleged to be due by the estate of Stephen Brown, and the defendant, his surety. They show that Brown purchased, at the public sale of the estate of their mother, in community with their father, a certain lot of slaves, and that Chretien became his surety for the payment of the price; that having obtained a judgment against their father, as tutor, they levied their execution on that debt, and it was adjudicated to them.

The defendant pleads, among other exceptions, not now necessary to notice, that at the time of the seizure of the debt by the plaintiffs, it was not the property of John Andrus, their debtor, but had been assigned and transferred to Luke Lesassier, who bad given, both to the defendant and the estate of Stephen Brown, a full discharge, to the knowledge of the plaintiffs themselves; that soon after the sale of the slaves to Brown, and previously to the assignment of the debt to Lesassier, John Andrus had taken back the slaves, under a verbal agreement to cancel the sale, on account of certain redhibitory defects ; and that he retained possession of them, until they were sold by the sheriff of St.

Landry, to satisfy a judgment, recovered by Lesassier in his own name, as assignee, against the vacant estate of Brown; that the judgment so recovered, was rendered by consent, upon a written agreement of Lesassier, with the curator of the estate, that the same should be used, for the sole purpose of divesting the estate of the legal title in the slaves, in pursuance of the verbal agreement, although the estate had a good defence to the action; and that the slaves were sold and bought in by Lesassier, in satisfaction of the judgment, thereby carrying into effect the original agreement, all which was done with the knowledge and consent of John Andrus.

The respondent further alleges, that all these proceedings were carried on, without any notice to him, as surety of Brown, and that thereby it is no longer in the power of John Andrus, to subrogate him in his rights and actions against Brown. He further alleges, that afterwards in 1827, Le-sassier, in pursuance of the same agreement, gave him a full and complete discharge.

He further says, that an attempt, now to make him liable for this debt, is owing to the fraudulent conduct of Lesassier and John Andrus; that Brown, and afterwards John Brownson, Esq., the curator of his estate, acted in good faith, and that all the transactions took place, in consequence of the fraudulent representations of Andrus and Lesassier, while fraud was used to deprive the estate of Brown of the legal right, to have the sale cancelled, to obtain a fraudulent title to the slaves, and of compelling the purchaser afterwards to pay the price.

He further alleges, that the plaintiffs, when they purchased the claim, had due notice of all the equitable defences in his favor. The purchases ers of a debt ox* claim at sheriff’s sale, stand in the same relation to the person who owes it, as the creditor of the latter would, or did before the sale 5. andwhatever defence would avail the original debtor against his creditor is equally valid against his vendees or purchasers.

It may be assumed as undeniable, that the plaintiffs have no greater rights than John Andrus, and that whatever defence would avail the defendant against him, is equally valid, against those who stand in his rights. We will, therefore, consider the defence, as if John Andrus was himself the plaintiff in this action. The first question which presents itself, is the validity of the final discharge, given by Lesassier to the defendant, and that depends on the question, whether by the assignment from Andrus to him, the latter was the absolute owner of the debt.

The assignment recites the purchase of the slaves by Brown, and the suretyship of Chretien, as well as the terms and conditions of the sale. It then goes on to say, that John Andrus, being indebted to L. Lesassier, in the sum of twelve hundred and fifty dollars, with interest, at the rate of ten per cent., from that date, “ now I, the said John Andrus, do assign, transfer and set over, to the said L.

Lesassier, all the debt of three thousand four hundred and sixty dollars, as aforesaid, subrogating him in all my rights therein, as well as those resulting from the mortgage aforesaid, hereby authorising the said Luke, by virtue of this assignment and transfer, to proceed and recover the said sum of money, by all legal means,” &c. “ and the said L. Lesassier, accepting this assignment and transfer, doth promise to return and pay over to said J.

Andrus, all sums of money, which may come into his hands, in virtue of this transfer, over and above the sum of twelve hundred and fifty dollars, with the interest which may thereon accrue, as aforesaid.” Where a perSon assigns and transfers a sureSteratfon a°expressed therein, subrogating lus assignee to ail authoiSng- him debt h^aii'ie^i means3- Held, given by* thecasgmardebtor°rhi pursuance of the assignment, was valid against the vendíes,1' ^even when the debt was not novated by the assignment^and never signee. it is contended on the one side, that this is an absolute .. . , , , . , , , sale, vesting in Lesassier all the rights or Andrus, and authorising him as master of the thing, to discharge it, and mVe even a gratuitous release; and on the other side, that it a 0 7 amounts only to a power of attorney; that the debt due by Andrus to Lesassier, was not novated by that assignment, an(^ that although a payment made to Lesassier, would have been a good payment, yet it is evident from the whole tenor of the act, that the intention of the parties was, that Lesass*er was bound to recover the whole debt, which lie might do jQ his own name, and to retain only the amount of the debt _ . .

ClUe to him. R seems to us clear, that the debt due by Andrus to Lesassier, was not novated by the assignment. There are 7 . * ° no words importing a novation. On the contrary, that debt wag spq t0 hear interest after the assignment. But it authorised Lesassier to prosecute in his own name, for the recovery of the debt, and we are inclined to think, that the defendants might have pleaded in compensation, a debt due by the assignee; but whether a release, purely gratuitous, would have discharged the debtors, appears to us very questionable.

This brings us to inquire, what was the real character of the two releases given by Lesassier, first to Brown’s estate, and afterwards to Chretien, and wliether considering Lesassier, as merely the attorney in fact, complied with a personal interest, those releases recite, and are based on such considerations and accompanied by such facts, as to conclude John Andrus himself ?

We cannot better illustrate our views of this part of the case, than by supposing, that John Andrus had sued Lesassier, to recover the balance of the debt, over and above the twelve hundred and fifty dollars, and we were called on to consider, how far the latter could justify himself in relation to his principal, for having executed those releases. Might he not say to his adversary, if you consider me, in relation to that matter, merely as your agent, under what circumstances was that agency created ?

At the time you authorised me to prosecute for that claim, were you not in possession of the slaves, under an agreement, verbal if you will, but still an agreement binding on you, that the sale should be rescinded? Did you not take back the slaves, with a knowledge that they were unsound, and that Brown had a valid defence ? Can it be supposed, that you intended to prosecute for the whole amount of the claim, which you admitted would be unjust ? Did you not refer Mr. Chretien to me, as charged with the whole business, asserting at the same time, that he was released ?

You either intended to deceive me, and cannot now profit by your own wrong, or to make me the instrument, by which Brown and Chretien should be defrauded, by disarming them of a just defence, and then holding them to their full responsibility, notwithstanding both your acts and mine? It is not necessary for us to say, how far such a defence would avail Lesassier in the case supposed, sustained by the evidence in this record. But we are to inquire how far a similar defence, now set up by Chretien, under the same evidence, ought to avail him. Two instruments are produced by him, signed by Lesassier as assignee.

By the first, between him and the curator of Brown’s estate, it is recited, that suit had been brought by him, for the purpose of obtaining a judgment, which would authorise him to seize and sell the slaves in question, the sale having been previously cancelled, by verbal agreement between Brown and Andrus, and he engages that the judgment shall never be used for any other purpose. In consequence of the agreement, the curator forbore to set up the legal defence, put in one merely nominal, and suffered judgment to go. In pursuance of that judgment, the slaves then in possession of John Andrus, in the parish of St.

Landry, were sold by the sheriff, and purchased by Lesassier. The second is ahelease, executed by Lesassier as assignee, in favor of the defendant Chretien, in which he declares, that having obtained the judgment above mentioned, merely to obtain a title, by which the slaves could be sold, he gives Chretien as full and complete a discharge, as if the debt had been paid. Were these releases purely gratuitous, or were they founded on considerations, which make them conclusive upon John Andrus?

The defendant as surety of Brown, having a right to plead all the exceptions of which the principal might avail himself, except those merely personal, the two agreements must be taken and considered together, in their legal effects.

It results from both of them, that as the obligation of Brown to pay, was, to say the least of it, doubtful, in consequence of the defects of the slaves Andrus had taken them back ; that in consequence of the death of Brown, in the mean time, it became impossible to cancel the sale by agreement, and that to avoid the delay and trouble of restoring them to the estate, and proceeding directly to have the sale cancelled judicially, his agent or assignee had resorted to the means above related, as a species of machinery, by which Brown’s estate should be divested of the title.

John Andrus profited by this agreement, to a certain extent; he enjoyed the labor of the slaves without interruption, from within a short time after the original sale, up to the sheriff’s sale, under the judgment; he avoided perhaps a tedious litigation, and the hazard of paying the costs and expenses of an expensive law suit, if Brown’s succession had insisted on its legal defences. But it is said this defence rests mainly on parole evidence, which was received, subject to all legal exceptions, and that it was clearly inadmissible to prove a verbal agreement, to cancel a sale of slaves.

Undoubtedly parole evidence is inadmissible, to establish or destroy title to slaves. This is a principle too well settled to admit a doubt, and if the title to the slaves in question, depended on this evidence, it would be entirely disregarded. But the question here, is not whether Brown’s estate was divested of title, by virtue of the agreement, or whether the slaves became thereby the property of Andrus.

We think the parole evidence admissible to prove, as collateral facts, that Andrus was in possession of the slaves at least; that he was in possession with the consent of Brown; that he had examined the negroes, and was convinced they were defective; that he declared to the attorney of Chretien, that he had the slaves, and that he considered Chretien discharged, and referred him to Lesassier, as charged with the whole business; that a redhibitory action, as stated by Mr.

Brownson, was about to be brought by Brown, soon after his purchase; and that he desisted from bringing the suit, in consequence of Andrus taking back the slaves, after inspecting them in company with him and his own attorney, who were convinced of the fact, that the defects did exist. Parole evidence is inadmissible to prove a Yerbal agreement to cancel a sale of slaves, or to establish or destroy title to slaves.

Parole evidence is admissible to prove collateral facts, such as that the seller took back certain slaves from the purchaser, and had them in possession with the consent of the latter in consequence of redhibitory defects and to avoid litigation.

With this view of the case, one of two conclusions seems to us inevitable, either that the intention of John Andrus and Lesassier, were fair and honest, and that the steps taken by them, either separately or together, were intended merely to divest the estate of Brown, of the legal title to the slaves, by the only means which remained, without any expectation of claiming the debt; or that the acts of both were calculated, if not designed, to deprive Brown, and consequently Chretien, of a just legal defence. More than fourteen years have elapsed since the purchase, and seven since the release given by Lesassier.

Soon after the purchase, the slaves were taken back, and were never afterwards in possession of Brown, and these acts were accompanied by the declaration, that Chretien was discharged. We think ourselves bound to adopt that hypothesis, which comports with the good faith and honor of the parties concerned, and to say, that the acts done, were in pursuance of an intention to cancel the contract, and to release the defendant, rather than that which would present them, in relation to him, as concurring in a series of acts, productive of the most gross injustice.

Believing, therefore, that John Andrus himself, would not be entitled to recover, the present plaintiffs can have no better right. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Gourt be affirmed, with costs.